Her Majesty the Queen - v. -, 2016 SKPC 037

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 037 Date: March 14, 2016 Information: 37399340 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Linden David Jesse Bird Appearing: Cameron Scott For the Crown Bruce Campbell For the Accused DECISION E. KALENITH, J INTRODUCTION [ 1 ] Linden David Jesse Bird was found guilty of sexual assault after a trial. The Crown seeks to have Mr. Bird declared a dangerous offender and receive a sentence of jail for an indeterminate period.

Defence counsel takes the position that he is neither a dangerous nor long-term offender and should be sentenced to probation in addition to time served. [ 2 ] I find that Mr. Bird is not a dangerous offender, but that he should be declared to be a

long-term offender. These are my reasons. ISSUES [ 3 ] The following issues have been raised in this case: a. Does Mr. Bird meet the criteria for a dangerous offender declaration under s. 753(1)(a)? i. Is this a serious personal injury offence under s. 752? ii. Is there a pattern of offending as contemplated by s. 752? b. Does Mr. Bird meet the criteria for a dangerous offender declaration under s. 753(1)(b)? i. Is this a serious personal injury offence under s. 752? ii. Is there a likelihood of future failure to control sexual impulses? c. If Mr.

Bird does not meet the test of being declared a dangerous offender, does he meet the criteria to be declared a long- term offender? i. Is the appropriate sentence one of two years or more? ii. Is there a substantial likelihood of reoffending? iii. Is there a reasonable possibility of eventual control in the community? d. What is the appropriate sentence? ANALYSIS a. Does Mr. Bird meet the criteria for a dangerous offender declaration under s. 753(1)(a)? [ 4 ] In this case, for Mr. Bird to be found to be a dangerous offender, I must find that: a.

He committed a serious personal injury offence as defined in paragraph (

a) of the definition of that term in s. 752 of the Criminal Code (the Code ) and that he constitutes a threat to the life, safety or physical or mental well-being of others based on evidence establishing: i. A pattern of aggressive behavior showing a failure to restrain his behavior and a likelihood of causing death or injury or inflicting severe psychological damage on victims through a future failure to restrain his behaviour (s. 753(1)(a)(i)) or ii. A pattern of persistent aggressive behavior showing a substantial degree of indifference to the reasonably foreseeable consequences to others of his behaviour (s. 753(1)(a)(ii)) or

b. He committed a serious personal injury offence as defined in paragraph (

b) of the definition of that term in s. 752 of the Code and that he has, by his conduct in any sexual matter including that involved in the offence for which he was convicted, shown a failure to control his sexual impulses and a likelihood of causing injury, pain or other evil to others in the future through failure to control his sexual impulses (s. 753(1)(b)). [ 5 ] While s. 753(1)(a)(iii) provides another possible way that an offender can be declared to be a dangerous offender, I will not address this because neither counsel argued it nor do the facts of this case warrant considering it. i.

Is this a serious personal injury offence under s. 752? [ 6 ] Mr. Bird was convicted of sexual assault occurring on May 10, 2014, on the basis of a finding that Mr. Bird, while under the influence of alcohol, went to the victim’s residence, pulled her toward the bedroom, threw her onto a bed, held her down and was grabbing at her shorts to pull them down. He stopped when the victim was screaming. Mr.

Bird then left the bedroom and, later, the residence. [ 7 ] This offence is a serious personal injury offence as required in that it involved the use of violence and can result in a sentence of imprisonment of 10 years. iii. Is there a pattern of offending as contemplated by s. 752? [ 8 ] The onus is on the Crown to prove, beyond a reasonable doubt, that the present offence is a continuation of a pattern that demonstrates Mr.

Bird’s failure to restrain violent behaviour that will likely continue or his substantial indifference to the reasonably foreseeable consequences of that behaviour to others. [ 9 ] I am guided in this determination by the following principles: a. Generally the evidence to be considered will be i. the offender’s past criminal record; ii. extrinsic evidence relevant to those acts and the surrounding circumstances; iii. relevant expert evidence - R v Neve , 1999 ABCA 206 [ Neve ]; b.

The relevant expert evidence is to be considered in deciding whether there is a pattern and whether, as a whole, it proves dangerousness – Neve , paragraph 23 ; c. The pattern of repetitive behaviour that includes the present offense must contain enough of the same elements of unrestrained dangerous conduct to be able to predict the offender will likely offend in the future. This will ensure a level of gravity is the same and that the last straw is not a much more minor infraction – R v Hogg , 2011 ONCA 840 ; d. The pattern need not equate to similar fact evidence – general similarity is sufficient.

There need not be a lengthy history of violence or aggression for a pattern, as long as there are sufficient elements of similarity in the offender’s behaviour – R v Casemore , 2009 SKQB 306 ; e. The past incidents must be criminal in nature – Neve , paragraph 109 ;

f. Violent conduct as a youth may be considered – R v Knife , 2015 SKCA 82 [Knife] ; g. The offences need not be serial offences and the offender’s behaviour need not be intractable for a pattern to be made out – R v Szostak , 2014 ONCA 15 ; h. Similarities may be in the type of offences and the degree of violence used – Knife , paragraph 67 ; i. The degree of violence is the same as the nature of violence.

For example, an offender who continues to use weapons and commit violent offenses regardless of what the specific type of offense is, will have used a similar degree of violence – Knife , paragraph 69 . [ 10 ] Mr. Bird’s criminal history of violence is made up of the following convictions: a. August 7, 2002 – s. 266 of the Code - Assault No facts were presented at the sentencing. The Pre-disposition Report mentioned assault on a girl-friend; b. February 12, 2003– s. 266 of the Code – Assault This offence occurred on June 24, 2002. Mr. Bird, while intoxicated, punched the victim once in the face.

The victim had been earlier assaulted and robbed by a friend of Mr. Bird; c. January 12, 2004 – s. 88 of the Code - Possession of a Weapon for a Dangerous Purpose This offence occurred on July 7, 2003. Mr. Bird pointed a rifle several times over 30 to 40 minutes at a house where he had had an argument. He believed alcohol was involved; d. August 8, 2005 – s. 266 of the Code – Assault and s. 267(

b) of the Code – Assault Causing Bodily Harm Both offences occurred on May 2, 2004. In the assault causing bodily harm, Mr. Bird did not strike the victim but he did assist others who beat up the victim by hitting and kicking him causing a black eye, bruising and sore ribs. In the assault, a severely intoxicated Mr. Bird was found by the victim to be passed out or sleeping on top of her when she awoke. e. May 2, 2006 – s. 279(1) of the Code - Kidnapping and s. 246 of the Code – Overcoming Resistance by Choking These offences, together with several others, were committed on January 1, 2006. Mr.

Bird was intoxicated and ingested some unknown type of pills. He entered an unlocked residence, grabbed an 11-year-old girl sleeping on the living room floor, threw her over his shoulder and left the residence. He drove away, continued to drink and was driving dangerously, going in and out of the ditch several times. Mr. Bird and the victim fought at one point. Mr. Bird put his hands on the victim’s neck choking her unconscious. The victim was left with a red mark from a broken blood vessel. At some point Mr. Bird bit the victim in the right bicep.

Shortly after, the victim was pushed from the vehicle wearing only a light sleeper and silk pants with nothing on her feet. She ran to a nursing home and was provided assistance. f. February 4, 2015 – s. 271 of the Code - Sexual Assault This offence occurred on May 10, 2014. The facts are described above in paragraph 6. g. February 4, 2015 – s. 270(1) (

b) of the Code - Assaulting a Peace Officer This offence occurred on June 21, 2014. A police officer told Mr. Bird that he was under arrest for possession of a controlled substance after he was seen in a car holding a clear white baggy and pouring crystal methamphetamine into a long clear glass pipe. Mr. Bird was asked to step out of the car. The police officer opened the car door and a struggle ensued when Mr. Bird failed to follow the officer’s commands. The struggle continued outside the car and Mr. Bird then tried to punch a police officer in the face but missed. The police

officer tried to put Mr. Bird in a neck restraint but ended up on his back. Mr. Bird began to get on top of the police officer. The police officer reached for Mr. Bird’s face in an effort to pull on his cheeks to prevent Mr. Bird from getting on top of him and asked passersby for help. The police officer got back up and Mr. Bird ran off. A lengthy chase followed. Other police officers arrived to assist and Mr.

Bird was arrested. [ 11 ] The defence argues that the convictions for assault causing bodily harm in 2005 and assaulting a peace officer in 2014 should not be considered because in neither case was there a warning under s. 606 of the Code , the facts presented at sentence do not make out the assault causing bodily harm charge and Mr. Bird denied assaulting a peace officer. [ 12 ] I find that both convictions are appropriately considered because: a. While no specific mention of s. 606 of the Code was made at either sentencing, in each case the guilty pleas were entered by counsel with Mr.

Bird being present and no issue was taken with the voluntariness or the appropriateness of the guilty pleas; b. The facts alleged for the assault causing bodily harm conviction (a black eye, bruising and sore ribs) were not disputed and do found a conviction for that offence; c. Neither defence counsel nor Mr. Bird took issue with the facts presented at the sentencing for the assault on a peace officer charge. This conviction was never appealed. A denial occurred only when Mr. Bird spoke to Dr. Lohrasbe about this offence. [ 13 ] Dr.

Shabehram Lohrasbe was qualified as an expert in the field of forensic psychiatry to give opinion evidence on the assessment and treatment of violent and sexual offenders, including assessment of risk relating to violent and sexual offenders. [ 14 ] Dr. Lohrasbe reported that an overview of Mr. Bird’s history indicates that all three kinds of violence (spousal, sexual and general) share a central dynamic – deficient impulse control (also conceptualized as poor self- regulation). Behaviourally, he said that recklessness, rather than obvious malevolence, is a recurrent feature in Mr. Bird’s history.

This recklessness was the behavioural aspect of deficient impulse control. Mr. Bird’s repeated concurrent intoxication was the key immediate contributor to deficient impulse control. [ 15 ] The Crown submits that the nature of the convictions on Mr. Bird’s criminal record establish a pattern of offending conduct and that the recklessness of conduct, in conjunction with acts of violence, indicate a failure on Mr. Bird’s part to restrain his behaviour. [ 16 ] I find that Mr. Bird’s offending history does not establish the required pattern of offending behaviour because: a.

The predicate offence of sexual assault is not similar in the manner or degree of violence with his other offences: Mr. Bird committed a sexual offence, a manner of violence different from his previous offending; he also used a lesser degree of violence than he previously had in that he exercised some restraint by choosing to stop the sexual assault and leave the scene without further escalating the incident; b. The pattern of offending identified by Dr.

Lohrasbe (deficient impulse control through recklessness) is so generic as to be consistent with almost all violent offending and thus forms no particular identifying pattern. [ 17 ] I thus find that the pattern required for a dangerous offender designation under s. 753(1)(a)(

i) or (ii) has not been met in this case.

b. Does Mr. Bird meet the criteria for a dangerous offender declaration under s. 753(1)(b)? [ 18 ] This provision requires determining whether Mr. Bird committed a serious personal injury offence as defined in paragraph (

b) of the definition of that term in s. 752 of the Code in by his conduct has shown a failure to control his sexual impulses and a likelihood of causing injury, pain or other evil to persons through failure in the future to control his sexual impulses. i. Is this a serious personal injury offence under s. 752 ? [ 19 ] Mr. Bird was convicted of sexual assault contrary to s. 271 of the Code , and offence which is designated as a serious personal injury offence in the definition of the term in paragraph (

b) of s. 752 of the Code . ii. Is there a likelihood of future failure to control sexual impulses? [ 20 ] Dr. Lohrasbe assessed Mr. Bird has a high risk to reoffend violently in ways that are unusually diverse. He did not specifically address the risk of sexual offending. The Crown argues that his shows a likelihood of Mr. Bird failing to control sexual impulses in the future. [ 21 ] I find that this single sexual offence, when considered in light of Mr. Bird’s actions in showing some restraint by stopping the sexual assault, leaves me in considerable doubt as to whether he will reoffend sexually in the future.

I found nothing in the evidence that suggest that, but for this one incident which I find to be at the medium to lower end of the range of seriousness for sexual offences, Mr. Bird possesses attitudes or characteristics that lead to the conclusion that he will likely commit further sexual offences. [ 22 ] I thus find that he is not a dangerous offender under s. 753(1) (

b) of the Code . c. If Mr. Bird does not meet the test of being declared a dangerous offender, does he meet the criteria to be declared a long- term offender? [ 23 ]

Section 753.1(1) of the Code permits a Court to find an offender to be a long-term offender if a. the appropriate sentence for the offence for which he has been convicted is imprisonment of 2 years or more; b. there is a substantial likelihood of reoffending; and c. there is a reasonable possibility of eventual control in the community. i. Is the appropriate sentence one of two years or more? [ 24 ] Mr. Bird is a 35 year old member of Montreal Lake Cree Nation. He has a lengthy criminal record which is attached as Appendix A. He has committed several violent offences between 2002 and 2014, a record which,

with other offences, amounts to approximately 60 convictions. He has been the subject of sentences of probation several times, a conditional sentence order once, and sentences of jail ranging from 20 days to 7 years. [ 25 ] As an Aboriginal offender, Mr. Bird’s background must be considered under s. 718.2(

e) of the Code such that I am to consider the extent to which Mr. Bird’s unique circumstances bear on his moral culpability and to determine how taking a restorative approach might limit or reduce the sentence of jail imposed while still meeting the sentencing objectives: R v Chanalquay , 2015 SKCA 141 . [ 26 ] The offence is one for which deterrence and denunciation are primary factors. This case involves a less intrusive act than has occurred in many cases and is at the lower to medium end of the range of seriousness for sexual assaults. It is aggravated by Mr. Bird’s lengthy prior criminal record.

Given the need for protection of the public and Mr. Bird’s need for programming before he can be safely released into the community, I find it warrants a sentence of greater than 2 years. ii. Is there a substantial likelihood of reoffending ? [ 27 ] Dr. Lohrasbe viewed Mr. Bird as a high risk to reoffend due to: a. His lengthy criminal record for violence and breaching release conditions and court orders; b. How quickly he has reoffended after prior releases from jail even after seemingly successful programming and an expressed commitment to change; c.

His long-standing problem with addictions which continue to contribute to his offending; and d. His upbringing which involved violence around him. [ 28 ] Mr. Bird has been subject to community sentences many times. Due to frequent and swift reoffending, no programming occurred. He did access anger management and substance abuse programming while serving sentences at a provincial correctional centre. [ 29 ] While subject to the 7 year jail sentence in a penitentiary imposed in 2006, Mr.

Bird accessed programming including anger and emotions management, substance abuse and the In Search of Your Warrior Violence Prevention Program. He was also involved in cultural, skill and vocational programs. Reports from all were positive and they resulted in his transfer to the minimum security Willow Creek Healing Lodge in 2010 where he took a parenting program and was granted escorted temporary absences for personal development, family contact, attendance at AA and NA and for release preparation. [ 30 ] Despite successful completion of this programming, Mr.

Bird was involved in an incident with another inmate in October, 2010. He admitted to bringing drugs into the institution and using them. He was transferred to Saskatchewan Penitentiary. [ 31 ] Mr. Bird was released on statutory release in late December, 2010 but this was revoked after an incident in February, 2011.

Subsequent releases in September, 2012, and April, 2013, also resulted in quick suspensions after he had breached abstinence conditions and in the April, 2013 suspension, had reoffended within 5 days of release. [ 32 ] Given this history, and no further programming having been received since then, I find

that there is a substantial likelihood that Mr. Bird will reoffend. iii. Is there a reasonable possibility of eventual control in the community? [ 33 ] In deciding this issue, I am guided by the following principles enunciated by the Saskatchewan Court of Appeal: a. There must be, within the time frame of an appropriate term of imprisonment, a reasonable likelihood of controlling the risk to reoffend – R v Goforth , 2007 SKCA 144 [Goforth] ; b.

While rehabilitation does not require proof of a cure, it does require proof that the nature and severity of the risk can be sufficiently contained in the community ( Goforth , paragraph 57 ); c. The evidence of treatability must go beyond a mere expression of hope – ( Goforth , paragraph 59 ); d. There is no onus on the Crown to negate this requirement. It is not a question of satisfaction beyond a reasonable doubt or any other standard of proof. The sentencing judge is to determine whether the offender’s risk in the community can be reduced to a manageable level - R v Moosomin, 2008 SKCA 169 . [ 34 ] Mr.

Bird testified in a sincere way that he is highly motivated for successful treatment, despite his past failures to remain offence-free because: a. He has suffered through the death of his father and step-mother and committed to his father to complete treatment and abstain. b. He has family support and access to resources in his home community of Montreal Lake to assist with personal counselling, addictions treatment, anger management, and cultural and spiritual resources. c. He recognizes the challenges he faces and is committed to his religion and to changing his life. d.

He is motivated by the seriousness of his present situation in this sentencing hearing and the serious consequences of failure. [ 35 ] The Crown argues that Mr. Bird has made these promises before, has seemingly done well in treatment before but has returned to substance abuse and violence in the community soon after release and lacks a realistic appraisal of his situation such that there is little evidence other than hope that he will change in identifiable time. [ 36 ] Dr. Lohrasbe testified that in his opinion Mr. Bird could undertake and internalize the programming required in a couple of years.

He observed that Mr. Bird’s participation in treatment programs in the past makes it clear that he is capable of engaging and participating in treatment. He stated that attitudes habits and behaviours, rather than only considering positive reports generated during treatment programs, will be the best guide for readiness for release into the community. [ 37 ] Dr. Lohrasbe suggested caution must be taken when deciding what weight to attach to Mr. Bird’s confidence in asserting that he will be successfully rehabilitated because he lacks a deeper understanding of the immense changes he will have to implement. Dr.

Lohrasbe stated that it is conceivable that repeating the violence prevention and substance abuse programs will help consolidate and internalize the superficial benefits from Mr. Bird’s prior participation in these programs. He further suggested that being the father of two infant children will likely have a motivational impact and that the impact of the current sentencing

proceedings is potentially pivotal. [ 38 ] I find, on considering all of the evidence, that Dr. Lohrasbe’s considered opinion that Mr. Bird will successfully complete treatment in a couple of years and thereby reduce the risk he presents is more than mere hope. Mr. Bird’s past involvement in treatment and his motivation and commitment for treatment now, considering the factors he mentioned and those which Dr. Lohrasbe relied on in his opinion, lead me to find that there is a reasonable likelihood of eventual control in the community.

While there are uncertainties as to whether this treatment will amount to a cure, I am satisfied that they will result in the severity and nature of the risk being sufficiently contained in the community. [ 39 ] Accordingly, I find that Mr. Bird is appropriately declared to be a long-term offender. d. What is the appropriate sentence? [ 40 ] The length of sentence must also be guided by Mr. Bird’s status as an Aboriginal offender and the need to employ a restorative approach to limit the sentence to the shortest sentence needed to achieve the sentencing objectives. Mr.

Bird has served approximately 18 months in remand for which he is entitled to credit at 1.5 days for each day in remand pursuant to R v Summers , 2014 SCC 26 , resulting in a credit of 27 months. [ 41 ] The evidence of Correctional Services Canada witnesses at this hearing was that the programming Dr. Lohrasbe identified, and Mr. Bird acknowledged was needed, could be completed within 3 years, and likely a shorter time if a release date was more imminent. [ 42 ] Recognizing the need for Mr.

Bird to receive treatment before he is released, I find it is appropriate to extend the length of sentence than might otherwise be imposed because it is necessary to adequately protect the public ( R v Pelly , 2006 SKCA 60 ). [ 43 ] I find that a sentence of 5 years imprisonment is appropriate in Mr.

Bird’s case, less credit of 27 months for the time served, leaving a sentence of 33 months to be served. [ 44 ] The length of the supervision order requires: a. a recognition that protection of the public is the dominant consideration – R v Key , 2010 SKQB 95 ; b. an assessment of the risk of reoffending, the availability and likely effectiveness of any possible treatment programs, and the length and level of supervision necessary to provide the required support and structure upon release from imprisonment - R v A(LF), 2007 SKPC 63 . [ 45 ] Mr. Bird’s risk of reoffending is high and Dr.

Lohrasbe’s evidence supports the conclusion that a lengthy period of community supervision will be required given the potential for harm if Mr. Bird falls off his pattern of rehabilitation. [ 46 ] I find that an order of long-term supervision of 10 years is warranted in Mr. Bird’s case. [ 47 ] The sexual assault offence is a primary designated offence under s. 487.04 of the Code and so an order is made under s. 487.051 of the Code in Form 5.03 authorizing the taking of

samples of bodily substances reasonably required for forensic DNA analysis. [ 48 ] There will also be the mandatory orders for prohibition of firearms and the other items listed in s. 109 of the Code for ten years, there being no indication that there was notice to seek a longer prohibition, and an order in Form 52 requiring compliance with the Sexual Offender Information Registry Act for a period of 20 years pursuant to s. 490.012 of the Code . [ 49 ] I order that my reasons for sentencing, together with all exhibits, assessments, required transcripts and documents be forwarded to the Correctional Service of Canada.

Dated this 14 th day of March, A.D. 2016, at the City of Prince Albert, in the Province of Saskatchewan. __________________________ E. Kalenith, J