Her Majesty the Queen - v. -, 2019 SKPC 32

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 32 Date: July 15, 2019 Information: 24524400 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jerry Lee Ballantyne Appearing: Kelly Kaip For the Crown Tyne Hagey For the Accused DECISION M. BEATON , J INTRODUCTION [ 1 ] Jerry Ballantyne has entered a guilty plea to a charge of committing an assault with a mace contrary to

section 267 (

a) of the Criminal Code . Prior to sentencing, the Crown applied for an assessment order pursuant to

section 752.1 of the Criminal Code , alleging that the offence of assault with a weapon was a serious personal injury offence and that

there were reasonable and probable grounds to believe that Mr. Ballantyne might be found to be a dangerous offender. On August 23, 2017, I granted the Crown’s application and ordered an assessment of Mr. Ballantyne to be completed by Dr. Todd Tomita. [ 2 ] The Crown takes the position that Mr. Ballantyne should be designated as a dangerous offender pursuant to

section 753 of the Criminal Code and sentenced to an indeterminate period of custody. Mr. Ballantyne takes the position that he should not be designated as a dangerous offender and should be sentenced to a determinate sentence as the Crown has not proven the required pattern of past behaviour by the offender. In particular, he argues the previous convictions are not linked to the predicate offence. In the alternative, Mr.

Ballantyne argues that he did not have the benefit of continuous programming during his periods of incarceration and that with the new Integrated Correctional Program Model (ICPM) programming offered by Correctional Services of Canada, his risk could be reduced so that the public would be adequately protected without the need of an indeterminate sentence. Should he be declared a dangerous offender, Mr. Ballantyne suggests that the court impose a determinate sentence and a long term supervision order. [ 3 ] The Crown presented four witnesses including Dr. Tomita.

The other three witnesses described programming available for incarcerated individuals and for individuals subject to long term supervision orders. These witnesses also testified to Mr. Ballantyne’s progress in treatment. The Crown also filed court documents relating to other convictions, Provincial Correctional Centre records, and Correctional Services of Canada records, all relating to Mr. Ballantyne. Although Mr. Ballantyne did not call viva voce evidence, he did address the Court in writing and filed a Gladue report prepared by Christine Goodwin. BACKGROUND OF MR.

BALLANTYNE [ 4 ] This information was gleaned from presentence reports, the Gladue report and from Dr. Tomita’s interview of Mr. Ballantyne. According to the Gladue report prepared by Christine Goodwin, Mr. Ballantyne’s family history shares a progression from peaceful living on the trap line to a life of alcoholism and violence. His maternal grandfather and grandmother both attended residential school. They abused alcohol and there was domestic violence associated with alcohol. [ 5 ] Mr. Ballantyne, a registered member of the Montreal Lake Cree Nation, is now 32 years old.

He was born February 1, 1987 in Prince Albert, Saskatchewan to his mother who had just turned 16 years old. Mr. Ballantyne believes that his mother abused alcohol and drugs during her pregnancy with him and afterwards. A pre-disposition report dated August 17, 2000 noted that while in the care of his mother, Mr. Ballantyne was exposed to physical neglect, domestic violence and alcohol abuse. He recalled being hungry and stealing food at a young age and being physically assaulted by his mother. As a young child, due to his mother’s instability, Mr.

Ballantyne lived with relatives and multiple foster families in either Witchekan Lake Reserve, Cumberland House Reserve or Prince Albert. However, Mr. Ballantyne often ran away to be with his mother when he was placed with alternative caregivers. Mr. Ballantyne’s mother was known to supply him with drugs and encourage his drug usage. By the time he was eight years old, Mr. Ballantyne was under the care of a psychiatrist. Although he was prescribed Ritalin, his mother and her boyfriend would sell it or use it themselves. [ 6 ] As a youth, Mr. Ballantyne exhibited aggressive, disruptive and threatening behaviours.

As his behaviours had escalated in foster home placements, he was placed in a therapeutic group home in April of 1999 and remained there until August 2000. He was removed from that therapeutic group home after being charged with uttering threats to staff and assaulting a staff member. Mr. Ballantyne was then placed in several group homes but was discharged either due to running away or for aggressive behaviour. [ 7 ] He was also enrolled in the Star Program which was an education program outside of the main stream school system. In this program, Mr.

Ballantyne was to learn life skills and anger management and program staff worked with therapeutic group home staff to ensure that consequences for Mr. Ballantyne’s behaviour were consistent. [ 8 ] By 2004, Mr. Ballantyne was serving a secure custody term at the Paul Dojack Youth Centre and was having difficulty with severe aggressive behavioural problems while incarcerated. He had a defiant attitude and demonstrated little control of his anger. A presentence report dated March 4, 2005 noted that Mr. Ballantyne was at a very high risk to reoffend. This report also noted that Mr.

Ballantyne had had difficulty complying with community-based and open custody dispositions which had resulted in further convictions for breaching court orders and escaping lawful custody. CRIMINAL HISTORY

[ 9 ] The accused’s criminal record is found in

Schedule A to this decision and it consists of approximately 77 convictions, including youth convictions. A

summary of the violent convictions are as follows: Assault (1999, Prince Albert, Youth Court) Conditional Discharge No details of this conviction were presented. Uttering Threats, Assault with a weapon (February 2001, Prince Albert, Youth Court) 45 days’ time served and probation Mr. Ballantyne, aged 13, had been uncooperative with group home staff, had lit small pieces of paper on fire in his room and dismantled the smoke alarm. He then punched a punching bag without gloves until his knuckles bled. When stopped by staff, he threatened to punch her and then began swinging an iron bar in a threatening manner.

He stated that he knew where the staff member lived and that he was going to kill her family. Mr. Ballantyne had been placed at this therapeutic home due to defiant, difficult, and destructive behaviour although he had stabilized somewhat. Assault with a weapon, Uttering threats (November 2001, Prince Albert, Youth Court) 24 days secure custody and 8 months open custody Mr. Ballantyne, aged 14, became angry when another resident in the group home disclosed that drugs had been brought into the group home for Mr. Ballantyne to share with another resident. When Mr.

Ballantyne was stopped from leaving the group home, he concealed a piece of metal in his fist and began swinging his fist at one of the workers. His youth worker noted that Mr. Ballantyne had previously participated in an anger management program but had run from his residence before finishing the program. He had also missed three scheduled appointments for a drug and alcohol assessment prior to running. Robbery (November 2003, Regina, Youth Court) 8 months custody and 4 months community supervision On October 30, 2003, the victim was walking down an alley in downtown Regina with Mr. Ballantyne, aged 16. Mr.

Ballantyne, pulled out a knife, held it first to the victim’s stomach and chest and demanded money. The victim attempted to run, but was tripped by Mr. Ballantyne. The victim gave Mr. Ballantyne the money, ran into the Cornwall Centre and contacted security. Mr. Ballantyne was in Regina as he had been placed at a Ranch Ehrlo Group Home September 2002. Although Mr. Ballantyne had first displayed verbal and physical aggression, manipulation and minimization when placed at the Ranch home, he was provided with a high level of support and guidance and he began to stabilize in the program.

Robbery, Robbery (firearm), Assault of Peace Officer (May 2004, Regina, Youth Court) 6 months custody and 2 month community supervision consecutive to any other sentence On October 21, 2003, Mr. Ballantyne, age 16 and a co-accused, who was armed with a small steak knife, entered a 7-11 store, demanded, and obtained money from the clerk. The next day, Mr. Ballantyne and a male co-accused entered a Mac’s Convenience store. The co-accused walked behind the counter, held a knife to the side of the clerk’s neck and demanded “all your stuff”. The clerk gave him the money from the till. Mr.

Ballantyne, holding an air-soft handgun, approached the rear of the counter, asked for, and obtained cigarettes. Mr. Ballantyne had been sentenced on his previous convictions and was serving secure custody when he was sentenced for these robberies. While serving his previous sentence, he assaulted a staff member of the Paul Dojack youth centre by pushing him and punching him in the head. A progress report filed with the court noted that Mr. Ballantyne had demonstrated little control of his anger and that he had a defiant attitude towards staff at the centre.

Attempt Robbery (May 2005, Prince Albert) 18 months incarceration consecutive to any

sentence being served (a terminated youth deferred custody order) and 18 months’ probation While being subject to a six month youth deferred custody order, Mr. Ballantyne, age 18, attended a restaurant in an intoxicated state and demanded liquor. When a staff member refused to give him liquor, he “came at her as if trying to grab or hit her and she began to back up, because she was afraid”. Mr. Ballantyne chased the staff member into the kitchen, where he found other staff members. Mr. Ballantyne then fled the scene.

Assault Peace Officer, Utter threats (June 2005, Prince Albert) 9 months incarceration consecutive to current sentence) First federal sentence Mr. Ballantyne, age 18, was climbing a pole in the exercise yard at the Prince Albert Correctional Centre and was warned by a correctional officer that, if he did not obey instruction, he would be charged institutionally. Mr. Ballantyne threatened to kill the officer and stated that he did not care if he was charged. Ten minutes later, after being placed in a cell, Mr. Ballantyne threw a cup of urine and feces in a correctional officer’s face.

Aggravated Assault (July 2008, Edmonton) 2 years’ incarceration less credit for pre-trial custody The victim was waiting to meet a friend for coffee when he was accosted by three males, one of whom was Mr. Ballantyne. One of the co-accused kicked the victim in the torso and then punched him in the head several times. After the victim fell to the ground, Mr. Ballantyne moved to the front of the victim’s body and stomped on his head five times with his foot. At one point, the victim lost consciousness while being placed in a headlock by Mr. Ballantyne.

The victim suffered lacerations to his head, one of which required 15 to 20 stitches to close, and a concussion. Mr. Ballantyne believed that the victim had sexually assaulted a female acquainted with Mr. Ballantyne. Carrying a concealed weapon (October 2009, Edmonton) 60 days incarceration Mr. Ballantyne was found carrying an 8 inch steak knife in his sock while at an Edmonton Mall. Possession of a weapon (January 2010, Edmonton) 6 days incarceration (sentenced on other matters as well) Mr. Ballantyne brandished a pocket knife at a woman waiting at a bus stop, placing it inches away from her face.

Aggravated Assault (October 2011, Edmonton) 48 months incarceration less 18 months credit for pre-trial custody – Second Federal Sentence Mr. Ballantyne attended a party hosted by his girlfriend. While Mr. Ballantyne was in the bathroom, the victim punched Mr. Ballantyne’s girlfriend in the face, breaking her nose. As a result, another individual slit the victim’s throat with a knife. Upon finding out what the victim had done, and notwithstanding that the victim’s throat had been cut, Mr. Ballantyne and others started to kick the victim in the head.

The victim received broken orbital bones, a broken cheekbone and was left unconscious by the attack. A co-accused started a fire in a couch. Although Mr. Ballantyne tried to move the victim, he was unable to do so and left the house without seeking assistance for the victim. Possession of a weapon, Uttering threats (January 2012, Fort Saskatchewan) 6 months incarceration on each charge, consecutive, being a total of 12 months consecutive to any sentence being served

Mr. Ballantyne destroyed his cell in anger. When officers tried to get him under control, they observed a makeshift knife that had been fashioned out of the tin lid of a chewing tobacco can. Mr. Ballantyne threatened the staff with this weapon, made demands and threatened to cut the jugular vein of anyone who came in. He then destroyed the camera recording the incident. PREDICATE OFFENCE [ 10 ] Mr. Ballantyne and the victim, Andrew Rudoph were both inmates at the Regina Provincial Correctional Centre. On June 25, 2016, at about 5:15 p.m., both Mr.

Ballantyne and the victim were released from their cells and they both entered the common area to collect their supper trays. Before either one was able to do so, Mr. Ballantyne punched the victim with a closed fist on the left side of his face. At the same time, Mr. Ballantyne had possession of a homemade mace that consisted of a coffee cup inside of a sock. The coffee cup was full of tightly compacted toilet paper. Immediately following the punch, Mr. Ballantyne swung the mace at the victim, hitting him in the face. Mr. Ballantyne then grabbed a mop, broke it, and kept hold of the handle portion of the mop.

He brandished the handle while gesturing aggressively in the direction of the victim and correctional officers. Mr. Ballantyne did not promptly comply with verbal instructions and one of the officers deployed OC spray. The victim sustained contusions to his forehead and skin was broken on his nose. PREVIOUS MEDICAL AND PSYCHOLOGICAL ASSESSMENTS [ 11 ] Starting at age 8 years, Mr. Ballantyne was under the care of psychiatrist Dr. M. Z. Hussain who had diagnosed him as suffering from attention deficit hyperactivity disorder and conduct disorder. Mr.

Ballantyne was hospitalized in April 1999 because of management difficulties, and assaultive and threatening behaviour. [ 12 ] In 2000, when Mr. Ballantyne was 13 years old, Dr. Patricia Blakley completed a court- ordered fetal alcohol syndrome medical assessment and assessed Mr. Ballantyne as meeting the criteria for a diagnosis of partial fetal alcohol syndrome. Mr. Ballantyne reported to Dr. Blakley that he was hyperactive, that he had problems with anger and that he was impulsive when angry. Dr. Blakley received information that Mr.

Ballantyne engaged in verbal and physical aggressiveness with other students and staff, and was disruptive in a classroom setting (Star Program). Dr. Blakley believed that he would need a long period of structure and stability during which he could receive addiction and anger management counselling. She was also not optimistic that Mr. Ballantyne would be able to live independently. [ 13 ] During his first federal sentence, Mr. Ballantyne had a psychological assessment completed by Robert McIntyre, dated September 30, 2005. The results of the assessment indicated a high risk for violent recidivism.

Impulsivity, substance abuse, difficulty with emotion management, choice of peer group, ADHD and partial fetal alcohol syndrome appeared to play a role in the risk level. He suggested programming to address Mr. Ballantyne’s impulsivity, substance abuse and emotional control. [ 14 ] In July 2008, clinical psychologist Dr. Sheila Greer completed a forensic psychological assessment to assist the court in determining an appropriate sentence for the charge of aggravated assault. She concluded that Mr. Ballantyne met diagnostic criteria for antisocial personality disorder, alcohol abuse and cannabis dependence.

According to Mr. Ballantyne, he had been using marijuana regularly since age 11 or 12 years. Dr. Greer noted that Mr. Ballantyne possessed antisocial or pro-criminal attitudes and his views on the importance of respect and reputation seemed likely to render him vulnerable to reacting to perceived threats to his image in a forceful manner. Dr. Greer assessed him to be at a higher risk of violent offending and noted that he was not motivated to make any substantial changes. [ 15 ] Vanesa Hutchinson completed a psychological risk assessment of Mr. Ballantyne for the Parole Board of Canada on November 29, 2012.

She noted that, while incarcerated, Mr. Ballantyne had been involved in incidents of assaulting staff, assault on an offender, and possession of unauthorized items including contraband, a prison-made weapon and tattoo paraphernalia. She noted that Mr. Ballantyne’s tendency to be impulsive was exacerbated by the effects of alcohol, antisocial peers and deficits in decision-making related to fetal alcohol syndrome and attention deficit hyperactivity disorder. MR. BALLANTYNE’S CORRECTIONAL TREATMENT PROGRAMS

[ 16 ] Mr. Ballantyne started his first federal sentence in June 2005. He was admitted to the Bow Psychiatric Rehabilitation unit at the Regional Psychiatric Centre in October 2005. He was there for approximately one month and was unable to complete the programs of Anger and Emotions and National Substance Abuse Program as he was discharged after engaging in threatening and intimidating behaviour towards other inmates. This conduct was denied by Mr. Ballantyne. The final Program Performance Report (Exhibit P-5, page 155) noted that although Mr.

Ballantyne reported feelings of hostility towards authority figures due to his perception of them treating him with disrespect, he had shown some progress in his views toward them and expressed an interest in living a more pro-social lifestyle. [ 17 ] Mr. Ballantyne started the Moderate Intensity National Substance Abuse Program while at the Edmonton Institution. However, he was readmitted to the Regional Psychiatric Centre in May 2006 prior to completing the eighth session.

A performance report noted that his overall participation in this program had been positive and that he appeared to have a genuine interest in learning about his substance abuse. (Exhibit P-5, page 179) [ 18 ] At the Regional Psychiatric Centre he again enrolled in the Anger and Emotions program. However, in August 2006, he was placed in segregation for making and using alcohol, and was eventually discharged from the program prior to completion. His final performance report for this program (Exhibit P-5, page 199) noted that Mr.

Ballantyne had maintained a high level of motivation throughout the time he had spent in the program. However, he had been unable to carry that motivation on to his interaction on the unit. His discharge

summary identified antisocial attitudes and beliefs, and immature attitudes as being risk related factors. (Exhibit P-5, page 231) [ 19 ] Eventually, Mr. Ballantyne did complete the moderate intensity National Substance Abuse Program between October 2006 and December 2006 at the Edmonton Institution. However, the final report noted that even though Mr. Ballantyne had fully participated and appeared engaged, he had struggled somewhat with maintaining his motivation and putting his skills into practice. (Exhibit P-5, page 288) [ 20 ] Mr. Ballantyne was released on his statutory release date (January 22, 2007) to take

part in programming at the Stan Daniels Healing Centre in Edmonton. His parole officer encouraged him to participate in AA meetings, but he only attended one meeting. He was also encouraged to seek counselling/therapy from a psychologist in order to address impulsivity and emotional control, but he indicated that he did not require that counselling. He did not participate in Aboriginal culture, nor display any interest in consulting with an Elder. Notwithstanding his lack of motivation, he initially had a good attitude towards being supervised by his parole officer (Exhibit P-5, pages 295-307).

However, by March 1, 2007, Mr. Ballantyne had stopped reporting to his parole officer and his urinalysis test was positive for marijuana. As a result, warrants of suspension/apprehension were issued and the National Parole Board eventually revoked his statutory release. [ 21 ] Mr. Ballantyne was again granted statutory release on September 14, 2007 with the condition that he reside at the Stan Daniels Healing Centre. Although he adhered to the rules of the Centre, and was polite and respectful, he did not want to take substance abuse programming as he did not see himself as an addict.

He did start the programming but did not complete it as on September 26, Mr. Ballantyne failed to return to the Centre. He was arrested on warrants of suspension on October 8 and his statutory release was eventually revoked. During an interview with his parole officer, he advised that he was just looking forward to his sentence expiry so that he could return to his life of drugs and alcohol. (Exhibit P-5, pages 400 to 415) Mr. Ballantyne was released on his warrant expiry, being December 26, 2007. [ 22 ] In 2012, while serving his second federal term of incarceration, Mr.

Ballantyne was again enrolled in the moderate intensity National Substance Abuse Program but again he did not complete it as he was moved to another unit. The final program report noted that Mr. Ballantyne was involved in the drug subculture at the institution and that he used substances to cope with depression, frustration, cravings and social pressure. He tended to minimize his actions and did not accept responsibility for them. (Exhibit P-5, page 591) [ 23 ] In 2013, although Mr.

Ballantyne successfully completed the In Search of Your Warrior program and appeared to have made some gains, facilitators noted that he minimized the degree of harm caused to his victims and he experienced difficulty in applying program material to real life situations. He demonstrated impulsiveness and a negative attitude towards

authority. He did not appreciate the need for rules, order and structure and when presented with the necessity to abide by the rules, he became defiant. (Exhibit P-5, page 702) Mr. Ballantyne also enrolled in the Violent Offender Maintenance Program in November 2013 but he could not continue as he was admitted to segregation due to disciplinary problems and possessing homemade weapons. According to the National Parole Board, since completing the In Search of Your Warrior program, Mr.

Ballantyne had continued to be involved in serious incidents including assaultive behaviour, which indicated lack of commitment to change. [ 24 ] Mr. Ballantyne pursued educational upgrading while incarcerated in the federal system. He was described as a capable student. However, at times he was very motivated and excelled, and at other times, he was not motivated and did not complete assignments. COMMUNITY SUPERVISION [ 25 ] Mr. Ballantyne’s criminal record consists of numerous breaches of court orders, both as a youth and as an adult. During Mr.

Ballantyne’s first federal sentence, his parole was suspended and revoked twice. During his second federal sentence, Mr. Ballantyne was detained until warrant expiry, being October 20, 2014. The National Parole Board had serious concerns regarding his impulsiveness, lack of emotional control and aggressive and assaultive behaviours inside and outside of the institution. [ 26 ] Prior to his release, the Crown laid an information pursuant to

section 810.2 of the Criminal Code and Mr. Ballantyne agreed to be released on certain conditions. Within 10 days he was charged with breaching conditions and he remained in custody until he was eventually sentenced to a term of 1 year incarceration for two charges of breaching the conditions of the 810.2 recognizance. He was released on his statutory release date of July 22, 2015. He was in custody again on September 1, 2015 for breaching terms of his 810.2 recognizance.

Although he was granted pre-trial release, he was in custody again February 22, 2016, where he remained until he was sentenced to a term of 17 months incarceration for four breaches of his 810.2 recognizance and other non-violent offences. He was serving this sentence when the predicate offence occurred. FUNCTIONING IN INSTITUTIONS [ 27 ] Although Mr. Ballantyne appeared motivated to attend programming, his self-destructive behaviours led him to segregation and away from program completion. He also lacked insight into his actions.

During both federal sentences he displayed threatening and assaultive behaviours towards staff and other inmates. In addition, he incurred institutional charges for making and/or consuming alcohol, possessing weapons and other contrabands, and damaging property. On one occasion he ingested 21 different types of pills. He also displayed disruptive and assaultive behaviours at the Edmonton Remand Centre prior to being sentenced for his second federal sentence. In June 2013, the National Parole Board noted that as Mr.

Ballantyne had difficulties in complying with conditions in a maximum security setting, it doubted that Mr. Ballantyne could comply with conditions in the community. (Exhibit P-5, page 684) RECENT FUNCTIONING IN THE PROVINCIAL CORRECTIONAL CENTRE [ 28 ] The Crown filed Provincial Correctional Centre records detailing Mr. Ballantyne’s behaviours, both positive and negative, during the periods that he was incarcerated from October 2014 to November 2018. [ 29 ] During this time period, Mr. Ballantyne was in the community a total of only 5 months as he would breach court-ordered conditions.

The records note that at times Mr. Ballantyne was a low to medium risk prisoner and he was given the opportunity to be employed at the Correctional Centre which included working on the grounds. There were also many occasions when Mr. Ballantyne engaged in negative behaviour towards staff, including verbal abuse, aggressive language, refusal to follow direction, ignoring rules and making threats toward correctional officers. He would kick his door, throw chairs and swear at staff when he was unhappy. He was found with contraband and homemade weapons on more than one occasion.

[ 30 ] This behaviour continued even though Mr. Ballantyne was aware of the proceedings to have him declared a dangerous offender. As a result, he was often in segregation or placed in higher security units. On April 18, 2017 in an Administrative Segregation Review, the panel noted that Mr. Ballantyne continued to test the boundaries in segregation to see how far he could get without being moved off the unit.

He did not respect unit rules and staff expectations and appeared unwilling to make the required changes to move to a lower security setting. (Exhibit P-4, Tab 15 page 114) [ 31 ] After being sentenced in November 2014 for breaching his 810.2 order, Mr. Ballantyne’s case plan noted that much of his criminal history was related to substance abuse. However, when he was offered an interview with an individual from the Dedicated Substance Abuse Unit program, he refused to participate. [ 32 ] On August 19, 2018, Mr. Ballantyne was involved in an altercation during which another inmate was stabbed.

This incident was described by counsel as a melee between two groups, Mr. Ballantyne’s group being smaller in number. Although Mr. Ballantyne appeared to have a weapon, he was not the individual who stabbed the inmate and he was never charged. MR. BALLANTYNE’S INTERVIEW [ 33 ] Dr. Tomita interviewed Mr. Ballantyne in order to provide an assessment for the Court and obtained the following information. Mr. Ballantyne confirmed that he took programming while federally incarcerated so that he could be paid for attending and that he had not internalized the program content.

During his first stay at the Stan Daniels Healing Centre, he was not interested in participating in programs. Even now, he does not believe he has an alcohol or drug problem. Dr. Tomita noted that Mr. Ballantyne minimized his negative custodial behaviour and minimized the predicate offence. In particular, Mr. Ballantyne was surprised that he had been charged criminally for the predicate offence rather than receiving an institutional charge. He also acknowledged carrying a weapon for his own protection while in custody because he would not disclose problems he was having with peers to correctional staff.

According to Dr. Tomita, Mr. Ballantyne lacked the maturity expected from a person of his age and that his plans for the future lacked specificity. NEW PROGRAM OFFERED BY CORRECTIONAL SERVICES CANADA (CSC) [ 34 ] Cara Deobald testified that she is the Regional Program Manager with CSC. The CSC has moved to a new program format called the Integrated Correctional Program Model (ICPM) that integrates the previous programming into one program. In the past, offenders took different programs that addressed a specific type of offence or treatment need.

For example, there was treatment for violence and separate treatment for substance abuse. The new format addresses all needs in the same program so that offenders only need to take

part in one program to address criminogenic issues. This program uses cognitive behavioural therapy. It also allows an offender whose programming was interrupted by a time in segregation or a move to another institution to continue the program upon his release from segregation. EXPERT EVIDENCE [ 35 ] Dr. Todd Tomita is the psychiatrist who assessed Mr. Ballantyne. He is a medical practitioner who has been practicing psychiatry for 19 years specializing in forensic psychiatry.

He is the Program Director for the Forensic Psychiatry Training Program at the University of British Columbia, a member of the British Columbia Review Board, one of four psychiatrists at the Regional Treatment Centre (Correctional Service of Canada), and a private practitioner in forensic psychiatry. He was qualified to give opinion evidence, without objection by either party, in the area of assessing offender risk to reoffend, and the likelihood of management of high-risk offenders in the community, with particular reference to Mr. Ballantyne. [ 36 ] Dr. Tomita interviewed Mr. Ballantyne on October 16, 2017.

He also reviewed documents relating to Mr. Ballantyne’s criminal history, Correctional Service of Canada records relating to Mr. Ballantyne’s two federal

terms of incarceration, and Provincial Correctional Centre records, all of which were filed with the court. Dr. Tomita prepared a written report dated December 4, 2017, which was also filed in these proceedings, and he testified in person. [ 37 ] Dr. Tomita used a number of tests in assessing Mr. Ballantyne. In particular, he used the Psychopathy Checklist-Revised (PCL-

R) to assess Mr. Ballantyne’s level of psychopathic features. The assessment reflected a high level of psychopathic features. According to Dr. Tomita, a person with psychopathic personality traits will lack remorse, empathy, and a strong moral conscience, and be self-centered. [ 38 ] Dr. Tomita also used the Violence Risk Appraisal Guide-Revised (VRAG-

R) which is an actuarial test used by psychiatrists to predict a specific outcome. As the VRAG-R includes a relatively small set of risk factors, risk management and treatment considerations are difficult to assess with this tool. The VRAG-R findings indicated Mr. Ballantyne posed a high risk of violent recidivism. [ 39 ] Dr. Tomita also used the Historical Clinical Risk-20 Version 3 (HCR-20 V3) risk assessment tool.

This tool involves the determination of relevant risk factors applicable to a specific case, the formulation of risk, and the determination of risk management strategies and treatment to reduce the risk of future violence. Once the presence of risk factors for a particular case is determined by the assessor, the assessor makes a clinical judgment about the relevance of the risk factors to the person being assessed. Based on the totality of the HCR-20 considerations, an overall judgment of risk of future violence is made. This estimate of future risk is generally made in categories of low, moderate, and high risk.

Dr. Tomita determined that the risk factors most relevant to Mr. Ballantyne were his history of problems with personality disorder, history of problems with violent attitudes, recent problems with violent ideation or intent, recent problems with treatment or supervision response, future problems with living situation, and future problems with treatment or supervision response. Based on Dr. Tomita’s assessment using the HCR-20 tool, Mr. Ballantyne was at highest risk of violence in custody towards other offenders or staff and also at risk of future disproportionate and severe reactive violence in the community.

In particular, Dr. Tomita concluded at paragraphs 245 – 249 of his report: Violence Risk Formulation: [245] Mr. Ballantyne’s violence risk is primarily attributable to manifestations of his Antisocial Personality Disorder such as antisocial and violent attitudes, pattern of gravitating to other substance using and criminally-oriented peers, difficulty with authority and direction that has led to poor response to legal supervision, and a lack of motivation to engage in treatment that might reduce his violence risk.

Future Violence Scenarios: [246] After considering the relevance of risk formulations, the final step using the HRC-20 is to identify what are the reasonably plausible future risk scenarios for violence in this case. [247] Mr. Ballantyne is at highest risk of violence in custody towards other offenders or staff. The violence might be reactive in nature or instrumental, where he acted violently to reinforce his reputation for violence in order that others not trifle with him. [248] Mr.

Ballantyne is also at risk of future violence from what might be construed as understandable triggers but that lead to disproportionate and severe violence of a reactive nature. The 2008 aggravated assault triggered by an allegation from a female acquaintance that the victim was bothering her and the 2011 aggravated assault where the victim punched Mr. Ballantyne’s girlfriend are good examples of what could occur again in the future. [248] Mr.

Ballantyne has been involved in instrumental violence in the past as evidenced by his robbery convictions, but this seems to be a form of violence that is less likely to occur as compared to reactive or instrumental violence in custody and reactive violence in the community. [ 40 ] Dr. Tomita also determined that Mr. Ballantyne suffered from several risk-related psychiatric conditions. He also provided an opinion on Mr. Ballantyne’s potential treatability and the potential impact on risk of violence, and whether Mr. Ballantyne could be managed in the community. [ 41 ] Dr. Tomita noted that Mr.

Ballantyne had the following risk-related psychiatric conditions: antisocial personality disorder, alcohol and cannabis disorder, alcohol related neurodevelopmental disorder, and childhood ADHD with possible persisting adult ADHD symptoms.

[ 42 ] According to Dr. Tomita, typical behaviours of antisocial personality disorder include criminality, failure to sustain consistent employment, manipulation of others for personal gain, aggressiveness and failure to develop stable interpersonal relationships. Other features include lack of empathy, rarely experiencing remorse, and failure to learn from the negative results of one’s experiences. Dr. Tomita believed that Mr. Ballantyne’s behaviours manifested features of this disorder as he had a long-standing pattern of disregard for the rights of other people and had in fact violated these rights. Mr.

Ballantyne also had a history of difficulty with interpersonal functioning, lack of empathy and reduced capacity for closeness. He met six of seven criteria for a diagnosis of antisocial personality disorder. Dr. Tomita stated that an antisocial personality disorder was usually a life-long condition although improvements in behaviour occurred with older age, better family ties, community involvement, job stability and marital attachment. [ 43 ] Dr. Tomita believed that Mr.

Ballantyne’s use of alcohol and cannabis led to violent behaviour because alcohol and drug use caused disinhibited and impulsive behaviour while intoxicated, an exacerbation of his antisocial personality features, and disruption of life domains such as housing, employment and pro-social interpersonal relationships. Alcohol and cannabis abuse would also exacerbate Mr. Ballantyne’s antisocial personality features that were related to violence. Dr. Tomita believed that Mr. Ballantyne lacked insight and a durable and active interest in addressing his alcohol and cannabis use problems over the long term. Dr.

Tomita also noted that despite facing the possibility of a Dangerous Offender designation, Mr. Ballantyne continued to display a propensity to use intoxicants while at the Regina Correctional Centre. [ 44 ] Dr. Tomita stated that Mr. Ballantyne’s demonstrated impairment in executive functioning and self-regulation could have been caused by prenatal alcohol exposure or due to persisting effects of a childhood attention deficit hyperactivity disorder and an antisocial personality disorder.

These impairments manifested as difficulties with inhibiting behaviours that were maladaptive, difficulties with mood or behavioural regulation, and difficulties with impulse control. [ 45 ] Dr. Tomita believed that Mr. Ballantyne’s impairments were permanent and that they were obstacles to effective treatment and would make management of Mr. Ballantyne’s risk more challenging. However, if Mr. Ballantyne was willing to rely on community resources, the problems connected to his functioning could decrease. Dr. Tomita did not believe that Mr.

Ballantyne had reached the point where he wanted to adapt and change his behaviours. He therefore had a low level of potential treatability for his risk-related psychiatric conditions. In the past, Mr. Ballantyne had had difficulty completing correctional treatment because his behaviours while incarcerated had resulted in periods in segregation or transfers to different institutions. Although he had completed a Moderate Intensity National Substance Abuse program and the In Search of Your Warrior program, these programs apparently had not reduced his risk to reoffend. [ 46 ] Dr.

Tomita was not optimistic that the new high intensity Correctional Service of Canada ICPM programming would result in any substantial improvement in Mr. Ballantyne’s risk given that the underlying cognitive behavioural approach of this program was the same as past programs. As well, Mr. Ballantyne had continued to engage in maladaptive and negative behaviours in custody notwithstanding the pending proceedings to have him declared a dangerous offender. These behaviours demonstrated that Mr. Ballantyne was either unable or unwilling to motivate himself to avoid trouble in custody. Dr.

Tomita concluded that there was a low likelihood that Mr. Ballantyne’s risk to reoffend violently would be effected by treatment, especially given his lack of motivation. [ 47 ] Dr. Tomita believed that if Mr. Ballantyne could not comply with rules, avoid negative behaviours, and remain stable within an institution, there was little likelihood that parole supervision would contain his risk for violence. In the past, Mr. Ballantyne had returned to alcohol and substance use and gravitated towards criminally involved peers once he was in the community. According to Dr. Tomita, Mr.

Ballantyne would likely do the same, if released into the community, thereby making his risk of violence uncontrollable with parole supervision. While in custody, Mr. Ballantyne used violence or threats of violence to prevent and resolve problems or express his frustrations over perceived unfair treatment. As stated by Dr. Tomita, this did not bode well for a violence-free future in the community. [ 48 ] During his second federal sentence, the National Parole Board concluded that Mr. Ballantyne’s risk was too high for parole release and he was detained until his warrant of committal expired. According to Dr.

Tomita, Mr. Ballantyne’s clinical profile and risk considerations remained the same and there was no reason to believe that Mr. Ballantyne’s maladaptive behaviours would not continue in the community. He was a poor candidate for federal parole supervision and his risk would likely outlast a decade of parole supervision. His current professed desire to change did not impact his level of risk as he was not demonstrating by actions that he was wanting to change his behaviours.

[ 49 ] In this report, Dr. Tomita stated that Mr. Ballantyne appeared to be at moderate to high risk of future non-sexual violence in the community and a high risk of future non-sexual violence in a correctional setting. However, after reviewing Mr. Ballantyne’s behaviour in the correctional centre since the writing of the report, Dr. Tomita changed his opinion. He now thought that Mr. Ballantyne’s risk for violence in the community was towards the high-risk range, as Mr.

Ballantyne had continued to be involved in violent incidents, possess weapons, and apparently to use substances all while facing a possible dangerous offender designation. Although there was a possibility of management in the community and risk reduction, Dr. Tomita did not believe that this was probable or likely given Mr. Ballantyne’s lack of motivation and he believed that a reduction of risk was speculative. MR. BALLANTYNE’S STATEMENT [ 50 ] Although Mr. Ballantyne did not testify in these proceedings, he did file a letter.

He advised the Court that he wanted to make changes in his life and guaranteed that he would never harm another person. He explained that although there were few programs available in his remand unit, he had completed a parenting program, attended AA meetings and participated in cell studies. RESTORATIVE JUSTICE OPTIONS NOTED IN GLADUE REPORT [ 51 ] Ms. Goodwin suggested a number of restorative justice options for the Court’s consideration. The Stan Daniels Healing Centre in Edmonton could assist Mr. Ballantyne once he was on parole or statutory release.

The Centre offers counselling for addiction, relationships, anger management, and grief with a cultural component. Our House Addiction Recovery Centre is a long-term residence for men in Edmonton offering treatment for addictions and anger management. The Bissell Centre provides supportive housing for individuals with FASD in Edmonton. All of these programs could offer risk-reducing treatment for motivated offenders. STATUTORY FRAMEWORK [ 52 ]

Part XXIV of the Criminal Code sets out the dangerous offender criteria in the sentencing scheme. The relevant sections for the purpose of this application are: 753

(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied (

a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (

a) of the definition of that expression in

section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (

i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or … 753(4) If the court finds an offender to be a dangerous offender, it shall (

a) impose a sentence of detention in a penitentiary for an indeterminate period: (

b) impose a sentence for the offence for which the offender has been convicted ̶ which must be a minimum punishment of imprisonment for a term of two years ̶ and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or (

c) impose a sentence for the offence for which the offender has been convicted.

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidenceadduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(

b) or (c)will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. 752. In this Part, ... "serious personal injury offence" means (

a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving(

i) the use or attempted use of violence against another person, or(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychologicaldamage on another person, and for which the offender may be sentenced to imprisonment for ten years or more, or ... ANALYSIS [53] The dangerous offender regime in the Code applies when an offender’s liberty must be restricted for preventative reasons. The purpose of the sentence imposed pursuant to the regime is to protect the public against a seriousviolent act that has not yet occurred.

As many offenders who receive determinate sentences are at high risk to reoffend, it is clear thatthe regime must only apply to the most serious incidents of violence and when there is no alternative sentence that can be imposed toprotect the public. [54] The dangerous offender provisions require a two-stage determination. The first is the designation stage during which the sentencing judge must determine whether the offender should be designated a dangerous offender.

Ifthe sentencing judge is satisfied beyond a reasonable doubt that the dangerous offender criteria in section 753(1) have been met, thesentencing judge must find the offender to be a dangerous offender. If the offender is not found to be a dangerous offender, only adeterminate sentence can be imposed. The second is the penalty stage. At this stage the sentencing judge, upon making a dangerousoffender designation, must determine whether to impose an indeterminate sentence, a determinate sentence of at least two yearscombined with a period of long term supervision not exceeding ten years, or a determinate sentence.

Under section 753(4.1), a sentencingjudge must impose an indeterminate sentence on a designated offender unless satisfied that there is a reasonable expectation that a lessersentence will adequately protect the public. [55] Section 753(1) lists two elements for a finding of dangerousness due to violent behaviour. The first is that the offender has been convicted of a serious personal injury offence as described in paragraph (

a) of the definition of thatexpression in

section 752. The second element is that the offender constitutes a threat to life, safety or physical or mental well-being ofother persons.

For the purposes of the application before me, the threat must be proven by evidence establishing either that: (1) there has been a pattern of repetitive behaviour by the offender (predicate offence included); (2) there has been a failure to restrain that behaviour; and (3) there is a likelihood of causing death, injury or serious psychological damage through similar failures in the future. or alternatively, (1) there has been a pattern of persistent aggressive behaviour (predicate offence included); and (2) this behaviour shows a substantial degree of indifference on the part of the offender respecting the reasonably foreseeableconsequences to other persons of his behaviour. [56] The Supreme of Canada in R v Boutilier, 2017 SCC 64, [2017] 2 SCR 936 [Boutilier] at para 26 confirmed its

interpretation of section 753(1), as first stated in R v Lyons, (SCC), [1987] 2 SCR 309 [Lyons].According to the Court, there are four criteria at the designation stage which can be gleaned from section 753(1) and which must beproven beyond a reasonable doubt: (1) the offender has been convicted of, and has to be sentenced for, a “serious personal injuryoffence”; (2) this predicate offence is part of a broader pattern of violence: (3) there is a high likelihood of harmful recidivism; and

(4) the violent conduct is intractable. In other words, the Crown must prove that a pattern of conduct exists, that the pattern is very likely tocontinue, that the conduct will endanger the life, safety or physical well-being of others and that the conduct is substantially orpathologically intractable, meaning that the offender is unable to surmount this behaviour. [57] The Court in Boutilier concluded that the last two criteria require the sentencing judge to assess future risk and to consider an offender’s treatment prospects before designating him or her as a dangerous offender.

These criteriaare also important in determining penalty. At paras 45 and 46 the Court summarized its analysis regarding intractability and treatability: 45 The same prospective evidence of treatability plays a different role at the different stages of the judge's decision-making process. Atthe designation stage, treatability informs the decision on the threat posed by an offender, whereas at the penalty stage, it helps determinethe appropriate sentence to manage this threat.

Thus, offenders will not be designated as dangerous if their treatment prospects are socompelling that the sentencing judge cannot conclude beyond a reasonable doubt that they present a high likelihood of harmfulrecidivism or that their violent pattern is intractable: see Neuberger, at p. 7-1, by M. Henschel.

However, even where the treatmentprospects are not compelling enough to affect the judge's conclusion on dangerousness, they will still be relevant in choosing thesentence required to adequately protect the public. 46 In sum, a finding of dangerousness has always required that the Crown demonstrate, beyond a reasonable doubt, a high likelihood ofharmful recidivism and the intractability of the violent pattern of conduct.

A prospective assessment of dangerousness ensures that onlyoffenders who pose a tremendous future risk are designated as dangerous and face the possibility of being sentenced to an indeterminatedetention. This necessarily involves the consideration of future treatment prospects. Had the prospective aspects of the dangerousnesscriteria been removed by the 2008 amendments, the constitutionality of the provision might have required a deeper analysis. But that isnot the case. The sentencing judge erred in concluding otherwise.

Accordingly, this Court need not revisit its decision in Lyons as to theconstitutionality of s. 753(1). [58] If a sentencing judge is satisfied that the statutory criteria have been met, the designation must follow. There is, however, some discretion remaining at the sentencing stage. Under section 753(4.1), a sentencing judge mustimpose an indeterminate sentence on a designated individual unless he or she is satisfied that there is a reasonable expectation that alesser measure will adequately protect the public.

Ottenbreit J.A. applying Boutilier in R v S.P.C., 2018 SKCA 94 at para 38 [S.P.C.]stated “… although intractability must be considered at the designation stage, a finding of intractability at that stage does not compel anindeterminate sentence”. [59] Sections 718 to 718.2 of the Criminal Code apply to dangerous offender proceedings although the principle of public protection is prioritized. In particular, a sentencing judge must impose the least intrusive sentencerequired to achieve the primary purpose of the dangerous offender provisions.

As the principles enunciated in R v Gladue, (SCC), [1999] 1 SCR 688 [Gladue] also apply when an Aboriginal offender is subject to a dangerous offender proceeding, thesentencing judge must consider having a restorative approach to sentencing, being sensitive to the over-representation of Aboriginals inCanadian prisons, and taking into account the unique circumstances of Aboriginal people which may diminish their moralblameworthiness. The Court should also consider the availability of Aboriginal focused programming and the potential impact of thisprogramming on the reduction of risk.

Serious personal injury offence [60] I find that the predicate offence before this Court was a serious personal injury offence as defined by

section 752 of the Criminal Code as the offence to which Mr. Ballantyne pleaded guilty was an indictable offence thatinvolved the use or attempted use of violence against another person for which Mr. Ballantyne may be sentenced to imprisonment for tenyears or more. Predicate offence part of pattern of violence [61] Our Court of Appeal in R v Knife, 2015 SKCA 82, 460 Sask R 287 [Knife] examined the meaning of the "pattern" requirement as found in section 753(1)(a)(

i) and (ii). After examining a number of appellate court decisions, theSaskatchewan Court of Appeal stated that there were two main ways of identifying the necessary pattern of behaviour. There must eitherbe similarities in the types of offences, or similarities in the degree or nature of violence used or threatened. (See R v Neve, 1999 ABCA206, 137 CCC (3d) 97). The Court in Knife stated:

69 The Alberta Court of Appeal chose to use the phrase "degree of violence" to describe this latter idea in Neve. Another way ofcharacterizing this same idea could be to refer to it as the "nature of the violence". The nature of violence used may demonstratesignificant similarities in the offender's behaviour which in turn may ground a finding of "repetitive behaviour" ̶ for example, anoffender who continually uses weapons to committing violent offences, regardless of what the specific type of offence is.

The point isthat the focus should be on similarities in the offender's violent behaviour that show a failure to restrain that behaviour. 70 Thus, where an offender has repeatedly engaged in violent behaviour and a pattern has been established showing (

a) a failure torestrain his or her behaviour and (

b) a likelihood of causing death or injury to other persons, or inflicting severe psychological damage onother persons in the future through a failure to restrain such behaviour, the offender must be designated as a dangerous offender.

The factof repetition demonstrates a failure to restrain the violent behaviour but the additional element of future risk must also be established. 71 Similarly, once a pattern of persistent aggressive behaviour has been demonstrated under s.753(1)(a)(ii) showing a substantial degreeof indifference on the part of the offender respecting the reasonably foreseeable consequences of his or her actions, then the offendermust be designated as a dangerous offender. 72 Thus, the pattern/repetition analysis provides the evidentiary basis for assessing the future threat.

It is this future threat the dangerousoffender provisions are aimed at curbing. Broadly speaking, if a court is unable to conclude the offender will pose a danger to the publicin the future based on the offender's prior violent offences, the requirements of s. 753(1)(

a) have not been met and the offender must notbe designated as a dangerous offender.

However, if it is apparent the predicate offence is not an isolated occurrence but is rather arepetition of violent behaviour which shows a failure to restrain violent behaviour and is likely to continue in the future causing injury ordeath to others (for s. 753(1)(a)(i)), then the offender does pose a danger to the public in the required sense and should be accordinglydesignated as a dangerous offender. … 78 As stated above, the purpose of the "pattern" requirement is to determine whether there is an evidentiary basis capable ofsupporting a finding the offender is likely to continue to violently offend in the future as per ss. 753(1)(a)(

i) or (ii), and is thus a personfrom whom the public must be protected. Factual similarities in the contexts of the offender's previous offences are relevant, butsimilarities in the actual violence used cannot be ignored.

The lack of contextual similarities is not fatal to the existence of a pattern ifthere are sufficient similarities in the elements of the offender's violent behaviour to show a failure to restrain that behaviour and alikelihood of causing death or injury in the future. [62] The Court in R v Pike, 2010 BCCA 401, 260 CCC (3d) 68 [Pike] also held that the pattern of behaviour and the predicate offence had to be related as the risk assessment required that the potential threat of future violencebe based on the persistence of the pattern of behaviour.

As well, a pattern of behaviour could not be established on the basis of unprovenallegations. In particular, the Court made the following observations: 80 The "threat" under s. (

a) is to be determined "on the basis of evidence" of a pattern of behaviour under ss. (

i) or (ii). That pattern, inturn, must be linked to the predicate offence. 81 Breaking any of these connections ̶ between the predicate offence, the pattern analysis or the threat assessment ̶ distorts the carefulbalance of the provisions, and risks serious injustice. This is revealed more clearly when one considers the provisions broadly. 82 The predicate offence is not a meaningless, statutory trigger. It is a "last straw", described by Marshall J.A. in R. v. Newman (1994), (NL CA), 115 Nfld. & P.E.I.R. 197 at para. 69 (Nfld.

C.A.) as a "one last act of serious personal violence to anchorthe offender's pattern of pre-existing unrestrained or uninhibited behaviour". It takes its significance, in part, from the fact that itdemonstrates that the relevant pattern of behaviour continues. As Marshall J.A. explains, it serves an important purpose: "[i]t guardsagainst visiting one of the most serious criminal sanctions upon someone who has essentially abandoned a past pattern of intenselyserious violence on the basis of a relapse of relatively less grave proportions" (at para. 72).

This explains why the pattern and predicateoffence must be related. It would be inconsistent and unfair if the ultimate threat determination were to be made on the basis of aperceived threat unrelated to either the predicate offence or the pattern of behaviour it reveals as still persisting. 83 Similarly, the pattern analysis is inextricably linked to the ultimate threat assessment. It is the basis for predicting the futurebehaviour which threatens others.

As explained in Neve, the two are linked in the sense that "the court cannot make a determination thatan offender constitutes a threat in the manner specified in s. 753(

a) except on the basis of evidence that meets at least one of the specifiedbehaviour thresholds" (at para. 103)…

[63] Without referring to the Pike decision, the Supreme Court of Canada in R v Steele, 2014 SCC 61 at para 37, 2014 SCC 61 , [2014] 3 SCR 138 [Steele] confirmed its position in R v Currie, (SCC),[1997] 2 SCR 260 in stating that the predicate offence must form a part of the pattern of behaviour underlying the threat assessment. TheCourt confirmed that in every case, the sentence was based on past conduct or patterns of behaviour, but it could not be divorcedentirely from the predicate offence.

However, the Court also confirmed that the sentencing judge must not assess the degree of violenceused by the offender in the commission of the predicate offence. At para 41 the Court stated that “…neither the purpose of the seriouspersonal injury offence requirement nor that of

Part XXIV warrants reading in a qualitative minimum level of violence.” In particular, thestatutory framework enabled courts to sentence dangerous offenders without having to wait for them to offend in an egregious way. [64] The Court in R v Montgrand, 2017 SKCA 49, 352 CCC (3d) 485 [Montgrand] also noted that the pattern referred in section 753(1)(a)(ii) of the Code did not refer to likelihood or probability but rather that the test was whetherthe pattern showed a “substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences toother persons of his or her behaviour.” This called for an analysis of the subjective state of mind of the offender based on the evidence.According to R v George (1998), (BC CA), 126 CCC (3d) 384 (BCCA) (QL) at para 24 , the evidence had todemonstrate “that the offender had a conscious, but uncaring, awareness of causing harm to others.” [65] The pattern analysis is aimed at predicting risk.

The pattern, including the predicate offence, must consist of conduct that leads the court to believe that the conduct will continue unless a detention order is made. Thewhole of the conduct must contain enough of the same elements of dangerous conduct in order to establish a likelihood that the conductwill continue. (See R v Hogg, 2011 ONCA 840) [66] In Mr. Ballantyne’s case, I find that his offending history does reveal a pattern of behaviour as noted in section 753(1)(a)(

i) being a pattern of repetitive, violent behaviour. I cannot find that Mr. Ballantyne hadabandoned a past pattern of serious violence and relapsed by committing an offence of relatively less grave proportions. (See R vNewman as referred to in Pike). Many of Mr. Ballantyne’s past violent offences included the use of a weapon. I note however that histwo most serious offences, being aggravated assaults, involved the use of his feet and hands. Notwithstanding these differences, I findthat Mr. Ballantyne’s pattern of violence makes him an extremely dangerous man. [67] I also find that Mr.

Ballantyne’s offending history reveals a pattern of behaviour as required in section 753(1)(a)(ii) as he has shown a substantial degree of indifference respecting the reasonably foreseeable consequencesto other persons of his behaviour. In addition, I accept Dr. Tomita’s assessment that Mr. Ballantyne has minimized and justified hisviolent behaviours. I find that Mr. Ballantyne does not care about the consequences of his behaviour.

High likelihood of harmful recidivism [68] The Supreme Court of Canada in Boutilier, while referring to the Lyons decision, held that the Crown must establish a high likelihood of harmful recidivism. In particular, the Court in Lyons stated as follows: 43 …Thirdly, it must be established that the pattern of conduct is very likely to continue and to result in the kind of suffering againstwhich the

section seeks to protect, namely, conduct endangering the life, safety or physical well-being of others or, in the case of sexualoffences, conduct causing injury, pain or other evil to other persons. Also explicit...is the requirement that the court must be satisfied thatthe pattern of conduct is substantially or pathologically intractable. [69] It is not for the Crown to prove beyond a reasonable doubt that the offender will re- offend, only that there is beyond a reasonable doubt a likelihood of re-offence.

As stated by La Forest J. in Lyons: 94 Moreover, I am not convinced, even as a matter of logic, that the appellant's submission is sound. It seems to me that a "likelihood"of specified future conduct occurring is the finding of fact required to be established; it is not, at one and the same time, the means ofproving that fact. Logically, it seems clear to me that an individual can be found to constitute a threat to society without insisting that thisrequire the court to assert an ability to predict the future. I do not find it illogical for a court to assert that it is satisfied beyond a

reasonable doubt that the test of dangerousness has been met, that there exists a certain potential for harm. That this is really only anapparent paradox is aptly captured by Morden J. in R. v. Knight (1975), (ON SC), 27 C.C.C. (2d) 343 (Ont.

H.C.) atp. 356: I wish to make it clear that when I refer to the requisite standard of proof respecting likelihood I am not imposing on myself anobligation to find it proven beyond a reasonable doubt that certain events will happen in the future ̶ this, in the nature of things would beimpossible in practically every case ̶ but I do refer to the quality and strength of the evidence of past and present facts together with theexpert opinion thereon, as an existing basis for finding present likelihood of future conduct. [70] The Saskatchewan Court of Appeal in Montgrand at para 10 stated that the pattern of repetitive behaviour, of which the predicate offence forms a part, must show a probability that death, injury or severe psychologicaldamage will occur as a result of the offender’s failure to restrain his behaviour. [71] The Court in Montgrand also provided guidance to sentencing judges on how to determine the risk of re-offending.

In particular, the sentencing judge must consider and weigh expert opinion alongside all of theevidence presented to determine whether the Crown has proven the prerequisites for a finding of dangerousness. The information reliedupon by the expert witness must be assessed when determining the weight of the expert’s opinion. Although expert evidence may predictviolent acts, severity of these acts is more difficult to predict. In fact Dr. Tomita’s evidence is that an expert cannot predict theseriousness of future violent conduct.

The best determination of future risk involves examining the past conduct, identifying risk factorsand then examining them for manageability. (See R v Johnson, 2003 SCC 46, [2003] 2 SCR 357 [Johnson]) [72] On two occasions Mr. Ballantyne caused significant injuries to another person. Although his other convictions for violent offences did not cause significant injuries, few were minor assaults. I find that Mr. Ballantyne has usedviolence out of anger or due to his notion of retribution. He has often used weapons. Based on Mr.

Ballantyne’s past conduct, and Dr.Tomita’s assessment, I believe that it is more probable than not that Mr. Ballantyne’s future conduct will endanger the life, safety orphysical well-being of others. The violent conduct is intractable [73] A sentencing judge must be satisfied that the offender is a future threat after conducting a prospective assessment of risk. This assessment must consider future treatment prospects in order to determine if the offender’s conductis intractable.

Treatability is also relevant at the penalty stage as it speaks to whether risk can be reduced to an acceptable level through alesser measure than an indeterminate sentence (See Boutilier) [74] The Court in R v Aziga, 2011 ONSC 4592 (Ont Sup Ct) noted that in assessing treatment prospects and community management, the attitude of the offender and his or her motivation to change was the most relevant factor: 144 The attitude of an offender is the most relevant factor to be considered in predicting the likelihood of success in treatment and/orcommunity management.

Common sense and experience dictate that offenders who are insightful, remorseful, aware of their problemsand keen to overcome those problems in order to avoid causing harm to others in the future foster great confidence for meaningfulrehabilitation and community management.

The converse is also true, that is, offenders who do not take responsibility for their actions,have no insight into the harm that they have caused, are unremorseful, fail to acknowledge their own problems and show no genuinesigns of interest and commitment in treatment, foster little hope for success from treatment and/or community management. [75] Even if an offender’s conduct is intractable, this conclusion will not relieve the sentencing judge of determining if there is a reasonable expectation that a lesser sentence would adequately protect the public as requiredby section 753(4.1) of the Code. (See Boutilier, S.P.C. at para 39) [76] Although Mr.

Ballantyne was not motivated to access programming while incarceration, he did complete a substance abuse treatment program and an Aboriginal based treatment program and neither program assisted Mr.

Ballantyne in changing his behaviours. On more than one occasion he advised correctional staff that he did not want to participate in programs. Often he did not believe he needed the treatment. This belief continues as evidenced by his comments to Dr. Tomita. He justifies the use of violence and the carrying of weapons. He has articulated motivation but he has not demonstrated motivation. Even while awaiting the Dangerous Offender hearing, he continued to engage in negative, maladaptive behaviours. [ 77 ] Mr.

Ballantyne’s conduct has not changed since he was a child, except that his behaviours are now more violent. Whether in group homes, at school, in youth detention facilities, at provincial correctional centres or in federal penitentiaries, Mr. Ballantyne’s behaviours have followed the same pattern. Sanctions have had no effect on him. Treatment programs have had no effect on him. I am not convinced that the new format in the federal programming system will have any impact on Mr.

Ballantyne given his lack of motivation or inclination to try to change. [ 78 ] As a result, I am convinced beyond a reasonable doubt that Mr. Ballantyne constitutes a threat to the life, safety or physical or mental well-being of other persons given his past conduct, his high likelihood of harmful recidivism and the intractability of his violent conduct. I therefore find him to be a dangerous offender.

Management of threat in the community [ 79 ] The Court in Boutilier at para 76 held that sentencing judges were obliged to conduct a thorough inquiry that considered all of the evidence presented to determine the fittest sentence. The Court also set out the framework for determining the appropriate penalty pursuant to section 753(4.1) of the Code : 70 The framework a sentencing judge should adopt in exercising his or her discretion under s. 753(4.1) has been aptly explained by Justice Tuck-Jackson of the Ontario Court of Justice: R. v. Crowe , No. 10-10013990, March 22, 2017.

First, if the court is satisfied that a conventional sentence, which may include a period of probation, if available in law, will adequately protect the public against the commission of murder or a serious personal injury offence, then that sentence must be imposed.

If the court is not satisfied that this is the case, then it must proceed to a second assessment and determine whether it is satisfied that a conventional sentence of a minimum of 2 years of imprisonment, followed by a long-term supervision order for a period that does not exceed 10 years, will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. If the answer is "yes", then that sentence must be imposed. If the answer is "no", then the court must proceed to the third step and impose a detention in a penitentiary for an indeterminate period of time.

Section 753(4.1) reflects the fact that, just as nothing less than a sentence reducing the risk to an acceptable level is required for a dangerous offender, so too is nothing more required. [ 80 ] Prior to the amendments to

Part XXIV in 2008, courts had discretion to sentence offenders who met the dangerous offender criteria to a lesser sentence if satisfied there was a "reasonable possibility" a lesser sentence would protect the public. Reasonable possibility had to involve more than mere hope or conjecture. (See R v Goforth , 2007 SKCA 144 , 302 Sask R 265 [ Goforth ], R v Haug , 2008 SKCA 23 , 307 Sask R 1). The Court in Goforth stated at para 54 : [54]...The authorities indicate that a "reasonable possibility", of necessity, must involve something more than hope or empty conjecture.

In and of itself, the mere possibility that the offender might benefit from treatment is not sufficient to warrant a conclusion that there is a reasonable possibility of eventual control of the risk of reoffending. In other words, a dangerous offender designation is not contingent on a finding that the offender has absolutely no prospect of successful treatment while incarcerated. [ 81 ] The 2008 amendments changed the test of "reasonable possibility" to "reasonable expectation".

The definition of "reasonable expectation" has been reviewed by all levels of courts in Saskatchewan. (See R v Bunn , 2014 SKCA 112 , 446 Sask R 184, R v Toutsaint , 2015 SKCA 117 , 467 Sask R 248, R v Bird , 2015 SKCA 134 , 467 Sask R 277, R v J.T.M , 2011 SKPC 109 , 379 Sask R 211, R v Neil Daniels , 2013 SKQB 324 , 271 CCC (3d) 339). It is accepted that an 'expectation' suggests likelihood, while a 'possibility' suggests a lower standard of potential. It follows that the standard "reasonable expectation" will also not involve merely hope or empty conjecture.

A "reasonable expectation" cannot be based on so many contingencies as to be little more than an expression of hope. (See R v S.(D.J) , 2015 BCCA 111 ). [ 82 ] Although the standard has changed, the factors to consider under both tests are essentially

the same. The real question is whether it is reasonable to expect that Mr. Ballantyne will make the required progress within the period oftime of a determinate sentence and long-term supervision order. [83] It is important to note that the risk posed by any given offender need not be eliminated, only that it be reduced to an "acceptable level". (See: Johnson, R v Daniels, 2011 SKCA 67, 375 Sask R 1 [Daniels]). Parliament has notmandated a notion of absolute safety to the public under the penalty

section as there can never be a guarantee that an offender will notcommit murder or a serious peronsal injury offence (See R v D.(C.J.), 2012 SKQB 198, 397 Sask R 83). As well, courts need to considerthe potential for reducing the threat of harm offered by the determinate sentence and the long term supervision order in combination.(See R v Lemaigre, 2004 SKCA 125, 189 CCC (3d) 492, R v Badger, 2012 SKCA 119, 405 Sask R 97 [Badger]).

Conditions whichapply to a long-term supervision order and the consequences of a breach of those conditions are effective tools to control and reduce therisk of re-offence in the community in appropriate cases. (See: Badger). As well, the law mandates the imposition of the least restrictivesanction that may be appropriate in the circumstances.

The focus of the inquiry called for by section 753(4.1) is the nature and quality ofthe offender's propensity for committing violent crimes in the future. (See Toutsaint) [84] A sentencing judge should examine whether an offender’s risk could be managed by some internal or external controls in order to determine whether there is a reasonable expectation that the public would be adequatelyprotected by a lesser sentence. (See S.P.C. at para 44) For example, the Court in Daniels acknowledged that an individual's motivation totake programming may be influenced by a potential dangerous offender designation.

At para 99, the Court stated, "Even so, motivation ismotivation, and if it drives, even in significant part, from fear of being locked away as a dangerous offender it is not the less real forthat." [85] Managing risk in the community through very tight supervisory controls is different than reducing the risk to an acceptable level.

An offender who needs 24 hour a day supervision in order to ensure that the public does not havean acceptable level of risk. (See R v Otto, 2006 SKCA 52 at para 22, 279 Sask R 182) The dangerous offender provisions are concernedwith whether an offender will eventually do well while not being intensely supervised. (See Bird at para 41) [86] The Supreme Court of Canada in Steele summarized the purpose of the dangerous and long-term offender provisions as follows: 29 The primary rationale for both indeterminate detention and long-term supervision under

Part XXIV is public protection. Bothsentences advance the "dominant purpose" of preventive detention identified by Dickson J. in R. v. Hatchwell, (SCC),[1976] 1 S.C.R. 39 (S.C.C.), at p. 43, namely "to protect the public when the past conduct of the criminal demonstrates a propensity forcrimes of violence against the person, and there is a real and present danger to life or limb". When the constitutionality of the dangerousoffender provisions came before this Court in R. v.

L.(T.P.), (SCC), [1987] 2 S.C.R. 309 (S.C.C.), La Forest J., wrote atp. 329, "[Part XXIV] merely enables the court to accommodate its sentence to the common sense reality that the present condition of theoffender is such that he or she is not inhibited by normal standards of behavioural restraint so that future violent acts can quite confidentlybe expected of that person" (emphasis in original).

Lamer C.J. subsequently explained this rationale as follows in Currie, at para. 26:"Parliament has thus created a standard of preventive detention that measures an accused's present condition according to past behaviourand patterns of conduct." See also R. v. S.(J.P.), 2014 SCC 47 (S.C.C.), [2014] 2 S.C.R. 423, at para. 19. [87] As I previously stated, I believe Mr. Ballantyne’s violent conduct to be intractable. Mr. Ballantyne also has not been successful in following rules in custody or out of custody.

His plans for the future, should he be releasedinto the community, will simply lead him to criminal behaviour, with a high likelihood of violent offences. I note that there will be agreater risk of destabilizing effects on Mr. Ballantyne in the community than in an institution. Mr. Ballantyne has responded poorly tosupervision in the community in the past. Also, if he cannot remain stable within an institution, how will he be able to remain stable inthe community? As in the past, I do not believe that supervision by the federal parole system will manage Mr. Ballantyne’s risk toreoffend violently. [88] Mr.

Ballantyne has not been motivated to take programming, although he has successfully completed two treatment programs while incarcerated in the federal system. The programs at Stan Daniels Healing Centre,recommended in the Gladue report, have been offered to Mr. Ballantyne on two different occasions. He did not engage in programmingand within a short period of time, he had breached conditions of his release. As he does not believe that he needs treatment, it isunderstandable why he fails to engage.

[ 89 ] In Mr. Ballantyne’s case, there is ample evidence of his background and personal circumstances to warrant taking Gladue considerations into account. I note that as a youth, Mr. Ballantyne had few opportunities to participate in his culture. However, while incarcerated, he had more opportunities to do so,

[…]