Her Majesty the Queen - v. -, 2015 SKPC 25

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 025 Date: March 4, 2015 Information: 36240569 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Justin Lee Piapot Appearing: Roger DeCorby For the Crown Carson Demmans For the Accused DECISION ON

SECTION 752.1 APPLICATION K.A. LANG , J I INTRODUCTION [ 1 ] On November 25, 2014 at Regina, Saskatchewan, Mr. Piapot was convicted of numerous offences including count 4 of Information 36240569 (the “Predicate Offence”) which was worded as follows:

On or about the 11 th day of March A.D. 2014 at or near Regina, Saskatchewan did in committing an assault on Raylene Ireland-Staite, Daneen Whitequill and Zayden Whitequill, threaten to use a weapon, to wit: a motor vehicle, contrary to s. 267 (

a) of the Criminal Code . [ 2 ] Upon conviction, the Crown indicated its intention to commence proceedings to have Mr. Piapot declared a long-term offender or a dangerous offender. [ 3 ] Those proceedings were commenced by way of a Crown application pursuant to

section 752.1 for an order remanding Mr. Piapot for assessment by experts to be used in an application to declare Mr. Piapot a long-term or dangerous offender. [ 4 ] The defence resisted the Crown’s application on the basis that there were insufficient grounds for the Court to come to the conclusion that Mr. Piapot “might” be a dangerous or long-term offender. [ 5 ] This is my decision on that application. II THE FACTS [ 6 ] The facts as I found them, relating to the Predicate Offence, are summarised as follows: • Mr. Piapot was operating a motor vehicle when he committed the offence under s. 267 (

a) of the Criminal Code ; • Ms. Ireland-Staite was operating a separate vehicle, and had two passengers, including her passenger’s young son, in the vehicle with her at the time the offence was committed; • after encountering Ms. Ireland-Staite operating her vehicle, Mr. Piapot began a vehicle pursuit of Ms. Ireland-Staite and her passengers; • Ms. Ireland-Staite tried to get away from Mr. Piapot, but he continued to chase her over the course of several blocks, with the vehicles reaching speeds in the range of 80 to 110 kilometres per hour within the City of Regina; • during the pursuit of Ms.

Ireland-Staite’s vehicle, Mr. Piapot brought his vehicle within six inches of her vehicle, and on one occasion swerved his vehicle at, although did not hit, the vehicle of Ms. Ireland-Staite; and • the pursuit by Mr. Piapot ended when Ms. Ireland-Staite drove her vehicle to a nearby location at which she had recently seen police vehicles, and she in fact again saw police vehicles, so pulled over; • around this time, Mr. Piapot again nearly struck Ms. Ireland-Staite’s vehicle with his vehicle before leaving the scene and being pursued by police.

III THE APPLICATION [ 7 ] This application is made by the Crown pursuant to

section 752.1 of the Criminal Code (the “ Code ”). The relevant provisions of the Code reads as follows: 752.1

(1) On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence . . . might be found to be a dangerous offender under

section 753 or a long-term offender under

section 753.1, the court shall , by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under

section 753 or 753.1. (emphasis added) [ 8 ] The section, in effect, sets out two criteria that must be satisfied before an order remanding the offender for assessment can

be made. The first is whether the offence for which the offender has been convicted is a serious personal injury offence and the second is whether there are reasonable grounds to believe that the offender might be found to be a dangerous offender or a long-term offender. In the event that both of these requirements are satisfied, then the Court shall order an assessment. A. Serious Personal Injury Offence [ 9 ] “Serious personal injury offence” is defined in

section 752 of the Code as follows: (

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 psychological damage on another person, and for which the offender may be sentenced to imprisonment for ten years or more[.] [ 10 ] Thus, the matters at issue are whether the Predicate Offence, on its facts, involved the use or attempted use of violence against another person or whether his conduct endangered or was likely to endanger the life or safety of another. Mr.

Piapot must also be liable to be sentenced on the Predicate Offence, to imprisonment for 10 years or more. 1.

Use or Attempted Use of Violence [ 11 ] In the present case no one was actually struck by the weapon (the motor vehicle), however the Saskatchewan Court of Appeal has ruled that once an offender has been convicted of an offence that meets the other requirements of a serious personal injury (indictable, punishable by 10 years or more) the trial court need not assess the level of “seriousness” of the impugned conduct in determining whether a serious personal injury offence has been committed. [1] [ 12 ] It is also noted that this case involved a conviction for an offence worded to the effect that there was a threat to assault as opposed to a complete physical assault.

The Supreme Court of Canada has ruled that threats of violence are in fact the use of violence in the context of s. 752 (a)(

i) of the Criminal Code . [2] [ 13 ] Based on the facts as I have found them and summarised herein, I find that the Predicate Offence does meet the requirement of “use or attempted use of violence”. It is not difficult to conclude that driving a motor vehicle in pursuit of another and bringing it within mere inches of that pursued vehicle while driving on icy roads and at speeds of 80 to 110 kilometres per hour is an attempted use of violence. The victims most certainly feared for their lives. 2.

Conduct Endangering or Likely to Endanger the Life or Safety of Another Person [ 14 ] Given that I have already found that the Predicate Offence involved the use or attempted use of violence against another person, there is really no need to comment on the second portion of the legislation. However if necessary, I would have found that the conduct of Mr. Piapot did also endanger the life of all three victims in Ms. Ireland-Staite’s motor vehicle given the close proximity for which he was driving on icy streets and at rates of speed ranging between 80 and 110 kilometres per hour. The passenger, Ms.

Whitequill testified that she wanted to get out of the vehicle and tell Mr. Piapot to stop his pursuit but she was too scared. It is not difficult to imagine the significant degree of psychological damage that was inflicted upon the victims by Mr. Piapot through his actions.

3. Sentence of Imprisonment for 10 years or more [ 15 ] Mr. Piapot was charged and convicted of the Predicate Offence which was s. 267(

a) of the Code . [ 16 ]

Section 267(

a) reads as follows: Everyone who, in committing an assault, (

a) carries, uses or threatens to use a weapon or an imitation thereof, ... is guilty of an indictable offence and liable for imprisonment for a term not exceeding 10 years ... [ 17 ] As Mr. Piapot was convicted of this offence, that requirement has also been met. 4. Conclusion [ 18 ] I therefore find that all elements of a serious personal injury offence, as that term is defined in the Code , are present in this case. B. Might Mr. Piapot be found to be a Long-Term or Dangerous Offender? [ 19 ] In order to be found to be a dangerous offender pursuant to

section 753 of the Code , a Court must be satisfied that the offender has been convicted of a serious personal injury offence and: (a) ... 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 (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint[.] [ 20 ] In order to be found to be a long-term offender pursuant to

section 753.1 of the Code , a Court must be satisfied that: (

a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted; (

b) there is a substantial risk that the offender will re-offend; and (

c) there is a reasonable possibility of eventual control of the risk in the community.

[ 21 ] The test on this application as to whether an offender might be found to be a long-term or dangerous offender was set out by our Court of Appeal in R v Fulton [3] where Mr. Justice Cameron wrote: 21 . . .

section 752.1 does not call upon the court to consider whether the offender will probably be found, or is likely to be found, a dangerous or long-term offender. It does no more than call upon the court to consider whether there exists reasonable grounds to believe the offender might be found to be a dangerous or long-term offender; and it does so for no other purpose than that of deciding whether to order an assessment.

The word “might” speaks to possibilities: Is the prospect of the offender being found to be a dangerous or long- term offender within the realm of possibility or beyond it? [ 22 ] Justice Popescul (as he then was) considered the Court of Appeal’s decision in Fulton in the course of his decision in R v Peters . [4] He wrote: It is evident from the precise wording of s. 752.1(1), and the jurisprudence that has interpreted this section, that the threshold is low.

The Court must consider the totality of the record of evidence and the other information presented in support of the application in order to decide whether there are reasonable grounds to believe that the offender might, not will, be found a dangerous offender or a long-term offender. This would appear to be a burden far less than the criminal burden of proof and even less than the civil burden of proof.

In order to require any more at this stage of the proceedings would run the risk that the Court is being asked to make findings on incomplete and imprecise information and without the benefit of the assessment proposed under s. 752.1. Consequently, my task is to consider the prospect of whether the offender being found to be a dangerous or long-term offender is “within the realm of possibility or beyond it.” [ 23 ] Mr.

Piapot comes before the Court with approximately 23 convictions on his record, between 2001 and 2010; there is no significant gap in his record. [ 24 ] While a perusal of his criminal record would suggest perhaps a gap between 2010 and the date of the Predicate Offence (March 11, 2014). This is not the case. In early 2010, Mr. Piapot was taken into custody on another serious personal injury offence. He remained in custody awaiting trial on that offence and was eventually convicted after trial in the Saskatchewan Court of Queen’s Bench on December 15, 2011. Mr.

Piapot appealed his conviction and that conviction was overturned by the Court of Appeal on January 28, 2014, at which time Mr. Piapot was released from custody. While nothing turns on his initial conviction and eventual acquittal of this matter, it does demonstrate that he was in custody from early 2010 until January 28, 2014, which speaks to the issue of whether or not there actually existed a gap in his record. [ 25 ] Notably shortly after his release on January 28, 2014, Mr. Piapot was then charged with another violent offence alleged to have been committed on February 21, 2014.

This was a charge of assault with a weapon (a knife) however after trial of that matter he was convicted by me of a single count of simple assault. [ 26 ] It is further notable that Mr. Piapot was charged on March 11, 2014 with the Predicate Offence and was in custody at the time of trial. He was convicted by me of numerous offences, including the Predicate Offence on November 25, 2014 and has been in custody since that time. [ 27 ] Mr.

Piapot has been convicted of four previous violent offences which are summarised as follows: Youth Offence Date of Offence: April 16, 2002 Offence: Assault with a Weapon [s. 267 CC] Victim: D.M. (Male: 15 years old) Place: Regina, SK

(Information 44080780) According to the Sentencing Transcripts dated May 24, 2002, on April 16, 2002, D.M. and some friends, including Mr. Piapot, made plans to go to the BMX bike track. D.M. and Mr. Piapot had an argument over who was going to ride the BMX bike on the way to the track. They continued on to the bike track and consumed alcohol. While making his way home that evening, D.M. was walking through a back alley. He felt someone hit him in the back of the head with an object. He fell to the ground and was on his hands and knees. It was at this point in time that Mr.

Piapot stabbed him in the neck area and ran away. D.M. proceeded home and did not call the police. The next morning he attended to school. The principal took D.M. to emergency and called the police. D.M. suffered a wound to the left side of his neck that was approximately 1.5 cm in length and 2 cm deep. The doctor indicated that the stab wound had just missed the carotid artery. Furthermore, the doctor indicated that he had a grade 1 concussion. Sentence Date: May 24, 2002 Sentence: 10 Months Secure Custody Youth Offence Date of Offence: May 5, 2003 Offence: Robbery [s. 344(

b) CC] Victim: M.K. (Male: 14 years of age) Place: Regina, SK (Information: 31070777) According to the Sentencing Transcripts, dated June 12, 2003, on May 5, 2003, at approximately 6:00 p.m., Mr. Piapot approached M.K. and demanded the victim’s gold earring. Mr. Piapot punched M.K. in the face and took the earring. M.K. attended the hospital and was treated for facial injuries. A few days later, M.K.’s father ran into Mr. Piapot in a convenience store. Mr. Piapot was wearing his son’s gold earring. M.K.’s father demanded the earring back and Mr. Piapot handed the earring over without incident. Mr.

Piapot was arrested on May 21, 2003 when he was found to be in possession of a stolen Dodge Neon. No further details are known at this time. Sentence Date: June 16, 2003 Sentence: 12 Months Secure Custody & 6 Months under supervision in the community Youth Offence Date of Offence: September 26, 2005 Offence: Uttering Threats [s. 264.1(1)(

a) CC] Victim: Cst. Todd Sherwin Place: Regina, SK (Information: 42250917) According to the Sentencing Transcripts, dated November 18, 2005, on September 26, 2005, police were in pursuit of a stolen vehicle. They were able to immobilize the stolen vehicle and approached the driver side door. As they approached, three suspects fled from the passenger door. Cst. Sherwin pursued Mr. Piapot on foot. Mr. Piapot was looking over his shoulder and yelling threats at Cst. Sherwin. Mr. Piapot stated, “You want to get shanked ... I’m going to stab you ... I’ve got a knife, I’ll stab you ... I’m gonna smoke ya”. Cst.

Sherwin believed him to have a knife and believed that he was capable of stabbing him. Cst. Sherwin was able to catch up and gain control of Mr. Piapot. It should be noted that at the hearing of this application Mr. Piapot, through his counsel, objected to the characterization of this offence and indicated that Mr. Piapot threatened to strike the police officer with a Game Boy and not a knife. Either way, it is the threat of an assault on a police officer while in pursuit of Mr. Piapot.

Sentence Date: November 18, 2005 Sentence: 40 Days Secure Custody & 20 Days under supervision in the community Date of Offence: January 12, 2007 Offence: Robbery [s. 344(

b) CC]; Disguise with Intent [s. 351(2) CC] Victim: Seven Eleven; Larry Bryska (clerk) Place: Regina, SK (Information: 35882099) According to the Queen’s Bench Sentencing Decision, dated November 29, 2007, on January 12, 2007, at approximately 5:30 a.m., 4 masked individuals entered the 7-11 Convenience Store and approached the store clerk. Mr. Piapot stood guard at the door. He was armed with a wooden bar or pole. The co-accused were armed with knives. While Mr. Piapot stood guard, one of the accused grabbed approximately 120 packs of cigarettes, the other accused took the till tray.

Before leaving the store, one of the accused stated, “Don’t stab him, just kick him in the head”. (It is unclear which accused said this.) One of the accused then kicked the clerk in the head. Mr. Piapot and the co-accused fled. An employee was in the back room at the time of the robbery and phoned police. He described the getaway vehicle to them. Identification of Mr. Piapot as a participant came from testimony of the 13 year old accomplice in the robbery and of Mr. Piapot’s brother-in-law. The sentencing decision indicates that Mr. Piapot was found guilty after trial.

Sentence Date: November 29, 2007 Sentence: 44 Months Jail (with credit for 20 months pre-sentence custody) The Corrections Service Canada Preliminary Assessment Report indicates that Mr. Piapot was released on January 11, 2007 and committed these offences less than 24 hours later. PREDICATE OFFENCE Date of Offence: March 14, 2014 Offence: Assault with a Weapon [s. 267(

a) CC] Victim: Raylene Ireland-Staite; Daneen Whitequill and Zayden Whitequill Place: Regina, SK (Information: 36240569) The facts have previously been summarised in this decision. [ 28 ] Given his record and its nature and given his continued offending, often times very shortly upon being released from incarceration, it is clearly within the realm of possibility that Mr. Piapot might be found to be a dangerous or long-term offender. The order of assessment will be granted. C.

Assessment Performed by an Expert [ 29 ] Given that I have come to the determination that an assessment is justifiable, the next question is who should be designated as the individual to perform the assessment. The Crown put forward the name of Dr. Todd Tomita, a forensic psychiatrist from Vancouver, British Columbia. Dr. Tomita has to date, conducted forensic psychiatric assessments on numerous offenders pursuant to court orders including court orders under

Part XXIV of the Criminal Code and, similarly, has on numerous occasions been qualified to testify in Court as an expert witness including in dangerous and long-term offender sentencing hearings. The defence had no objection to Dr. Tomita being appointed in this capacity in the event that an assessment was ordered.

IV CONCLUSION [ 30 ] For the reasons set out above, I conclude that the Predicate Offence for which Mr. Piapot was convicted on November 25, 2014 is a serious personal injury offence and that there are reasonable grounds to believe that Mr. Piapot might be found to be a dangerous or long-term offender. [ 31 ] I therefore make the following orders: 1. An order for an assessment of Justin Lee Piapot, as contemplated by

section 752.1 of the Criminal Code , for use as evidence in an application under

section 753 or 753.1; 2. An order requiring Dr. Todd Tomita to prepare a written report regarding his assessment of Mr. Piapot and conclusions reached, including a list of all materials considered in the course of the assessment; and 3. Pursuant to s. 752.1, Mr. Piapot will be remanded in custody pending preparation of the assessment report. K.A. Lang, J [1] R v Goforth , 2005 SKCA 12 [2] R v Steele , 2014 SCC 61 [3] 2006 SKCA 115 , 289 Sask R 98 [4] 2011 SKQB 2 , 373 Sask R 22