Docket: 1587 David J. Daniels Appellant - v. -, 2011 SKCA 67

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 67 Date: 20110530 Between: Docket: 1587 David J. Daniels Appellant - and - Her Majesty the Queen Respondent Coram: Jackson, Richards & Ottenbreit JJ.A. Counsel: Darren Armitage for the Appellant Anthony Gerein for the Crown

Appeal: From: 2008 SKQB 349 Heard: May 10, 2010 Additional Submissions: October 21 and November 3, 2010 Disposition: Appeal allowed Written Reasons: May 30, 2011 By: The Honourable Madam Justice Jackson Concurring Reasons: The Honourable Mr. Justice Richards In Dissent: The Honourable Mr. Justice Ottenbreit Jackson J.A. I. Introduction [1] I find myself in respectful disagreement with my colleague, Ottenbreit J.A., regarding the issues and the result of this appeal. [2] This is an appeal from a dangerous offender designation imposed on David Daniels. Mr.

Daniels concedes that he constitutes athreat to the life, safety or physical or mental well-being of other persons, within the meaning of s. 753(1)(a)(

i) and (ii) of the CriminalCode,[1] and that without intervention he will remain a high-risk offender. While Mr. Daniels admits he meets the criteria under thoseprovisions, he does not agree that he is a dangerous offender, in light of the long-term option. He submits that his appeal should beallowed and that he should be declared a long-term offender. [3] Mr.

Daniels submits that neither the trial record nor the sentencing reasons discloses sufficient consideration of whether the actualrisk posed by him could be adequately controlled by the combination of a lengthy determinate sentence and a long-term communitysupervision order. He submits that neither his record of offending nor his mental make-up meets the profile of a dangerous offender andthat the sentencing judge should have considered these factors in assessing whether the public would be adequately protected by a long-term offender designation.[2] [4] Mr.

Daniels submits further that appellate endorsement of the dangerous offender designation imposed in his case will officially“widen the net” with respect to the type of offenders who might be expected to receive this designation. In R. v.

Lyons, (SCC), [1987] 2 S.C.R. 309, the Supreme Court of Canada conceived of the dangerous offender legislation as applying narrowly tooffenders who are “highly” dangerous (at p. 347): ... [T]he legislation narrowly defines a class of offenders with respect to whom it may properly be invoked, and prescribes quitespecifically the conditions under which an offender may be designated as dangerous.... [T]hese criteria ... are anything but arbitrary inrelation to the objectives sought to be attained; they are clearly designed to segregate a small group of highly dangerous criminals posingthreats to the physical or mental well-being of their victims. [Emphasis added.] [5] Similarly, Cameron J.A., speaking for this Court in R. v.

Lemaigre, 2004 SKCA 125, 189 C.C.C. (3d) 492, indicated that sentencingjudges must “bear in mind that Parliament intended the sentence reserved for dangerous offenders to apply only to that very small groupof offenders whose personal characteristics and particular circumstances militate strenuously in favour of indefinite preventive detention”(see: para. 15, emphasis added). Relying on these statements, Mr.

Daniels submits that his characteristics and circumstances do notplace him within that select group of offenders, and that the sentencing judge erred in placing him there. [6] In my respectful view, the learned sentencing judge committed several errors in this case. First, the sentencing judge erred bydiscounting the expert evidence on the basis that the expert had proffered the same opinion in R. v. Otto, 2006 SKCA 52, 279 Sask. R.182 and this Court had overturned a long-term sentence order in that case. Moreover, he overlooked significant differences between Mr.Daniels and Mr.

Otto that make the latter’s case distinguishable. Second, the sentencing judge erred by: (

i) failing to consider what Mr.Daniels’s actual risk is; and (ii) failing to consider the availability of programming in relation to alleviating Mr. Daniels’s actual risk. Ialso agree with Mr. Daniels’s counsel that the sentencing judge’s decision to impose an indeterminate sentence on his client isunreasonable, having regard for the whole of the evidence and the Supreme Court of Canada’s exhortation that an indeterminatesentence is reserved for a small group of highly dangerous offenders.

[ 7 ] In the result, I would allow the appeal, set aside the dangerous offender designation and declare Mr. Daniels a long-term offender. I would remit the matter to the sentencing judge to craft a determinate sentence and a long-term supervision order. II. Background [ 8 ] Mr. Daniels was born in 1967 and suffered abuse throughout his childhood, in his familial home, in residential schools and in foster care. He is a member of the Red River Band and his first language is Cree. He continues to embrace his aboriginal heritage. He is of average intelligence and does not suffer from mental illness.

His first offence was committed in 1983. [ 9 ] Mr. Daniels’s record of 67 offences reveals a history of almost continuous imprisonment, but he is not a sexual offender of any sort. Further, no offence committed prior to the predicate offences was sufficiently violent to merit a sentence greater than two years less a day.

The offences showing any form of violence are as follows: 1986 – assault (2 months consecutive to sentence serving) 1991 – aggravated assault (2 years less a day and 1 year probation) 1994 – assault (60 days concurrent) 1994 – assault causing bodily harm (12 months) and assault with intent to resist arrest (6 months); both sentences concurrent to a break, enter and theft sentence of 18 months 1999 – assault (2 months concurrent) 2000 – robbery with violence (2 years less a day and probation) 2001 – robbery (2 years less a day) 2002 – assault (6 months concurrent) 2003 – assault peace officer (6 months consecutive to sentence serving) 2006 – predicate offences: three counts of threatening death; one count of robbery; one count of breaking and entering and committing an assault with a weapon; two counts of unlawful confinement; and one count of assault with a weapon. [ 10 ] Measured in terms of the harm caused and the potential to cause harm, Mr.

Daniels’s most significant crime was the 1991 aggravated assault. On that occasion, Mr. Daniels went to the National Hotel in Prince Albert with a machete tucked into his pants. An argument broke out between Mr. Daniels and the victim, and Mr. Daniels used the machete as a weapon. The victim was injured when he cut his hand on the machete while attempting to protect himself from Mr. Daniels.

The 2000 offence was a despicable striking of a mother in front of her children, in concert with other men, but no lasting physical injury was suffered. [ 11 ] The predicate offences involved two home invasions of the same home, two days apart, and resulted in a long list of charges. When one examines the circumstances underlying this string of convictions, however, it becomes clear that Mr. Daniels was a most ineffectual criminal on this occasion. He was not accompanied by anyone. He knew the two male victims and knew that they were at home. The two victims ended up overpowering him. Significantly, Mr.

Daniels was not charged, and could not have been charged, with aggravated assault arising from these incidents. He uttered death threats and the victims suffered psychological trauma, but the only physical injury was a scratch to the thigh of one of the victims with a screwdriver. [ 12 ] While in custody awaiting sentencing on the predicate offences, another inmate brutally attacked Mr. Daniels without provocation, causing a significant head wound. Fearing reprisal, Mr. Daniels did not tell anyone and did not seek medical help.

By the time the prison guards saw that he was suffering, his brain had become infected and swollen. The full repercussions of this injury remain unknown. III. The Expert Evidence and the Sentencing Judge’s Reasons [ 13 ] At the dangerous offender hearing, Dr. Nicholaichuk, a joint expert appointed pursuant to s. 752.1 of the Criminal Code , opined for the following reasons that Mr. Daniels was an appropriate candidate for a lengthy prison sentence and a long-term supervision order: 1. there is some potential for Mr. Daniels's successful management in the community — assuming a number of conditions are met;

2. Mr. Daniels is motivated to change; is capable of a high degree of self-disclosure; and has a fair degree of insight into his problemareas; 3. Mr. Daniels lacks the narcissistic features typical of psychopathic offenders; 4. Mr. Daniels’s recidivism would likely decrease with age because offenders in their 50’s or 60’s show much lower rates ofcriminality than do younger men; and 5. a long-term supervision order is a powerful supervision tool. [14] The trial judge did not accept Dr. Nicholaichuk’s opinion, finding that it was dependent on too many variables: 1. Mr.

Daniels would have to develop a reliable, pro-social system of support; 2. Mr. Daniels would have to learn how to control his impulses and demonstrate that control over an extended period of time; 3. Mr. Daniels would have to develop the ability to learn from the consequences of his behaviour; 4. Mr. Daniels would have to overcome ingrained habits and patterns of behaviour learned early in life; and 5. Mr. Daniels would have to learn how to live outside an institution and in the community. [15] Dr.

Nicholaichuk also recognized the need to address these variables, but nonetheless expressed the cautious opinion that Mr.Daniels would succeed, given his age and his willingness and capacity to learn. In Dr. Nicholaichuk’s opinion, Mr. Daniels’s risk couldeventually be controlled within the community by a long period of incarceration followed by a long period of community supervisionwith appropriate conditions. [16] The nub of the sentencing judge’s reasons for not accepting Dr.

Nicholaichuk’s opinion on the suitability of a long-term offenderdesignation is contained in these passages: [74] The position taken by Dr. Nicholaichuk is similar to the position that he took in R. v. Otto, 2004 SKQB 465, 67 W.C.B. (2d) 170,[2004] S.J. No. 733 (QL). The learned sentencing judge in that case, adopted the recommendations of Dr. Nicholaichuk, however, thatdecision was reversed by the Court of Appeal in R. v. Otto, [2006] S.J. No. 303, 2006 SKCA 52, 70 W.C.B. (2d) 4. In Otto, the Court ofAppeal found that the Crown's criticism of Dr.

Nicholaichuk's opinion was well founded.... [75] The Court of Appeal concluded that there was nothing in the evidence that shows a realistic mode of treatment for the respondentwhich would permit him to be controlled in the community…. [76] I see no factors that distinguish this case from those in R. v. Otto. Dr. Nicholaichuk "hopes" that after more treatment and moretime in jail and more programs that Mr. Daniels might be ready for release in the distant future. Unfortunately, for Mr.

Daniels, there isnothing in the evidence before me upon which I could rationally conclude that the public threat can be reduced to an acceptable level bya determinate period or a detention followed by a long-term supervision order. There is certainly "hope" that if he can be successful intreatment and if he can remain stable, and if he develops a reliable pro-social system of support and if he can overcome negativeingrained habits and if he can develop the ability to learn from the consequences of his behaviour, that he may be a good candidate foreventual release.

However, the law is clear that there must be evidence of treatability that is more than an expression of hope and thatindicates that the specific offender can be treated within a definite period of time. See R. v. Poutsoungas (1989), (ONCA), 49 C.C.C. (3d) 388 (Ont. C.A.). There is simply no reliable evidence upon which a logical and rational conclusion can be based tosupport the contention that his release into the community at some definitive point in the future would be an acceptable risk. … [78] Unfortunately, Mr.

Daniels has exhibited continual criminal activity throughout his adult life and there is nothing before me,other than mere hope, that there is a reasonable possibility of the eventual control of his risk in committing further serious and violentoffences. He has never gone any length of time in society without committing violent offences. The experts rate him as having all theindicators of a high likelihood that he would re-offend. [79] Mr.

Daniels has taken numerous rehabilitative programs, and although there have been, at times, glimmers of progress, anyapparent progressive steps are too often quickly followed by a relapse into criminal and/or inappropriate behaviour. [80] Unfortunately, Mr. Daniels has virtually no family support to assist him. [2008 SKQB 349, 321 Sask. R. 40; underlining inoriginal, italics mine.] IV. Issues [17] Mr. Daniels’s grounds of appeal and his counsel’s submissions give rise to the following issues: 1. did the sentencing judge err in law: (

i) by discounting Dr. Nicholaichuk’s opinion on the basis that he did; and (ii) by concluding

that Mr. Daniels is indistinguishable from Mr. Otto; 2. did the sentencing judge adequately consider Mr. Daniels’s risk to the community and the programs available to control his particular risk; and 3. is the imposition of an indeterminate sentence on Mr. Daniels unreasonable? V. Issue #1: Did the sentencing judge err in law: (

i) by discounting Dr. Nicholaichuk’s opinion on the basis that he did; and (ii) by concluding that Mr. Daniels is indistinguishable from Mr. Otto? [ 18 ] The sentencing judge discounted Dr. Nicholaichuk’s opinion on the basis that it is similar to the position he took in Otto and, therefore, gave it little weight. For ease of reference, I reproduce the relevant portions of the sentencing judge’s reasons: [74] The position taken by Dr. Nicholaichuk is similar to the position that he took in R. v. Otto , 2004 SKQB 465 , 67 W.C.B. (2d) 170 , [2004] S.J. No. 733 (QL) .

The learned sentencing judge in that case, adopted the recommendations of Dr. Nicholaichuk, however, that decision was reversed by the Court of Appeal in R. v. Otto , [2006] S.J. No. 303, 2006 SKCA 52 , 70 W.C.B. (2d) 4. In Otto , the Court of Appeal found that the Crown's criticism of Dr. Nicholaichuk's opinion was well founded.... . . . [76] I see no factors that distinguish this case from those in R. v. Otto. [Emphasis added.] In my respectful view, the sentencing judge erred by discounting Dr. Nicholaichuk on the basis of a comparison to Mr. Otto.

The comparison between the two offenders became a distraction during the sentencing hearing and on appeal. [ 19 ] The sentencing judge’s task under s. 753.1(1)(

c) is to consider the particular offender before the court. The determination of whether a long-term offender designation is merited is so fact-specific as to render direct case-by-case comparison of little value. Prior case law helps to serve as a check on one’s result to the extent that it confirms whether an offender is safely within the realm of those persons who should receive an indeterminate sentence, but beyond that great care must be taken.

In each case, the focus must remain on the offender’s own record and personal characteristics and on the availability of treatment and rehabilitation programs for the particular offender. [ 20 ] The second problem with the sentencing judge’s assessment of Dr. Nicholaichuk’s opinion on the basis of a Daniels-Otto comparison is that Mr. Daniels is simply not like Mr. Otto. If a comparison is to be made to Mr. Otto, it is necessary to examine more than simply the reported reasons for judgment in Otto .

In fairness to the sentencing judge, this Court has the advantage of being able to examine the Court’s complete file in relation to Mr. Otto. On a review of all the evidence, a true side-by-side comparison between Mr. Otto and Mr. Daniels reveals significant differences. For one thing, the level of violence underlying their records is significantly different. Unlike Mr. Daniels, Mr. Otto’s record included two federal sentences (one robbery merited a three year sentence and another robbery saw Mr. Otto sentenced to four years in a penitentiary). More significantly, Mr.

Otto’s predicate offences involved a planned invasion by two individuals of a home occupied by a 68-year-old female residing alone. Mr. Otto and a young offender entered the residence with two hatchets, where the young offender viciously cut, beat and kicked the victim. He struck her on the forehead and the left side of her head with a hatchet, cutting a major artery and nearly severing her ear. Given the gravity of the predicate offences, the sentencing judge was prepared to impose a sentence of 14 years on Mr. Otto [ [2005] S.J. No. 275 (Q.B.) (QL) ]. The predicate offences committed by Mr.

Daniels would not justify a sentence of that magnitude. Differential treatment of Mr. Otto and Mr. Daniels could have been justified on the basis that the risk of actual harm posed by Mr. Otto at the time of sentencing was greater than that posed by Mr. Daniels. [ 21 ] Similarly, differences in personal circumstances justify different treatment. Dr. Nicholaichuk, in assessing Mr. Otto, emphasized that Mr. Otto likely suffered from Fetal Alcohol Effect (FAE). Virtually the whole of the Recommendation portion of Mr.

Otto’s Psychiatric Assessment focused on the unique behavioural and learning problems typically faced by the FAE population. By contrast, although Dr. Nicholaichuk referred to the possibility that Mr. Daniels’s mother drank alcohol during her pregnancy, he did not place significant weight on this fact and at no point in his Assessment suggested FAE as a likely diagnosis for Mr. Daniels. As Dr.

Nicholaichuk noted, persons with FAE typically face greater challenges in adopting and internalizing pro-social behaviours; consequently, an FAE diagnosis will affect the determination of the appropriateness of a dangerous offender designation. [ 22 ] Mr. Daniels’s Psychological Assessment also reveals a source of social support that did not exist in Mr. Otto’s case: Mr. Daniels, unlike Mr. Otto, continues to identify significantly with his Aboriginal heritage. Mr. Otto, when questioned about his connection to Aboriginal culture, told Dr. Nicholaichuk: “I’m a half-breed.

Spirituality has never been part of my life” [2004 SKQB 465 at para. 11]. By contrast, Mr. Daniels expressed a significant connection to his Aboriginal heritage. Dr. Nicholaichuk, in formulating recommendations for Mr. Daniels’s future ability to function, both in prison and in the community, similarly placed great weight on the fact that significant resources in the Aboriginal community were available to Mr. Daniels. He wrote:

... It is also likely that [Mr. Daniels] would benefit from input and guidance from Aboriginal Elders and should continue to receive Aboriginal programs. Then if he can be successful in treatment and remain stable, he may be a good candidate for a transfer to one of the Aboriginal Healing Lodges located in the Prairie Region. His identification with his Aboriginal culture may be his best chance to learn how to live non-violently. [ 23 ] In

summary, the sentencing judge erred in failing to give Dr. Nicholaichuk’s opinion appropriate weight on the basis of a comparison with Mr. Otto. VI. Issue #2: Did the sentencing judge adequately consider Mr. Daniels’s risk to the community and the programs available to control his particular risk? [ 24 ] In my respectful view, the sentencing judge erred by not assessing the actual risk presented by Mr. Daniels. When faced with an offender who is not obviously someone who merits an indeterminate sentence, courts must take particular care to critically review the nature and seriousness of the offender’s prior violent history for these purposes: (

i) to evaluate the offender’s rehabilitative prospects measured against the actual risk; (ii) to evaluate the seriousness of the repercussions, in the event the offender relapses; and (iii) to determine whether those repercussions are sufficiently serious as to merit indeterminate detention. [ 25 ] Requiring sentencing judges to consider the nature and seriousness of an offender’s past record, in an effort to determine whether protection of the public demands the drastic measure of indefinite detention, is consistent with the purpose for which the dangerous offender provisions were created in the first place.

It is important to reiterate that the Supreme Court of Canada in R. v. Johnson , 2003 SCC 46 , [2003] 2 S.C.R. 357 stated that the risk posed by any given offender need not be eliminated, only that it be reduced to an “acceptable level” (see: paras. 29 and 44). [ 26 ] In this case, the sentencing judge never did indicate what Mr. Daniels’s actual risk is or critically assess the seriousness of the consequences should Mr. Daniels “relapse,” before he concluded that the risk posed could not be eventually reduced to an “acceptable” level. There is no denying that Mr.

Daniels poses a risk to the public, but it is also true that Mr. Daniels has never inflicted a severe physical injury on anyone, including the victims of the predicate offences. Past injuries inflicted by Mr. Daniels were often described as “minor,” and none required hospitalization. I acknowledge that Mr. Daniels has twice served time in a federal penitentiary as a result of the agreement between the Province and Canada, but no individual crime merited the imposition of a federal sentence.

Based on his past history, risk of re-offence is great, but it was necessary to determine what type of offence it is that he is at risk of committing, in an effort to determine if this is a level of risk that society is willing to tolerate. It stands to reason that if the risk of harm posed to the public is less in Mr. Daniels’s case than in some other offenders’ cases, the steps required to protect the public from this risk will be less drastic. [ 27 ] After having determined the actual risk posed by Mr.

Daniels, it was incumbent upon the sentencing judge to fully assess the effectiveness of the treatment and rehabilitative options available within the penitentiary and the community to curtail or curb that risk. Put differently, courts must consider, in determining what measures are necessary to protect the public, exactly what type and degree of harm the offender is at risk of causing. [ 28 ] In my respectful view, the fact that Mr.

Daniels is not obviously someone who merits an indeterminate sentence warranted a more detailed analysis of the “long-term offender option” than that which was done by the sentencing judge in this case. In this respect, there are parallels between this case and Lemaigre . In Lemaigre , the Court of Appeal considered whether the offender could be sentenced as a long-term offender instead of a dangerous offender. The issue before the Court was whether the requirement of s. 753.1(1)(

c) had been “adequately addressed” and “suitably considered,” in the proceedings below, having regard for the governing principles and the available sentencing options ( Lemaigre , at para. 37 ). [ 29 ] In Lemaigre , Cameron J.A. emphasized the need to consider the potential for reducing the threat of harm offered by the determinate sentence and the long term supervision order in combination: [39] The sentencing option available in relation to long-term offenders bears further comment. It has two parts to it: a period in prison and a period of community supervision. Regard must be had for both.

Indeed, regard must be had for their combined effect when considering the potential for reducing the threat of public harm to an acceptable level in the community. An appropriate period of imprisonment can have deterrent and rehabilitative effects on the individual. So can an appropriate period of community supervision, which can also have a restraining effect.

Hence, both merit consideration, especially as they operate in tandem. [40] In considering the latter, regard must be had for the conditions that attach, or may be attached, to an order for community supervision , as provided for by the Corrections and Conditional Release Act [S.C. 1992, c. 20].

Such conditions, the purpose of which is to enhance the efficacy of community supervision and hence to reduce the threat of public harm to an acceptable level, are not to be overlooked or undervalued. [41] To begin with, s. 161(1) of the Corrections and Conditional Release Act Regulations , SOR/92-620 , prescribes a host of conditions which must accompany a community supervision order , including conditions that the offender: (

i) report to his or her parole supervisor immediately on being released from prison, and thereafter as required; (ii) obey the law at the risk of having the release

revoked; (iii) carry a release certificate and identity card; (iv) report to the police as instructed by the parole supervisor; (

v) report anychange of residence or material circumstance; (vi) not own any weapon; and so on. [42] In addition, the Parole Board is empowered by s. 134.1(2) of the Corrections and Conditional Release Act to prescribe suchconditions for the supervision of long-term offenders as it "considers reasonable and necessary in order to protect society and to facilitatethe successful reintegration into society of the offender." This serves to clothe the Parole Board with extensive power in relation toreducing the threat of public harm to an acceptable level during the period an offender is under community supervision.

There is noreason to suppose that the Board cannot require an offender, while under community supervision, to participate in such community basedprograms (treatment programs included), as in the opinion of the Board are relevant to the offender's history of offending. [Emphasisadded.] The Court of Appeal overturned the dangerous offender designation on this basis. [30] Similarly, the sentencing judge in this case has also failed to consider the nature and seriousness of Mr.

Daniels’s past criminalconduct as a step in determining what rehabilitative programs would be necessary to attenuate that risk, and determining public toleranceto that risk. As this Court did in Lemaigre, I conclude that this omission on the part of the sentencing judge constitutes reviewable error. VII. Issue #3: Is the imposition of an indeterminate sentence on Mr. Daniels unreasonable? [31] Subsection 759(1) of the Criminal Code grants courts of appeal a wide authority to review decisions that impose a dangerousoffender designation: 759.

(1) Appeal – offender – An offender who is found to be a dangerous offender or a long-term offender may appeal to the court ofappeal from a decision made under this Part on any ground of law or fact or mixed law and fact. [Emphasis added.] [32] The standard of review with respect to the sentencing judge’s decision to declare someone a dangerous offender is reasonableness(see: R. v. Currie, (SCC), [1997] 2 S.C.R. 260 and R. v. C.B.H., 2004 SKCA 39, 249 Sask. R. 131).

In Currie, LamerC.J. for the Court wrote: [33] In this respect, the role of an appellate court is to determine if the dangerous offender designation was reasonable. This standardof reasonableness is similar to the traditional standard employed by appellate courts in their review of verdicts under s. 686(1)(a)(

i) of theCriminal Code. Reasonableness is the appropriate standard of review in this case because, as much as dangerous offender status is a partof the post-conviction process, the application of general standards of sentence review is not warranted given the broad language of s.759. Section 759(1) provides: 759.

(1) A person who is sentenced to detention in a penitentiary for an indeterminate period under this Part may appeal to the courtof appeal against that sentence on any ground of law or fact or mixed law and fact. [Emphasis added by S.C.C.] Given this provision, I do not find the "manifestly wrong" or "demonstrably unfit" general sentencing standards developed and applied incases such as R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227, R. v. M. (C.A.), (SCC), [1996] 1 S.C.R.500, or R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948, to be applicable to this situation.

However, it is equally true thats. 759 cannot be interpreted as calling for the equivalent of a trial de novo on the dangerous offender application. Some deference to thefindings of a trial judge is warranted. After all, credibility should be assessed and findings of fact should be made by the trier of fact.

Thetrier of fact is present when the testimony is being given and has the contemporaneous ability to assess each witness. [34] I should also point out that I am sympathetic to the submission of the respondent and the conclusion of the Ontario Court ofAppeal below that, given their s. 759 jurisdiction to review the propriety of an indeterminate sentence, appellate courts are necessarilyentitled to consider whether the finding of dangerousness itself was justified. In other words, as much as R. v. Langevin (1984), (ON CA), 11 C.C.C. (3d) 336 (Ont. C.A.), and R. v.

Sullivan (1987), (ON CA), 37 C.C.C. (3d) 143 (Ont.C.A.), correctly held that s. 759 does not give appellate courts an explicit jurisdiction to overturn a dangerous offender designation, thefacts upon which a dangerousness finding are based are necessarily relevant to determining whether an indeterminate sentence should bequashed.

Hence the finding of dangerousness is properly before an appellate court. [Emphasis added.] [33] As Lamer C.J. indicated in Currie, “reasonableness,” as it governs appellate review of dangerous offender designations, is a robuststandard: an appellate court is “necessarily entitled to consider whether the finding of dangerousness itself was justified.” To properlyapply the reasonableness standard in the context of an appeal from a dangerous offender designation, it is necessary to understand whatstandards of review do not apply.

First, “reasonableness” is not synonymous with the “demonstrably unfit” standard reserved forappellate review of determinate sentences. Second, the imposition of a dangerous offender designation is not a “discretionary decision”as that term is normally understood. While the pre-2008 version of s. 753(1) provides that the sentencing judge “may” declare someonea dangerous offender, this decision does not attract the standard of review reserved for a true discretionary decision, any more than adecision to convict or acquit would attract such a standard.

Third, “reasonableness” in this context should not be equated with the moredeferential standard of “reasonableness” that applies to administrative decisions—where an appellate court must assess whether thetribunal’s outcome was one of several equally reasonable outcomes. Rather, as the Supreme Court clarified in Currie, the“reasonableness” standard of review that applies to dangerous offender designations is “similar” to the standard applied by appellatecourts in their review of convictions.

[34] Appellate courts in their review of convictions apply the well-known standard of whether the verdict is one that a properlyinstructed jury acting judicially, could reasonably have rendered (see: R. v. Yebes, [1987) (SCC), 2 S.C.R. 168 at p. 185;and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381 at para. 36).

The Court in Biniaris confirmed that the process of appellate reviewof conviction imports both an objective test and to some extent a subjective one, and a re-weighing of the evidence: [36] The test for an appellate court determining whether the verdict of a jury or the judgment of a trial judge is unreasonable or cannotbe supported by the evidence has been unequivocally expressed in Yebes as follows: [C]urial review is invited whenever a jury goes beyond a reasonable standard.... [T]he test is ‘whether the verdict is one that a properlyinstructed jury acting judicially, could reasonably have rendered’. (Yebes, supra, at p. 185 (quoting Corbett v.

The Queen, (SCC), [1975] 2 S.C.R. 275, at p. 282, per Pigeon J.).) That formulation of the test imports both an objective assessment and, to some extent, a subjective one. It requires the appeal court todetermine what verdict a reasonable jury, properly instructed, could judicially have arrived at, and, in doing so, to review, analyse and,within the limits of appellate disadvantage, weigh the evidence.

This latter process is usually understood as referring to a subjectiveexercise, requiring the appeal court to examine the weight of the evidence, rather than its bare sufficiency.... [Emphasis added.] As a result of Currie, on an appeal from a dangerous offender designation, a court of appeal must examine the “weight of the evidence,rather than its bare sufficiency” in determining whether it was reasonable for the sentencing judge to declare the offender a dangerousoffender. [35] Since the Supreme Court of Canada articulated the standard of reasonableness for the review of a dangerous offender designationin Currie, and made the application of Yebes part of that review, Parliament created the option of the long-term offender designation.

For ease of reference, s. 753.1(1) reads: 753.1

(1) Application for finding that an offender is a long-term offender — The court may, on application made under this Partfollowing the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that (

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

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. [A sentence for a long-term offender comprises a determinate period in prison of at least two years, followed by a period of communitysupervision of up to ten years (see: s. 753.1(3))]. While Parliament added s. 753.1 in 1997, the Supreme Court of Canada did not haveoccasion to consider it until Johnson, supra. [36] In Johnson, the Supreme Court ruled that in each dangerous offender application, a sentencing judge must consider whether it ispossible to declare the person a long-term offender instead of a dangerous offender.

Before 1997, the issue was whether the impositionof an indeterminate sentence was “reasonable.” After Johnson, the issue became whether the imposition of a dangerous offenderdesignation and sentence was “reasonable” in light of the legislative option given to the courts in 1997.

The Supreme Court of Canada,however, has not had an opportunity to consider how the standard of reasonableness applies to the determination that a person’s risk is oris not susceptible to eventual control in the community. [37] The within appeal is perforce an appeal from a dangerous offender designation under s. 753(1) because the sentencing judgedeclared Mr. Daniels a dangerous offender—once he rejected the long-term offender option under s. 753.1(1). At bottom, however, thisis an appeal from the sentencing judge’s decision that there is no reasonable possibility of eventually controlling Mr.

Daniels’s risk in thecommunity. The appellate role differs when considering a decision made under s. 753.1(1) as opposed to a decision made under s.753(1). When an appellate court considers whether the trial judge’s decision under s. 753.1(1) is reasonable, the court must be carefulnot to justify its review of that decision by simply saying there is evidence to support it, because a decision under s. 753.1(1) is itself anexpression of future opinion.

Further, an appellate court must be careful not to justify its conclusion as to the decision under s. 753.1(1)based on whether there is evidence to support the conclusion under s. 753(1). Moreover, in this case the “evidence” of opinion supporteda finding that there is a reasonable possibility of eventually controlling the offender’s risk.

It is, therefore, not possible to say there isevidence to support the sentencing judge’s decision as to eventual control without undertaking a full review of the evidence and arriving,to a certain extent, at an independent determination, which is what the sentencing judge was required to do in this case in any event whenhe did not accept Dr. Nicholaichuk’s opinion. Deference is owed to the sentencing judge, but the point is that an appellate court must bemindful of: (

i) the distinction between s. 753(1) and s. 753.1; and (ii) the nature of the decision under s. 753.1 that is being reviewed. Finally, the Supreme Court of Canada in Lyons found that the dangerous offender provisions of the Criminal Code are constitutionallyjustified on the basis that dangerous offender designations are reserved for a small group of highly dangerous offenders. The task of anappellate court, when considering the reasonableness of the sentencing judge’s rejection of the long-term offender option, in favour of adangerous offender designation, must give due effect to the Supreme Court’s concern in that regard.

[38] Since the Supreme Court of Canada’s decision in Lyons, this Court has had considerable experience reviewing decisions rendered inthe context of dangerous offender hearings. While the Supreme Court of Canada expressed the belief that the dangerous offenderdesignation was intended for a “small group of highly dangerous” offenders, the fact of the matter is that, once an application is made tohave someone declared a dangerous offender, it has not been difficult to satisfy the requirements of s. 753(1)(a)(

i) and (ii) of theCriminal Code. In most cases, the only real issue for the sentencing judge is whether the person also meets the requirements of s.753.1(1)(c). In all of the cases involving non-sexual offenders that have come before the Court to date, the applicability of the long-termoffender option has been the only real issue.

While the Court has had considerable experience with the dangerous offender provisions, this is the first time that it has been asked toendorse a dangerous offender designation for a non-sexually violent offender who has never before received a sentence greater than twoyears less a day, and where the predicate offence did not itself involve serious physical injury. [39] The characteristics of long-term offenders will vary from case to case.

Long-term offenders will share some characteristics ofdangerous offenders, but there will be some aspect of their offending which, when coupled with their mental make-up, sets them apartfrom those persons from whom the public must be protected by an indeterminate sentence. In each case, the decision is highlydependent on the particular evidence. [40] This point is made most effectively by comparing decisions from this Court in which a dangerous offender designation has beeneither imposed or upheld, to those decisions in which a long-term offender designation has been either imposed or upheld.

The followingrepresents the jurisprudence from this Court in which a dangerous offender designation has been upheld in the case of a non-sexuallyviolent offender: (

i) R. v. Redwood, 2009 SKCA 113, 337 Sask. R. 148—Mr. Redwood’s record included grievous offences against female partnersand others. Injuries suffered by his victims included a broken jaw and a broken arm. Mr. Redwood also repeatedly stabbed and whippedhis victims with curtain rods and electrical wires. Unlike Mr. Daniels, Mr. Redwood had been diagnosed with antisocial personalitydisorder. (ii) R. v. Watetch, 2006 SKQB 503, 288 Sask. R. 1, aff’d 2009 SKCA 52, 331 Sask. R. 11 — Mr.

Watetch’s record includedmanslaughter and attempted murder; the predicate offence involved kicking his partner in the head and face, breaking her nose, and thenattempting to run her down with his truck. Unlike Mr. Daniels, Mr. Watetch does not admit or agree that he suffers from any problems. He had been diagnosed with a deeply entrenched antisocial personality disorder and had received high scores on the psychopathy scale(2006 SKQB 503 at para. 58). (iii) R. v. Goforth, 2007 SKCA 144, 302 Sask. R. 265 — Mr.

Goforth’s record included a series of severely disfiguring physicalassaults on acquaintances and strangers; and the predicate offence involved a prolonged attack on a passive victim resulting in severestab wounds and a lacerated liver. Mr. Goforth had been diagnosed with antisocial behaviour disorder and has many psychopathicpersonality traits. (iv) R. v. Otto (Court of Appeal), supra—Mr. Otto’s record included seven robberies, two of which had merited penitentiary termsand the predicate offence, which involved severe physical injury to a vulnerable victim. Although Mr.

Otto had never been diagnosedwith a mental illness, he was diagnosed as suffering from fetal alcohol syndrome, as a result of which he was easily led. (

v) R. v. R.H.L., 2005 SKPC 9 —appeal dismissed in this Court, and leave to appeal to the Supreme Court of Canadarefused. Mr. R.H.L.’s record included 13 previous convictions for assault and an attempted murder; several of which attracted sentencesof between three and six years. Mr. R.H.L. had been the subject of a previous dangerous offender application that had been refused. Mr.R.H.L. was diagnosed with a deeply entrenched anti-social personality disorder and severe psychopathy. (vi) R. v. J.L.A.G., 2004 SKCA 126, 254 Sask. R. 276—Mr.

J.L.A.G.’s youth record included a manslaughter conviction with respectto his mother’s partner. The predicate offences were three counts of attempted murder which left serious permanent injuries. Again, Mr.J.L.A.G. displayed evidence of a severe personality disorder. [41] By contrast, this Court, has upheld a long-term offender order, imposed a long-term offender designation, or overturned adangerous offender designation in the following cases: (

i) R. v. Moosomin, 2008 SKCA 169, [2009] 1 W.W.R. 608—Mr. Moosomin’s record included 25 offences which involvedvarying degrees of violence and some degree of injury to others. These included a 1992 aggravated assault for which he received asentence of four years and a series of offences committed in 1997 for which he received a three year global sentence. The two predicateoffences arose from two different incidents: (

i) a home invasion during which the home’s occupant sustained serious injuries, and (ii) the

infliction of two stab wounds to the back of a fleeing victim. Mr. Moosomin was diagnosed with anti-social personality disorder and psychopathic tendencies, but the community and the correctional officers lent credence and support to his commitment to change. On a Crown appeal, the Court upheld the long-term offender designation, the determinate sentence of five years and two months imprisonment and the 10-year community supervision order. (ii) Lemaigre, supra— Mr.

Lemaigre’s record included many assaults, several of which caused significant injury to the same victim, but none of which attracted a sentence of longer than two years. The predicate assault involved a particularly brutal attack on the same victim. Mr. Lemaigre had been diagnosed with alcohol abuse disorders. This Court overturned the dangerous offender designation and indeterminate sentence imposed by the sentencing judge, and ordered a new hearing on the basis that there was insufficient evidence directed to the issue of s. 753.1(1) (

c) of the Criminal Code . (iii) R. v. K.R.S ., 2004 SKCA 127 , [2005] 5 W.W.R. 82—Mr. K.R.S.’s record included a variety of assaults, only one of which attracted a sentence in a federal penitentiary. The predicate offence was a particularly brutal assault on an individual thought to have sexually assaulted the offender’s sister. In this case, the offender suffered from no mental illness and no learning disability.

This Court overturned the dangerous offender designation and indeterminate sentence imposed by the sentencing judge, and imposed a long term offender designation, a determinate sentence of five years and a long-term supervision order of six years. (iv) R. v. Weasel , 2003 SKCA 131 , [2004] 7 W.W.R. 59—Mr. Weasel’s record included some 20 assaults over a 20-year period. The predicate offence of assault causing bodily harm arose from an incident during which the offender kicked his spouse in the face, leaving her with a black eye and a cut to the inside of her mouth.

On an appeal by the offender, the Court upheld the long-term offender designation, as well as the sentence of three years and an eight-year community supervision order. [ 42 ] Offenders with a similar personal history and similar addictions to Mr. Daniels have also received long-term offender designations in the lower courts (see: R. v. Bear , 2006 SKPC 107 , 294 Sask. R. 58; and R. v. McNabb , 2008 SKQB 479 , 327 Sask. R. 45). [ 43 ] If Mr. Daniels’s designation as a dangerous offender is sustained, I agree with his counsel that the “net” will be officially widened.

He shares more characteristics with long-term offenders than dangerous offenders. Given: (

i) the Supreme Court’s exhortations on the importance of reserving the dangerous offender designation for only the most highly dangerous offenders, and (ii) this Court’s broad power of review of the sentencing judge’s reasons in such cases, the decision to impose an indeterminate sentence on an offender with Mr. Daniels’s specific history and personal circumstances is unreasonable. Mr. Daniels’s personal circumstances and criminal history do not militate strenuously in favour of indefinite preventive detention. In my view, indefinite detention cannot be justified.

To invoke the most severe penalty known to the criminal justice system in this case ignores the sentencing judge’s obligation to impose the least restrictive sanction available. [ 44 ] If one applies the standard of review of reasonableness from Currie , modified to take into account the nature of the decision under s. 753.1(1) , the decision is unreasonable. The evidence has been discussed above, in relation to the two errors of law that have been identified. Mr.

Daniels’s actual risk of re-offence is great, but the type of offence is restricted to non-sexual crimes involving varying degrees of psychological harm and the infliction of little physical harm. The evidence was that Mr. Daniels had the capacity and the willingness to learn and change. He does not suffer from mental illness of a type often associated with dangerous offenders. He has a commitment to his aboriginal heritage and he has some links to the community. Based on all of the evidence, the sentencing judge could not be satisfied that Mr. Daniels’s risk could not be eventually controlled in the community.

For all of these reasons, an indeterminate sentence is not reasonable. VIII. Remedy [ 45 ] I am not certain that the first error of law pertaining to the rejection of Dr. Nicholaichuk’s opinion would justify appellate intervention, if no other error of law had been committed, or if an indeterminate sentence were otherwise reasonable. It does, however, serve to explain the basis of the second error, regarding the failure to assess Mr. Daniels’s actual risk, the consequences of relapse and treatment programs tailored to reduce his risk.

The second error of law would justify appellate intervention standing on its own. Taken together with the first error, this is even more clearly the case. If Mr. Daniels had not been inappropriately compared to Mr. Otto and if his actual risk had been appropriately assessed, he would not have been sentenced to an indeterminate sentence. Further, in light of the whole of the evidence, I have found that the imposition of an indeterminate sentence is unreasonable. Since Mr. Daniels agrees that he is a long-term offender, I would allow the appeal, declare Mr.

Daniels a long-term offender and remit the matter to the sentencing judge to determine the length of the custodial portion of the sentencing and the length of the long-term supervision order. DATED at the City of Regina, in the Province of Saskatchewan, this 30th day of May, A.D. 2011.

____ “Jackson J.A.” ______________________ Jackson J.A. Richards J.A. [ 46 ] I have had the advantage of reading the reasons for decision prepared by my colleagues Jackson and Ottenbreit JJ.A. I concur with Justice Jackson that this appeal should be allowed and the dangerous offender designation set aside. However, I am respectfully unable to endorse all of her reasons as to why this must be done. [ 47 ] First, I do not agree that the sentencing judge proceeded on the basis that, in order to avoid being found to be a dangerous offender, Mr. Daniels had to distinguish his situation from that of Mr.

Otto, the subject of this Court’s decision in R. v. Otto , 2006 SKCA 52 , 279 Sask. R. 182. In my view, the judge did no more than indicate that he considered this appeal to be similar to Otto in the limited legal sense that he believed Dr. Nicholaichuk to have presented an opinion expressing no more than a “hope” in relation to eventual control of Mr. Daniels’ risk in the community. In referring to Otto , the sentencing judge simply confirmed that mere hope is not a sufficient basis for concluding an offender’s risk can be acceptably managed.

There is no error in any of that. [ 48 ] Second, I do not think the sentence imposed on Mr. Daniels can be said to be unreasonable simply because, in some global way, his criminal history is not as serious as that of others who have been found to be dangerous offenders. Mr. Daniels concedes, at least for the purposes of this appeal, that he meets the definition of a dangerous offender. As a result, the only point he puts in issue in these proceedings is one concerning whether the risk he poses to the community can be managed.

His record of offending is relevant to that question but only to the extent it helps to inform the nature of the risk he poses and the likelihood of successfully dealing with that risk. His criminal history does not, in and of itself, indicate whether he should or should not be found to be a dangerous offender as opposed to a long term offender. [ 49 ] All of this said, I do agree with what Jackson J.A. has written at paras. 24-30 of her reasons concerning the failure of the sentencing judge to adequately consider both the nature of the risk Mr.

Daniels poses to the community and the particulars of the programming available to potentially control such risk. In taking this position, of course, I do not suggest that the sentencing judge was somehow required to follow the recommendations or accept the assessments of Dr. Nicholaichuk. [ 50 ] However, in order to fully come to grips with the dangerous offender versus long-term offender problem in this case, it is necessary to consider the relevant evidence as a whole. In this regard, it is important not to become unduly focused on the general comments Dr. Nicholaichuk made with respect to Mr.

Daniels’ possible reintegration into the community, i.e. his comments with respect to Mr. Daniels’ need to develop a pro-social system of support, learn to control his impulses, learn how to live outside an institution and so forth. No doubt these same broad qualifications could be attached to an assessment of the recidivism prospects of the majority of offenders in most prison populations.

The real focus here must be directly on the terms of s. 753.1(1) of the Code itself, i.e. the focus must be on the question of whether there is “a reasonable possibility of eventual control of the risk in the community.” [ 51 ] I do not propose to revisit the facts or background in respect of these matters as they are fully set out in my colleagues’ reasons. Rather, I will make five brief points. All speak to matters that were overlooked or misunderstood in the sentencing decision and thus warrant intervention by this Court. [ 52 ] The first point concerns the likely effect of aging on the risk presented by Mr.

Daniels. The sentencing judge dealt with this issue as follows: 81 The one positive feature, respecting the issue of "eventual control in the community" pertains to Mr. Daniels' age. The expert testimony before me is that as persons age, their general propensity for violence dissipates. Using this logic, one could always say that there is a reasonable possibility of eventual control in the community because at some point, if one lives long enough, one is likely to become so infirm and weak that one might be unable to commit the types of violent crimes normally associated with young and more able-bodied persons.

This same argument appears to have been advanced before Dawson J. in R. v. Stonechild . At para. 143 she states as follows: 143 ... The one feature that appeared to hold some hope was with respect to his age. Testimony suggested that at some age offenders burn

out, and clearly, at some age, the risk of violence of some offenders disappear. However, no one has offered any evidence as to when that might occur and the argument of age and timing of it is pure speculation. The speculation his offending may diminish is also contrary to his pattern of offending over the recent years, where no evidence of dissipation has been seen. In the last 11 years, Mr.

Stonechild has been convicted of 6 violent and/or sexual offences and of that 11 years he has been incarcerated for almost 8 of the 11 years. 82 I, too, find that the evidence of future diminished capacity appears to be little more than speculation and may be a long way off. Although Mr. Daniels might approach an age where his criminality may diminish, he has yet to exhibit signs of slowing down. [ 53 ] In my respectful view, this analysis is flawed. Mr. Daniels was 41 years old at the time he was sentenced and 38 years old when he committed the predicate offences. Dr.

Nicholaichuk’s report indicated that offenders in their fifties and sixties have much lower rates of violence and recidivism than younger men. Dr. Paul Darlington confirmed this assessment by indicating that, as they age, offenders “become less violent, within their fifties and sixties and higher.” All of this seems to accord with common sense and practical experience, at least in relation to offenders like Mr. Daniels who have no diagnosed mental or psychological pathology. [ 54 ] Drs. Nicholaichuk and Darlington did not expect Mr.

Daniels’ age to have been a factor in reducing his violent behaviour when he was only 38. The significance of their testimony was that, by the time Mr. Daniels finished a lengthy period of incarceration and entered the long-term supervision part of a long-term offender sentence, his risk was likely to have diminished because of age. In this regard, Dr. Nicholaichuk specifically indicated that, at the time of the sentencing hearing, Mr. Daniels was still about five years away from the time when he might be expected to begin a slide into a less violent lifestyle.

Accordingly, the possible positive effect of aging on Mr. Daniels’ risk to re-offend should not have been dismissed on the basis that he had “yet to exhibit signs of slowing down.” [ 55 ] Thus, while there are no guarantees, the likely impact of aging on Mr. Daniels, properly considered, does push the analysis in the direction of a conclusion that his risk will be diminished by the time he is released from prison and, even more clearly, that it will be diminished by the time he is out from under long-term supervision. [ 56 ] This takes me to my second point.

As Justice Jackson indicates, the sentencing judge appears to have given no consideration to the nature of the controls that could be imposed on Mr. Daniels during the long-term supervision part of a long-term offender sentence. Dr. Nicholaichuk described the nature of the available controls as being quite strict. He testified that it was not unusual to have men who had been conditionally released ask to be sent back to prison because it was easier than dealing with all the conditions imposed on their life in the community.

He said the nature of supervision had recently “…changed dramatically, and is much more intensive.” As noted above, the record also indicates that, while on long-term supervision, Mr. Daniels could be obligated to take substance abuse or other programming as appropriate. Indeed, s. 134.1 of the Corrections and Conditional Release Act , S.C. 1992, c. 20 empowers the Parole Board to establish any conditions for long-term supervision orders that it considers “reasonable and necessary in order to protect society and to facilitate the successful reintegration into society of the offender.” Dr.

Nicholaichuk offered the view that, by way of the regime of close supervision available in a halfway house, efforts would be made to manage Mr. Daniels away from former friends associated with criminal lifestyles and “disinhibitors” like drugs and alcohol. [ 57 ] In considering all of this, it is important to note that the controls available during the period of long-term supervision would serve two purposes. They would assist Mr.

Daniels in his transition from prison life. (He has never had the benefit of making that transition by way of a halfway house or similar facility.) However, just as importantly in this context, the available controls would also allow Mr. Daniels to be apprehended and re-incarcerated on short notice if his behaviour began to deteriorate. More particularly, s. 135.1 of the Corrections and Conditional Release Act allows the suspension of a long-term supervision order if it is reasonable to do so to prevent the breach of a condition, i.e. such orders can be suspended before there is an actual breach.

Thus, as a bottom line, if he was unable to perform satisfactorily in the community, Mr. Daniels could be held in prison for the balance of the term of the long-term supervision part of his sentence, i.e. for as long as 10 additional years if, as recommended by Dr. Nicholaichuk, the maximum period of supervision was imposed by way of his original sentence. This, obviously, is the ultimate form of protection for the public.

I note, as well, that breach of a term of a long-term supervision order is an offence that, pursuant to s. 753.3 of the Code , attracts a fresh or additional sentence of up to 10 years. [ 58 ] My third point relates to substance abuse. Mr. Daniels’ violent offending has been tied very directly to such abuse. For example, Marie-Pierre Bolt, a CSC official familiar with Mr. Daniels’ record, said “substance abuse was usually part and parcel of the -- of the violence.” Dr. Nicholaichuk described Mr. Daniels’ offending as being, for the most part, “alcohol and drug fuelled events” and observed that Mr.

Daniels’ problems with emotional regulation have been “exacerbated by substance abuse.” Given this reality, substance abuse treatment is an obvious key to managing Mr. Daniels’ risk. Dr. Darlington testified that a failure to provide such assistance would render other programming initiatives less effective. Dr. Natalie Polvie gave evidence to the same general effect and Ms. Bolt went so far as to have once said in a report that it would be unfair to Mr.

Daniels to release him without providing him with high intensity substance abuse programming. [ 59 ] The fact to note, however, is that (although he took a program of some sort about 15 years ago) Mr. Daniels has never had the benefit of intensive substance abuse programming. After completing the Aggressive Behavioural Control (“ABC”) program in 2004, he

was wait-listed to participate in the High Intensity Substance Abuse Program at Drumheller Institution but his sentence expired before hecould take it. That is as close as he got. [60] The sentencing decision does not take this situation into account or consider that Mr. Daniels could be obliged to take substanceabuse programming, or related “maintenance” programming, during the course of the long-term supervision part of a long-term offendersentence. There can, of course, be no certainty with respect to how Mr. Daniels might respond to such opportunities.

But, given what aredescribed as his overall positive motivations, it is reasonable to think that involvement in a proper substance abuse program could help toreduce the risk he poses to the community. [61] The fourth point I wish to make is that, although Mr. Daniels’ record is relevant to the task of determining whether his risk can beacceptably managed, the sentencing judge does not appear to have given it any consideration in this context.

Section 753.1(1) of theCode speaks of the “reasonable possibility of eventual control” of the offender’s risk in the community, not the certainty of its eventualelimination. Thus, any assessment of the risk posed to the community by an offender must take account of two variables: (

a) thelikelihood of him or her re-offending, and (

b) the kind of crime he or she might be expected to commit if he or she does re-offend. Thislatter point is obviously important. For example, and speaking in generalities for the moment, an offender who habitually gets intodrunken fist fights will pose a measurably different risk to the community than will an offender who tends to use weapons to kill or inflictlife-threatening injuries on his or her victims. [62] Mr. Daniels has committed a number of violent crimes and I do not in any way wish to diminish their seriousness. The predicateoffences were particularly egregious.

That said, it must also be acknowledged that his record generally reveals what is, at least in relativeterms, rather low grade violence in that it has involved no significant injury to his victims. In broad terms, this history tends to suggestthat, if Mr. Daniels re-offends on release, he might be expected to continue along the same general path. Certainly none of the expertswho testified at the sentencing hearing suggested in any way that, in the future, Mr. Daniels is likely to commit crimes more violent thanthose he has perpetrated in the past. In other words, Mr.

Daniels is in a somewhat different situation with respect to risk than an offenderwho has an established record of inflicting serious or life-threatening injuries on his or her victims. As Dr. Darlington testified, theseverity of the offences in an accused person’s record is one of the key factors that speaks to the risk the person poses to the community. [63] All of this concerns not just the nature of the likely risk Mr. Daniels presents to the community.

It is also relevant to the relatedquestion of whether this risk is of a kind that should be considered to be acceptable or manageable within the meaning of s. 753.1(1)(

c) ofthe Code. As noted above, in enacting that provision Parliament clearly did not intend to make long-term offender status available only ifall risk of re-offending could be eliminated. As a result, sentencing in the context of a dangerous offender proceeding raises the difficultissue of how “much” risk must be tolerated in connection with long-term offender status. In considering this question in any individualcase, it is necessary to bear in mind the Supreme Court’s injunction in R. v.

Lyons, (SCC), [1987] 2 S.C.R. 309 to theeffect that the dangerous offender designation should be applied narrowly to “a small group of highly dangerous” criminals. The samepoint was underlined by this Court in R. v. Lemaigre, 2004 SKCA 125, [2005] 7 W.W.R. 52 after the long-term offender concept hadbeen introduced in 1997. By necessary implication, this view of the proper operation of the relevant Code provisions sheds some lighton the degree of community risk that Parliament saw as being acceptable in relation to long-term offenders. [64] I come, therefore, to my fifth and final point.

Here I want to underline the fact that Mr. Daniels has some unusual attitudes andcapacities for an offender in his position. (Like the sentencing judge, I will treat the as yet unknown implications of his recent headinjury as being a neutral consideration.) Mr. Daniels was described by Dr. Nicholaichuk as presenting no indication of a major mentalillness or similar pathology, as being of average intelligence and as showing no cognitive deficits that would impair his ability to learnnew skills if he re-enters treatment. Dr. Nicholaichuk also concluded that Mr.

Daniels has quite a realistic view of himself and that, to asignificant extent, he does not display the pro-criminal attitudes of offenders with similar histories. In addition, Mr. Daniels declared amotivation for treatment and a chance to better himself. (However, as Dr. Nicholaichuk observed, this was likely at least partially due tothe impending dangerous offender proceedings.) Thus, although Mr.

Daniels is clearly a violent man, there nonetheless are severalaspects of his situation that give more room for optimism than is normally the case in proceedings of this sort. [65] Bearing all of this in mind, it is apparent that, if proper regard is had for all of the factors relevant to the risk Mr. Daniels poses tothe community, s. 753.1(1)(

c) of the Code should be seen to be satisfied, i.e. there is “a reasonable possibility of eventual control of therisk in the community.” As indicated, this is particularly evident if consideration is given to the likely effect that aging will have on Mr.Daniels’ criminal behaviour, the nature of the controls available during the long-term supervision part of a long-term offender sentence,the benefit that might be expected from his exposure to proper substance abuse programming, the level of violence he might be involvedin if he does re-offend, and his general attitude and capacity.

Of course nothing is completely certain in this regard but, as explainedabove, complete certainty is not the benchmark Parliament has prescribed. We are dealing here with the “reasonable possibility” ofeventual control of risk. [66] Having found that Mr. Daniels’ appeal should be allowed (and that, as a consequence, he be designated a long-term offender) Iendorse Justice Jackson’s conclusion that this matter should be remitted to the sentencing judge for final disposition.

This is necessarybecause counsel have not had an opportunity to make submissions about the proper length of the custodial term and the period of long-

term supervision that should be imposed on Mr. Daniels. DATED at the City of Regina, in the Province of Saskatchewan, this 30th day of May, A.D. 2011. ___ “Richards J.A.” ______________________ RICHARDS J.A. Ottenbreit J.A. (in dissent) I. Introduction [ 67 ] The accused, David Daniels (“Mr. Daniels”), appeals from the dangerous offender designation and the indeterminate sentence imposed on him pursuant to the Dangerous Offender provisions of

Part XXIV of the Criminal Code (the “ Code ”). Mr. Daniels was convicted on an indictment containing numerous offences including two counts of uttering a threat to cause death contrary to s. 264.1(1) (

a) of the Code , a count of robbery contrary to s. 344 (

b) of the Code , breaking and entering a dwelling house and committing assault with a weapon contrary to s. 348(1) (

b) of the Code , theft over $5000 contrary to s. 334 (

a) of the Code , attempting to obstruct, pervert or defeat the course of justice by threatening to kill two witnesses contrary to s. 139(2) of the Code , two counts of unlawful confinement contrary to s. 279(2) of the Code , assault using a weapon contrary to s. 267(

a) of the Code and failing to comply with a condition of his recognizance contrary to s. 811 of the Code. All these offences took place in 2006. [ 68 ] The dangerous offender hearing took place in May, 2008. The designation and indeterminate sentence were, by decision issued September 4, 2008, imposed for the offences of robbery, breaking, entering and committing assault with a weapon, attempting to obstruct, pervert or defeat the course of justice by threatening, the two counts of unlawful confinement and the assault using a weapon (the predicate offences).

For the other counts on which he was convicted he received incarceration of two years in total. [ 69 ] I have concluded for the reasons which follow that the designation of Mr. Daniels as a dangerous offender and the imposition of an indeterminate sentence is fit and that the appeal must be dismissed. II. Facts and Background [ 70 ] Mr. Daniels is a forty-one-year-old aboriginal male. As is often the situation in these kinds of cases, Mr. Daniels has had a difficult life. Both his parents were severely alcoholic. His father was extremely physically violent, especially towards Mr. Daniels.

There is a possibility that because of his mother’s drinking throughout her pregnancy that his cognitive development was affected. He was exposed to substance abuse as a child and grew up being close to no one. The trial judge observed that to the date of the dangerous offender hearing Mr. Daniels still had no close emotional attachments to anyone. He has two daughters but has little or no contact with them. [ 71 ] At the age of 7 or 8 years he was placed in a residential school in Prince Albert.

He testified that he was often disciplined by being stripped naked and beaten with a steel brush on his buttocks until blood was drawn. He was apprehended by the Department of Social Services after he ran away from the school back to his grandparents’ home. He managed to complete a partial grade 7 in school. He spent various periods in foster homes and open custody facilities. He spent approximately eleven months in Kilburn Hall in Saskatoon as a juvenile and found it to be very traumatic. [ 72 ] Mr. Daniels has a lengthy criminal record.

The sentencing judge observed that his criminal record begins on September 26, 1983, after his sixteenth birthday, and that by the age of eighteen Mr. Daniels had accumulated eleven convictions for property crimes. At the date of the sentencing hearing Mr. Daniels’ criminal record consisted of sixty-seven offences, including the following convictions for violence which are summarized as follows: 1986 - assault - punched a fellow inmate in the face.

1990 - extortion - essentially a robbery: Daniels forced another person to drive him from one place to another so as to "feed" Daniels’ "addiction". 1990 - aggravated assault - Daniels went to the National Hotel in Prince Albert with a machete tucked in his pants.

An argument broke out, Daniels pulled the machete and used it as a weapon, causing the victim to cut his hand when the victim was defending himself. 1994 - common assault - While in jail, Daniels attempted to get guards to fight with him, and threatened bodily harm. 1994 - assault causing bodily harm - Daniels kicked a woman in the face, head and thigh causing bruising and swelling. 1994 - assault with intent to resist arrest - Daniels fought the officers who were trying to arrest him for a spree of cabin break and enters. 1999 - common assault - Daniels contacted the female victim of one of his crimes, and breached a non-contact prohibition in the process.

He went to her home and struck her in the face. She suffered bruising, a cut lip and a bloody nose. He also smashed her car. 2000 - robbery with violence - Daniels and an accomplice stole everything from driving chains to Christmas presents and a vehicle from a farm house. When the stolen vehicle ran out of gas, they found another farm house. The victim was just arriving home with her two children. The two offenders got in the car and punched the woman while she tried to get her children out of the car and flee.

She finally got away with her children, then Daniels and his accomplice stole gas, personal items and bullets before leaving. 2001 - robbery - Daniels and an accomplice robbed a pawn shop in Prince Albert. He had a metal bat and the accomplice had a filleting knife. Daniels struck the clerk in the leg with the bat. The two offenders further assaulted the clerk before finally making off with money. 2002 - common assault - Daniels and another inmate attacked a fellow prisoner at the Prince Albert Correctional Centre.

Daniels kicked and stepped on the victim, causing minor injuries. 2003 - assault peace officer - He threatened jail guards that he would stalk them, then he spit on a guard. Daniels was reported to have Hepatitis C. In addition to the violent offences, Mr. Daniels’ record also contains a number of convictions for uttering threats of death and physical violence. The sentencing judge also observed that Mr. Daniels had a consistent history of not complying with institutional orders, being charged with institutional offences and generally not being a good inmate. [ 73 ] It appears that Mr.

Daniels had an almost continual involvement with the criminal justice system since the age of eighteen and that apparent gaps in his record, even as minimal as they appear, were probably overstated because the record of convictions on his criminal record sheet does not include the time he spent on remand. At the time of the commission of the predicate offences Mr.

Daniels had been out of jail for little more than a month. [ 74 ] A good synopsis of the predicate offences was provided by the sentencing judge as follows: 44 … The offender, slightly more than a month after being released from jail, entered the apartment of the victims, two young men in their mid 20s, and demanded cash. When the victims protested and claimed they had no money, the offender made off with the victims' stereo and computer, items the two young men had just received as Christmas presents, after menacingly holding a screw driver to the neck of one of the victims.

As the offender was leaving, he warned the victims that if they complained to the police, that he would come back and kill them. 45 The victims did call the police and as a result of the ensuing investigation, the offender became aware that his threat had not been heeded. 46 A day and a half later the offender broke into the victims' apartment while they were sleeping. He told one of the victims that he had "messed up" by calling the police and that, "now I am going to kill you and take all of your stuff".

The offender, with the aid of a screw driver that he was brandishing, marshalled the two victims into a room and forced one to tie up the other. During this process, the offender thrust the screwdriver at the abdomen of one of the victims. Fortunately, the victim moved backwards and, although contact was made, it was minimal, resulting in only a slight scratch to the victim's leg. 47 During the process of having one of the victims tie up the other, the victims were able to overpower the offender and break free.

After a brief altercation, the offender eventually fled, stealing one of the victim's vehicles in the process. [ 75 ] A psychologist, Dr. Polvi, who had prepared a psychological assessment of Mr. Daniels for parole review purposes using several risk and screening tests and a comprehensive history of Mr. Daniels’ criminal behaviour, determined that Mr. Daniels was at a high risk to commit further violent and non-violent crimes including domestic violence. [ 76 ] Dr. Nicholaichuk (“Dr. Nicholaichuk”) was the defence choice to do the court-ordered

Part XXIV assessment and testified at the hearing. In

summary, Dr. Nicholaichuk concluded that the many experts who had assessed and/or talked with Mr. Daniels previously

were correct that he was at a high risk to reoffend violently and had many significant treatment needs. Dr. Nicholaichuk testified that he thought there was some potential for Mr. Daniels to be a suitable release candidate in ten years, but that it was an “open empirical question.” Dr. Nicholaichuk concluded that although Mr. Daniels had an apparent sincere desire to change, he also had an inability to act upon his intentions and sustain the changes that he did manage to achieve. Nevertheless, Dr.

Nicholaichuk recommended a long-term supervision order, the considerations for which are summarized at para. 73 of the sentencing decision: 73 There is some support for the proposition that Mr. Daniels is a candidate for a long-term supervision order. Dr. Nicholaichuk, the court-appointed assessor goes so far as to recommend a long-term supervision order. The basis for his recommendation can be broken down as follows: - There is some potential for Mr. Daniel's successful management in the community - assuming a number of conditions are met. - Mr.

Daniels is motivated to change; is capable of a high degree of self-disclosure; has a fair degree of insight into his problem areas. - He lacks the narcissistic features typical of psychopathic offenders. - Mr. Daniels' likelihood of recidivism will likely decrease with age because offenders in their 50s or 60s show much lower rates of criminality than do younger men. - A long-term supervision order is a powerful supervision tool. His optimism, however, was qualified significantly by events that will have to happen first, such as: - Mr. Daniels must develop a reliable, pro-social system of support. - Mr.

Daniels will have to learn how to control his impulses and demonstrate that control over an extended period of time. - Mr. Daniels will have to develop the ability to learn from the consequences of his behaviour. - Mr. Daniels will have to overcome ingrained habits and patterns of behaviour learned early in life. - Mr. Daniels will have to learn how to live outside an institution and in the community. [ 77 ] Dr.

Nicholaichuk also testified that in his view even though there was potential for dangerous offenders to be assessed by the National Parole Board and released on a variety of programs, the Board in fact rarely releases dangerous offenders and that a dangerous offender might never be released. [ 78 ] In January of 2008 while on remand for the

Part XXIV proceeding, Mr. Daniels was assaulted by another inmate and suffered a serious skull fracture which progressed to an infection leaving him with aphasia, headaches, shakiness of the right hand and difficulty managing information. Dr. Vrbancic (“Vrbancic”), a neuropsychologist, testified at the sentencing hearing that Mr. Daniels’ injury resulted in more problems learning and retaining information as well as more difficulty planning, decision making and cueing into fine details. The injury also made Mr. Daniels more impulsive and less able to control himself.

She expected improvement, perhaps full recovery, over the next two years but added that it was too soon to say. [ 79 ] Dr. Nicholaichuk reassessed Mr. Daniels following this injury and Vrbancic’s involvement and agreed that Mr. Daniels functioned at a lower level than before and with higher levels of frustration, impulsivity and inattentiveness. He indicated that the injury may leave Mr. Daniels less able to coherently plan his violence but more likely to respond aggressively. He testified that it could make Mr.

Daniels more protective of himself and there was a need for even greater support and guidance for him to successfully adjust to community life. Dr. Nicholaichuk indicated that Mr. Daniels had not been totally compliant with his medical treatment. III. The Sentencing Judge’s Decision [ 80 ] The effects of the predicate offences are encapsulated by the sentencing judge at para. 52: 52 These offences are obviously serious and, even though neither victim sustained any significant physical injuries, bo

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