Her Majesty the Queen - v. -, 2014 SKPC 62

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 062 Date: March 20, 2014 Information: 24497000 Location: Carrot River _____________________________________________________________________________ Between: Her Majesty the Queen - and - Roderick Horace Kitchener 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 810.2 of the Criminal Code and asks that Mr. Kitchener be bound over by a recognizance as Sgt. Dion D. Eddy has sworn that he has reasonable grounds to fear Mr. Kitchener will commit a serious personal injury offence as defined in

section 752 of the Criminal Code. The consent of the Attorney General as required by s. 810.2(1) has been filed. [ 2 ] The Crown called three witnesses being William Standingready, a parole officer with the Correctional Service of Canada (CSC); Eloise Fineday, an Aboriginal Liaison Officer with CSC, and Sgt. Eddy, a member of the RCMP who is involved in bringing forward these applications. During their evidence they referred to Exhibit P – 1, which is a binder containing twelve tabbed documents: eleven of which were prepared by employees of CSC, and the criminal record of Mr. Kitchener.

[3] Defence counsel did not contest the admission of these documents as they were prepared in the ordinary course of businessand the case law supports they are admissible under the Canada Evidence Act, R.S.C. 1985, c. C-5. With their admission, Exhibit P – 1became a full exhibit in these proceedings. [4] Defence called no witnesses but, with the consent of the Crown, filed three letters of support on behalf of Mr. Kitchener fromtwo band councillors and the NNADAP worker at Shoal Lake First Nation where he lives and works.

ISSUE [5] 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). As the informant, Sgt. Eddy must have a subjective belief that Mr. Kitchener will commit a serious personalinjury offence. The evidence must also support an objective belief that the fear is reasonable. Defence counsel argues that while Sgt.Eddy may have a subjective belief, the evidence does not objectively support that belief.

SECTION 810.2 [6] Mr. Kitchener is not charged with a criminal offence. No criminal conviction flows from a person entering into such arecognizance voluntarily or by order of the Court. The recognizance involved is designed as a preventative rather than punitive measure. While a recognizance imposes restrictions upon the defendant’s freedoms, such restrictions are only those as are necessary to assist himfrom committing future offences or misconduct (See R. v. Loysen, 2006 SKQB 290; R. v. Bilida, 1999 ABQB 1016). [7] The Crown bears the persuasive burden as outlined in s. 810.2 (3) which states:

(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. [8] Pursuant to s. 810.2 (3.1), the recognizance may be imposed for a period not exceeding two years if the Court is satisfied thatthe defendant has previously been convicted of a serious personal injury offence. [9]

Section 810.2 requires the Crown to prove on a balance of probabilities that Mr. Kitchener will commit a serious personalinjury offence 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).

[10] Mr. Kitchener has been convicted of six sexual assault offences (one in 2000 and five in 2008) which are serious personalinjury offences within the meaning of s. 752. The law is clear that there need not be any previous conviction for a serious personal injuryoffence before an application can be brought for a s. 810.2 recognizance. No triggering event is required to engage these types ofhearings, but a person’s previous criminal convictions are relevant to support the application for the recognizance (See R. v. Budreo, 142C.C.C. (3d) 225, (ONCA) at para. 44 as adopted by Wilkinson J. in R. v.

Loysen, supra, at para. 17). [11] 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. [12] Further, in R. v. Budreo, supra, at paragraph 51, Justice Laskin stated: “... the phrase ‘fear on reasonable grounds’...connotes areasonably based sense of apprehension about a future event.” EVIDENCE [13] Sgt.

Eddy testified he is a member of the Royal Canadian Mounted Police currently stationed in northern Saskatchewan. From July 1, 2013 to November 2013 he was a member of the High Risk Serious Violent Offender Unit. The CSC prepares documentsconcerning offenders who are held to warrant expiry and sends them to the RCMP for their consideration as to whether to apply for a s.810.2 recognizance. Sgt. Eddy reviews the documents and, depending upon his assessment, swears the Information as he did in thiscase. [14] Sgt. Eddy testified he reviewed all of the documents outlined in Exhibit P-1.

As a result of that review he came to theconclusion that Mr. Kitchener poses a threat to the community in that he would commit a serious personal injury offence. Of concern tothe sergeant are: - a persistent pattern of criminal behaviour involving offences of a sexual nature against female children and those in their early teens in2000 and 2008; - his use and abuse of alcohol; and - his lengthy criminal record with 38 convictions, 12 of which are for violent offences (assault (4); assault causing bodily harm, assaultwith a weapon, sexual assault (6)) and careless use of firearm. [15] Sgt.

Eddy testified that when Mr. Kitchener was released after serving his sentence to warrant expiry in November 2011 theCrown brought a s. 810.2 application. Mr. Kitchener was arrested and subsequently released on an undertaking pending the s. 810.2hearing. Approximately two months later, Mr. Kitchener was located in Manitoba intoxicated, hugging a beer case, and refused toprovide identification. He was subsequently charged and sentenced on February 15, 2012 to six months incarceration concurrent forthree counts of breach of his undertaking. Mr.

Kitchener voluntarily entered into the s. 810.2 recognizance in October 2012 and wassubject to conditions. [16] On October 3, 2013, Sgt. Eddy swore the Information currently before the Court for a new s. 810.2 recognizance as theoriginal one was about to expire. He drove to Shoal Lake, Saskatchewan to locate and serve Mr. Kitchener with the summons for Court. He attended to Mr. Kitchener’s residence and observed a cooler of beer cans on the deck. There were 6-8 beer cans on the ground closeto the cooler that appeared to be fresh. Mr.

Kitchener was not home, but his wife advised police he would be home later that day. Theofficer had to leave on other police business. Local police officers later advised they had located Mr. Kitchener and were at the Nipawin

hospital to obtain a urine sample from Mr. Kitchener as allowed by the conditions of his recognizance. [ 17 ] Sgt. Eddy attended to the hospital and spoke to Mr. Kitchener. He testified he appeared anxious and was inquiring repeatedly as to when he could start drinking alcohol as his s. 810.2 recognizance was about to expire. He asked this two or three times from the lobby of the hospital to the vehicle, 60 yards away. The urine sample was obtained and analysed, indicating it was negative for the presence of alcohol or drugs. [ 18 ] Ms.

Eloise Fineday has worked for the CSC for three years and is currently an Aboriginal Liaison Officer (ALO). She has also worked as a parole officer and an Aboriginal Programs Officer at the Prince Albert Penitentiary. She testified she has known Mr. Kitchener for approximately two years while she was the ALO. [ 19 ] Ms. Fineday wrote some of the documents filed in Exhibit P-1, reviewed all documents, and prepared the Warrant Expiry Package (Tab 11) in 2011 prior to Mr. Kitchener’s warrant expiry date of November 12, 2011. [ 20 ] Mr.

Kitchener commenced serving a penitentiary sentence of 36 months for five convictions of sexual assault and two convictions of breach of undertaking on November 13, 2008. Ms. Fineday had regular contact with him until his release in November 2011. In the Warranty Expiry Package she reviews his performance while incarcerated and notes that while he did interact with Elders and completed the Aboriginal Substance Abuse Program on September 9, 2009, the biggest concern even after serving to warrant expiry was his ongoing risk to abuse substances and re-offend.

She notes his sexual offending behaviour appears to be opportunistic. I take that to mean in the sense that his last offences occurred against children with whom he was alone and who could not oppose him, and that the older victims were incapacitated due to alcohol or drug consumption. [ 21 ] Mr. William Standingready is a federal parole officer with the CSC at the Saskatchewan Penitentiary in Prince Albert and has been for 13 years. I found him to be extremely knowledgeable about the programs available in the institution and the role of the parole officer vis-à-vis the inmate and the public.

He is currently a case manager for serving inmates and is responsible for assessing risk, reviewing security levels, reviewing programs and making recommendations to the Parole Board of Canada. He is responsible for developing the release plan for the inmate, while keeping in mind what is best for the inmate and the public.

He has also been a Parole Officer Manager who supervises other parole officers to ensure they fulfill their duties as mandated by law and policy. [ 22 ] He testified that every inmate who enters the penitentiary is supported and monitored by a Case Management Team (CMT) and has a Criminal Profile (Tab 1) and a Correctional Plan (Tab 2) prepared by a parole officer. A Correctional Plan Program Report (Tab 3) concerning the inmate’s progress in institutional programs was prepared for Mr. Kitchener, but subsequently such reports are no longer completed.

While not all inmates are subject to a psychological or psychiatric assessment, Mr. Kitchener was subject to a Psychological Assessment (Tab 4) on March 9, 2009 due to the nature of his predicate offences. Assessments for Decision and their addendums (Tabs 5, 6, and 7) are prepared to provide information and recommendations concerning referral for detention and to address or update his program performance. Tab 8 is the Program Performance Report Final that addresses his attendance and performance in the National Moderate Intensity Sex Offender Program.

Tabs 9 and 10 contain the letter from the Parole Board of Canada (PBC) and its reasons for decision in ordering that Mr. Kitchener be held to warrant expiry. The Warrant Expiry Package (Tab 11) is prepared for every offender held to warrant expiry, with the Criminal Record (Tab 12) completing the documents. [ 23 ] Mr. Kitchener was assigned to Mr. Standingready’s caseload from January 2010 to April 2011. Mr. Standingready acknowledged that Mr. Kitchener successfully completed the National Moderate Intensity Sex Offender Program (NMISOP) while incarcerated at the penitentiary.

The progress report at Tab 8 recognized he had attended all scheduled sessions of the program and had demonstrated an understanding of how thinking influences behaviour. Through testing prior to taking the program, he was assessed as a moderate to high risk to re-offend sexually. Despite some gains, Mr. Standingready testified that Mr. Kitchener was assessed at the end of the program (Tab 6) and remained in the moderate to high risk category for sexual recidivism. In his opinion, Mr. Kitchener did not internalize or learn from the programming. [ 24 ] This was the second sexual offender program Mr.

Kitchener had taken. He had taken similar programming in the correctional centre when he was convicted of sexual assault in 2000, but even so, Mr. Standingready observed that his victim pool grew. Mr. Kitchener completed the NMISOP on October 20, 2010. The psychologist noted that:

Overall, Mr. Kitchener is encouraged to look deeper into challenges he will face in the future. While he has a decent grasp of the skills he identified that can help him address his key risk factors, if he chooses to associate himself with negative peers and return to abusing substance, he stands a much higher chance of returning to criminal offending. (Tab 8, page 4) [ 25 ] Mr. Standingready remained of the opinion that Mr. Kitchener was an untreated sexual offender as he failed to internalize the programming and there was no reduction in his risk. Mr. Standingready testified that in his conversations with Mr.

Kitchener he saw himself as a victim. Of concern to him was Mr. Kitchener’s sense of entitlement and his lack of insight regarding remorse and victim empathy. On November 2, 2011, while discussing his release if he was not held to warrant expiry, the CMT asked where he would live. He responded that he would go back to his wife’s residence even though most, if not all, the victims of his sexual offences were related to her. When asked what he would say to them if he saw his victims in the community he said he would tell them they have to respect him.

When challenged by the CMT why they would have to respect him when it was he who sexually violated them, Mr. Kitchener said he would tell them he could not be in their presence. [ 26 ] Alcohol was recognized by Mr. Kitchener as a contributing factor to his violent, sexual offending behaviour, and he completed the Aboriginal Moderate Intensity Substance Abuse Program in the federal institution. However, he did not follow through with the recommendation that he attend and complete the maintenance program. Mr. Standingready was of the opinion that if Mr.

Kitchener keeps his alcohol consumption under control he can make pro-social decisions. Yet, there are other issues Mr. Kitchener needs to address that impact upon his offending behaviour such as his upbringing and the physical and sexual abuse he suffered while at residential school. He did participate in the Elder Healing Program to help him cope with his traumatic past, but due to the trauma he suffered he has a difficult time empathizing with his victims. He felt that since his abusers got away with their abuse, he would too.

He also blamed alcohol for his violent and sexual offending but had difficulty understanding that it was not the alcohol, it was his choice. [ 27 ] The three letters of support provided on behalf of Mr. Kitchener from two band councillors and the National Native Alcohol and Drug Abuse Program (NNADAP) worker at Shoal Lake contain positive statements as to his behaviour in the community, notably while employed as a fire boss on the reserve fire suppression crew. They have seen a change in his attitude and believe he is making gains toward living a healthier lifestyle so as to benefit himself and his family .

They recommend he not be subject to any further conditions in a recognizance. [ 28 ] I accept that these individuals are sincere in their comments and I recognize they can have a positive impact upon Mr. Kitchener through being available should he want to discuss concerns with them. However, none of their comments addressed any steps he has taken to connect with local resources, such as the NNADAP worker, to ensure he does not relapse and fall back into substance abuse as it is a precursor to his violent and sexual offending behaviour.

I suspect that none of these community members is aware of his comments to the RCMP as to when he could start to drink again, or are fully aware of his criminal record and convictions for violent sexual offending against young female children and women as young as 9 years old. [ 29 ] I hope these individuals and others in the community will continue to support him, and that Mr. Kitchener will continue to engage with them as he takes this healing journey. But even with this support, Mr.

Kitchener continues to need the structure and support of a recognizance to reduce his risk to commit further violent and sexual offences against those most vulnerable in the community. CONCLUSION [ 30 ] I find Sgt. Eddy had subjective grounds to believe Mr. Kitchener would commit a serious personal injury offence. I am satisfied on the evidence adduced that objective grounds exist to support his fear that Mr. Kitchener will commit a serious personal injury offence within the meaning of s. 752 of the Criminal Code . The fear that Mr.

Kitchener will commit an offence of violence, such as a sexual assault, is serious and imminent, particularly given the unresolved addiction issues and Mr. Kitchener’s interest in being able to drink. [ 31 ] 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 offenders to minimize their risk of re-offending through programs designed to assess their needs. Although defence counsel raised the issue that the information is dated in that the last time the CSC employees interacted with Mr. Kitchener was in November 2011

immediately prior to his release, I find the information presented is reliable and offers a fairly comprehensive assessment of Mr. Kitchener’s background and prognosis of future behaviour. [ 32 ] Mr. Kitchener’s criminal record (Tab 12) is extensive, lengthy, and underscores his violent nature with four convictions for assault (1995, 1996, 1997, 1999); one for assault causing bodily harm and one for assault with a weapon (2002); and six convictions for sexual assault (one in 2000; five in 2008).

Lest one think there was any gap in his criminal record, the documents indicate that the sexual assault convictions in 2008 are for offences that occurred from 1994 to 2007 involving five different female victims. There is indication that he groomed some of the victims by providing them with gifts and candy to gain their trust and compliance. On some occasions he forced himself upon the victims and told them not to tell anyone. He is an opportunistic predator of young women and a danger to them when he is drinking or sees an opportunity where he can take advantage. [ 33 ] Mr.

Kitchener is an untreated sexual offender who poses a moderate to high risk to commit further sexual offences and this risk is directly tied to alcohol consumption. Yet, Mr. Kitchener is preoccupied with consuming alcohol. In October 2013 his focus was upon how soon he could start consuming alcohol once the previous recognizance expired.

It appears he has not taken any steps to distance himself from alcohol consumption including by those around him. [ 34 ] I share the same concerns as noted in the National Parole Board Detention Review decision Sheet (Tab 10) at page 7: ...The Board notes your work with the Elders and completion of both sex offender and substance abuse programming. However, you have participated in these forms of intervention in the past and have returned to offend generally and sexually while intoxicated. In fact, your victim pool grew substantially and now includes sexual assault victims that were as young as age nine and 12.

Your case management team has recommended further intervention to address the areas of victim empathy and remorse. The Board is also concerned with respect to your insight into your offending behaviour, lack of internalized relapse prevention, and lack of detail in your self-management plan. ...Despite recent sex offender program completion, your case management team remains concerned with regards to your level of insight, current level of risk, and public safety at your chosen release destination... [ 35 ] While it is encouraging that Mr.

Kitchener has made some gains, was not charged with violating the terms of his previous s. 810.2 recognizance, and tested negative for substances in October 2013, it is evident that Mr. Kitchener continues to struggle with substance abuse. Although I do not place much weight on the three letters of support from those in the community, it is still important for Mr. Kitchener to maintain that dialogue and continue to discuss his personal issues with them and strive to be a sober, productive member of the community.

The gains he has made are important, but they do not outweigh the concern I have for the safety of the community, especially the safety of female children and young women who are in the presence of Mr. Kitchener when he is consuming alcohol. [ 36 ] I find the Crown has satisfied me on a balance of probabilities that Mr. Kitchener will commit a serious personal offence and that such fear is serious and imminent. I order Mr. Kitchener to enter into a recognizance pursuant to s. 810.2 . I will hear from counsel as to proposed conditions and the length of the recognizance. ____________________________________ I. J.

Cardinal, J