Her Majesty the Queen - v. -, 2019 SKPC 38

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 38 Date: August 28, 2019 Information: 24537210 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Cody Dillon Keenatch Appearing: Jeffrey Lubyk For the Crown Robert Rooney For the Accused DECISION ON DANGEROUS OFFENDER APPLICATION H.M. HARRADENCE , J INTRODUCTION [ 1 ] On May 24, 2015, Cody Keenatch (Keenatch), together with two other inmates, attacked another inmate in the weight room of the Saskatchewan Penitentiary.

As a result, Keenatch and the two other attackers were charged with aggravated assault. Michel and Morin, the two other attackers, pled guilty to assault with a weapon and were sentenced to a period of 18 months incarceration. [ 2 ] I convicted Keenatch after a trial of assault causing bodily harm. A video of the assault convinced me that this was a

cowardly attack by three individuals on a victim who had his back turned. The video shows the three offenders hitting and kicking the victim repeatedly. Subsequently the victim did not cooperate with the police investigation or prosecution and was not called as a witness at the trial. [ 3 ] Upon conviction the Crown requested a psychiatrist be appointed by the Court to assess Keenatch to determine whether dangerous offender proceedings should be instituted. After reviewing the curriculum vitae of Dr. Mansfield Mela, I was satisfied that he would be appropriate to assess Keenatch, particularly given Dr.

Mela’s experience and research involving Fetal Alcohol Spectrum Disorder (FASD). Dr. Mela’s assessment report was dated March 21, 2018. On April 18, 2018, the Crown filed a Notice of Application indicating their intention to proceed with dangerous offender proceedings. [ 4 ] Th evidentiary portion of this hearing had an unfortunate start. [1] There were more twists and turns after the conclusion of the evidence when further material was submitted (D-1 and D-3).

The evolving nature of this evidence was brought about in part by Keenatch’s programming which he became eligible for during the hearing after approximately 18 months on a waitlist. THE LAW [ 5 ] The Crown’s Application is based on subparagraph 753(1) (a)(

i) of the Criminal Code : 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. [ 6 ] In this Application there are two phases: 1) The designation phase; and 2) The sentencing phase.

As argued by the Crown, the 2008 amendments to the Criminal Code widen the scope of offences and offenders eligible for a dangerous offence designation but recognize discretion in the sentencing phase. Mr. Lubyk in his thorough brief of law states the following: 9. With the 2008 amendments, the wording of s. 753(1) (

a) of the Criminal Code has changed from “may” to “shall” when determining whether an accused is a dangerous offender. Therefore, the Court must find an offender to be dangerous once the statutory criteria are satisfied. Prior to the amendments in 2008, sentencing judges had the discretion to decline to declare an offender dangerous even though the statutory criteria had been made out. 10. With the 2008 amendments, the sentencing judge’s discretion shifts to the sentencing stage.

The Court, in finding an offender dangerous, has the discretion to impose an indeterminate sentence or a fixed sentence with or without a long-term supervision order to follow pursuant to s. 753(4) of the Criminal Code . 11. Prior to the 2008 amendments, if the Court found an offender dangerous and declined to sentence as a long-term offender, the only available sentence was an indeterminate one.

The assessment of dangerousness and the appropriate designation all occurred at the threshold stage. [ 7 ] The dangerous offender provisions of the Criminal Code have been subject to extensive judicial analysis and comment, both pre and post the 2008 amendments. The Supreme Court provided clarity and confirmation in R v Boutilier , 2017 SCC 64 [ Boutilier ]. In Boutilier Justice Cote observed that the dangerous offender regime is to be confined to “very small group of offenders,” [2] “habitual criminals who are dangerous to others” [3] .

[ 8 ] Public protection is emphasized in section 753(4.1). This emphasis, while consistent with the general purpose of

Part XXIV, does not remove the obligation to consider all of the sentencing principles in

section 718, 718.1 and 718.2 ( Boutilier , at para 56 ). Justice Cote in Boutilier confirms that while an offender’s character, including past criminal record will be relevant, the analysis under

section 753 must be future orientated and prospective. In R v S.P.C. , 2018 SKCA 94 , the Saskatchewan Court of Appeal applied Boutilier . Justice Ottenbreit recognized that programming will be “a relevant consideration to the issue of risk reduction” [4] but that the ultimate question for the judge is whether a lesser sentence would adequately protect the public. [5] [ 9 ] The Saskatchewan Court of Appeal has recently released two decisions which consider the impact of Boutilier : R v Parfitt , 2019 SKCA 55 and R v Piche , 2019 SKCA 54 . Justice Jackson, at para 65 of Parfitt , provides a useful

summary of the findings which are necessary before an offender can be designated as dangerous: (a) “an offender cannot be designated as dangerous unless the judge concludes that he or she is a future ‘threat’ after a prospective assessment of risk”, which includes a “consideration of future treatment prospects” (italic emphasis in original, at para 23); (

b) following Lyons , a sentencing judge must still be satisfied on the evidence that (

i) the offender poses a high likelihood of harmful recidivism; and (ii) his or her conduct is intractable, which is defined as “behaviour … unable to surmount” ( Boutilier at paras 27 and 43 ); (c) “determining whether or not a high risk of recidivism and intractability are present necessarily involves a prospective inquiry into whether an offender will continue to be … ‘a real and present danger to life or limb’” (at para 35); (d) “a past pattern of violence is considered in the global assessment of an offender’s future behaviour, which, in turn, is considered by the court in determining whether the offender constitutes a ‘threat’” (at para 37); (e) “the judge ‘shall’ designate an offender as dangerous only if he or she is satisfied beyond a reasonable doubt that the offender actually constitutes a future threat to safety in light of all the relevant evidence” (at para 41); (

f) treatability and intractability must be considered at the designation stage (at paras 42–43) [6] ; (

g) the Crown is required to demonstrate “beyond a reasonable doubt, a high likelihood of harmful recidivism and the intractability of the violent pattern of conduct” before an offender can be declared dangerous (at para 46); (

h) the dangerous offender designation is limited to a small group of offenders (at paras 3 and 90); and (i) “a rigorous application of the designation criteria under s. 753(1) ensures that the provision does not overreach by capturing offenders that should not face the risk of a sentence of indeterminate detention” (at para 77). [ 10 ] If the evidence satisfies me that Keenatch should be designated a dangerous offender, subsection 753(4) provides three sentencing alternatives: 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. [ 11 ] If the evidence fails to satisfy me that Keenatch should be designated as a dangerous offender section 753(5) permits me to consider whether a long-term offender designation is appropriate: 753(5) If the court does not find an offender to be a dangerous offender, (

a) the court may treat the application as an application to find the offender to be a long-term offender,

section 753.1 applies to the application and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or (

b) the court may impose sentence for the offence for which the offender has been convicted. [ 12 ] In considering a long-term offender application I must be satisfied of the following three criteria according to

section 753.1(1): (

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 reoffend; and (

c) there is a reasonable possibility of eventual control of the risk in the community. [ 13 ] In the context of these proceedings, ssubsection 753.1(2) directs that if I am satisfied that there is a pattern of repetitive behavior as defined in that section, I can find a substantial risk of recidivism: 753.1(2) The court shall be satisfied that there is a substantial risk that the offender will reoffend if … (

b) the offender (

i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons, or THE HEARING a. Viva Voce Evidence [ 14 ] The Crown called six witnesses, all of whom were employees of the Correctional Service of Canada (CSC). These witnesses generally outlined CSC programming. None of these witnesses provided specific evidence as to this offender, Keenatch, and, as pointed out by Mr.

Rooney in the defence brief of law, the majority of these witnesses were unfamiliar with the offender Keenatch: 1. Trina Debler – Program Manager at Saskatchewan Penitentiary (she does not know Keenatch). She described the Integrated Correctional Program Model (ICPM), the module approach to programming and the high and moderate intensity programs. Ms. Debler described the core and Aboriginal programing as being cognitively based. The Aboriginal programming does include an Aboriginal history component. According to Ms. Debler’s records, Keenatch has been waitlisted since 2017. Offenders are priorized on

the wait list according to their release dates. In terms of mental health programming, Ms. Debler indicated that this could b e a factor in the adapted stream: Q Do you take mental health issues in -- into account when you are determining an offender in terms of programming at Sask Pen? A Only in relation to now that they’re bringing out the adapted. Certain -- certain mental health issues or intensities of mental health or impacts of mental health can be considered as to whether or not they qualify for the adapted stream as a result of that.

Otherwise, if they don’t qualify for the adapted and they’re just being streamed into regular, we work with their mental health within that program the best we can, so … Q Okay. So what about if -- if -- if an offender had FASD, would that factor in? A It could. I’m not versed in the adapted criteria. Q Oh, okay. So if you -- A So … Q Yeah. No, I don’t want to answer that. A Yeah. Q Sorry. But in terms of your programming. A We would work with that as what we would call responsivity factor. So we’d be aware of it and work with it in the programming.

You know, maybe it’s a memory thing or an impulsivity or, I mean, it could -- it can present as a variety of -- of things in the classroom, and we’d work with it to the best of our ability if we’re aware. Q Okay. A Provide the extra support. 2. Tracey Sirota – Acting Program Manager at the Regional Psychiatric Centre (RPC) (she does not know Keenatch). Ms. Sirota testified that an Adapted Model of the ICPM is used at the RPC and programming is available with an Aboriginal focus. It is only available at the RPC. Ms.

Sirota testified that the goal of the ICPM programming is to provide skills for purposes of rehabilitation and give offender’s tools to better manage their behavior in their parent institutions and in the community. She testified that the Adapted version of the ICPM is designed for disabilities in that sessions are shorter, focuses on the visual as opposed to the written and contain simple concepts and smaller groups. Ms. Sirota testified that that Adapted Model of the ICPM is not available in the Aboriginal format. The Adapted Model is relatively new and when Ms.

Sirota testified, CSC was still developing waitlists. Ms. Sirota has been involved in programming within CSC for the past 13 years. She was candid in providing her view that in every programing group she has conducted there was at least one offender who appeared to be experiencing signs of FASD: Q They might be, yeah. That’s an unfair question. So and you told us that in your experience, you’ve got a Bachelor of Social Work and 23 years experience at RPC, every group that you run has an offender in it that has FASD?

A I -- I would feel fairly confident in saying that. Q For 23 years? A I haven’t been doing programs for 23 years. I’ve been doing programs for the last 14 years, 13 years. Q At least one? At least one offender? A I -- I would be fairly confident in saying that. Q And an adapted program, given your experience and your knowledge base, would be of assistance to someone that has been diagnosed with FASD? A Absolutely. Q We need more adapted programming. A Well, I -- I’m very excited that we finally do have it at RPC.

We, as facilitators, have adapted the programs that we’ve had in the past to meet those needs and we’ve had the flexibility to do that, so it’s nice to see it recognized on -- on a more national level. Q Because it’s hard to be motivated to do something if you can’t concentrate on it. A Absolutely. 3. Mark Poulin – Acting Director of Aboriginal Program Manager at Saskatchewan Penitentiary. Mr. Poulin confirmed that the Adapted Model is not available at the Saskatchewan Penitentiary. Keenatch has been on the wait list for the high intensity programs since February 2017. Mr.

Poulin provided an explanation for the waitlist for programming experienced by this offender: Q Are you aware that Mr. Keenatch is on a waiting list for the Aboriginal high intensity multi-target program? A Yes, I am. Q And do you know how long he’s been on that waiting list? A I checked the system actually yesterday, and -- and our clerk said she put him on there February of 2017. Q Okay. A Yeah. Q And do you have an explanation as to why he’s been on that waiting list that long? A I mean, I just quickly kind of reviewed his file. There’s a couple – couple stints in segregation there.

You know, he’s -- he’s transferred out a few times. That might’ve been before he was on -- on the waiting list. It all depends on -- the max is -- it’s -- it’s harder to offer programs to offenders at the max because, number 1 is all the ranges are segregated. So each range has to be programmed together. They can’t amalgamate any program. Although Mr. Poulin recognized the term fetal alcohol spectrum disorder his experience with this disorder in programming is limited: Q How about -- how about -- I mean, you’re familiar with fetal alcohol spectrum disorder? A I’ve heard of it, yeah.

Q Okay. A Yeah. Q Any -- have you dealt with -- with people in your groups or in your class? A I can’t remember any specific offenders that I’ve dealt with. Sure, there’s been some in my group. Like I said, I’ve been lucky. I haven’t had too many offenders that have had too many comprehension, reading, writing issues. But I think, just depending on what they show in group, you know, you just, you know, like I said, do the one-on-ones, spend the extra work going through the concepts with them, things like that, so … Q So put us in the classroom.

So let’s say you’re on module 1 of the Aboriginal multi-target high-intensity program. Are you -- are you providing a lot of information to them verbally in what you’re saying? Are you providing information on paper, materials, things like that? A combination? Or in -- or in other ways? A That’s the idea. The idea is that, you know -- you know, it’s guided learning, right? So you’ll ask them questions to kind of guide them to the answers. Obviously, you’re going to, what’s the word, rephrase or -- or add to it, right, to -- you know, whatever the case may be.

You’re asking questions, leading them along the lesson. And -- and then, of course, you’re going to add your own thoughts into it, you know, for sure. But, generally, it’s a -- it’s a guided learning program. You’re not -- you’re not there teaching them like, you know, this is what you need to do. You know, you’re asking them questions and -- and kind of guiding them to the answer -- Mr. Poulin testified in cross-examination that he is not aware of any testing which is done to determine an offender’s level of understanding. 4. Taylor Nyberg – Aboriginal Correctional Programs Officer at Saskatchewan Penitentiary.

This programming is specifically aimed at Indigenous offenders to assist them to understand their social history and provide access to cultural ceremonies and traditions. Ms. Nyberg is familiar with FAS. She says that CSC staff would learn of any disability for individual offenders by reviewing their file. Ms. Nyberg testified that both group, and one on one session are used at the various institutions. Ms.

Nyberg was unable to comment on the prevalence of FASD within the inmate population (page T286) but did testify as to program adaptations that are available for offenders with mental health issues including FASD: Q Okay. Issues with -- amongst the participants with learning disabilities, how do you -- you -- do you identify that, or how do you -- and if you do, how do you deal with that? A Yes, we do. So in part of that file review, we can look at the psychology report done, like, the mental health report done prior to them as part of their intake process.

If it does say the individual is diagnosed with ADHD or has self diagnosed with ADHD or any other mental issues, we do take that into consideration. And when we meet with them in the pre-program interview, we get a sense of, you know, how much help will they need throughout the program? Like, will this person need a little bit more assistance with handouts? Do they learn more verbally or reading? And that’s where, again, in the pre-program interview, we can ask them, what are you comfortable with? Are you good at reading? Are you good at writing? And kind of get a feel with where they’re at.

Q Have -- have you had experience with offenders with fetal alcohol spectrum disorder? A Yes. Q You have? A Yes.

Q Okay. And how do you deal with that? A With those type of offenders, usually, they do require sometimes more assistance with handouts. I have worked with offenders that are able to complete the handouts and verbally, you know, understand, tell me that they understand the program itself. I’ve had some offenders that they do need some more guidance and help understanding the content as well as the handouts, and that’s, again, where the one-on-one sessions would come in. You can meet with them after program.

But, usually, we try to still incorporate them within the group dynamic because it also offers a different type of learning environment on top of the one-on-one. 5. James Gonzo – at the time of his testimony Mr. Gonzo was acting as a Projects Manager relating to Saskatchewan Institutions within CSC. He explained the approach taken by CSC in administering an offender who has been declared to be a dangerous or long- term offender. A

summary of his testimony prepared by him was filed by consent as P-13 in these proceedings. The testimony of Mr. Gonzo and the contents of P-13 outline, in general terms, a pathway to release under the Corrections and Conditional Release Act together with the checks and balances involved in release planning. Mr. Gonzo indicated that he had met Keenatch at Killburn Hall, a youth offender facility, but had not had any contact with him in the Correctional Service of Canada. 6. Tyler MacKinnon – Parole Office Supervisor at the Prince Albert Office.

His testimony focused on the role of the parole officer in supervising an offender who’s been released from custody and is serving a sentence in the community.

At the Prince Albert office there is a part time Elder and the officers will travel to Big River First Nation and other First Nations to supervise offenders on parole. [ 15 ] While it is useful to understand the institutional programs and limitations, this information is, in my view, of limited relevance to a prospective analysis of Cody Keenatch’s threat to the public unless it is contextualized with individual information regarding Keenatch and his background. [ 16 ] The evidence leaves me with the impression that CSC lacks a consistent approach to ensure that an individual with Keenatch’s diagnosis can fully participate and benefit from programming.

Until very recently, the limited availability of the programming, along with other factors, has left Keenatch on the wait list. b. Documentary Evidence [ 17 ] A significant amount of documentary evidence was placed before the Court by the Crown. This evidence relates to Keenatch’s criminal record and his behavior while serving sentences both as a youth and as an adult. Exhibit P-9 details his criminal record, which is significant both in number of convictions and severity of convictions.

It includes a youth conviction for manslaughter in 2007, and adult convictions for assault causing bodily harm (2014), and robbery (2014). In relation to the robbery conviction, Keenatch was sentenced to five years six months and continues to serve that sentence. (Appendix “A” is a reproduction of P-9 as it relates to Keenatch’s criminal convictions.) [ 18 ] The material presented to the Court was organized into several volumes: Part A (P-2) – Criminal record and Court materials including a transcript of a case conference conducted by Judge Whelan in 2004.

Part A(i) (P-4) – Materials relating to Keenatch’s 2014 conviction for break and enter. Part B (P-5) – CSC records documenting Keenatch’s first federal incarceration from 2009 – 2012.

Part C (P-6) – CSC records documenting Keenatch’s second federal incarceration from 2014 – 2017. Part D (P-7) – Various reports including psychological and pre-sentence reports which were completed in relation to Keenatch between 2000 – 2006. Part E (P-8) – Assessments for decision, Parole Board correspondence and performance reports completed in relation to Keenatch between 2017 – 2018.

Part F (P-17) - Which was filed on May 30, 2019, after the evidentiary portion of the hearing had been completed by agreement of counsel and includes several progress performance reports completed by CSC between 2018 – 2019. c. Gladue Report [ 19 ] On behalf of Keenatch, Mr. Rooney requested a report examining the background of this offender - a Gladue Report. The Crown agreed. The Gladue Report was completed by Lisa Hill and submitted to the Court on August 20, 2018. This report was exhibited as P-11. d. Report of Court Assessor: Dr. Mansfield Mela [ 20 ] As indicated, I ordered Dr.

Mela to assess Keenatch for the purpose of providing an assessment regarding these proceedings. Initially the Crown suggested Dr. Shabehram Lohrasbe, a psychiatrist from Victoria, British Columbia, to conduct the assessment. The defence suggested Dr. Mela, given his research and experience in Fetal Alcohol and its effects. Dr. Mela’s extensive curriculum vitae was filed with the Court (Exhibit P-13), and I was satisfied that it was appropriate that he conduct the assessment and report his findings. Dr. Mela’s report dated March 21, 2018, was filed as Exhibit C-1. In addition, Dr.

Mela provided viva voce evidence in these proceedings. In his testimony, Dr. Mela was permitted to offer opinion evidence in the following areas as outlined by Mr. Lubyk: Thus, the Crown is seeking to qualify Dr. Mela as a doctor of psychiatry in the field of forensic psychiatry, qualified to give expert evidence with respect to the assessment and treatment of violent offenders, the risk of future violence of offenders and controlling that risk for violence in the community. But further to that we are also asking that Dr.

Mela be qualified to give expert evidence regarding the diagnosis of fetal alcohol spectrum disorder or FASD and how it affects risk for violence and treatment options. [7] e. Defence Evidence (

i) Statement of Sylvia Joseph [ 21 ] The defence did not call evidence during the evidentiary portion of this hearing but on May 30, 2019, with the consent of the Crown, the defence tendered an Agreed Statement of Sylvia Joseph which was marked as Exhibit D-1 in these proceedings. The statement of Sylvia Joseph reads as follows: 1. Sylvia Joseph resides at house #53248 Big River First Nation since 2003 with her husband, Bobby Joseph, her daughter Stephanie Joseph (and her two children), and her daughter Sarah (and her 3 children). 2. Ms. Joseph is Cody Keenatch’s aunt, although he calls her “mom”.

Cody’s biological mother was Sylvia Joseph’s younger sister. Cody was given up to Sylvia Joseph when an infant. She has a room available for Cody in her home and, in fact, it is the room he lived in when he last lived at the house. During his last residency at the Joseph house, Ms. Joseph reports that Cody did well until one day when his oldest brother, Christian Naistus, came by while Ms. Joseph was at work and Cody left with that brother. The brother was not allowed to come to Big River because of his gang affiliation.

Sylvia Joseph did not see Cody after that and she believes that Cody avoided her for a time thinking that she would be angry with him for breaking the house rules. Cody was then arrested and has been in custody since that time. 3. When Cody lived with the Josephs, they would often take him to Sundances, Round Dances, Powwows, Sweats and other cultural activities and encouraged him in taking

part in sports, notably hockey. 4. Big River First Nation has a zero tolerance policy for gangs and bans individual gang members from the reserve when it comes to the attention of Council that those persons are in a gang. The Band Council is also working to rid the land of drugs by providing healthy alternatives for the band members and reporting suspected drug trafficking to police. 5. The Joseph home is drug and alcohol free. Sylvia and Bobby Joseph actively enforce this rule.

6. Bobby Joseph will have employment for Cody doing carpentry and repair work alongside Bobby Joseph, who does carpentrycontract work on the Reserve. Sylvia Joseph will assist Cody in enrolling in upgrading classes that are available in the communitycentre and will ensure that he keeps all appointments with parole officials, counsellors and others who are trying to help him. 7. Ms. Joseph is aware of Cody’s conditions including FASD and ADHD and hopes to learn more about how to help Cody stayactive and out of trouble by working with the FASD Network and with Cody. [22] On June 14, 2019, Mr.

Rooney delivered to the Court two CSC documents: 1) Program Performance Report Interim – with anend date of April 8, 2019; and 2) Program Performance Report Final – also dated April 8, 2019. Both of these reports are in relation toKeenatch’s attendance at and participation in the Aboriginal Multi-Target High Intensity Program. Both list Lizanne Moffatt as theProgram Supervisor and author of the reports. [23] In the email delivery of these documents, Mr. Rooney indicated that he has provided copies of the reports to Mr.

Lubyk,Crown Counsel, and the Crown has consented to the material being placed before the Court for consideration. Mr. Rooney requests inhis email that the reports be marked as Exhibit D-3. This was confirmed on June 27, 2019. ANALYSIS a. Dangerous Offender Designation [24] There are four criteria to be considered in determining whether an offender should be designated as dangerous. These criteriawere interpreted by Judge Beaton in R v Ballantyne, 2019 SKPC 32, at para 56: [56] The Supreme of Canada in R v Boutilier, 2017 SCC 64, [2017] 2 SCR 936 [Boutilier] at para 26 confirmed its

interpretation ofsection 753(1), as first stated in R v Lyons, (SCC), [1987] 2 SCR 309 [Lyons]. According to the Court, there are fourcriteria at the designation stage which can be gleaned from section 753(1) and which must be proven beyond a reasonable doubt: (1) theoffender has been convicted of, and has to be sentenced for, a “serious personal injury offence”; (2) this predicate offence is part of abroader 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 to continue, that the conduct will endanger the life,safety or physical well-being of others and that the conduct is substantially or pathologically intractable, meaning that the offender isunable to surmount this behaviour. [25] Justice Cote in Boutilier emphasizes the need for the inquiry to be focused on a prospective assessment of dangerousnessexamining whether the offender poses a “high likelihood of harmful recidivism” and whether his conduct is intractable: [27] The language of s. 753(1), which led Justice La Forest to develop the four criteria outlined above, has never been amended since itsenactment in 1977.

Before designating a dangerous offender, a sentencing judge must still be satisfied on the evidence that the offenderposes a high likelihood of harmful recidivism and that his or her conduct is intractable. I understand “intractable” conduct as meaningbehaviour that the offender is unable to surmount. Through these two criteria, Parliament requires sentencing judges to conduct a prospective assessment of dangerousness.[8] [26] Cody Keenatch has been convicted of violent offences in the past, including manslaughter, break and enter, aggravated assaultand robbery.

His past criminal record is relevant to an assessment of his future threat to public safety. [27] The predicate offence is also violent. The beating of Ronald Burling and the consequent conviction for the offence of assaultcausing bodily harm is acknowledged as a serious personal injury offence (para 34 of Defence Brief). Mr. Rooney also has admittedKeenatch’s prior criminal convictions (Appendix

A) and does not contest that the violent nature of this past conduct may establish apattern of repetitive or aggressive behavior. The defence specifically points to the evidence presented at this hearing regarding a positivechange in Keenatch’s behavior and attitude: While the requirement for evidence of either a “pattern of repetitive behavior” under s. 753(1)(a)(

i) or a “pattern of persistent aggressivebehavior” under s. 753(1)(a)(ii) are means open to the Crown to prove that the offender is a dangerous offender, it is important to notethat there remains a requirement that the offender remains a threat to others at the present time. Parliament uses the word “constitutes”in the present tense and not “constituted”. In other words, the clear intent of s. 753(1) is to allow the Court to consider the history of the

offender, but also to assess whether the threat is still extant at the time of the hearing of the application. The defence submits that evidence of a positive change in behavior that may amount to a breaking of the pattern of offending should be considered in the Court’s examination of the conduct history of the offender. Mr. Keenatch has not committed any offences in almost 4 years and has demonstrated to the satisfaction of the officials at CSC and Dr. Mela that he is no longer involved in a gang. [9] [ 28 ] Keenatch is a member of the Big River First Nation.

His mother had a history of alcohol, drug and solvent abuse including during her pregnancy with him. It is reported that she was abusing drugs and or alcohol on the night before she went into labour. Both his parents are now deceased. At the time of his father’s passing, Keenatch was incarcerated and denied an escorted leave to attend the funeral as his threat was assessed as too high to permit such a leave. [ 29 ] Given the addictions of his mother, Keenatch was raised by his grandparents. There is no history of difficulty in his behavior as an infant.

Keenatch, along with the other children in the care of his grandparents, was sent into foster care at approximately eight years of age. His grandmother noticed a change in his behaviour, for the worse, on his return from foster care. This lasting effect of foster care and the young age of Keenatch’s involvement in criminal and gang activity is recognized in the recent report completed by Lizanne Moffatt (Exhibit D-3): Mr. Keenatch was in and out of foster care the majority of his life and was exposed to unhealthy problem solving throughout his childhood.

Having been bounced around between foster homes showed him that when things are not working out, you don’t try to work things out, you move somewhere else. At the age of 9 he began associating with gang members and he learned that violence and other criminal activity will often get you what you want. As a result, Mr. Keenatch would use criminal methods to resolve issues with finances and conflict.

Further, he would also abuse alcohol and drugs to cope with emotions and to feel a sense of belonging among peers. [ 30 ] The Gladue Report, prepared by Lisa Hill, recounts Keenatch’s recollection of being held down and his hair cut off for speaking Cree in his foster home. [ 31 ] Her Honour Judge Whelan in sentencing Keenatch for the offence of possession of a prohibited weapon, under the Youth Criminal Justice Act , SC 2002 c1 , ordered a Fetal Alcohol Assessment in the summer of 2003. This assessment was completed by Dr. Jo Nanson and Dr. Blakely.

Their reports are part of Exhibit P-5 in these proceedings. [ 32 ] At the time of the Nanson/Blakely assessment Keenatch was almost 14 years of age. It was Dr. Nanson’s conclusion that Keenatch was functioning in the low average range with significant deficits in attention, verbal memory and verbal executive functioning. She concludes in her report that he appears very needy, and in many ways shows signs of reactive attachment disorder. [ 33 ] Dr.

Blakely, who was the Medical Director of the Alvin Buckwold Child Development Program at the time of her report on August 29, 2003, diagnosed Keenatch as suffering from Partial Fetal Alcohol Syndrome which, she reports, can be as significant a disability as full Fetal Alcohol Syndrome (FAS). [ 34 ] Dr. Mela in his testimony at this hearing confirms the diagnosis originally made by Dr. Blakely in 2003. According to Dr.

Mela, during Keenatch’s federal incarceration there has been little to no attempt to modify programming to accommodate his disability: Well, for example, the -- by this time in this federal sentence a diagnosis of FASD had already been made because it was in the youth offence, but there’s no mention of it, there’s no mention of trying to modify his programs, so he was essentially put in the regular programs that everybody would have fitted in, so those are some of the things that I noted. [10] [ 35 ] Until recently, Keenatch has a limited record of programming. As a result, Dr.

Mela agreed that Keenatch is an untreated violent offender. According to the actuarial risk tools administered by Dr. Mela, Keenatch is presently at a moderate to high risk of violent recidivism. Keenatch’s risk is determined by reference to his impulsivity, his gang affiliation and participation and his substance abuse. Dr. Mela agreed that without treatment Keenatch is a risk to public safety. [ 36 ] Keenatch is impulsive, a symptom of FAS, has an anti-social personality disorder and suffers from attention deficit hyperactivity disorder which needs to be controlled by medication according to Dr. Mela. Dr.

Mela also saw a gentler side to Keenatch with a longstanding interest in writing poetry and rap music. [ 37 ] Given the FAS diagnosis, Dr. Mela agreed that Keenatch has dysfunctional executive functioning, which results in poor

planning and an inability to sequence events or participate in classroom settings. These deficits are difficult to recognize because of what Dr. Mela termed the invisibility of FAS and Keenatch’s verbal fluency. [ 38 ] Dr. Mela opined that Keenatch needs a multi-faceted approach involving medication, grief counselling, substance abuse counselling and counselling and support to promote prosocial groups to replace his gang involvement. Dr. Mela went further in his opinion saying that slight adaptation to the existing programming offered by the Correctional Service could produce significant results.

This programming needs to involve skilled experts and recognition of Keenatch’s disability. Dr. Mela believes that the Adapted Intensive Correctional Program Model, with appropriate modifications incorporating Keenatch’s disability would be less complex and not as difficult to manage. In cross-examination, Dr. Mela said: I would describe them as complex, but I wouldn’t use that word, excuse me, when it comes to how to handle it because I think that there is some simple adjustments that can be done that will make significant impact. So, for example, if Mr.

Keenatch was made to understand or informed about this diagnosis, which he hasn’t really been for quite a while, it just kind of disappeared in his mind, that, look, you have a problem with the way you stop and think, you have a problem with your impulse, you have a problem with your executive function because of this prenatal alcohol exposure. In himself he will become more conscious about how he acts. For example, he’s already started talking about, well, if I’m released in the community, if I need something I will ask my parole officer.

Well, he never did that before, but if it is made for him to understand that the link, why you need your parole officer is because you’re not always going to be able to remember things. That will make life easier for him, that’s one. Second aspect of those minal -- what I call them, minal adjustments with significant impact is if those who are looking after Mr. Keenatch know about these deficits and adjust the way they work he’s not going to be as complex as his list of diagnoses look anymore. Similarly, even the way we talk to him if that is changed is a minal adjustment. For example, instead of asking Mr.

Keenatch were you sexually abused, if I change the question and said, how did you cope with your sexual abuse, that’s going to be more informative and would not make it so complex as his diagnosis would seem. So there are a few things that can change that complexity so that he’s not as complex as he thought. [ 39 ] Dr. Mela estimated that 20 – 30% of federally sentenced inmates suffer from FAS or a related disorder (page T20). While acknowledging that FAS cannot be cured, Dr. Mela stated that a person with this disability can be cared for and the disability can be managed.

Unfortunately, the evidence I heard during this hearing did not convince me that adequate steps have been taken to address this disability within the Correctional Service of Canada. Dr. Mela concluded that Keenatch’s disability is related to his offending background and his present risk. Keenatch’s history as an Indigenous person has significantly contributed to his disability. In order to address FAS as an issue both in this case and generally, the criminal justice system must do more than simply recite Gladue and paragraph 718.2(

e) of the Criminal Code . [11] [ 40 ] I am satisfied by the evidence in this hearing that the correctional authorities have not adequately modified programming to accommodate Keenatch’s disability which was diagnosed over 15 years ago. Keenatch’s disability is directly related to his ancestry, background and upbringing as an Indigenous individual. Paragraph 718.2(

e) is engaged. The failure to modify programs to address Keenatch’s disability is symptomatic of CSC’s ongoing difficulties designing treatment programs to meet the needs of Indigenous offenders. The issue was recognized by Justice Wagner (as he then was) in Ewert v Canada , 2018 SCC 30 , at paras 57 – 59 : Although this Court has in the past had occasion to discuss this issue most extensively in the context of sentencing and of the

interpretation and application of s. 718.2 (

e) of the Criminal Code , R.S.C. 1985, c. C-46 , it is clear that the problems that contribute to this reality are not limited to the sentencing process. Numerous government commissions and reports, as well as decisions of this Court, have recognized that discrimination experienced by Indigenous persons, whether as a result of overtly racist attitudes or culturally inappropriate practices, extends to all parts of the criminal justice system, including the prison system...

Parliament has recognized an evolving societal consensus that these problems must be remedied by accounting for the unique systemic and background factors affecting Indigenous peoples, as well as their fundamentally different cultural values and world views. In the sentencing context, this recognition is embodied in s. 718.2 (

e) of the Criminal Code , which directs sentencing judges “to undertake the process of sentencing aboriginal offenders differently, in order to endeavour to achieve a truly fit and proper sentence”: Gladue , at para. 33. To achieve these objectives relative to Indigenous offenders, the CSC must ensure that its policies and programs are appropriate for Indigenous offenders and responsive to their needs and circumstances, including needs and circumstances that differ from those of non- Indigenous offender populations.

For the correctional system, like the criminal justice system as a whole, to operate fairly and effectively, those administering it must abandon the assumption that all offenders can be treated fairly by being treated the same way. [ 41 ] In 2015 the Truth and Reconciliation Commission (TRC) released its final report. This commission studied the lasting effects of residential schools on Indigenous people.

Chapter 5 of the report is entitled “A Denial of Justice”. One of the conclusions in this

chapter draws a link between the history of Indigenous individuals, FASD and the criminal justice system. The TRC calls for urgent measures to fulfill the promise of the 1996 amendments to the Criminal Code which include paragraph 718.2 (e). The Truth and Reconciliation Commission investigated the effect of residential schools upon Indigenous people. In

chapter five of the Commission’s 2015 final report entitled “A Denial of Justice,” the Commissioners reviewed several decisions and concluded:

These cases underline the link between residential schools, FASD, and offending behaviour that leads to involvement with the criminal justice system.

Given the higher rate of Aboriginal involvement in the criminal justice system and the higher rates of incarceration, there is a need to take urgent measures both to prevent and better manage the harmful consequences of FASD for Aboriginal offenders [12] All of that causes us to conclude that, for Aboriginal people, many, if not most, offences committed by them result in sentences of incarceration that fail to address the underlying causes of offending behaviour in a manner that supports their mental, spiritual, and cultural needs or reduces crime.

The promise of the Criminal Code amendments of 1996 and the Supreme Court’s decisions in Gladue and Ipeelee have not yet been met [13] [ 42 ] The TRC Call to Action 34 is apposite in this context: We call upon the governments of Canada, the provinces, and territories to undertake reforms to the criminal justice system to better address the needs of offenders with Fetal Alcohol Spectrum Disorder (FASD), including: i. Providing increased community resources and powers for courts to ensure that FASD is properly diagnosed, and that appropriate community supports are in place for those with FASD. ii.

Enacting statutory exemptions from mandatory minimum sentences of imprisonment for offenders affected by FASD. iii. Providing community, correctional, and parole resources to maximize the ability of people with FASD to live in the community. iv. Adopting appropriate evaluation mechanisms to measure the effectiveness of such programs and ensure community safety. [ 43 ] The evidence shows some progress has been made in programming offered by the CSC. The focus on Aboriginal history and tradition is significant. The evidence also illustrates that some of the individuals, such as Ms. Sirota and Ms.

Nyberg are sincere in their efforts. The evidence of Dr. Mela, which I accept, satisfies me that the existing CSC programs need to be further modified to meet the needs of inmates with disabilities such as FASD. It appears that these modifications are being attempted by individual staff members but have not been incorporated on an institutional basis and staff have not been specifically trained in the necessary modifications. [ 44 ] There is evidence that Keenatch is motivated to seek programming. As indicated by Dr.

Mela, Keenatch has not used substances for in excess of six months and has been free of violence while incarcerated over the past 2-3 years. While Dr. Mela agreed that Keenatch’s programming must start within an institution and he should not be immediately released, there is reason for optimism beyond hope. Dr. Mela said in his evidence as follows: I think one can say that with a criminal conviction record of over 50 offences, several breaches, a number of violent offences, that his record is quite severe, if I can call it that, in comparison to others.

But then now recognizing where some of that may be coming from in terms of his cognitive disability that had essentially gone unnoticed and the last three years of continued, should I say, positive change and attitudinal improvement, the additional support that I’m recommending provides a leveling position whereby you connect those supports with what is already in existence, it’s not as if this is somebody who has continued to be violent, denying treatment and continuing to use substances.

So some of those changes that have already begun to happen suggest that even internally and maybe externally is becoming motivated to change.

And so if you have the right support around him I think it goes beyond just optimism and hope to say that past behaviour is what guides future behaviour and so if he’s -- the past three years is anything to go by, the fact that he’s now learning to walk away from fights, going into administration so that he doesn’t stab somebody, staying clean from substances, I think those suggest to me more substantive ingredients of working with him rather than just hopefully here to work type of approach. [14] [ 45 ] The evidence in this hearing was that Keenatch’s past programming record is dismal.

Keenatch cannot be solely responsible for this record. It was clear to me that many obstacles for Keenatch were due to institutional rules or wait lists which ignore any efforts to reduce his risk. It was only after the evidentiary portion of this hearing that I was informed that Keenatch had been permitted to participate in programming. The records of his progress in this programming were eventually filed (D-3) on June 14, 2019. [ 46 ] Keenatch’s willingness to participate in programming and his performance over the last year do not tend to indicate intractability rather the opposite. In Dr.

Mela’s opinion, Keenatch’s recent performance indicates a sincere effort to change: The factors that I took into consideration are: one, what he told me, what has been documented in the record and probably my knowledge of the science. From what he said I indicated that he has been asking for programs and it seems the intensity of asking has increased recently. He has continued his self studies for education, which is something he hasn’t done. He has moved his ranges. So he is telling me has done positively and those have actually been confirmed by his parole officer and in writing in the reports.

But also some of the tangible changes that have occurred not only is it true that he has moved again because it’s been confirmed officially, he has actually got the medium status from the maximum status and that is almost as objective as it can be, like, you don’t get -- you don’t move from

maximum to medium by pretending, I mean, the correctional system, that’s what they’ve done for many years. So that I think -- and I didn’t have that information when I wrote this report, so the fact that he has now achieved a minimum -- a medium status is actually quite telling of its own value of that progress. The other thing is the science, it is not always easy for people who are pretending to maintain that facade for longer than twelve months, I mean, you can pretend about your desire to change, but by the time it passes twelve months and passes 24 months I think at that point you are likely not faking.

I mean, it is very true that the weight of this hearing may be playing on him because the hearing is not done, so he’s not -- it would be foolish to assume that everything is 100 percent correct, but there may be some external, what we call external motivation because of this hearing, but the fact that he has continued, he has gone through some stressful moments in the last two months, the death of his grandparents without decompensating. They have shown that he has gone out on escorted temporary absence and did well.

So there are more things than what he has said that contributes to the truthfulness of what he is doing. Would that fall apart, there’s always a possibility as we know, but generally if you look at the weight of the evidence it seems more likely than not that he’s actually working to make that change. The last thing that I will add is that that understanding of his deficit I think once -- once it becomes known to those who are dealing with him he looks like an easy person to get him to remain convinced on what he is doing because we have a record of him following suggestions.

So if you put the right support around him he’s likely to toe the positive line. If you put the negative support around he will toe the negative line. I didn’t mention this, but there is a classic example whereby he was living with two youth in a group home or in a foster home and his behaviour was atrocious, one of those two are removed and he became quite well-compliant.

So there is some support that if that positivity is encouraged by those around him who knows his deficits it would diminish the chances that he’s just faking it. [15] [ 47 ] The interim report (D-3) of the Aboriginal Multi-Target High Intensity Program provides some support for Keenatch’s effort to change.

He is rated as good in all performance indicators with the exception of communication skills where he received a “fair,” and safety practices which are listed as “unable to access”. [ 48 ] The final report of this program reiterates throughout that Keenatch did not complete the program and more improvement is needed.

It does confirm several important positive indicators: 1) Keenatch has disaffiliated with the gang; 2) He has been charge free for violence for over a year; 3) Keenatch is very knowledgeable about his culture; 4) He maintained a positive attitude throughout module 1; 5) He was the victim of an assault and therefore placed in segregation and this was part of the reason for his inability to complete the program; and 6) He has been wait listed to continue the program. [ 49 ] This final report indicates that the CSC file information does not indicate any apparent responsivity issues, but the report does say that Keenatch was reported as being diagnosed with FAS and treated for ADHD as a youth.

Apparently, this diagnosis has not been confirmed by CSC. This now appears to be accepted as the report says that the facilitator of future programs for Keenatch “will need to simplify explanations, rephrase questions and redirect often”. According to the final report of this program (D-3) Keenatch understands that he must ask for help and seek out positive supports in the community: Mr. Keenatch understands that without positive supports who live a more balanced lifestyle, he would be at risk to returning to old behaviours and criminal activity. Mr.

Keenatch has identified some family members who would be positive supports for him in the community. His hope is that by connecting with them, they will be able to assist him to find more balance in his life. It is recommended that Mr.

Keenatch begin to reconnect with those family members while incarcerated so his support system is in place prior to his release. [16] [ 50 ] Keenatch’s aunt, Sylvia Joseph, indicates that she and her family will provide this positive community support for Keenatch (D-1). [ 51 ] When determining whether the Crown has established the need for a dangerous offender designation in Keenatch’s circumstances I refer to the

summary of principles provided by Justice Cote in Boutilier , at para 46 : In sum, a finding of dangerousness has always required that the Crown demonstrate, beyond a reasonable doubt, a high likelihood of harmful recidivism and the intractability of the violent pattern of conduct. A prospective assessment of dangerousness ensures that only offenders who pose a tremendous future risk are designated as dangerous and face the possibility of being sentenced to an indeterminate detention.

This necessarily involves the consideration of future treatment prospects… [ 52 ] There is evidence that Keenatch has disassociated with gang activity at the Penitentiary. Gang activity was a significant component of his previous offending including the predicate offence. Keenatch has reduced his substance use and indicated a willingness to consider medication to stabilize his impulsivity, which is a result of his disability. He has also started programming and has indicated a motivation to continue. His family is supportive.

When I apply a prospective assessment, I find that there is a risk of harmful recidivism. However, the risk can and should be manageable given appropriate programming. I am not satisfied that Keenatch is unable to surmount his past violent conduct. I am unable, considering the evidence presented at this hearing, to conclude that his conduct is intractable. In these circumstances the application for a designation that Cody Keenatch is a dangerous offender is dismissed.

b. Long Term Offender Designation [53] As indicated in subsection 753(5) and as agreed by the parties, I must consider whether Keenatch should be declared a long-term offender. Such a designation requires a finding that a sentence of two years or more is appropriate and Keenatch is a substantialrisk to re-offend, as well as, a finding that there is a reasonable possibility of eventual control in the community (s. 753.1(1)). [54] This

section requires the sentencing judge to examine all of the evidence to determine whether the three prerequisites havebeen established. Despite the wording of subsection 753.1, it does not place the burden on the parties but rather requires a balancing offactors by the sentencing judge: It may seem as though this subsection puts a burden on the offender to prove the adequacy of a lesser sentence. However, it cannot beseen as placing such a burden. The language of the provision points toward an approach that requires the judge to consider all relevantevidence before imposing the sentence.

In order to determine whether a lesser measure will be adequate, the court must conduct athorough inquiry of the matter on the basis of evidence adduced during the hearing of the application. This is in line with theinterpretation of the Supreme Court in R. v. Johnson, 2003 CarswellBC 2354, 2003 SCC 46. The Supreme Court never wanted thequestion of an adequate sentence to be based on a standard of proof with the burden placed on one or another party. R. v. Wormell (2005),2005 BCCA 328 , 2005 CarswellBC 1371, 198 C.C.C. (3d) 252 (B.C.C.A.). As was stated by McLachlin J. (as she then was) inR. v.

M. (S.H.) (1989), (SCC), 1989 CarswellAlta 138, 50 C.C.C. (3d) 503 (S.C.C.), the concept of a standard of proof is"typically" concerned with establishing whether something took place" and is "less helpful" when one is engaged in balancing variousfactors and considerations. The judge must therefore perform a "thorough inquiry" before being able to determine the appropriate sentence. (Chapter 10 - 10.3)[17] [55] One of the critical questions is whether there is a substantial risk that Keenatch will re-offend in a violent manner.

In R vPiapot, 2017 SKCA 69, Justice Ottenbreit, after an extensive review of the history of the dangerous offender/long term offenderprovisions, interpreted this phrase to be restricted to future offences of violence: [69] The LTO provisions of

Part XXIV are integrated with the dangerous offender provisions of that part, which explicitly deal withbehavior that can only be described as violent. It would therefore be surprising if the special sentencing regime of

Part XXIV wereintended to be used for a class of offenders that did not have a risk to offend violently. Moreover, the entry point to the

Part XXIVscheme for an accused to be designated either a dangerous offender or an LTO requires, pursuant to s. 752.01, that the accused has beenconvicted of a serious personal injury offence as defined by s. 752. Such offences, apart from sexual offences, involve the use orattempted use of violence against another person, conduct endangering or likely to endanger the life or safety of another person, orinflicting or are likely to inflict severe psychological damage upon another person.

When a conviction for a crime that, broadly speaking,is violent initiates the LTO designation process it would be incongruous if the future substantial risk the designation is intended toaddress were not a risk of violence. In short, looking at the scheme of the LTO provisions in

Part XXIV as a whole points to aninterpretation of s. 753.1(1)(

b) that requires the risk to reoffend be a violent one. [70] There is a dearth of jurisprudence directly discussing the issue of whether a substantial risk to reoffend must be violent. This isunderstandable considering that appellate cases affirming long-term offender designations generally seem to involve offenders whoserisk of violent reoffending is substantial.

In that context, any lacunae in the jurisprudence regarding the nature of the risk lend credenceto the view that the risk to reoffend must be violent. [56] In making this assessment I must consider Keenatch’s personal background, his history of committing violent offencesincluding manslaughter, the availability of treatment, Dr. Mela’s opinion as to the adaptation of treatment models and Keenatch’smotivation to take treatment along with his community support. It is clear to me that there is a risk of recidivism given his disability andhis history of non-compliance.

The evidence must go further and establish a substantial risk to re-offend violently. [57] Keenatch’s criminal record (Appendix

A) includes youth convictions from 2003 to 2007. Of particular significance areconvictions for break and enter and robbery (2005, when Keenatch was 16), break and enter from 2007 and manslaughter from 2007. His adult convictions include break and enter and commit aggravated assault, break and enter and commit bodily harm and robbery. These convictions appear to have proceeded to sentencing in December 2014 resulting in a five-year six-month global sentence. [58] The predicate offence was a violent attack which occurred within the Saskatchewan Penitentiary.

The victim, althoughreceiving many blows from Keenatch and the two other assailants was able to get up off the floor during the beating and run from theweight room. Although the motive of this attack is unknown, it is reasonable to assume it relates to the prison gang culture. It is alsoreasonable that this culture limited the investigation and prosecution of this offence by the victim’s refusal to participate.

[ 59 ] This criminal past, together with Keenatch’s background, satisfy me that Keenatch is inclined to act violently in gang related settings. His disabilities contribute to his impulsive and aggressive behavior. These disabilities will only be managed by medication which he must agree to take, and programming targeted at his specific needs and circumstances. [ 60 ] Dr. Mela’s opinion is that Keenatch demonstrates a sincere effort to change. Dr. Mela’s report dated March 21, 2018 (C-1 ), is a prescription for change: 1. Continued attendance at school; 2.

Attend the Integrated Correctional Program Model (ICPM) Intensive Module – crucial to consider his learning style and his cognitive disorder in constructing this program; 3. Individual and group programming regarding abstinence from substance use; 4. Monitoring of mental state with medications – medicate if necessary to control impulsivity; 5. Psychological testing to establish current functional abilities; 6. Abstinence from substances; 7. One-on-one counselling for past trauma; 8. Medication to control his mood and will reduce his violent behavior; and 9.

Pro-social mentor who understands his difficulties. [ 61 ] The three criteria in

section 753.1 must be considered in the context of this offence and this offender. I am satisfied particularly when considering Keenatch’s prior criminal convictions and the circumstances of this offence that it would be appropriate to impose a sentence of two years or more for this offence. I make this determination mindful of the sentencing principle of parity and the sentences imposed on Morin and Michel.

In my view, the principle of proportionality and individualized sentencing requires a sentence of more than two years for Keenatch. [ 62 ] In relation to the second criteria, I make the determination based on the evidence of Dr. Mela that Keenatch is an untreated violent offender and requires specialized treatment. This evidence, in the context of all of the evidence, satisfies me that, at this time, Keenatch is a substantial risk to reoffend violently. [ 63 ] The Crown, in its brief of law, addresses

section 753.1 and refers to the Saskatchewan trilogy of decisions from the Court of appeal: 1) R v Haug , 2008 SKCA 23 ; 2) R v Otto , 2006 SKCA 52 ; and R v Goforth , 2005 SKCA 12 . Specifically, in reference to paragraph 753.1(1)(c), “a reasonable possibility of eventual control in the community”, the Crown brief identifies four factors at para 261: First, the evidence must be founded on evidence the offender can be rehabilitated within a fixed period of time defined by what would otherwise be an appropriate definite sentence: Goforth, supra .

Second, rehabilitation does not require a cure, but it does contemplate treatment effectiveness to the extent the risk can be subsequently contained in a non-custodial sentence. Third, the prospect of treatability must be more than an expression of hope: Otto, supra and Goforth, supra .

Fourth, the Crown does not have to prove absolute intractability before making a dangerous offender designation: Goforth, supra and Haug, supra . [ 64 ] When assessing whether there is a reasonable possibility that Keenatch’s behavior and conduct will eventually be able to be controlled in the community, past jurisprudence is relevant.

The text Assessing Dangerousness: A Guide to the Dangerous Offender Application Process indicates: Although a somewhat more demanding standard, the assessment of whether there is a reasonable expectation that a lesser measure will adequately protect the community is similar to the assessment of whether there is a "reasonable possibility of eventual control of risk in the community". As a result, past jurisprudence interpreting the meaning of "reasonable possibility of eventual control of risk" and the role of treatability to that determination remains relevant and instructive.

Under the current dangerous offender legislation, a need to consider "reasonable possibility of eventual control of risk in the community" will arise only after a court concludes that an accused does not meet the dangerous offender criteria, and moves on to treat the application as a long-term offender application pursuant to s. 753(5) or where the hearing has proceeded exclusively as a long-term offender proceeding. (Chapter 7 – 7.1) [18]

[ 65 ] I am satisfied that there is a reasonable possibility of eventual control in the community. Dr. Mela’s evidence convinces me that there is optimism that goes beyond hope. There is positive progress in the reports of Keenatch’s behavior, particularly over the past 12 months. The recommendations of Dr. Mela and Keenatch’s family support will assist in implementing the required treatment. [ 66 ] I am satisfied that Cody Keenatch should be declared a long term offender.

In this context, the Crown suggests a sentence of six to eight years incarceration followed by a 10 year long term supervision order (para 263 of the Crown’s brief). The defence argues for a sentence of two years followed by a five to seven-year long term supervision order (para 53 of defence brief). [ 67 ] As emphasized by Chief Justice Richards in R v Chanalquay , 2015 SKCA 141 , at paras 34 – 41 [ Chanalquay ], I must pay particular attention to this offender’s background and assess how his history affects his moral blameworthiness for this offence.

I must also consider restorative justice principles in determining an appropriate sentence. The application of paragraph 718.2 (

e) does not create a new “sentencing paradigm”. A fit sentence must be individualized for the offender and the offence by considering the offender’s circumstances, the nature of the crime, the victim, and the interests of the community (para 42 in Chanalquay ). This is accomplished by considering public protection, deterrence, denunciation and parity in sentencing. [ 68 ] In this case, there is no input from the victim. This is an assault within an institution where inmates should expect to be secure from such violence.

The evidence at trial satisfied me that this was an assault causing bodily harm, not an aggravated assault. Keenatch’s background has contributed to his offending behaviour and his present circumstances. The long term supervision, which is part of this sentence, allows for Keenatch to restore some balance while also providing a sustained period of intense supervision to ensure public safety. [ 69 ] When I consider the sentencing principles in s. 718, 718.1 and 718.2 of the Code , together with the evidence at the hearing, I conclude that a 30-month sentence is appropriate.

This sentence shall be served consecutively. [ 70 ] I am further satisfied pursuant to paragraph 753.1(3)(

b) that a long-term supervision order of six years should be ordered. ANCILLARY ORDERS [ 71 ] In addition, the ancillary orders will be as follows: (

a) That Cody Keenatch be prohibited for life from possessing any firearms, weapon or ammunition as defined in s. 109 of the Criminal Code ; (

b) That the appropriate authority be authorized to take bodily substances from Cody Keenatch pursuant to s. 487.051 of the Criminal Code ; and (

c) That a copy of all reports, particularly Dr. Mela’s report of March 21, 2018, and a transcript of all testimony, particularly the evidence of Dr. Mela, given by the witnesses together with these written reasons given by this Court be forwarded to the Correctional Service of Canada in accordance with s. 760 of the Criminal Code . (

d) Any applicable surcharges should be waived given Keenatch’s circumstances. Dated this 10 th day of September, A.D. 2019, at the City of Prince Albert, in the Province of Saskatchewan. ________________________

H.M. Harradence, J APPENDIX ‘A’ - CRIMINAL RECORD OF CODY DILLON KEENATCH: DATE AND PLACE OF DISPOSITION 2003-11-24 SASKATOON SASK (YOUTH JUSTICE COURT) CHARGE

(1) BREAK & ENTER SEC 348(1) CC

(2) POSS OF PROPERTY OBTAINED BY CRIME OVER $5000 SEC 354(1)(

A) CC (RCMP SASKATOON 2003- 0600)

(3) BREAK ENTER & THEFT SEC 348(1)(

B) CC (RCMP SPIRITWOOD 2002-1797)

(4) MISCHIEF UNDER $5000 SEC 430(4) CC

(5) THEFT UNDER $5000 SEC 334(

B) CC

(6) FAIL TO COMPLY WITH RECOGNIZANCE SEC 145(3) CC

(7) POSS OF PROPERTY OBTAINED BY CRIME UNDER $5000 SEC 355(

B) CC

(8) FAIL TO COMPLY WITH RECOGNIZANCE SEC 145(3) DISPOSITION (1-2) PROBATION 12 MOS ON EACH CHG CONC

(3) PROBATION 12 MOS

(4) PROBATION 12 MOS (5-6) PROBATION 12 MOS

2004-01-16 PRINCE ALBERT SASK (YOUTH JUSTICE COURT) CC (SASKATOON PS 73936) (9)BREAK & ENTER WITH INTENT SEC 348(1)(

A) CC

(10) ATT THEFT UNDER $5000 SEC 463-334(

B) CC (3CHGS)

(11) FAIL TO COMPLY WITH UNDERTAKING SEC 145(3) CC (RCMP PUNNICHY 2003- 1461, 1370, 1368)

(12) BREAK ENTER & THEFT SEC 348(1)(

B) CC (RCMP CRAIK)

(1) THEFT UNDER $5000 SEC 334(

B) CC

(2) OBSTRUCT PEACE OFFICER SEC 129(

A) CC

(3) BREAK ENTER & COMMIT SEC 348(1)(

B) CC

(4) FAIL TO COMPLY WITH DISPOSITION SEC 137 YCJ ACT

(5) FAIL TO COMPLY WITH UNDERTAKING SEC 145(3) CC

(6) ASAULT A PEACE OFFICER SEC 270(1)(

A) CC (PRINCE ALBERT PS 04-1045 04-1067 04-0071)

(1) UNAUTHORIZED POSS OF A PROHIBITED OR RESTRICTED WEAPON SEC 91(2) CC

(2) FAIL TO COMPLY WITH DISPOSITION SEC 137 YCJ ACT (SASKATOON PS 73936)

(1) ASSAULT SEC 266 CC

(2) FAIL TO APPEAR SEC 145(5)(

B) CC (RCMP PUNNICHY 2003-1379) OBSTRUCT PEACE OFFICER (7-8) PROBATION 12 MOS (9-12) PROBATION 12 MOS ON EACH CHG (1-5) 6 MOS DEFERRED CUSTODY & SUPERVISION ORDER ON EACH CHG CONC & PROBATION 2 YRS ON EACH CHG (6) 30 DAYS & 15 DAYS UNDER SUPERVISION IN THE COMMUNITY (1) 4 MOS DEFERRED CUSTODY & SUPERVISION ORDER & MANDATORY OR DISCRETIONARY PROHIBITION ORDER SEC 51 YCJ ACT

2004-07-28 SASKATOON SASK (YOUTH JUSTICE COURT) 2004-08-27 PRINCE ALBERT SASK (YOUTH JUSTICE COURT) 2004-10-19 SASKATOON SASK (YOUTH JUSTICE COURT) 2005-02-21 SASKATOON SASK (YOUTH JUSTICE COURT) 2005-06-02 SASKATOON SASK (YOUTH JUSTICE COURT) SEC 129(

A) CC (SASKATOON PS 73936)

(1) OBSTRUCT PEACE OFFICER SEC 129(

A) CC

(2) FAIL TO COMPLY WITH DISPOSITION SEC 137 YCJ ACT

(3) POSS OF PROPERTY OBTAINED BY CRIME OVER $5000 SEC 355(

A) CC (SASKATOON PS 73936)

(1) OBSTRUCT PEACE OFFICER SEC 129(

A) CC (2 CHGS)

(2) FAIL TO COMPLY WITH DISPOSITION SEC 137 YCJ ACT (2 CHGS)

(3) POSS OF PROPERTY OBTAINED BY CRIME UNDER $5000 SEC 355(

B) CC (SASKATOON PS 73936)

(1) FLIGHT WHILE PURSUED BY PEACE OFFICER SEC 249.1(1) CC

(2) BREAK ENTER & THEFT SEC 348(1)(

B) CC

(3) THEFT OVER $5000 SEC 334(

A) CC

(4) OBSTRUCTION SEC 129 CC

(5) FAIL TO COMPLY WITH DISPOSITION SEC 137 YCJ ACT (RCMP ROSTHERN 2005-398733)

(6) POSS OF A WEAPON SEC 88 CC

(7) BREAK ENTER & THEFT SEC 348(1)(

B) CC

(8) ROBBERY SEC 344(

B) CC (2 CHGS)

(9) FAIL TO COMPY WITH DISPOSITION SEC 137 YCJ ACT

(10) OBSTRUCT PEACE OFFICER SEC 129(

A) CC (SASKATOOM PS 73936)

(1) OBSTRUCT PEACE OFFICER SEC 129(

A) CC

(2) FAIL TO COMPLY WITH DISPOSITION SEC 137 YCJ (2) 4 MOS DEFERRED CUSTODY & SUPERVISION ORDER (1) 30 DAYS & 15 DAYS UNDER SUPERVISION IN THE COMMUNITY (2) 15 HRS COMM SERV WORK TIME SERVED (1-3) 2 MOS & 1 MO UNDER SUPERVISION IN THE COMMUNITY (1-3) PROBATION 9 MOS ON EACH CHG (1-3) 120 DAYS & 60 DAYS UNDER SUPERVISION IN THE COMMUNITY ON ECH CHG CONC

2005-07-18 SASKATOON SASK (YOUTH JUSTICE COURT) 2006-01-16 SASKATOON SASK (YOUTH JUSTICE COURT) 2007-02-22 SASKATOON SASK (YOUTH JUSTICE COURT) ACT (2 CHGS) (SASKATOON PS 73936)

(1) BREAK ENTER & COMMIT ASSAULT SEC 348(1)(

B) CC

(2) FAIL TO COMPLY WITH DISPOSITION SEC 137 YCJ ACT (2 CHGS)

(3) THEFT UNDER $5000 SEC 334(

B) CC (SASKATOON PS 73936) MANSLAUGHTER SEC 236 CC (SASKATOON PS 73936) ASSAULT A PEACE OFFICER SEC 270(1)(

A) CC (2 CHGS) (SASKATOON PS 73936) ESCAPE LAWFUL CUSTODY SEC 145(1)(

A) CC (PEN PRINCE ALBERT) STATUTORY RELEASE VIOLATOR MISCHIEF SEC 430(1)(

A) CC (2 CHGS) (EDMONTON PS 305886) (4-5) TIME SERVED (6-8) 120 DAYS & 60 DAYS UNDER SUPERVISION I THE COMMUNITY ON EACH CHG (9-10) TIME SERVED (1-2) 20 DAYS & 10 DAYS UNDER SUPERVISION IN THE COMMUNITY

(1) TIME SERVED & MANDATORY PROHIBITION ORDER SEC 51(1) YCJ ACT (2-3) TIME SERVED ON EACH CHG 2 YRS (WITH CREDIT FOR THE EQUIVALENT OF 17 MOS PRE-SENTENCE CUSTODY) & 1 YR UNDER SUPERVISION IN THE COMMUNITY & MANDATORY PROHIBITION ORDER SEC 51(1) YCJ ACT 6 MOS ON EACH CHG CONC BUT CONSEC TO SENT

2007-11-05 SASKATOON SASK (YOUTH JUSTICE COURT) 2008-07-09 SASKATOON SASK 2009-03-11 REGINA SASK 2010-10-29 2011-01-12 2011-08-02 2011-11-10 EDMONTON ALTA STATUTORY RELEASE VIOLATOR

(1) BREAK ENTER & COMMIT AGGRAVATED ASSAULT SEC 348(1)(

B) CC

(2) ASSAULT CBH SEC 267(

B) CC

(3) FAIL TO COMPLY WITH RECOGNIZANCE SEC 145(3) CC

(4) FAIL TO COMPLY WITH UNDERTAKING SEC 145(3) CC

(5) FAIL TO COMPLY WITH RECOGNIZANCE SEC 145(3) CC (DCN11526000149499004517) (PRINCE ALBERT PD 13- 16881)

(1) ROBBERY SEC 344(1)(

B) CC (2 CHGS)

(2) POSS OF WEAPON SEC 88(1) CC

(3) UTTERING THREATS SEC 264.1(1)(

A) CC

(4) ASSAULT A PEACE OFFICER SEC 270(1)(

A) CC (DCN11721209300599943108) (EDMONTON PS 305886)

(1) RESIST ARREST SEC 129(

A) CC

(2) TRAFFIC IN

SCHEDULE II SUBSTANCE SEC 5(1) CDS ACT (DCN11600508104320288102) (RCMP PRINCE ALBERT PROV G 2013697087) SERVING 2 YRS CONSEC TO SENT SERVING & DISCRETIONARY PROHIBITION ORDER SEC 110 FOR 10 YRS STATUTORY RELEASE RECOMMITTED STATUTORY RELEASE 30 DAYS ON EACH CHG CONSEC RECOMMITTED STATUTORY RELEASE (1) 5YRS 6 MOS (CREDIT FOR THE EQUIVALENT OF 774 DAYS PRE-SENTENCE CUSTODY) (2) 5 YRS 6 MOS CONC (CREDIT FOR THE EQUIVALENT OF 774 DAYS PRE-SENTENCE CUSTODY) & MANDATORY WEAPONS PROHIBITION SEC 109 CC (3) 30 DAYS CONC (4) 30 DAYS CONC (5) 30 DAYS CONC

2011-12-20 2011-12-22 2014-12-09 PRINCE ALBERT SK 2014-12-09 PRINCE ALBERT SK (1) 5 YRS 6 MOS CONC & MANDATORY WEAPONS PROHIBITION SEC 109 CC (2-4) 6 MOS CONC (1-2) 6 MOS ON EACH CHG CONC

2014-12-09 PRINCE ALBERT SK