HER MAJESTY THE QUEEN - v. -, 2017 SKQB 372

REDACTED VERSION QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2017 SKQB 372 Date: 2017 12 15 Docket: CRM 674 of 2007 Judicial Centre: Regina BETWEEN: HER MAJESTY THE QUEEN - and - MITCHELL MOISE Information in this decision has been redacted as indicated by […] in the text so that itmay be published. Counsel: Kelly Kaip for the Crown Marianna Jasper for the accused JUDGMENT KROGAN J. December 15, 2017 PUBLICATION BAN [1] [text redacted] DECISION A. INTRODUCTION [2] The Crown commenced proceedings pursuant to

Part XXIV of the Criminal Code endeavouring to have Mr. MitchellMoise declared a dangerous offender. A hearing was conducted and on September 21, 2012, Mr. Moise was declared a dangerousoffender by this Court and an indeterminate sentence of incarceration was imposed upon Mr. Moise (R v Moise, 2012 SKQB 389, 406Sask R 153). [3] Mr. Moise appealed that sentence to the Saskatchewan Court of Appeal (R v Moise, 2015 SKCA 39, 457 Sask R 190[Moise CA]).

The appeal was allowed on the basis that the sentencing judge erred by failing to consider the principles espoused by theSupreme Court of Canada in R v Gladue, (SCC), [1999] 1 SCR 688 [Gladue] and R v Ipeelee, 2012 SCC 13, [2012] 1SCR 433 as required by s. 718.2(

e) of the Criminal Code. Consequently, the dangerous offender designation was set aside and a newhearing was directed.

[ 4 ] Addressing the concerns raised by the Court of Appeal in Moise CA , a Gladue Report was presented for the court’s consideration in the new hearing, the writer of which also testified during the course of the hearing. [ 5 ] Approximately 10 years and 10 months have now elapsed between the occurrence of the predicate offences which catalyzed the dangerous offender application and the conclusion of the second dangerous offender hearing. Three psychiatric assessments have been completed, one dated April 26, 2009, the second dated January 24, 2015, and the final dated April 11, 2017.

The passage of time has allowed for this extended assessment. [ 6 ] The predicate offences which catalyzed the dangerous offender application occurred on February 23, 2007. They occurred at Lestock, Saskatchewan. The offences are: 1. Break and enter a dwelling house and commit the indictable offence of aggravated assault contrary to s. 348(1) (

b) of the Criminal Code ; and 2. Carry a knife for a purpose dangerous to the public peace contrary to s. 88 of the Criminal Code ; and [ 7 ] Mr. Moise entered guilty pleas to these offences as well as an s. 266 Criminal Code assault offence on October 8, 2008. The s. 348(1) (

b) and s. 88 Criminal Code offences are serious personal injury offences as defined in s. 752 of the Criminal Code , to which the dangerous offender process applies. [ 8 ] Because the predicate offences occurred on February 23, 2007, the

Part XXIV Dangerous Offenders and Long-term Offenders provisions in existence prior to the July 2, 2008 Criminal Code amendments apply to the proceedings for Mr. Moise. [ 9 ] In Moise CA , the Court of Appeal noted at para 3: [3] The Crown acknowledges that Mr. Moise’s conviction for assault is not a serious personal injury offence of the nature necessary to ground a dangerous offender designation and if the sentencing judge relied on it for that purpose, he erred. It is uncontroverted that the other two offences for which Mr.

Moise was convicted are “serious personal injury offence[s]” pursuant to the dangerous offender provisions of the Criminal Code as they existed in 2007. It is also uncontroverted that based on s. 11(

i) of the Canadian Charter of Rights and Freedoms and the Supreme Court of Canada’s decision in R v Johnson , 2003 SCC 46 , [2003] 2 SCR 357 [Johnson], the Criminal Code provisions relating to dangerous offenders as they existed at the time of the predicate offences, that is, February 23, 2007, are the appropriate provisions to be applied with respect to Mr. Moise’s designation. (See also: R v Bunn , 2014 SKCA 112 at paras 28 – 38 .) [ 10 ] Governed by the pre-2008 Criminal Code provisions, the court’s task is to first consider whether Mr.

Moise satisfies the definition of a dangerous offender pursuant to s. 753 of the Criminal Code . Even if that definition is satisfied, the court has the authority not to declare an offender dangerous, and may find the offender to be a long-term offender, if satisfied that an appropriate sentence would be two years in jail or greater, there is a substantial risk that the offender would reoffend and that there is a reasonable possibility of eventual control of the risk in the community. [ 11 ] When determining whether Mr.

Moise should be designated a dangerous offender or a long-term offender, Gladue considerations must be taken into account. As stated by the Court of Appeal in Moise CA at para 27 : 27 In Mr. Moise’s case, there was ample evidence of his background and personal circumstances to warrant taking Gladue considerations into account as required by s. 718.2 (

e) of the Criminal Code . The sentencing judge’s failure to address those considerations when deciding whether Mr. Moise should be designated a dangerous or long-term offender constitutes an error in law.... [ 12 ] Mr. Moise acknowledges that he meets the definition of a dangerous offender but submits that there is a reasonable possibility that his risk can be managed in the community, thus a long-term offender designation should follow. The Crown’s position is that having met the definition of a dangerous offender, Mr. Moise ought to be declared a dangerous offender and an indeterminate sentence of imprisonment imposed on him. B. FACTUAL BACKGROUND

i) Personal Circumstances – Early Years [ 13 ] Mr. Moise was born on October 5, 1978. [ 14 ] Mr. Moise’s mother, Keitha Bitternose, is of Saulteaux heritage. Ms. Bitternose was 15 years old when Mr. Moise was born. [ 15 ] Mr. Moise’s father, Ernest Moise, is of Cree heritage. Ernest attended residential school. [ 16 ] Mr. Moise has three younger brothers and three younger sisters. He also has an 18 year old son. [ 17 ] Mr. Moise and his family lived in Lestock, Saskatchewan and then on the Muskowekwan First Nation. In 1985, they moved to Regina, Mr. Moise’s parents separated. Mr.

Moise and his siblings continued to live with their father, Ernest. [ 18 ] Ernest and Keitha both abused alcohol and fought. At times, their numerous verbal arguments escalated into physical fights, which Mr. Moise witnessed. Mr. Moise experienced physical discipline at the hands of both parents as well as verbal abuse. [ 19 ] [text redacted] [ 20 ] Mr. Moise began drinking and doing drugs at a young age. His alcohol use began when he was 11 or 12 years old and by 13 years of age, Mr. Moise used alcohol whenever he had the chance. Criminal offences were committed to obtain money for alcohol.

[ 21 ] In 1993, Mr. Moise attributed his alcohol consumption as the major cause of his criminal activity. That criminal activity included physical violence, absconding from custodial settings and stealing. By December 1993, Mr. Moise, at 15 years of age, was in treatment at the Metis Addictions Council Treatment Program. [ 22 ] Mr. Moise remained sober until September 1994, after which he thereafter experienced periods of significant consumption and also times of abstinence. [ 23 ] Also in 1993, Mr.

Moise acknowledged his temper problem and noted that “little things” set him off such as a “dirty look” or a “verbal jab”. He was, however, participating in counselling to address his temper issues and was developing skills to manage conflict without becoming ill-tempered. [ 24 ] Although Mr. Moise had no academic difficulties, he did have school attendance difficulties. [ 25 ] From ages five to eight, Mr. Moise attended residential school. Thereafter, Mr. Moise attended Thompson School in Regina for Grades 2 to 6. However, in Grade 7, Mr. Moise was expelled for fighting. [ 26 ] In 1991, Mr.

Moise, 13 years of age, enrolled in and attended the Cornwall Street Tutoring Project. His teacher noted that Mr. Moise had very positive leadership abilities and had the ability to mediate disputes between students. However, by December 1991, poor attendance caused Mr. Moise to be expelled from the program. [ 27 ] Mr. Moise attended high school in Lestock until April 1995 when he withdrew. ii) Offending History [ 28 ] Mr. Moise was 12 years old when he and the court first intersected. On May 19, 1991, Mr. Moise, a young offender, stole gasoline. On June 19, 1991, he was in possession of a stolen motor vehicle.

Two short weeks later, Mr. Moise operated a motor vehicle in a manner dangerous to the public when he fled from police in a stolen vehicle. On that same day, he also had in his possession a stolen licence plate. [ 29 ] A pre-disposition report was prepared to assist the youth court judge to craft a fit sentence for the four offences. Mr. Moise advised that it was Ernest’s drinking when Mr. Moise was young that was a major cause for his involvement with the court. At this tender age, Mr. Moise recognized that he had a “bad temper which he inherited from his father”. [ 30 ] Mr.

Moise entered guilty pleas to these offences on September 3, 1991 and received a sentence of one year probation and 25 hours of community service work. [ 31 ] Prior to being sentenced for his first four offences, Mr. Moise stole a motor vehicle on August 17, 1991. Then on August 28, 1991, Mr. Moise was in possession of stolen property. Mr. Moise was again found in possession of a stolen automobile and obstructed justice by falsely identifying himself to a police officer. These offences occurred on October 11, 1991. [ 32 ] On December 1, 1991, Mr. Moise was again in possession of a stolen motor vehicle.

When police endeavoured to stop him, Mr. Moise drove that vehicle dangerously, at a high rate of speed, through red lights within the city limits. Mr. Moise was impaired and also disqualified from driving. [ 33 ] Three weeks later, on December 22, 1991, Mr. Moise committed robbery by kicking a male victim in the face and stealing a jacket from him. A second male victim was invited to fight. When the second refused and ran, Mr. Moise tripped him and stole his money. At that time, Mr. Moise had again stolen a motor vehicle and was in possession of that stolen motor vehicle. He was still a disqualified driver.

Further, he had breached his probation order by failing to keep the peace and be of good behaviour. [ 34 ] For these many significant offences, Mr. Moise was sentenced to 12 months in open custody followed by a six month period of probation on January 15, 1992. [ 35 ] Mr. Moise did not like open custody. He escaped on January 24, 1992. On March 1, 1992, Mr. Moise was in possession of a stolen motor vehicle. On April 24, 1992, he drove in a dangerous manner and caused bodily harm to two people. He drove the car down a back alley at a great speed while two girls were seated on the trunk.

The girls fell off and suffered injuries. He also breached his probation order by failing to keep the peace and be of good behaviour on that same April day. [ 36 ] On April 27, 1992, Mr. Moise was released from custody subsequent to his arrest. He was to appear in court on May 4, 1992 to answer to the charges, but he failed to attend on that day. A warrant for his arrest was issued. He was charged with failing to attend court. [ 37 ] Mr. Moise was found in possession of a stolen speaker on July 7, 1992. He was arrested and appeared in court on July 8, 1992.

He was not released from custody by the court, but took matters into his own hands when on July 15, 1992, Mr. Moise ran from the cell area of the court house before being transported back to the Paul Dojack Youth Centre. An arrest warrant was authorized. [ 38 ] Mr. Moise possessed another stolen motor vehicle and attempted to break and enter a residence on July 17, 1992. Mr. Moise was arrested and back in court on July 20, 1992. [ 39 ] On August 13, 1992, 13 year old Mr. Moise was sentenced to six months in custody.

He still had a portion of his open custodial sentence to serve. [ 40 ] In accordance with the governing young offender legislation, Mr. Moise was entitled to have his sentence reviewed on February 15, 1993. However, given Mr. Moise’s lack of accountability for his actions, the youth worker did not recommend a change in Mr. Moise’s disposition.

[ 41 ] On March 19, 1993, Mr. Moise was unlawfully at large from custody. He was arrested and released on an undertaking back to open custody at Dale’s House. On March 27, 1993, he ran from Dale’s House. [ 42 ] On May 20, 1993, Mr. Moise was in possession of a stolen motor vehicle. On May 21, 1993, Mr. Moise obstructed justice by giving a false name to a police officer. [ 43 ] Mr. Moise was arrested on June 25, 1993 on the Muskowekwan First Nation. [ 44 ] In the Pre-disposition Update Report dated July 13, 1993, the writer noted that Mr.

Moise struggled at that time with temper, running, family issues, stealing and authority. Mr. Moise advised the writer that he left open custody on March 19, 1993 because he “wanted to party”. [ 45 ] Mr. Moise was sentenced for the next series of offences on July 20, 1993. He received a sentence of three months in closed custody. [ 46 ] On August 11, 1993, while in custody, Mr. Moise was involved in a physical altercation with another resident, though no criminal charges resulted. Mr. Moise explained to staff at the facility that the resident had been troubling him for a time and that the only way Mr.

Moise knew to stop the problem was to respond physically. [ 47 ] In an October 7, 1993 Progress Report, the writer noted Mr. Moise advised that he realized the seriousness of his criminal activities and was prepared to make the necessary changes in his lifestyle in order to be a productive member of society. Though still experiencing personal difficulties, the authorities recommended that the balance of Mr. Moise’s open custodial sentence be converted to probation. That was done on December 22, 1993.

The probation order contained a number of conditions, included in which was residential alcohol treatment and counselling. [ 48 ] On May 14, 1995, Mr. Moise attended a house party on the Muskowekwan First Nation. A fight occurred. Mr. Moise and the group of people who he was with were told to leave the party. Most left, however, one of Mr. Moise’s relatives remained and was beaten. Mr. Moise returned and, wishing to scare the people still in attendance at the party, fired gunshots in the air. Police were contacted and located Mr. Moise in his vehicle.

There were four passengers in the vehicle along with six firearms and ammunition. Mr. Moise was arrested and released on bail. [ 49 ] Three weeks later, on June 4, 1995, Mr. Moise was stopped by police while driving a vehicle that had a burnt-out headlight and tail-light. Mr. Moise was out past the court-imposed curfew. Given that he exhibited signs of alcohol consumption. Police administered a roadside screening test, the result of which was that Mr. Moise blew a “fail”.

Though he was placed under arrest, he ran across closely situated train tracks in front of an oncoming train, which enabled his escape. [ 50 ] On June 6, 1995, two days later and while still at large after evading arrest, Mr. Moise went to a house party on Muskowekwan First Nation. He was intoxicated. He became angered with and assaulted his former girlfriend, Michelle Pambrun, in the bathroom of the residence. He punched and kicked her in the face. He knocked Ms. Pambrun into the bathtub. When her then boyfriend, Jason Moise, intervened, Mr. Moise struck him in the face, also knocking him into the bathtub.

Jason Moise’s father, Eric Moise intervened, resulting in a fight between Eric Moise and Mr. Moise. [ 51 ] After the fight, Mr. Moise went to his truck and retrieved a .22 caliber rifle. When someone disarmed Mr. Moise, he left the residence. A short time later, however, Mr. Moise returned to the residence with another rifle. He fired at least twice into the house. One shot passed through the front window just missing Roy Wolfe who was holding a child on his lap at the time. Rhonda Wolfe came out of the residence and attempted to take the gun from Mr. Moise. She was unable to do so. Mr.

Moise struck Rhonda Wolfe with the stock of the rifle, cutting Ms. Wolfe’s face. Mr. Moise then reloaded the rifle and aimed it at Ms. Wolfe. Mr. Moise pulled the trigger but the rifle misfired. Mr. Moise pointed the rifle at Roy Wolfe wanting to “blow him away”. Again when Mr. Moise pulled the trigger, the rifle misfired. [ 52 ] Mr. Moise left the residence and again returned. His anger had not subsided. Armed with a rifle, Mr. Moise broke the front window of the house with the rifle and managed to push his way through the door of the residence, despite the efforts of the occupants to keep him out.

Once inside, Mr. Moise shot Eric Moise in the neck. The bullet travelled through his neck and lodged in his jawbone. Mr. Moise left, threatening to return and shoot the remaining occupants. When this incident occurred, there were approximately 15 people in the residence, at least 10 of whom were children. [ 53 ] Mr. Moise was located by police. However, Mr. Moise fled in a vehicle. Police shot the tires and the vehicle became inoperable. Still motivated to escape, Mr. Moise stole another vehicle in the town of Kelliher and drove into Regina, an approximate 140 km distance. Mr.

Moise was arrested in Regina later that morning with the assistance of the SWAT team. [ 54 ] Mr. Moise was held in custody at the closed custody youth facility in Regina until July 27, 1995 when he escaped. He remained at large for 11 days. [ 55 ] Though only 16 years old when these offences occurred, an application was made by the Crown to have Mr. Moise’s charges transferred to adult court. The transfer hearing occurred in November and December 1995. [ 56 ] A Psychological Assessment was ordered by the court to provide information for the transfer hearing. The assessor noted that Mr.

Moise committed offences both when he had been drinking and when he was sober. As further noted in the report: Mitchell may tend to be self-indulgent and intent on having his own way. When crossed, or faced with pressures and potential embarrassment he may be provoked to revengeful anger. He tends to attribute blame to others and to not admit to psychological or interpersonal difficulties. I was rather taken aback by his response to my question about what may happen and how he might handle it if he returns to the reserve and people may want to get even with him.

He said he did not really care if people wanted to get even. Mitchell also noted, “most of the people are my family, it happened, I was drunk, now it’s over with”, and “I did something, they did something,

now it is over”. I am concerned about the dismissive flavour of those statements. They do not reflect any acknowledgment of the seriousness of his actions or the situation. . . . He may use manipulation to satisfy his own needs. For example, he reported that the last time he “got sentenced” not to drink, he said that he should stop drinking in order to get out, though he had no intention of stopping drinking. . . . Mitchell reported that anger is a problem for him but that it is not as bad as it was previously when he reported that he “always had blowups”.

He stated that he holds his anger in and lets it build up. He implied that when he is drinking his anger is worse. He gave an example of initiating a fight with one person and then punching everyone in the vicinity of his first target. [ 57 ] A psychiatric assessment was also ordered to assist with the transfer considerations. Mr. Moise was diagnosed with a Conduct Disorder without any evidence of depressive or other psychiatric conditions. [ 58 ] In a report prepared by the Ministry of Social Services, again to assist in the course of the transfer hearing, the writer noted that Mr.

Moise regretted his actions and sincerely wanted to quit drinking alcohol. At that time, the Muskowekwan First Nation officials did not want Mr. Moise to return to their community. Finally, the writer noted that Mr. Moise could not function in a non- structured environment. [ 59 ] January 4, 1996 was the date scheduled for the decision regarding Mr. Moise’s transfer to adult court. Prior to the delivery of the decision, Mr. Moise consented to the transfer. [ 60 ] Mr. Moise was tried and convicted in adult court for the offence.

He was sentenced to 35 months in jail in addition to the 15 months he spent in pre-trial custody. He served his sentence in a federal penitentiary. Prior to the imposition of the sentence, both Mr. Moise and his lawyer acknowledged Mr. Moise’s struggle with alcohol and that treatment for his addiction was required. [ 61 ] An intake report was prepared when Mr. Moise arrived at the penitentiary. He was identified as a high need / high risk offender who required considerable intervention in the areas of substance abuse, cognitive skills and personal / emotional issues.

It was noted that there was a direct link between Mr. Moise’s alcohol consumption and the commission of his offences. [ 62 ] As recorded in Mr. Moise’s August 21, 1997 Progress Report, Mr. Moise: …demonstrated very little remorse and indicated he only reacted to “someone doing something to me”. He went on stating that “the victims were lying”. When asked how he felt towards the victims, he stated “he did not care how the victims felt”. He simply just wants to put it all behind him. [ 63 ] Mr. Moise had the benefit of, and participated in, programming while in the penitentiary.

He participated in a Cognitive Skills Program commencing July 7, 1997. He successfully completed the program on August 29, 1997. The facilitator observed that the program had a “small measure of impact” on Mr. Moise. Mr. Moise participated in the Aboriginal Tradition and Culture Awareness Program which ran from January 27, 1997 to April 15, 1997. [ 64 ] Mr. Moise also had the benefit of the Aboriginal Family Violence Program. This program included sessions on socialization, family of origin, impact of violence on children, parenting cycle violence, and psychological and emotional battering. [ 65 ] Mr.

Moise was released on day parole on January 6, 1998. He was to reside at a Community Correctional Centre in Regina for six months. The day parole was suspended on April 1, 1998 when Mr. Moise was unlawfully at large. He was arrested on June 18, 1998. His day parole was revoked. [ 66 ] Again in custody, Mr. Moise participated in and completed the Anger and Emotions Management Program between February 15 and April 26, 1999. Although Mr. Moise did well in the program, it was noted that he continued to minimize his criminal behaviour and still needed to address his substance abuse issues. [ 67 ] On May 17, 1999, Mr.

Moise was statutorily released from custody. Similar to his previous day parole, Mr. Moise was again to reside at a Community Correctional Centre in Regina. Six days after day parole began, Mr. Moise breached a parole condition by failing to abide by his curfew. This time, however, Mr. Moise turned himself in on May 25, 1999. His statutory release was revoked and he remained in custody until he was again released to the Community Correctional Centre on June 9, 1999. [ 68 ] On June 13, 1999, Mr. Moise confronted a man named Xep Nguyen on the street. Mr. Nguyen was having a dispute with his common-law partner. Mr.

Moise punched Mr. Nguyen in the face four or five times. [ 69 ] Mr. Moise had been searching for a man named Tim Cyr who was causing problems for Mr. Moise’s girlfriend Andrea Lowe. On June 18, 1999, Mr. Moise found Mr. Cyr and drove beside him while Mr. Cyr walked on a Regina sidewalk. There were three passengers in Mr. Moise’s vehicle. Mr. Moise shot Mr. Cyr in the leg with a shotgun. Mr. Cyr’s leg had to be amputated. That same night, Mr. Moise beat a woman named Enola Severight. [ 70 ] On July 2, 1999, Mr. Moise went to the residence of Desiree Agecoutay and her mother. There were six people in the residence.

Mr. Moise had a rifle and shouted “everyone to the ground now” when inside the home. Mr. Moise pushed a man named Clinton Pelletier to the ground and pointed the rifle at his head. He then lifted the rifle and fired it into a wall near where a woman had been seated a few short seconds earlier. [ 71 ] Mr. Moise was arrested by the SWAT team on July 14, 1999.

[ 72 ] On July 26, 2000, Mr. Moise was sentenced to seven years imprisonment for the offences of the attempted murder of Tim Cyr and the possession of a firearm. [ 73 ] On September 4, 2000, Mr. Moise assaulted two guards at the Correctional Centre. He punched both guards in the face after a disagreement regarding when Mr. Moise would shower. He was charged with, and convicted of, these offences. He received a sentence of five months in jail concurrent to any other sentence being served. [ 74 ] On November 24, 2000, Mr.

Moise received a two year consecutive sentence of imprisonment for more of his outstanding charges. On December 18, 2000, Mr. Moise received a three month consecutive jail sentence for the assault on Mr. Nguyen. [ 75 ] The cumulative sentence imposed upon Mr. Moise was thus a nine year and three month jail sentence. At 22 years of age, Mr. Moise was to begin his second period of incarceration in a federal institution. [ 76 ] Mr. Moise was sent to the Saskatchewan Penitentiary. He was placed in segregation in the maximum security unit. A February 14, 2001 Correctional Plan was crafted for Mr.

Moise in which his offence cycle was described as follows: Moise has demonstrated a consistent pattern of violent offences involving weapons. He has proven he is a dangerous individual, capable of causing serious harm to his victims. Although he completed a number of program interventions during his last federal sentence (also for violence) he has not internalized any of the information he learned. Moise has chosen to continue using violence to solve his problems, and maintains gang affiliation even though his family insists positive community support exists.

Efforts to reintegrate Moise into the community in a slow and gradual manner have been thwarted, as he continues to ignore conditions and absconds, very quickly committing further violent offences. [ 77 ] On October 9, 2001, an Assessment for Decision report was completed subsequent to Mr. Moise’s request for an Escorted Temporary Absence to attend his grandmother’s funeral.

The report’s author wrote: Moise completed the Family Life Improvement Program (F.L.I.P.) on 2001-03-16...Moise successfully completed the program...Mitch understands that his involvement of [sic] crime stems from the use of alcohol and drugs. He further realizes that he must take responsibility of [sic] his actions and gain skills in becoming a positive parent... Moise completed his first federal term of incarceration on 1999-08-19 and did successfully complete the following programs: Aboriginal Family Violence, Cognitive Skills, Aboriginal Substance Abuse, Choices, and Anger and Emotions Management.

Although Moise did successfully complete these programs, it is evidence that he did not internalize any of the information he ascertained as he did re-offend and is serving his second federal term of incarceration. [ 78 ] The Escorted Temporary Absence was not recommended. [ 79 ] Mr. Moise was transferred from the Saskatchewan Penitentiary to the Edmonton Institution. However, he was assaulted by inmates and was transferred to the Pacific Region. On November 18, 2002, Mr. Moise was transferred to Kent Institution in British Columbia in order to separate Mr.

Moise from danger and also to allow him to access further programming. Within a day of his arrival, Mr. Moise and another inmate were observed attempting to assault a third inmate. Mr. Moise was armed with a homemade knife and had covered himself with makeshift body armour in preparation for the assault. [ 80 ] Mr. Moise was placed in segregation at Kent where he stayed until August 22, 2003, some 270 days, at which time Mr. Moise was moved to an Open Protective Custody Unit. Mr.

Moise’s behaviour improved and on March 4, 2004, he was transferred to Mountain Institution, a medium security penitentiary. [ 81 ] A parole hearing was scheduled for July 2005, however, Mr. Moise had not made sufficient progress to allow for his release. He had served five years of his nine year and three month sentence. At this time Mr. Moise was classified as a medium security risk. His escape risk was rated as low while his risk to public safety was rated high. [ 82 ] In April 2005, Mr.

Moise was, however, transferred to the Pacific Institution, where he was able to participate in the In Search of Your Warrior Program between May 23 to June 30, 2005. Mr. Moise requested the transfer in order to allow him to participate in the program. [ 83 ] The In Search of Your Warrior Program description is as follows: Designed by the Native Counselling Services in Alberta, the In Search of Your Warrior Program is culturally sensitive, high intensity violence program for those of Aboriginal descent, or for those following the Native spiritual path.

The program takes a multi- modal approach to treatment, addressing cognitive behavioural aspects as well as spiritual growth and development. Treatment focuses on the roots of the participant’s rage and interpersonal aggression, by addressing the mental, emotional, physical and spiritual dimensions of the individual. Participants are required to participate in all dimensions of the program, including spiritual and ceremonial events.

Participants are encouraged to analyse their own behaviour and gain insight regarding the connection between their thoughts, feelings and subsequent behaviours. [ 84 ] Program content has remained the same between 2000 and 2016. [ 85 ] Mr. Moise successfully completed the program. Observations were made of Mr. Moise subsequent to the completion of the program. On the issue of self-management: Mr.

Moise has developed some understanding of his deficits, particularly his thinking errors and his difficulty managing his anger through his participation in other correctional treatment programs, but has had difficulty applying program skills in a consistent basis. Specifically, he continued to involve himself in substance abuse, intimidating behaviours and criminal activity following his release despite having successfully completed a number of correctional treatment programs.

. . . Mr. Moise completed an exercise in which he detailed the ways in which he has hurt women in his lifetime. On completion of the exercise, he reflected that the exercise was “pretty exhausting”. He also shared that “the opinion I held of myself after completing out work, was of disgust and shame. I still can’t believe how inconsiderate and uncaring I was to my loved one’s feelings and emotions. I was such an insensitive, selfish, egotistical bastard to only care about myself...”. [ 86 ] On the issue of anger awareness: Key treatment goals for Mr.

Moise were to increase his awareness of his triggers, to learn and apply arousal control skills and to create an effective anger management strategy that was workable for him. [ 87 ] On the issue of violence awareness: Defence mechanisms commonly used by Mr. Moise include denial, minimization, rationalization and blaming the victim. Other themes he uses to feel safe include masks of insensitivity and meanness.

He now takes greater responsibility for his use of violence and is learning to accept accountability and responsibility for his actions. [ 88 ] In the facilitator assessment, it is noted that: It is imperative that Mr. Moise maintains his sobriety if he is to succeed in his goals of living a crime-free life and being a positive role model for his young son and a constructive member of the community. [ 89 ] Mr. Moise returned to Mountain Institution in August 2005. Staff noted positive changes resulting from Mr. Moise’s participation in the In Search of Your Warrior Program.

Though still cautious due to the recency of Mr. Moise’s changed behaviour, by November 3, 2005, Corrections Service Canada officials were recommending a minimum security institution for Mr. Moise. Mr. Moise’s attitude, it appeared, had changed for the better, but it had not been tested beyond an institutional setting. [ 90 ] In an October 14, 2005 Psychological/Psychiatric Assessment, Mr. Moise advised the writer that: ...his new value system involves zero tolerance for any substance use, violence or criminal activity on his part.

He said this is the case because he knows such behaviour will result in him returning to prison. Mr. Moise stated that he understands that his stance appears ridged [sic] and he was able to discuss his past tendency to “throw the baby out with the bathwater” after “slips” with drugs or alcohol or crime....Mr. Moise indicated that he will have to be proactive in reaching out for assistance and coping with stress or “slips” as soon as they occur in order not to repeat this pattern of behaviour in the future. [ 91 ] In December 2005, Mr.

Moise was transferred to Kwikwexwehp, a Correctional Service of Canada Aboriginal healing program. There, Mr. Moise worked in the kitchen and also as a cleaner. He upgraded his education in the Adult Basic Education Program. He received escorted temporary absences to attend Alcoholics Anonymous and Narcotics Anonymous meetings as well as Aboriginal cultural and spiritual activities. He also participated in a construction training safety court. [ 92 ] However, during this sentence, Mr. Moise had not completed any substance abuse programming. [ 93 ] In February 2006, Mr.

Moise applied for a 60 day work release program, which would allow him to be on a supervised work crew. This was granted. Mr. Moise received positive feedback for his work efforts. [ 94 ] Mr. Moise was also granted day parole to participate at the Tsow-Tun Le Lum Treatment Centre, described as a Healing Village. This program involved participation in Pow Wows, canoe races, festivals, sweat lodges, ceremonies and medicine gathering. This was granted, with constant supervision, as Mr.

Moise was viewed as being manageable under supervision in the community, though caution was still required. [ 95 ] On September 21, 2006, Mr. Moise was statutorily released. The National Parole Board [NPB] imposed three conditions upon his release: • reside in a half-way house; • report all significant relationships with women to his supervisor; and • abstain from intoxicants. [ 96 ] In the course of determining that Mr.

Moise would be released from custody, the NPB noted: At your elder assisted hearing today you told your story with enthusiasm and emotion, describing the changes you have experienced during the course of this sentence. In so doing you demonstrated some knowledge of your risk factors and good intentions with regard to living a pro-social life in the future. During the discussion you acknowledged that the lifestyle you want to adopt is not one that you have experienced before, and that you were aware that there would be challenges along the path.

In addition to your commitment to you own reform you have a growing commitment to traditional aboriginal culture, values and spirituality. You also recognize a need to remain clean and sober, but your knowledge of strategies which might help you to do so was sketchy. The Board admires you professed passion for change and the promises you have made to yourself. Nevertheless the progress you have made to date has involved small, progressive steps.

While you confidence is understandable, as is your keen interest in getting on with your new life as a free man, the Board feels that you may be underestimating some of the challenges you may face in reintegrating to society after so many years of crime and incarceration... [ 97 ] On October 5, 2006, Mr. Moise began the National Substance Abuse Maintenance Program, attending 9 of the 10

weekly sessions. He had received approval from his parole officer to miss the one session he did. His participation in the program was positive and he was assessed as having a good understanding of the situations which presented risk for him. [ 98 ] So impressed with Mr. Moise’s progress, his parole officer removed Mr. Moise’s residence requirement that allowed Mr. Moise to live in a private residence with his then girlfriend, Stephanie Villeneuve in Abbotsford, British Columbia. [ 99 ] Mr. Moise and Ms. Villeneuve met in March 2006, continued communicating via telephone and visited when Mr.

Moise was granted passes to leave the institution. Upon Mr. Moise’s statutory release, Ms. Villeneuve was a community support for him and was comfortable with Mr. Moise moving in with her. [ 100 ] On February 10, 2007, Mr. Moise assaulted Stephanie Villeneuve after engaging in an argument with her. Ms. Villeneuve suffered bruising and swelling on her forehead, bruising and swelling on the left side of her body and sore ribs. Mr. Moise contacted Ms. Byrne, his parole officer and advised that he had only pushed Ms. Villeneuve and nothing more. He agreed to meet with Ms. Byrne. That did not occur.

Abbotsford RCMP contacted Ms. Byrne and advised her of the true nature of the assault. A suspension warrant was issued for the arrest of Mr. Moise. Ms. Byrne was able to convey this to Mr. Moise. Mr. Moise said he would turn himself in, but instead travelled to Saskatchewan. [ 101 ] En route to Saskatchewan, Mr. Moise picked up a female acquaintance, Alora Simonds, and took her to his home on the Muskowekwan First Nation. On February 23, 2007, Mr.

Moise committed the predicate offences. iii) The Predicate Offences and Subsequent Behaviour [ 102 ] When back in his home community at the Muskowekwan First Nation, Mr. Moise consumed alcohol with his family. His father, Ernest, was aware that Mr. Moise was unlawfully at large, yet allowed Mr. Moise to stay with him. Ernest supplied Mr. Moise with alcohol and provided a truck to Mr. Moise for his use. [ 103 ] On February 23, 2007, Mr. Moise was at a residence in Lestock, drinking alcohol with the resident’s other occupants. Mr.

Moise and his family member, Howard Longman, got involved in an altercation during which Mr. Moise shoved Mr. Longman off a chair. When two women in the residence came to Mr. Longman’s defence, Mr. Moise struck them. Mr. Moise then turned his attentions on Alora Simonds with whom he had become upset because she did not defend him. [ 104 ] Mr. Moise left the residence and returned shortly thereafter with a knife. Although the occupants tried to prevent Mr. Moise from coming back into the house, he was able to gain entry. Mr. Moise found Alora Simonds hiding from him in the basement. The occupants tried to calm Mr.

Moise down to no avail. He went into the basement and punched Ms. Simonds several times in the face. He slammed her face into a concrete telepost twice. He threatened to slit her throat. [ 105 ] Ms. Simonds did her best to escape, however, Mr. Moise dragged her up the stairs and ordered the occupants to leave the residence, threatening them with the knife. Mr. Moise wanted the three occupants and Ms. Simonds to leave with him in a van, overcoming their reluctance to do so by threatening to cut off their heads. Out they all went, but because the keys to the van could not be found, Mr.

Moise ordered that they all return inside the house. [ 106 ] RCMP arrived shortly after and after a physical struggle ensued, they were able to arrest Mr. Moise, who was still in possession of the knife. Mr. Moise has been in custody since February 23, 2007. [ 107 ] Mr. Moise’s statutory release was revoked. That penitentiary sentence did not expire until November 9, 2009. [ 108 ] Ms. Simonds was bleeding heavily from her face. She suffered a broken jaw and numerous lacerations to her mouth caused by Mr. Moise’s violent actions. Surgery was required. In addition to the physical damage inflicted upon her, Ms.

Simonds suffered emotionally and psychologically as well. In her victim impact statement, Ms. Simonds wrote: I feel like I’m in a lot of pain, my dreams are becoming more terrifying. To look at my face in the mirror makes me cry and feel torn up inside. This crime has affected my life by the heartless feeling of being beat to the point my jaw is broken in two places, I’m afraid my teeth will be ugly. Or me having the fear to trust any man again. [ 109 ] A Criminal Profile Report Amendment was prepared by Correctional Service of Canada officials on September 25, 2007. It contained information regarding Mr.

Moise’s attitude towards women as follows: ...he broke up with girlfriend Ballentyne in July 2006 over “jealousy” concerns, then assaulted girlfriend Villeneuve in February 2007 over his jealousy and control issues, then subsequently assaulted “new” girlfriend Simons [sic], again over jealousy and control issues. The relevance of this information is that ‘jealousy’ and ‘control’ over his significant other’s actions are key risk factors for Moise but have never been listed as such in his risk cycle, even though his assaults on common-law Lowe were previously cited.

During the BOI’s investigation it became clear that Moise clung to his Prairie Aboriginal Gang attitude toward his female partners calling them “my woman”, with complete control over his subservient female partners. All they owned is his, they cannot look at another man, must follow his direction at all times, must physically defend him in fights he is in, must submit to his sexual demands and being physically abused by him when he ‘disciplines’ them.

The BOI also discovered in searching Moise’s effects that even while he had a current girlfriend (Villeneuve) he wrote to other female correspondents with sexualized letter, described himself as having “don Juan Charm” and even asked one female correspondent to post his picture on the internet to attract more potential female partners, as he had his own email address. Moise also wrote a ‘fantasy letter’ describing to a female correspondent how he breached his conditions on a conditional release, having a Canada Wide warrant out for his arrest and police “hunting all over for me”.

He then meets up with his correspondent, working in a “restaurant lounge” and engages in a

highly sexualized scenario. As the details of Moise’s fantasy letter correspond very closely to his flight to SK with victim Simons [sic], his exaggerations to her about his assault on Villeneuve, that the police were actively hunting for him, and his forced sexual relations with her, the relevance of this information is that Moise is always searching for female partners, and he holds a highly romantic/sexualized notion about his being a ‘dangerous bad guy on the run from the police’.

The BOI also found poetry Moise had repeatedly written glorifying the using a shotgun (“gat”) in revenge against enemies, then disposing of their remains in lime. … [ 110 ] On May 15, 2007, while on remand at the Provincial Correctional Centre in Regina [PCC], Mr. Moise was told to get ready for an interview with his parole officers. He took a great deal of time to get ready and was told that the interview was cancelled. Mr. Moise reacted by punching above the cell lock and saying “they are fucking with me and I am not a guy to play games with”. [ 111 ] On August 17, 2008, while on remand, Mr.

Moise became confrontational with an inmate who dropped a coffee cup on the floor. Verbal spars were exchanged and Mr. Moise spit in the inmate’s face. [ 112 ] On September 24, 2008, while on remand, Mr. Moise punched another inmate who was annoying him. The assault caused minor bleeding and dislodged a tooth. No criminal charge resulted as the inmate was not interested in pursuing a charge. Further, when Mr. Moise was denied a move to another unit, he threatened to “do something to make the ERT suit up in order to get moved”. [ 113 ] While on the remand unit, Mr.

Moise was able to participate in programming and take courses offered through Athabasca University. He completed a stress management program in 2009 and a six week life skills program in 2010. Mr. Moise also completed a life healing choices program and a twelve step recovery program. [ 114 ] In 2010, while at the PCC, Mr. Moise began a relationship with a female guard named Marjorie Obelmann. Ms. Obelmann resigned her position at the PCC when she realized she had feelings for Mr. Moise. Their relationship continued after he was transferred to the federal system. Mr. Moise described Ms.

Obelmann as his “common-law” and expressed a desire to marry her. [ 115 ] On September 17, 2011, while on remand, Mr. Moise antagonized another inmate. When both were in the yard a bit later, Mr. Moise challenged the other to a fight. Staff intervened. [ 116 ] On October 11, 2011, while on remand, Mr. Moise assaulted another inmate who was defecating in the showers. The inmate suffered a broken nose. [ 117 ] On December 16, 2011, while on remand, Mr. Moise appeared to be impaired and staggered to the tray line for food. He ran into another inmate. Words were exchanged. Mr. Moise challenged the inmate to a fight.

The inmate did not accept. Mr. Moise refused to comply with the orders of staff. Other inmates stepped in and told him to back off. Mr. Moise did. [ 118 ] On September 6, 2012, Mr. Moise threatened an inmate when that person would not give Mr. Moise clean socks at the laundry exchange. Mr. Moise yelled and swore. [ 119 ] As noted, a dangerous offender hearing was conducted and on September 21, 2012, Mr. Moise was declared a dangerous offender and sentenced to an indeterminate period of incarceration. And as also previously noted, Mr. Moise appealed that decision. However, subsequent to that decision, Mr.

Moise was transferred from the remand unit at the PCC back into the federal system. [ 120 ] An assessment for Decision Report was prepared in December 2012 in order to address the initial security classification and penitentiary placement. Mr. Moise was 34 years old at this time. The writer noted that even in a closely monitored environment, Mr. Moise angers quickly and behaves inappropriately. This observation was supported by the series of incidents, noted above, that Mr. Moise was involved in while he was on remand. [ 121 ] Subsequent to the dangerous offender finding in 2012, Mr.

Moise’s situation was considered by a Correctional Intervention Board to identify programming for Mr. Moise. The Board concluded that an Aboriginal Offender Substance Abuse Program and High Intensity Family Violence Programming would be appropriate. As a result of that assessment, it was noted in the September 24, 2012 Correction Plan at pages 10-11: Moise was raised in a highly dysfunctional environment as his parents and grand- parents were both placed in residential school and do not appear to have had the appropriate parenting skills to raise their children in a positive environment.

The subject grew up a victim of violence at the hands of his father as well as witnessing violence around him. He started using this coping mechanism early in his life. His aggression coupled with his early use of alcohol propelled his criminal behaviour and led him to becoming a highly committed gang member which provided him with funds and a sense of power and entitlement. His use of intimidation and aggression was used to his own advantage in casual / callous intimate relationships and in dealings with people selling drugs for him.

Although he believes he has grown as a person through the In Search of Your Warrior, he admits that he did not “clean house” to the extent he should have given his current offences. [texted redacted] [ 122 ] In 2013, Mr. Moise developed a relationship with a female guard at the Saskatchewan Penitentiary named Margaret Roy. [ 123 ] Between February 26, 2013 and July 31, 2013, Mr. Moise participated in an Aboriginal High Intensity Family Violence Program. Generally, Mr. Moise participated positively throughout the program. [ 124 ] A psychological assessment was prepared by Dr. Szmukier on November 26, 2013.

In that assessment, Dr. Szmukier noted that although Mr. Moise was willing to participate in correctional programming, he did not seem to have incorporated the programming information into his everyday life. She encouraged Mr. Moise to continue addressing the issues that led to his past violent offending, such as acceptance of criminal attitudes, cognitive distortions that may have contributed to a lack of empathy towards his

victims and substance abuse. [ 125 ] Mr. Moise completed the Aboriginal Basic Healing Program between August 14, 2014 and November 4, 2014. Mr. Moise was motivated to participate. It was noted that his behaviour and attitude reflected that he was taking some action towards change. [ 126 ] On March 4, 2014, Mr. Moise advised staff that he could not guarantee that he would not be involved in a violent act in the Saskatchewan Penitentiary. Mr. Moise stated that “if something goes down” he would “go all the way”. Subsequent to these comments, Mr.

Moise was segregated from other inmates for safety and security reasons. [ 127 ] In a July 20, 2014 Assessment for Decision, Correctional Service of Canada Report, at page 9, [text redacted]. The writer noted: No specific programming was identified in this areas, but it was anticipated participation in Aboriginal based interventions/activities as well as 1-1 with the Elders would assist MOISE in addressing issues in this area.

MOISE is seemingly progressing in this area as he voluntarily participated in Aboriginal High Intensity Domestic Violence Program, Wellbriety Program, and Aboriginal Basic Healing on his own accord. [ 128 ] The writer also noted that: MOISE has demonstrated throughout his incarcerations that he does have the ability to makes changes in his life...but unfortunately his words have spoken louder than his actions...MOISE has made progress in this area, and through Aboriginal based interventions, this trend will continue. [ 129 ] In the conclusion of the July 20, 2014 Assessment Decision at page 11, the writer noted: MOISE’S risk is not manageable in the community due to significant issues that are outstanding and must be addressed prior to any type of early conditional release.

As a result the CMT is of the belief there are no supervision programs at this time that would offer adequate protection to the public from the undue risk that he poses. [ 130 ] Day parole and full parole was denied. [ 131 ] By November 2014, there was a positive report regarding Mr. Moise’s participation in the Aboriginal Basic Healing Program. It was reported that Mr. Moise had a positive and productive working relationship with the program facilitator, the program Elder and other participants. Mr. Moise was described as a serious participant who shared on relevant topics. Further, Mr.

Moise was culturally engaged and involved himself in ceremony daily. [ 132 ] On January 27, 2015, Mr. Moise’s request for day parole was denied. At page 5 of that decision, the writer noted: File information concludes that you remain a relatively untreated offender in the areas of substance use, violence prevention, anger/emotions management, and employability skills.

You are currently assessed as a maximum security offender and prior to being considered manageable on any form of release it will be critical for you to address these factors effectively with a sustained understanding on how these issues are tied to your criminal activity. [ 133 ] [text redacted] iv) The August 31, 2016 Incident [ 134 ] As background regarding this incident, Mr.

Moise conveyed that there had been increased tension in the facility as a result of the inclusion of Toronto-based gang members of Somali descent in the institution and that there had been confrontations between these gang members and other inmates. Mr. Moise also described an influx of drugs in the institution which made inmates reactive and confrontational. He said there was also an influx of weapons in the institution, including the creation of shanks. [ 135 ] Mr. Moise stated he attempted to stay away from conversations regarding drugs and stay away from gang members.

He felt increasingly stressed by the tensions in the institution. [ 136 ] On August 31, 2016, Mr. Moise said he “reserved” a telephone in the institution by tipping a chair. He realized he had forgotten to bring a telephone number and had also forgotten to bring an antiseptic rag to wipe down that telephone. When he returned, he discovered one of the Toronto gang members, Mohamed Hassan, was using the telephone. Mr. Moise explained that he had reserved the phone and needed to make a telephone call. Mr. Hassan did not acknowledge the reservation and swore at Mr.

Moise, telling him twice to “get the fuck out of here. In Toronto, we do it this way”. Mr. Hassan’s friend, who was at the telephones, became involved in the exchange. Mr. Moise raised his voice and Mr. Hassan accused him of trying to get the attention of the Corrections Officers. Mr. Hassan put the telephone down. He threatened Mr. Moise by saying he would deal with Mr. Moise later. As Mr. Hassan walked away, he again said “We’ll fucking deal with you later”. Thinking his safety was in jeopardy, Mr. Moise reacted by striking Mr. Hassan on the side of his head twice. Mr. Moise then stopped. Mr.

Moise said he responded in order to protect himself. Had he not responded, said Mr. Moise, he thought he would later be in a situation where he would have been jumped or shanked by Mr. Hassan and / or his friends. Mr. Moise said he was acutely aware that if he had simply advised the correctional officers what had occurred, matters would have been much worse for him because he would have been labeled as a rat. [ 137 ] Mr. Moise said he has to, like other inmates, take threats seriously. He said he almost lost his life in jail after receiving threats that were later followed up with violence. Mr.

Moise said in order to survive in a jail setting, threats have to be immediately addressed, particularly when the threats originate from a gang member who has friends in the same facility. Given the increased tensions in the institution that summer resulting in incidents of violence, Mr. Moise was even more concerned that he had to immediately address the situation. Mr. Moise added that he responded in a manner that he believed would address the threat and stop any future attack on him.

[ 138 ] The investigating police officer, RCMP member Cst. Kevin Sabey, was not aware of any increased tension in the correctional centre as a result of Toronto based gangs. Further, he was not aware of any increase in weapon presence in the institution. However, he did state that he had no knowledge of active gang members in the institution. [ 139 ] Cst. Sabey seized a video tape from the Correctional Centre which recorded the incident. The video equipment was incapable of capturing any verbal exchanges between those involved. The video depicts Mr. Moise place a chair against the telephone and walk away.

It depicts Mr. Hassan approach and use the phone. It furthers shows another inmate, Jason Ursulin, have a heated exchange with Mr. Hassan. It then shows Mr. Moise’s return and Mr. Hassan hang up the phone and walk away. Finally, the video depicts Mr. Moise strike Mr. Hassan twice in the head area and then retreat. [ 140 ] Mr. Hassan’s ear was injured. Mr. Hassan refused to provide a statement to police. [ 141 ] Mr. Ursulin did provide a statement in which he said that words had been exchanged between Mr. Moise and Mr. Hassan but that he did not know what Mr. Hassan said to Mr. Moise. He described Mr.

Moise as the aggressor and said that when Mr. Hassan walked away from Mr. Moise, Mr. Hassan did not say anything. This videotaped statement is accepted as an exhibit during these proceedings but the contents are of limited value. This is discussed more fully later in the decision. [ 142 ] A videotaped statement was also taken from inmate Zabur Abdall who advised that there was a fight over the telephone. Because Mr. Abdall was on the telephone, he was unable to hear what the exchange was between Mr. Moise and Mr. Hassan. Mr. Abdall said that Mr.

Moise was simply looking for an excuse to punch someone, which he did when Mr. Hassan was walking away. Mr. Abdall did not want to testify and he was not called to do so. As such, the information provided in the audiotaped statement was not subject to cross-examination. This videotaped statement is also admitted into evidence but, again, the contents of the statement are of little value in determining what occurred on August 31, 2016.

This, too, is discussed further in the decision. [ 143 ] Corrections Officer, Paul Brown, testified that he was not aware that there was any build-up of tension as a result of the presence of Toronto-based gang members in the facility but he was aware of an incident in which an inmate went after one of the Toronto based inmates. Mr. Brown was aware of increased tensions because of overcrowding in the facility. One program room could not service programming because it had been turned into a dorm to accommodate the increased number of inmates. Mr.

Brown confirmed that there was an influx of drugs in the facility and also confirmed the ongoing presence of weapons or shanks. [ 144 ] After the incident occurred, Mr. Brown said Mr. Moise was fully compliant with the correctional staff. Mr. Brown commented that Mr. Moise had actually done quite well while in the remand unit where he had been for approximately nine years. Mr. Brown thought that Mr. Moise had coped quite well. In particular, Mr. Moise’s dedication to his education was an uncommon occurrence. Mr. Brown further commented that apart from Mr. Moise’s involvement in this incident, Mr.

Moise was, in the main, a good inmate. [ 145 ] Corrections Officer, Christopher Lemay, spoke to Mr. Moise within 10 minutes of the incident and spoke with him for no more than two minutes. Mr. Moise told him that Mr. Hassan had taken the telephone out of his hand and that no one should take the telephone from him. Mr. Lemay also stated that if inmates of Somali descent, such as Mr. Hassan and Mr. Abdall, was “muscling”, he was not aware of it and added that there are many things that occur in the facility that Corrections Officers are not aware of. Mr.

Lemay himself had been assaulted by an inmate associated with the Toronto based inmates of Somali descent who were then present in the institution. [ 146 ] Mr. Lemay was never asked to view the videotape of the incident by Cst. Sabey. There were other inmates in the video who Mr. Lemay was able to identify. However, he was never asked to do so by the investigator. There were inmates in proximity of the incident who were never spoken to by authorities. [ 147 ] Corrections Officer, Gisleher Reimer, spoke with Mr. Moise one to two hours after the incident. Mr. Moise was in his cell. Mr. Moise advised that Mr.

Hassan told him he better watch himself after Mr. Moise asked him to get off the telephone. Mr. Moise said the verbal exchange between them became heated and that Mr. Moise punched Mr. Hassan. Mr. Reimer described Mr. Moise as a bit agitated but respectful and polite. [ 148 ] Mr. Reimer said he has a good rapport with Mr. Moise and that his interaction with Mr. Moise has been quite positive. [ 149 ] Mr. Reimer was not asked by the investigator to view the videotape and identify others present at the time of the incident. [ 150 ] Regarding the information provided to both Mr. Lemay and Mr. Reimer, Mr.

Moise said that when he spoke with Mr. Lemay, he was still dealing with adrenaline-induced fear. He was also answering questions through a cell door and knew he had to raise his voice to speak to him. Mr. Moise did not want to be heard by other inmates telling the Corrections Officers that Mr. Hassan had threatened him for which he could get into trouble for. Again, he did not want to be a rat. [ 151 ] When Mr. Reimer spoke with him, Mr. Moise’s cell door was open and Mr. Moise could relate what happened without concern that other inmates would hear what he said. Additionally, Mr.

Moise felt more comfortable with Mr. Reimer than he did with Mr. Lemay.

v) Mr. Moise’s Recent Disclosures [ 152 ] [text redacted] [ 153 ] [text redacted] [ 154 ] [text redacted]

[ 155 ] [text redacted] [ 156 ] [text redacted] [ 157 ] [text redacted] [ 158 ] [text redacted] [ 159 ] [text redacted] [ 160 ] [text redacted] vi) The Gladue Report [ 161 ] Mr. Stuart Cadwallader of Kulus Consulting and Development prepared a Gladue Report dated January 12, 2016 [ Gladue Report]. The report contains much information regarding Mr. Moise and his family. Portions of that report are highlighted below. [ 162 ] Mr. Moise’s family is from Muskowekwan First Nation. Muskowekwan First Nation Territory was established by Treaty 4. During the past number of years, though incarcerated, Mr.

Moise has remained connected to and participatory in cultural activity and ceremony. [ 163 ] Mr. Moise’s paternal grandparents attended residential school. Mr. Moise’s grandparents spoke little of the time they were in residential school and in particular, of the abuse suffered there. Their residential school experience had a direct impact on their lives, relationship and ability to parent. They engage in violence and were alcohol addicted.

Ernest experienced abuse at the hands of his parents. [ 164 ] As noted, Ernest also attended residential school, beginning attendance when he was six years old until he was fifteen. Ernest’s experience at residential school created similar problems to those that afflicted his parents. Ernest consumed alcohol and used drugs regularly. He engaged in criminal behaviour which led to considerable time spent in jail. Ernest was not present to care for his children. [ 165 ] Mr. Moise’s maternal grandparents also attended residential schools. Their relationship was characterized by violence and addiction. Mr.

Moise’s maternal grandfather committed suicide in Mr. Moise’s mother, Keitha’s presence. [ 166 ] Keitha attended residential school for seven years, beginning when she was six years old. Keitha’s siblings also struggle with addiction as well as mental health issues. [ 167 ] Keitha was overwhelmed by parenting Mr. Moise and his siblings. She was addicted to alcohol and solvents. [ 168 ] The relationship between Ernest and Keitha was riddled with physical abuse, which, according to Mr. Moise was not an unusual event in the community in which they lived.

Such physical violence was not reserved only for Keitha and Ernest. Mr. Moise was assaulted by both parents, describing assaults perpetrated by Ernest as “humiliating beatings” ( Gladue Report, page 4). [ 169 ] [text redacted] [ 170 ] [text redacted] [ 171 ] When Mr. Moise was approximately nine years old, he witnessed the sexual abuse of his mother by her brother. [ 172 ] Mr. Moise also attended residential school. He is a fourth generation of residential school survivors. He has inherited the experience of dislocation from community, familial fragmentation, loss of cultural identity and values.

He has lost family members through substance abuse, violence and suicide. [ 173 ] The life of young Mr. Moise was impacted by “parental substance misuse, neglect, violence, [text redacted], and instability ( Gladue Report, page 3). Mr. Moise was left in the care of his siblings for days without any food in the residence while his mother engaged in solvent binges. [ 174 ] Mr.

Moise said these experiences negatively impacted him: “From the age of five I cultivated a mind-set not to let anyone ever hurt me again...to fight and be fierce...in expressing my rage I became an ugly, angry, and violent person” [ Gladue Report, page 5]. And further: “I’ve led a fear based life and it’s only now that I’m trying to develop the courage to fully disclose what happened to me and get the help I need” [ Gladue Report, page 5]. [ 175 ] Mr. Moise had a son with a former partner, Andrea. Andrea’s parents, Bob and Margaret Hughes have been and remain committed to be a support to Mr. Moise and his son.

They have travelled to the various institutions in which Mr. Moise has been held to visit him. [ 176 ] Mr. Moise advised the writer that he recognizes that many family members and friends continue to struggle with addictions and that he will have to separate himself from them in order to heal and be a parent. Mr. Moise believes that British Columbia would be the region he would like to continue his healing journey in, accessing programs and supports there to assist him. [ 177 ] Mr. Moise recognizes his polysubstance addiction and that he has limited ability to control his intake once he begins consuming. Mr.

Moise has connected his reliance on substances to his unaddressed childhood traumas. He recognizes that this protracted court process has brought him to the point where he has disclosed the [text redacted] issues that he has struggled with.

[ 178 ] Mr. Moise plans to apply to Correctional Service of Canada for an inter-provincial transfer from the Prairie Region to the Pacific Region and remain in British Columbia, depending on the outcome of these proceedings. [ 179 ] Mr. Moise has had limited educational success as a young person. His view is that he has undiagnosed learning disabilities. However, despite any learning challenges Mr. Moise may have, he taught himself to read when he was a teenager. Mr. Moise eventually completed his GED while incarcerated and has continued to pursue available educational opportunities. Mr. Moise also began writing.

He enrolled at the University of Athabasca and, with the assistance of his online tutor, Dr. Rochelle Sato, Mr. Moise continues to write with a hope of being a published author. [ 180 ] Mr. Moise wishes to pursue employment in British Columbia and wants to avail himself of the services of CORCAN, Correctional Service of Canada rehabilitation program, that provides inmates with skills training in the areas of manufacturing, textiles, construction and services. [ 181 ] Also, in British Columbia, Mr.

Moise wants to access the assistance of the Industry Trades Authority which works with local Indigenous organizations to assist Indigenous people to prepare for success in trades. [ 182 ] Mr. Cadwallader identified a number of community options available to offenders such as Mr. Moise in British Columbia. Those options include the Circle of Eagles Lodge Society which is a Correctional Service of Canada approved Aboriginal Community Residential Facility in Vancouver. The Society offers counselling, Sweat Lodge Ceremonies, and weekly healing circles.

Further options are the Vancouver Aboriginal Friendship Centre Society, The BC Indian Residential School Survivors Society, [text redacted] and the Warriors Against Violence Society. Finally, the Tsow-Tun Le Lum Aboriginal Treatment Centre, located in Lantzville, British Columbia, is a Correctional Service of Canada contracted 42-day inpatient/residential program specific to the treatment of survivors of trauma, mental health and addictions.

While there is a four to six month admission waiting list, once a participant is accepted, that acceptance is without cost when co-ordinated by a parole officer, physician or alcohol and drug counsellor. [ 183 ] Saskatchewan-based resources were also identified. [ 184 ] In custody treatment options were also detailed in the report, including the Integrated Correctional Program Model which Correctional Service of Canada began piloting in the Pacific Region in January 2010.

This integrated program is an innovative and holistic, moderate and high intensity intervention approach to Correctional Programs and includes an Aboriginal specific multi-target program to address the needs and risks of this specific offender group. The program will be offered in the Prairie Region in the near future. [ 185 ] The program contains a High Intensity Aboriginal Multi-Target Program which involves Aboriginal Elders and includes culturally-relevant teachings and ceremonies. This program consists of 112 group and individual sessions, each of which is two to two and a half hours in length.

According to the Correctional Service of Canada website, the program: ...teaches Aboriginal offenders skills that help reduce their risky and harmful behaviours. It helps them change their attitudes and beliefs. They learn to set goals and solve problems. They also learn to manage themselves and develop interpersonal, communication and coping skills. vii) Mr. Moise’s Release Plan [ 186 ] Mr. Moise provided the court with a detailed plan of reintegration into the non-custodial world. His plan includes commitment to cultural activity, spiritual practice, educational pursuits and emotional health. [ 187 ] Mr.

Moise has given thought to the fact that being permitted to move to a new jurisdiction would appropriately separate him from negative familial and community influences. Mr. Moise is aware that a move away from his family means that he has no immediate support group. He is also aware that if he stays in or near his home communities, he also has no abundant positive support. [ 188 ] Mr. Moise desires to move to British Columbia and more specifically live in Vancouver where he would reside in a half- way house and community residential facility called the Circle of Eagles Lodge.

It is a facility that provides care and support to aboriginal men, conditionally released from federal institutions. Its mandate is the promotion of pride and responsibility in its residents. Daily smudge ceremonies, weekly sweat lodge ceremonies and monthly pipe ceremonies are offered by an Elder. Additionally, an Elder provides canoe healing journeys. Support is also offered for substance dependencies and with employment skills training. [ 189 ] Mr. Moise recognizes his obligation to follow the rules in the structured environment of the Circle of Eagles Lodge.

He appreciates the importance of participation in alcohol dependency programming such as the AA Program as well as one-on-one counselling with an Elder. [text redacted] [ 190 ] Mr. Moise plans to further his post-secondary education at a local college situated in close proximity to the Circle of Eagles Lodge. Mr. Moise wishes to also enhance his writing and speaking skills. Mr. Moise’s ultimate goal is to record his life experiences to assist others who might share that experience. [ 191 ] In his release plan, Mr.

Moise describes a commitment to emotional health and reducing any inclination to non-healthy pursuits. Mr. Moise now recognizes that giving expression to the victimization he suffered as a young person and seeking assistance for those particularly devastating experiences is an obligation if his emotional health is to be achieved. [text redacted] . Mr. Moise has connected the abuse suffered as a young person, to the substance reliance and his own trauma-producing offending behaviour. [ 192 ] Mr.

Moise further plans to enrol in the programs offered by [text redacted] and the BC Indian Residential Schools Survivors Society [BCIRSS] while a resident of the Circle of Eagles Lodge. In particular, Mr. Moise plans to participate in the BCIRSS weekly men’s groups and a monthly meeting with a psychiatrist. He would also have access to a personal counsellor with the BCIRSS. [ 193 ] Mr. Moise further plans to become involved with the Warriors Against Violence Society, an organization which

provides programming for assaultive men. The program provides twice weekly meetings. The program mandate is to assist participants to unlearn abusive and violent behaviour and reclaim traditional values of equality, honour and respect for self and others. Mr. Moise is of the view that this program will enhance the information and tools learned through the High Intensity Aboriginal Family Violence Program, which itself was five and a half months in duration. [ 194 ] Mr.

Moise wants to also become involved with the Aboriginal Friendship Society which offers community based programming in health, culture, education and recreation. With the support of this organization, Mr. Moise hopes, through his writing and verbal stories, to assist others who have had similar life experiences as his. [ 195 ] Mr. Moise’s relationship with writing has assisted him to gain insight. He desires to continue writing. He has completed a book written for his son. He has plans to pen an autobiography and to produce a collection of songs and poetry. [ 196 ] Mr.

Moise has identified the above plans which would cover an approximate 18 months period and has also given thought to the resources available to him for further support and healing. [ 197 ] Mr. Moise wants to participate in the Tsow-Tun Le Lum Aboriginal Treatment Centre which offers a 42 day in-patient/ residential program, as outlined above. In particular, Mr. Moise wants to participate in two programs at the Centre. The first is an intensive residential substance abuse treatment program based on Aboriginal principles. The second program is a four week second stage recovery program with a focus on trauma.

This program is designed to address mental health and trauma faced within the Aboriginal community. [text redacted]. [ 198 ] In the course of expressing his plan to seek support while continuing to pursue emotional health, Mr. Moise candidly explained that gains made in his previous programming were intellectually grasped but not deeply entrenched because [text redacted]. [ 199 ] In his written release plan provided to the court, Mr.

Moise stated: ...Therefore, it is my later adult years, I have gained a maturity and newfound depth of insight which allows me to understand how I have victimized other people and quite possibly left them feeling the same type of insecurities and hurt I knew only too well growing up.

It is through my words and my ongoing work at becoming a healthier human being, that I can assure the court I am remorseful for my past violent actions and I can further assure the court that I will continue to do the necessary work on my life issues which will further help to ensure that I need not ever feel the desire to self- medicate or try to remedy my issues with the use of alcohol. [ 200 ] [text redacted] viii) Witnesses Crown Witnesses Dawn Glen [ 201 ] Ms. Glen is a supervisor with Community Corrections for the Ministry of Justice. Ms. Glen began her employ with the Ministry in 2000 as a youth worker.

She worked directly with Mr. Moise when he was a youth. Leanne Skene [ 202 ] Leanne Skene, a 16 year veteran of Correctional Service of Canada, testified that a new Integrated Correctional Program Model for federal inmates will not be available in the Prairie Region in the fall of 2016. [ 203 ] Ms. Skene provided her view that Mr. Moise would be placed in maximum security if he is sentenced to federal time at the conclusion of these proceedings. Ms. Skene stated that should Mr. Moise be declared a dangerous offender, he would still be able to access the same programming as other inmates. [ 204 ] Ms.

Skene stated that Mr. Moise has received appropriate programming for his needs. Difficulty arises because he has not applied the skills he has learned. She did note that there would be benefit to anyone in taking the program again, particularly with the advantage of age and maturity. Alan Beasley [ 205 ] Alan Beasley is a community parole officer with Corrections Service of Canada and has been so employed for 23 years.

He testified that the goal of the Correctional Service of Canada is to address the specific factors that brought an offender into conflict with the law and to provide appropriate programming to allow that offender to be safely released into the community. He stated that at the intake stage, an offender’s specific history, such as Aboriginal social history, is taken into account. [ 206 ] Mr. Beasley stated that those designated as dangerous offenders are able to access the same programs as other inmates. Culturally sensitive programming is available if appropriate for an offender.

Kimberley Naylen [ 207 ] Kimberley Naylen is employed by the Ministry of Justice, Corrections and Policing. She has worked in Community Corrections - Adult since 2009. She is currently a supervisor of Community Corrections - Adult. She testified that offenders subject to probation orders are given access to community based programs.

Paul Brown [ 208 ] Paul Brown was the Assistant Deputy Director of the Regina Provincial Correctional Centre. He was responsible for its day-to-day management. Mr. Brown was also a unit supervisor in the Correctional Centre. He was well-acquainted with Mr. Moise given the amount of time Mr. Moise has spent on the remand unit of the Correctional Centre. [ 209 ] Mr. Brown testified that Mr. Moise’s behaviour in the Correctional Centre was not bad in the period of 2008 to 2012, though Mr. Moise was involved in a few incidents of fighting. Subsequent to 2012, Mr. Brown testified that Mr.

Moise was aggressive with another inmate and Mr. Moise removed his shirt. Mr. Brown had no idea about what precipitated that event. James Gonzo [ 210 ] Mr. Gonzo has worked with the Correctional Service of Canada since 1988. Mr. Gonzo testified that Mr. Moise did well during programming while serving all three of his federal sentences. [ 211 ] Mr. Gonzo testified that letters were found in Mr. Moise’s personal effects prior to the commission of the predicate offences. Mr. Moise wrote about breaching his conditional release, being the subject of a Canada-wide warrant and traveling with a woman. Mr.

Moise also wrote poetry about shooting enemies and disposing of their bodies. Mr. Moise testified that these writings were simply creative license and did not reflect anything he planned to do. [ 212 ] Mr. Gonzo advised that in 2015, the Parole Board of Canada thought that Mr. Moise’s risk was unmanageable. [ 213 ] Mr. Gonzo confirmed that Correctional Service of Canada Log Notes do not always convey fulsome information. He stated that, at times, when an inmate acts with violence, it is done for his safety. Mr. Gonzo also stated that the incidents Mr.

Moise was involved in while incarcerated became less and less serious over time. Natalie Day [ 214 ] Natalie Day is a Correctional Service of Canada Parole Officer. Ms. Day met Mr. Moise in her capacity as a Parole Officer in the Pacific Region when he was transferred there. She explained Mr. Moise’s transition out of a custodial setting in 2005 – 2007 was too rapid. Defence Witnesses Robert and Margaret Hughes [ 215 ] Mr. Hughes is Mr. Moise’s former father-in-law. Mr. Hughes has known Mr. Moise since he was a teenager. Mr.

Hughes is a psychiatric nurse and has worked for the Canadian Mental Health Association for 30 years. [ 216 ] Mr. Hughes has offered his support to Mr. Moise if Mr. Moise was released back into the community. [ 217 ] Similarly, Ms. Hughes, Mr. Moise’s former mother-in-law, considers Mr. Moise to be a son and has offered her support to Mr. Moise. She is willing to travel to provide that support if Mr. Moise was to be released into the community in British Columbia. Dr. Roch

[…]