Her Majesty the Queen - v. -, 2014 SKPC 10

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 010 Date: January 14, 2014 Information: 24398638 Location: Wakaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Joseph Victor Raymond Paul Appearing: Tom Healey For the Crown Wade Rogers For the Accused DECISION I. CARDINAL , J [ 1 ] The Crown has laid an Information pursuant to

section 810.1 and

section 810.2 of the Criminal Code and asks that Mr. Paul be bound over by a recognizance. Cpl. Haswell has sworn the Information that he has reasonable grounds to fear Mr. Paul will commit a serious personal injury offence as defined in

section 752 of the Criminal Code and requests a s. 810.2 recognizance. He also fears Mr. Paul will commit certain enumerated sexual offences in respect of one or more persons who are under the age of sixteen and requests a recognizance pursuant to s. 810.1 . The consent of the Attorney General to this application as required by the legislation has been filed.

[2] The Court was advised that Mr. Paul is a low functioning individual who does understand English but Cree is his firstlanguage. In order to assist him with understanding the proceedings, a Cree interpreter, Ms. Almightyvoice, sat beside Mr. Paul. Heunderstood that if he had difficulties understanding a question or any of the evidence that he should so indicate and Ms. Almightyvoicewould then interpret for him. On one occasion during the proceedings Mr. Paul indicated he did not understand a portion of the evidenceof Lacey Fisher, a parole officer who testified. Ms.

Almightyvoice explained it to him and he indicated he understood the evidence. Onanother occasion, it appeared Mr. Paul was falling asleep during the proceedings. The Court reminded him it was important that he listenand understand what was being said during the evidence. Other than those two occasions, Mr. Paul made no indication as to lack ofunderstanding, and I am satisfied that Mr. Paul did understand the proceedings and the evidence given by the witnesses. [3] The Crown called two witnesses being Lacey Fisher, a parole officer, and Cpl.

Brian Haswell, a member of the RCMP whois involved in bringing forward these applications. During their evidence they referred to Exhibit P-1, which is a binder containing ninetabbed documents: five of which were prepared by the Correctional Service of Canada (CSC), the criminal record of Mr. Paul, and threetranscripts of proceedings from sentencing in both Provincial Court and the Court of Queen’s Bench for Saskatchewan. By agreement,the following documents were made full exhibits: Tab 5: PBC Detention Review Decision Sheet – October 4, 2012 Tab 7: Criminal Record of Mr.

Paul Tab 8: Transcript of proceedings at sentencing – July 14, 2009 in Wakaw Provincial Court Tab 9: Transcript of proceedings at sentencing – November 18, 2009 Prince Albert Court of Queen’s Bench Tab 10: Transcript of proceedings at sentencing – May 24, 2000 Saskatoon Provincial Court [4] With respect to the remaining documents, defence counsel agreed that items two, three, four, and six were CSC documents,but took no position on their admissibility. (Note: there is no document under Tab 1.) I ruled the documents were admissible as theywere prepared in the ordinary course of business and the case law supports they are admissible under the Canada Evidence Act.

Withtheir admission, Exhibit P-1 became a full exhibit in these proceedings. These are the remaining documents: Tab 2: Assessment for decision – March 28, 2011 Tab 3: Warrant expiry release package – January 11, 2013 Tab 4: Assessment for decision – July 3, 2012 Tab 6: Correctional plan updated – December 6, 2012 [5] Defence called Ms. Bertha Paul (sister of Mr. Joseph Paul) and Darlene Almightyvoice. I note Ms. Almightyvoice was thecourt interpreter for Mr. Paul and was called to testify in her capacity as the addictions counsellor for Mr. Paul on One Arrow FirstNation. I allowed Ms.

Almightyvoice to testify, but her evidence was curtailed by defence counsel and the Court was asked to strike itfrom the record, or in other words, to disregard it. Her evidence did not touch upon any issue in question and has no impact on mydecision and I disregard her evidence in its entirety. ISSUE [6] In these applications, the Crown bears the onus of proving on a balance of probabilities that the officer’s fears arereasonable. There is both a subjective and objective component to be met by the Crown. (See R. v. Bird, 2010 SKPC 25 , 2010SKPC 025 at paragraph 5.) Defence counsel does not take issue with Cpl.

Haswell’s subjective belief. The sole issue to be determined iswhether the evidence establishes on an objective basis that the officer’s fears are reasonable. LAW [7] Whether the analysis is regarding a recognizance pursuant to

section 810.2 or

section 810.1, there are common underlying

[7] Whether the analysis is regarding a recognizance pursuant to

section 810.2 or

section 810.1, there are common underlyingprinciples applicable to both. Mr. Paul is not charged with a criminal offence. No criminal conviction flows from a person entering intosuch a recognizance. The recognizances involved are designed as preventative rather than punitive measures. While both imposerestrictions upon the accused’s freedoms, such restrictions are only those as are necessary to assist the accused from committing futureoffences or misconduct. (See R. v. Loysen, 2006 SKQB 290; R. v. Bilida, 1999 ABQB 1016.) [8] The Crown bears the persuasive burden as outlined in s. 810.2(3) and s. 810.1(3), both of which state:

(3) If the provincial court judge before whom the parties appear is satisfied by the evidence adduced that the informant has reasonablegrounds for the fear, the judge may order that the defendant enter into a recognizance to keep the peace and be of good behaviour for aperiod that does not exceed 12 months. [9] Given the Crown has alleged two grounds upon which the Court may bind Mr. Paul over to comply with the conditions of arecognizance, I will address each separately.

SECTION 810.2 [10]

Section 810.2 requires the Crown to prove on a balance of probabilities that Mr. Paul will commit a serious personal injuryoffence as defined in s. 752 of the Criminal Code which states: “serious personal injury offence” means (

a) an indictable offence...involving (

i) the use or attempted use of violence against another person or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychologicaldamage on another person, and for which the offender may be sentenced to imprisonment of ten years or more or (

b) an offence or attempt to commit an offence mentioned in

section 271 (sexual assault), 272 (sexual assault with a weapon, threats to athird party or causing bodily harm) or 273 (aggravated sexual assault). [11] It is agreed that Mr. Paul has been convicted of three sexual assault offences (two in 2000 and one in 2009) which are seriouspersonal injury offences within the meaning of s. 752. Although defence counsel mentions that these are the only “qualifying” offencesfor which Mr.

Paul has been convicted in relation to a potential s. 810.1 or 810.2 application, the law is clear that there need not be anyprevious conviction for a serious personal injury offence before an application can be brought for a s. 810.1 or 810.2 recognizance. Notriggering event is required to engage these types of hearings, but a person’s previous criminal convictions are relevant to support theapplication for the recognizance. (See R. v. Budreo, (ON CA), 2000 46 O.R. (3d) 481 (ONCA) at para. 44 as adoptedby Wilkinson J. in R. v. Loysen, supra, at para. 17.) [12] In R. v.

Teneycke, 2008 SKQB 239, Madame Justice Rothery adopted the test as outlined in Nobel v. Teale (2005), (QC CS), 36 C.R. (6th) 258 (leave to appeal dismissed by the Que. C.A., 2005 QCCA 1174) at paragraph 2: ...the fear to be established is that the defendant will commit a personal injury offence imports a component of imminency. (Note 9: R. v.Budreo, (ON SC), 104 C.C.C. (3d) 245 (Ont. Gen. Div.) at p. 263): Judges should take care before exercising their preventive jurisdiction. Both ss. 810 and 810.1 speak of a reasonably grounded fear thatthe defendant “will” commit an offence.

To my mind, as a matter of legislative construction, this takes the appropriate threshold a notchabove a simple demonstration that the defendant is more likely than not to commit an offence. A reasonably grounded fear of a seriousand imminent danger must be proved on a balance of probabilities. [13] Further, in R. v. Budreo, 142 C.C.C. (3d) 225, (ONCA), at paragraph 51, Justice Laskin stated:

... the phrase ‘fear on reasonable grounds’...connotes a reasonably based sense of apprehension about a future event. [ 14 ] As the informant, Cpl. Haswell must have a subjective belief that Mr. Paul will commit a serious personal injury offence. The evidence must also support an objective belief that the fear is reasonable. Defence counsel argues that while Cpl. Haswell may have a subjective belief, the evidence does not objectively support that belief. EVIDENCE [ 15 ] Cpl. Haswell testified he has been a member of the Royal Canadian Mounted Police for 33 years where he has held a number of positions. He spent 12 years with the Violent Crime Analysis

Section and since 2005 he has been the NCO in charge of the High Risk Offender unit in the Regina RCMP headquarters. The CSC prepares documents concerning offenders who are held to warrant expiry and sends them to the RCMP for their consideration as to whether to apply for s. 810.1 and 810.2 recognizances. Cpl. Haswell reviews the documents and, depending upon his assessment, swears the Information as he did in this case. [ 16 ] Cpl. Haswell has reviewed all of the documents outlined in Exhibit P-1. As a result of that review he came to the conclusion that Mr.

Paul poses a threat to the community in that he would commit a serious personal injury offence. Of concern to Cpl. Haswell is that Mr. Paul has: - a substance abuse problem concerning alcohol as evidenced by his lengthy criminal record for driving while under the influence of alcohol since 1974 (10 convictions); - two previous convictions for sexual assault involving children (2000) and a third for sexually assaulting a 19 year old woman passed out at a party where Mr.

Paul had been consuming alcohol (2009); - a cognitive disability such that he socializes and relates easier with children; - not taken any substance abuse programs while incarcerated or attend AA meetings; - completed a sexual offender treatment program in the Regional Psychiatric Centre but did not retain the information. [ 17 ] Ms. Lacey Fisher has worked for the Correctional Service of Canada for six years and is currently on assignment to the Willow Creek Healing Lodge.

She initially started as the Aboriginal Liaison Officer in 2007 at the Saskatchewan Penitentiary, was transferred to the Regional Psychiatric Centre (RPC) in Saskatoon as a parole officer, and has been a parole officer for the last four years. As a parole officer she is the case manager for serving inmates and responsible for assessing risk, reviewing security levels , reviewing programs and making recommendation to the Parole Board of Canada. She is responsible for developing the release plan for the inmate, while keeping in mind what is best for the inmate and the public. [ 18 ] Ms.

Fisher wrote some of the documents filed in Exhibit P-1, and has reviewed all of them. She prepared the Warrant Expiry Package approximately 4 months prior to Mr. Paul’s warrant expiry date. She testified this package is only completed if the inmate is held to warrant expiry as was the case with Mr. Paul. [ 19 ] On July 14, 2009, Mr. Paul commenced serving a penitentiary sentence of 3 years, 10 months and 4 days for convictions of drinking and driving and sexual assault. Ms. Fisher was assigned to supervise Mr.

Paul when he was transferred from the Saskatchewan Penitentiary to the Regional Psychiatric Centre on October 25, 2010 for his modified program needs. His statutory release date (SRD) was February 15, 2012 and his warrant expiry date (WED) was May 17, 2013. She had regular contact with him until his release in May 2013. Although the inmates do not have access to her office, she is regularly on the unit, in this case the Clearwater Unit, and spoke with him a few times a week. Sometimes she would just greet him; other times they would discuss matters. [ 20 ] As noted in Ms.

Fisher’s Assessment for Decision recommending detention, dated March 28, 2011 (Tab 2-Page 6), a

psychological assessment was completed September 9, 2010. It identified Mr. Paul as “a moderate risk for general violence and a high risk for sexual recidivism based on the Static 99 and Stable 207”. It found there were no concerns with his mental health but noted he was “not intellectually sophisticated and clearly presents with a by far lower than average intellectual capacity”. She noted in the report that Mr. Paul “admits he has an alcohol addiction and is agreeable towards a substance abuse program but has not demonstrated any acceptance towards his sexual offending”. [ 21 ] Mr.

Paul started the Wellspring Sex Offender Intervention (WSOI) program which is directed at low functioning individuals on February 10, 2011. Ms. Fisher was aware he struggled with English and that things were “going rather slow” in the program. She testified that a requirement of the program is that the offender admit to the offence and what he had done. Mr. Paul agreed to be in the program, but he did not admit responsibility for the offence to her.

At the hearing on October 4, 2012 (Tab 5) before the Parole Board of Canada (PBC) where his detention order was confirmed, the PBC observed he seemed to accept responsibility for his sexual offending but then denied he was a sexual offender. [ 22 ] Ms. Fisher testified Mr. Paul had slightly improved before his release on warrant expiry as he was more open to understanding why he was a violent person. During her interaction with him, she observed that: - he was pleasant and easy to deal with, but struggled with anger and resentment. - he was quite stubborn.

For example, he refused to attend to outside medical appointments as he did not want to be seen in public in restraints. - in discussing with him how to make his life better, he did not admit to his crimes. He did admit that he did not know what he was capable of doing while under the influence of alcohol and that he could be dangerous. - he treated her differently after the PBC ordered his detention to warrant expiry (which was in October/November 2011). He would scowl at her on occasion. Other staff commented to her that he was hostile and angry toward her. His prime therapist told her Mr.

Paul blamed her for his detention. She testified she made the recommendation to the PBC for detention to his warrant expiry date based on his history of criminal offending and lack of progress in addressing his risk factors. [ 23 ] Ms. Fisher testified she was concerned about his release to the community as his release plan would put him in the same situation as when he offended and he had no preventable measures in place. For example, he was told he should participate in Alcoholics Anonymous while incarcerated. He said he would do it upon his release.

She encouraged him to attend the program inside the facility, but he did not do so as he was afraid of other inmates and his current offences. She said inmates serving for sexual offences are generally not as safe as other inmates. [ 24 ] During her supervision of Mr. Paul, she observed the following risk factors: 1. Alcohol use; 2. Anger Management-Mr. Paul has not developed a way to cope with anger; 3. Lack of work experience or leisure activities to keep himself busy; and 4. Friends-he indicated he had trouble saying “No” to friends who wanted him to drink. [ 25 ] Although alcohol use is an issue for Mr.

Paul, he was not able to complete substance abuse programming while incarcerated. In the Assessment for Decision dated July 3, 2012 (Exhibit P-1; Tab 4 at page 2) it notes he was waitlisted for the National Substance Abuse Program-Moderate Intensity (NSAP-MI), and the NSAP Pre-Release Booster upon completion of the WSOI, but the Interventions staff determined that due to his cognitive impairments and his language barriers, he would not be able to complete the program. His Case Management Team referred him to the institutional AA program but as of that date he did not attend.

Their plan included educational upgrading once he had focussed on the WSOI but Mr. Paul indicated he did not want to attend. However, in the Correctional Plan Update dated December 6, 2012 (Tab 6), it is noted he had recently started attending school and a mental health group. [ 26 ] Ms. Fisher testified that she continues to hold the beliefs as identified in the Assessment for Decision (Tab 4) dated July 3, 2012 where she noted at page 5:

Overall, Paul has not addressed his risk factors to any degree that would render his risk to re-offend mitigated at this time. He has not completed his treatment; he has not taken full responsibility for committing the sexual offence and has not developed a release plan that would adequately address the risk that he currently presents.... Based on the above information, it is the opinion of this writer that there are reasonable grounds to believe that Paul is likely to commit an offence causing death or serious harm prior to the expirations of the offender’s sentence according to law...

DEFENCE EVIDENCE [ 27 ] Although the accused did not testify, his older sister, Bertha Paul testified and provided further information concerning Mr. Paul. She is 68 years old and lives on One Arrow First Nation. Since his release in May 2013, Mr. Paul has resided with her in her residence on the reserve as part of his release conditions pending this hearing. She states they stay home and keep to themselves. She takes him to Rosthern for water and groceries and once per week they drive to Wakaw so he can report to the RCMP. About once per month they attend bingos and meetings with the Elders on the reserve.

The latter are casual meetings where the Elders try to help them by just talking. [ 28 ] Ms. Paul testified that Ms. Almightyvoice, the court interpreter, is also Mr. Paul’s counsellor and she comes to their house once or twice per week or they will go see her. It is not clear from her evidence what type of counselling Mr. Paul receives. [ 29 ] In cross-examination Ms. Paul became emotional when talking about her children and grandchildren. She is aware her brother cannot be around any children due to a court order. She does not see her grandchildren as often because of this restriction.

She has babysat them occasionally for a few hours at a time, but Mr. Paul does not attend with her. While other people say he is dangerous, Ms. Paul does not believe he is dangerous. She agreed that his current release conditions are good for him because he can’t drink alcohol, or be out after a certain time, and cannot be around children. She testified she tries to guide him and watch over him and help him understand his conditions because sometimes he has trouble understanding what he can and cannot do.

She agreed the rules help him, but even if he was not subject to any rules their routine would not change. [ 30 ] Ms. Paul testified that initially she did not believe her brother had committed the sexual offence in 2009. This is also indicated in the Warrant Expiry Release Package (Tab 3 at page 6) in reference to a discussion with Ms. Paul by staff in relation to a community assessment on December 24, 2009. Ms. Paul testified she does now believe he committed the offences even though her brother had told her he did not do anything wrong. DECISION -

SECTION 810.2 [ 31 ] I find Cpl. Haswell had subjective grounds to believe Mr. Paul would commit a serious personal injury offence. I am satisfied on the evidence that objective grounds exist to support the fear of Cpl. Haswell that Mr. Paul will commit a serious personal injury offence within the meaning of s. 752 of the Criminal Code . The fear that Mr. Paul will commit an offence of violence, such as a sexual assault, is serious and imminent. [ 32 ] I found Ms. Fisher and Cpl. Haswell provided credible and trustworthy evidence to the Court concerning Mr. Paul’s criminal offending history.

Neither witness showed any animosity or ill will toward Mr. Paul. Ms. Fisher was prepared to agree he had developed some insights into his offending behaviour and the role his substance abuse has contributed to it, but she was not moved from her position that he continues to be a risk to the public due to his lack of any real plan to avoid alcohol and sexual offending. The documents tendered in Exhibit P-1 support her observations and opinions. [ 33 ] Cpl. Haswell has been involved with these types of applications for many years. He, like Ms.

Fisher, gave his evidence in a straightforward manner without embellishing. The documents support his opinion and observations as well. [ 34 ] I have no hesitation in relying on the documents in Exhibit P-1 and place much weight on their reliability as to the information

contained therein. These are documents created by professional people whose job it is to monitor offenders and their progress while institutionalized. They are under a legal duty to compile this information and to be accurate in so doing. Their focus is on assisting the offender to minimize their risk of re-offending through programs designed to assess their needs. Treatment and preparing inmates for release back to the communities with tools to help them identify and avoid triggering behaviour is a large part of the planning involved.

However, they can only show the offender the way-it is up to the offender to follow through with programming. [ 35 ] Mr. Paul’s criminal record (Tab 7) is extensive, lengthy, and illustrates that alcohol has been a continuing problem for him. His 28 convictions start in 1974 for driving while over 80 and end in November 2009 when he was sentenced to 3 years and 6 months for a sexual assault. Alcohol has been involved in all of his criminal convictions over the years, especially the 10 convictions involving drinking and driving. [ 36 ] Mr. Paul also has 5 convictions for violent offences.

In 1986 he was convicted of assault and sentenced to a fine and probation. In 2000, he was convicted of two sexual assaults where he received 6 months incarceration on each concurrent. He was convicted that same date of uttering threats and was sentenced to 1 month concurrent for that offence. The index offence for which he was held to warrant expiry was the conviction for sexual assault on November 18, 2009. The transcript of those proceedings (Tab 9) indicates that on July 31, 2007 the then 19 year old victim attended a party at the home of the accused.

She did not know him but had attended the party with her friends and consumed a large amount of alcohol. Her friends left her alone in the house for approximately a half hour as she was intoxicated, was fully clothed, and passed out on the couch. Upon their return, they found the doors locked, and music playing inside. They could see the accused was atop the victim, and that both had their pants and underwear down. The accused was pumping his hips back and forth. The victim was unconscious. Her friends gained entry to the residence, stopped the assault, helped dress the victim and removed her.

No one else in the residence was conscious. The accused pled guilty and admitted he had a drinking problem. At the time of sentencing, he was 56. He was sentenced to a period of incarceration of 3 years and 6 months, concurrent to another 15 month sentence he had been given in July 2009 for driving while over 80. [ 37 ] Tab 10 contains the transcript from the proceedings in 2000 where the accused was found guilty after trial of sexually assaulting two children while he was babysitting them. There are no details concerning the sexual nature of the assault.

He also continued to harass them after the assaults by verbally being abusive, using profanity and uttering death threats. During the sentencing phase of the proceedings, Mr. Paul continued to deny committing the offences. In the Pre-Sentence Report, portions of which were read into the record, it was noted that his denial meant that “meaningful interventions are difficult if not impossible” (Transcript, Page 8, Lines 20-22). Mr. Paul indicated he wanted to tackle his alcoholism issues by admitting himself into a treatment centre.

He had spent 7 months on remand for which he was credited with 14 months time already served, and ordered to serve an additional 6 months concurrent on each of the sexual assaults. It appears the sentence for uttering threats was one month consecutive for a total of 7 months incarceration in addition to time served. [ 38 ] Mr. Paul has a serious addiction to alcohol which he has not been able to keep under control since at least 1974 when he commenced drinking and driving. The CSC and PBC documents indicate Mr.

Paul is well aware of the impact alcohol usage has upon him, and that it can cause him to become dangerous, but he did not take steps during his last period of incarceration to address it. He could have attended AA meetings in the institution but he declined. His motivation to address this issue was low and it appears that he felt since he was not drinking while incarcerated he did not need to be concerned with alcohol abuse. It is understandable why he did not take the substance abuse program itself while incarcerated due to his illiteracy, and his attendance at the WSOI program.

Yet he could have attended AA meetings internally but chose not to do so, indicating he would do so upon his release. This should have been an obvious choice to Mr. Paul to assist him in controlling his alcohol addiction upon his release and help him plan strategies to avoid the temptation to drink, but he chose not to follow through. [ 39 ] Throughout the files it is noted that Mr. Paul did not accept responsibility for the sexual offences in 2000 against the two children.

Although he appears to accept some responsibility for the sexual offence in 2009, he at times denies he committed it or blames intoxication for his offending. While he made some progress through the WSOI program, it is limited at best. The PBC stated in October 2012 that they consider Mr. Paul to be an untreated sexual offender. I share that view. [ 40 ] I accept his sister, Ms. Bertha Paul, sincerely wants to help her brother, but Mr. Paul needs more than just good wishes and intentions. He needs structure and controls to prevent him from committing another sexual assault or violent offence.

He has not developed a plan during his incarceration to help minimize his risk of re-offending. Without such a plan, it will not be long before Mr. Paul returns to consuming alcohol, putting himself into a situation where he will undoubtedly commit a serious violent offence.

SECTION 810.1

[ 41 ] I find the Crown has also proven on a balance of probabilities that the fear of Cpl. Haswell that Mr. Paul will commit certain enumerated sexual offences in respect of one or more persons who are under the age of sixteen is objectively supported by the evidence. [ 42 ] Although Mr. Paul’s latest conviction involved a 19 year old woman whom he sexually assaulted while she was unconscious, he has two previous convictions for sexually assaulting children under the age of 16. I accept that Mr. Paul’s cognitive difficulties result in him more readily identifying and interacting with young children.

The fact that he sexually assaulted another person, even though the latest victim is an adult, causes concern. It illustrates a pattern of repeated sexual offending behaviour. He has continually denied sexually assaulting the children despite having been found guilty after trial. Further, he was convicted of harassing the children and their family while awaiting trial on the sexual assault charges. Mr. Paul is an untreated sexual offender. He is a chronic alcoholic who has repeatedly shown that alcohol is and will be a part of his life. As such, it is a real and serious risk that Mr.

Paul will sexually offend against a person under the age of 16 and I am satisfied that the application for a s. 810.1 recognizance is supported by the evidence. [ 43 ] Defence counsel has argued that since Mr. Paul is now 60 years of age (DOB: October 3, 1953), has health issues such as diabetes and does not get around as he used to, that there is little risk he will commit a serious personal injury offence or sexual offence against a person under the age of 16. I do not accept that argument. Mr. Paul’s physical abilities may have slowed, but there is no indication his alcohol consumption will do the same.

He has not taken treatment or attended AA while incarcerated and substance abuse remains a very significant risk factor in his offending. [ 44 ] I order Mr. Paul to enter into a recognizance either pursuant to s. 810.2 or 810.1. ____________________________________ I. J. Cardinal, J