HIS MAJESTY THE KING - v. –, 2022 SKKB 215

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 215 Date: 20 22 09 16 Docket: CRM-RG-00447-2018 Judicial Centre: Regina BETWEEN: HIS MAJESTY THE KING - and – PHILLIP LIONEL LEVAC PUBLICATION RESTRICTION: The publication of these reasons is restricted pursuant to ss. 486.4(1) of the Criminal Code such that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way. Counsel: Roger V. DeCorby for the Crown Andrew L. Hitchcock and Taylor R. Bereziak for the respondent ORAL JUDGMENT MITCHELL J. SEPTEMBER 16, 2022 I.

FACTUAL BACKGROUND [ 1 ] Phillip Lionel Levac [Mr. Levac] was found guilty following a judge-alone trial on a four-count indictment. The indictment reads as follows: 1. THAT HE, the said PHILLIP LIONEL LEVAC, on or about the 12 th day of April, A.D. 2018, at or near Regina, Saskatchewan, did commit a sexual assault on Z.H., a person under the age of sixteen years, contrary to

section 271 of the Criminal Code . 2. THAT HE, the said PHILLIP LIONEL LEVAC, on or about the 12 th day of April, A.D. 2018, at or near Regina, Saskatchewan, did, for a sexual purpose, touch directly or indirectly, with a part of the body, his penis, a part of the body of Z.H., a person under the age of sixteen years, contrary to

section 151 of the Criminal Code .

3. THAT HE, the said PHILLIP LIONEL LEVAC, on or about the 15th day of April A.D. 2018, at or near Regina, Saskatchewan, didcommit a sexual assault on Z.H., contrary to

section 271 of the Criminal Code. 4. THAT HE, the said PHILLIP LIONEL LEVAC, on or about the 15th day of April A.D. 2018 at or near Regina, Saskatchewan, did,for a sexual purpose, touch directly or indirectly, with a part of the body, his penis, a part of the body of Z.H., a person under the age ofsixteen years, contrary to

section 151 of the Criminal Code. [2] After delivering my verdict, I stayed the two charges relating to sexual interference contrary to s. 151 of the CriminalCode, RSC 1985, c C-46 based on the principle in Kienapple v R, (SCC), [1975] 1 SCR 729. See: R v Levac, 2020SKQB 171. [3] Subsequently, the Crown brought an application pursuant to s. 753(1) of the Criminal Code seeking to have Mr.

Levac declared a dangerous offender and sentenced in accordance with ss. 753(4)and 753(4.1) of the Criminal Code to an indeterminate period of detention in a penitentiary. [4] On June 26, 2020, I made an order pursuant s. 752.1 of the Criminal Code that Mr. Levac be examined by Dr.Shabehram Lohrasbe [Dr. Lohrasbe], a forensic psychiatrist, for purposes of obtaining a forensic psychiatric assessment of Mr. Levac,and that Dr. Lohrasbe file an assessment report with the court. Subsequently, Dr. Lohrasbe’s report was filed on September 10, 2020[Lohrasbe Report].

The Lohrasbe Report was entered into evidence as Exhibit C-2. [5] Prior to the commencement of the hearing of the Crown’s dangerous offender application, however, Mr. Levac hadbeen charged with aggravated assault of a fellow inmate contrary to s. 268(2) of the Criminal Code following an incident in the ReginaCorrectional Centre which occurred on January 24, 2021. Shortly after, the hearing originally scheduled for early 2021 was adjournedpending the resolution of this criminal charge. [6] Due to COVID-19 restrictions among other things, Mr.

Levac’s dangerous offender hearing was further delayed.Ultimately, it commenced on January 10, 2022, and the evidentiary portion of the hearing concluded on January 21, 2022. Mr. Levac didnot testify. The matter was then adjourned to May 27, 2022 for final argument. [7] On February 14, 2022, Hinds P.C.J. delivered his verdict respecting this charge, and convicted Mr. Levac ofaggravated assault. See: R v Levac, 2022 SKPC 7 [Levac]. [8] On March 16, 2022, a telephone conference call was convened at the request of Crown counsel. Both Mr. DeCorbyand Mr. Hitchcock participated, as did Mr.

Levac from the Regina Correctional Centre. At that time, Mr. DeCorby asked that I order thedecision in Levac be forwarded to Dr. Lohrasbe for his consideration to determine whether Mr. Levac’s recent conviction changed any ofhis conclusions contained in the Lohrasbe Report. Mr. DeCorby characterized this an “addendum” to the Lohrasbe Report. [9] On April 12, 2022, I acceded to the Crown’s request and made an order pursuant to s. 752.1 of the Criminal Codeasking Dr. Lohrasbe to provide such a document. [10] On April 19, 2022, Dr. Lohrasbe filed an addendum to his initial report [Addendum]. In this document, Dr.

Lohrasbeexpressed disappointment “that Mr. Levac, knowing that he faced Dangerous Offender proceedings, nevertheless engaged in violence inthe institution”. However, he went on to state that “the opinions expressed in my report and testimony are not significantly impacted byhis conviction for the Aggravated Assault on Mr. Lavallee. . .; rather, it provides an important example and focus for future treatment”:Addendum at page 2. [11] Subsequently, this document was entered into evidence as Exhibit C-3. Mr.

Hitchcock did not seek to have Dr.Lohrasbe recalled and cross-examined on the contents of the Addendum. [12] On June 24, 2022, final arguments on the Crown’s dangerous offender application were presented by Mr. DeCorby onbehalf of the Crown and Mr. Hitchcock on behalf of Mr. Levac. At its conclusion, I reserved my decision and set today as the date ofdelivering my decision. [13] I have reviewed the chronology of events in some detail to explain the passage of time it took to complete this mostserious process. II. THE ISSUES [14] The following issues fall to be decided on this dangerous offender application: (

a) Is Mr. Levac a dangerous offender? (

i) Do the predicate convictions of sexual assault under s. 271 constitute a serious personal injury offence pursuant to s. 752 (

a) ofthe Criminal Code? (ii) If yes, does Mr. Levac constitute a threat to life, safety or physical or mental well-being of other persons because the predicateoffenses are part of a pattern of Mr. Levac’s: (

A) violent unrestrained behaviour which is likely to cause death or injury to others in the future; or (

B) persistent aggressive behaviour characterized by a substantial degree of indifference to the reasonably foreseeable consequencesof that behaviour to other persons?

(

b) If Mr. Levac is a dangerous offender, is an indeterminate or a determinate sentence appropriate? [15] These reasons will explain why I find Mr. Levac is a dangerous offender. I have decided to impose a determinatesentence coupled with a long-term supervision order as opposed to an indeterminate sentence as I am satisfied this lesser measure willadequately protect the public from Mr. Levac committing another serious personal injury offence in the future. III. THE PREDICATE OFFENCES [16] The female victim of the two sexual assaults was 14 years old at the time those offences took place. Mr.

Levac was 31years of age. The victim first came into contact with Mr. Levac in the weight room of Regina’s Lawson Aquatic Centre [Lawson]. Hevolunteered to assist her to improve her weight-lifting skills and asked for her phone number. Mr. Levac and the victim began textingand snap-chatting each other frequently following their initial meeting. [17] The first offence occurred a few weeks after the victim and Mr. Levac had met. He texted the victim and invited her tocome to the residence he shared with his mother. She went to his house thinking they would “hang out” for a time. However, when shegot there, Mr.

Levac immediately picked her up, carried her to his bedroom, and threw her on his bed. He then got on top of her andstarted kissing her. Eventually, he removed her clothing and inserted his penis into her vagina; however, he pulled out before heejaculated. Mr. Levac did not wear a condom during this sexual assault. [18] The second sexual assault took place a few days later. Mr. Levac and the victim had trained together at the Lawson, andhe asked her to return with him to his home. Reluctantly, the victim agreed. When they arrived together at Mr.

Levac’s residence, heagain carried the victim to his bedroom and proceeded to have vaginal intercourse with her. This time he withdrew and ejaculated on thevictim’s back. [19] Following this last sexual assault, the victim texted Mr. Levac and told him she did not want to see him again. Sheblocked him from communicating with her on all social media and texting applications. [20] A few days later, the victim disclosed these assaults to her mother who immediately called the Regina Police Service. [21] Both the victim and her mother filed victim impact statements at the hearing of this application. IV.

POSITION OF THE PARTIES [22] Mr. DeCorby on behalf of the Crown submitted that Mr. Levac meets the criteria for designation as a dangerousoffender. He asks that I impose an indeterminate sentence respecting these offences as a determinate sentence and a long-termsupervision order would not adequately protect the public. [23] Mr. Hitchcock on behalf of the respondent opposed the Crown’s application to designate Mr. Levac as a dangerousoffender. Instead, he submits I should impose a determinate sentence of two to three years less credit for pretrial custody followed by along-term supervision order. V.

LAW [24] Dangerous offender proceedings under

Part XXIV of the Criminal Code are sentencing proceedings. Like all sentencinghearings, it is the duty of a judge in a dangerous offender proceeding to determine a fit sentence. See: R v Laprise, 2022 SKCA 77 atpara 29, [2022] 9 WWR 191 [Laprise]. [25] The objective of the dangerous offender regime is the protection of the public from the risk of violent harm. See: R vJohnson, 2003 SCC 46 at para 29, [2003] 2 SCR 357 [Johnson] and R v A.R., 2022 ONCA 553 at para 33 [A.R.].

The inquiry to beconducted requires evidence of treatability that is more than mere speculative hope and indicates that the offender is treatable within anascertainable time. See: A.R. at para 33, and R v Straub, 2022 ONCA 47 at para 64, 411 CCC (3d) 119 [Straub]. [26] The dangerous offender regime differs from ordinary sentencing, however, because it authorizes indeterminatesentences to be imposed on a preventative basis: R v Natomagan, 2022 ABCA 48 at para 93.

Indeterminate sentences have the potentialto be cruel and unusual punishment as their effects on the offender can be “profoundly devastating”: R v Lyons, (SCC),[1987] 2 SCR 309 at 339 [Lyons]. To avoid such a result, the governing legislation sets out detailed and demanding criteria for such adesignation so as “to carefully define a very small group of offenders whose personal characteristics and particular circumstances militatestrenuously in favour of preventive incarceration”: Lyons at 339.

See also: R v Boutilier, 2017 SCC 64 at para 3, [2017] 2 SCR 936[Boutilier]. [27] A dangerous offender proceeding is a two-stage process, namely the designation stage and the penalty stage. See:Boutilier at paras 13-15, and Straub at para 52. [28] The Crown bears the onus to prove beyond a reasonable doubt that the respondent in this application is a dangerousoffender and there is a high likelihood that the offender will reoffend putting public safety at risk of murder or serious bodily harm.

See:R v Currie, (SCC), [1997] 2 SCR 260 at para 42. [29] The psychiatric assessment presented on the application is not dispositive. The sentencing judge is obliged to reach hisor her conclusion related to future risk posed by the offender based on the totality of the evidence presented. See: R v Allen, 2007 ONCA421, 86 OR (3d) 376 [Allen], and R v R.M., 2007 ONCA 872, 228 CCC (3d) 148. VI. EVIDENCE A. Documentary Evidence and Witnesses

[ 30 ] At the hearing of the Crown’s application, extensive evidence was lead both in the form of documentary evidence as well as viva voce testimony from 13 witnesses. All witnesses called to testify did so by WebEx. [ 31 ] The exhibits which were filed included: 1) Exhibit P-3 – Binder of Mr. Levac’s Court Records 2) Exhibit P-4 – Binder of Mr. Levac’s Manitoba Court Records 3) Exhibit P-5 – Binder of Correctional Services Canada Records 4) Exhibit P-9 – Binder of Saskatchewan Provincial Correctional Records [ 32 ] The following 12 witnesses testified on behalf of the Crown: 1) Mr.

Ferlin Asham, an official with Manitoba Corrections; 2) Mr. Randy Kenning, an employee of Correctional Services Canada working as a parole office at Stoney Mountain Institution in Manitoba; 3) Ms. Kristy Boch, an employee of Correctional Services Canada currently working as a parole officer at the Winnipeg Urban Area Parole Office; 4) Mr. Blake Edwards, an employee of Correctional Services Canada currently working at the Saskatchewan Penitentiary in Prince Albert, Saskatchewan; 5) Ms.

Connie Lam, an employee of Correctional Services Canada employed as a parole officer at the Saskatchewan Penitentiary in Prince Albert, Saskatchewan; 6) Ms. Caitlin Chalupiak, an employee of Correctional Services Canada currently working as a Correctional Program Facilitator at the Saskatchewan Penitentiary in Prince Albert, Saskatchewan; 7) Mr. Barry Beauchesne, an employee of the Saskatchewan Ministry of Corrections, Public Safety and Policing currently working as a supervisor at the Regina Community Corrections Office; 8) Ms.

Ginelle Peterson, an employee of Correctional Services Canada currently working as the Acting Area Director for North Central Saskatchewan Parole and located in Prince Albert, Saskatchewan; 9) Ms. Tracey Lee Sirota, an employee of Correctional Services Canada currently working as the Manger of Programs at the Regional Psychiatric Centre in Saskatoon, Saskatchewan; 10) Mr. Dale Miller, an employee of Correctional Services Canada currently working as a community parole officer with Prince Albert Parole in Prince Albert, Saskatchewan; 11) Mr.

Michael Pyle, an employee of the Saskatchewan Ministry of Corrections, Public Safety and Police currently working as an Assistant Deputy Director of Programs at the Regina Correction Centre, and 12) Sergeant Erin Decterow formerly the High-Risk Offender Co-ordinator for the Regina Police Service. [ 33 ] As noted, Mr. Levac did not testify at this hearing. [ 34 ] The final witness was Dr. Lohrasbe, the court-appointed forensic psychiatrist who resides in Victoria, British Columbia. At the time he filed his report in September 10, 2020, he had been practicing medicolegal psychiatry for more than 35 years.

He has been qualified as an expert witness more than 600 times in trial courts in British Columbia, Alberta, Saskatchewan, Manitoba, Nova Scotia, the Yukon, and Northwest Territories. At the outset of his testimony, Dr. Lohrasbe was qualified to “give opinion evidence with respect to violent and sexually violent men regarding risk for future offending and the potential for the reduction of that risk”. Not surprisingly, Mr. Hitchcock did not challenge Dr. Lohrasbe’s expertise. [ 35 ] I will refer to Dr.

Lohrasbe’s evidence as well as the Lohrasbe Report later in my reasons. [ 36 ] I do not intend to rehearse in detail the testimony given by these witnesses at the sentencing hearing. Rather, I offer a recitation of the information I consider most pertinent to the issues I must decide. That said, I have considered the evidence given by all the witnesses in the preparation of my judgment. B. Mr. Levac’s Criminal History [ 37 ] Mr. Levac has a significant criminal history consisting of acts of violence and sexual violence. His victims were predominantly female. A

summary of his convictions is reproduced below: Offence Date of Sentence / Age at Sentence / Sentence Details of offence

Section 264.1(1)(

a) Threatening August 29, 2002 – 14 years old – 1 year probation, 35 hours of community service. Mr. Levac was residing at a group home in Thompson, MB when he threatened a female youth worker saying he was going to “smash her face in”. He pled guilty to this offence.

Section 266 Assault August 21, 2003 – 15 years of age – 4 months closed custody, 2 months community supervision. Mr. Levac in an unprovoked attack punched a 14-year-old male who was a stranger to him at the fairgrounds in Thompson, MB. When the victim fell to the ground, Mr. Levac stomped on his head four times. He pled guilty to this offence. Sections 85(1)(a), 88 August 21, 2003 – 15 years of age – 4 months closed custody, 2 months community supervision. Mr. Levac fired a .22 rifle shell that went through the back window, then the front window of a truck in Thompson, MB.

The owner was working underneath the truck at the time. Police arrested Mr. Levac and found him in possession of a knife. He pled guilty to these offences.

Section 271 Sexual Assault December 8, 2005 – 18 years of age – 12 months closed custody, 6 months community supervision. Mr. Levac was walking with the female victim, R.C. to a store to buy cigarettes. On the way he put his arm on her shoulder, then slipped his arm around her neck and choked her until she became unconscious. When the victim regained consciousness, she was faced down on the ground, her pants and underwear were pulled down, and Mr. Levac was sexually assaulting her. He pled guilty after the trial had begun when DNA results came back.

Section 372(2) Indecent Communications July 12, 2006 – 18 years of age – 2 years probation. Mr. Levac made seven indecent phone calls to a female staff member of the Agassiz Youth Centre. Each time he made vulgar sexual statements and would breathe heavily into the phone. Mr. Levac also made seven or eight indecent phone calls to another female staff member. She only answered once, and he said “suck my cock”. She hung up immediately. These offences occurred in Thompson, MB. Mr. Levac pled guilty to these charges. Section 372(2) Indecent Communications April 10, 2008 – 21 years of age – 3 months jail consecutive.

Mr. Levac made 12 indecent phone calls to a female member of the Royal Canadian Mounted Police stationed at Brandon, MB. He would not identify himself and breathed heavily into the phone as though he was masturbating. He made vulgar sexual remarks to the victim such as “do you want to come over and touch my big fat cock”. Mr. Levac pled guilty to these charges. Section 348(1)(

b) Break and enter with intent to commit an indictable offence April 10, 2008 – 21 years of age – 57 months jail less 10.5 months remand credit. Mr. Levac was visiting with C.C., the female victim and some of her friends at C.C.’s residence in Brandon, MB. He purported to leave but, instead, he hid in the building until C.C.’s other friends had left. He then returned to C.C.’s apartment saying he had left his cell phone there. The victim would not let him in, and locked the door. Later, Mr. Levac broke into the apartment and got into bed with C.C. He held her down by her throat and said “shut up and kiss me”.

The victim told Mr. Levac she was sick and needed a drink of water. She was finally able to escape because her apartment had an adjourning door with her landlord’s apartment. Mr. Levac pled guilty.

Section 349 Being Unlawfully in a Dwelling House October 10, 2010 – 23 years of age – 6 years jail. After drinking at a mutual friend’s residence, Mr. Levac and M.M., the female victim, went back to her residence in Brandon, MB. After he left, the victim secured her door and went to bed. Later she awoke to find Mr. Levac in her bedroom. He had stolen her house keys just before he left. He climbed on top of M.M., put his hands on her throat and sexually assaulted her. Mr. Levac pled guilty.

Section 270(1)(

a) Assaulting a peace officer or public officer November 13, 2013 – 26 years of age - $500 fine. The victim, a male correctional officer at the Saskatchewan Penitentiary in Prince Albert, SK, ordered Mr. Levac to lock up. Mr. Levac challenged the victim to “make him lock up”, and threw two coffee makers at him, spraying the victim with coffee and coffee grounds. Mr. Levac then spat on the victim. He pled guilty.

Section 266 Assault November 4, 2015 – 28 years of age – 6 months jail consecutive. Mr. Levac and a fellow inmate at the Saskatchewan Penitentiary in Prince Albert, SK were playing cards. Mr. Levac became angry, grabbed the victim by the throat and pushed him to the ground. He continued to punch the victim in the face approximately 10 times causing him to bleed. Mr. Levac pled guilty. Section 145(3) Breach of Undertaking October 26, 2017 – 30 years of age – 60 days jail, less 33 days remand credit. Mr. Levac was subject to a recognizance while a s. 810.2 application was before the court in Regina, SK.

He became involved in a romantic relationship and did not advise his probation officer of his relationship. He was charged with a breach of his recognizance. He pled guilty.

Section 810.2 March 1, 2018 – 30 years of age – 1 year peace bond recognizance. Mr. Levac was detained until his warrant expiry date. The Regina Police Service recommended he be subject to a s. 810.2 recognizance as he continued to be assessed as a hight risk to commit sexually violent offences. Mr. Levac voluntarily entered into the recognizance. Section 268(2) Aggravated Assault February 14, 2022 (date of conviction) – 33 years of age – sentence unknown. Mr. Levac assaulted a fellow inmate with whom he had shared a cell for a short time.

Subsequently, the two met in a hallway, and a verbal and physical altercation took place. It took four correctional officers to separate the two men. The victim, Mr. Lavelle was bleeding profusely from two lacerations to the head. Mr. Levac was unhurt. He was convicted of this offence by Hinds P.C.J. C. Mr. Levac’s Personal History [ 38 ] Mr. Levac was born on October 10, 1987 in Thompson, Manitoba. He is the youngest of two children. His older sister from whom he is estranged currently lives in Alberta. Mr.

Levac’s parents separated when he was about 14 or 15 years old, and he has not seen or had contact with his father since he was 16 years old. Mr. Levac described his father to Dr. Lohrasbe as authoritarian and dictatorial. His father was a union organizer in the nickel mine located at Thompson. [ 39 ] Mr. Levac’s mother – Holly – is a registered nurse, and taught nursing throughout much of his childhood. She has been, and continues to be, his principal support, and he maintains regular contact with her by telephone. Mr.

Levac was residing with his mother at her residence in Regina when the predicate offences occurred. Currently, Mr. Levac’s mother lives in or near Victoria, British Columbia. [ 40 ] Mr. Levac did not like attending school. Grade three particularly was a difficult, if not traumatic year for him. What he experienced during that time dominates his childhood memories. His grade three home room teacher, Mr. Levac described to Dr. Lohrasbe as “sadistic and sexually deviant”, and made him feel useless and worthless like garbage. [ 41 ] Mr. Levac became involved in the criminal justice system around the age of 14. Mr.

Asham testified that after his first probation order until he “aged out” of the youth criminal justice system, Mr. Levac was constantly supervised under a custodial sentence, remand custody or a community supervision order. [ 42 ] Even though Mr. Levac had a troubled youth, he had significant parental support during those years, including support from his father from whom he has been estranged for decades. This included his parents underwriting private psychological counselling for him in attempts to ameliorate some of the situations Mr. Levac created for himself. Dr.

Lohrasbe testified that such parental concern and support is uncommon among sexual offenders whom he has interviewed. [ 43 ] Mr. Levac’s school years were marred by “his poor academic performance and increasing behavioural problems”, and he “dropped out of school at grade nine”: Lohrasbe Report at page 6. At some point, he was diagnosed with Attention Deficit Hyperactivity Disorder. To his credit, however, since he has been in the federal prison system, Mr. Levac has received his general equivalency diploma [GED]. Ms.

Boch testified that the GED is equivalent to high school matriculation. [ 44 ] In March 2007, Mr. Levac was 19 years of age, living with his mother, and while subject to a community supervision order imposed as part of the court’s sentence for his assault on the female victim, R.C. Despite being heavily supervised by Intensive Support Supervision Program in Manitoba, he committed a set of sexually impulsive offences contrary to s. 372(2) of the Criminal Code .

[ 45 ] Mr. Levac was first sentenced to a federal penitentiary on April 10, 2008 after being convicted of the sexual assault of M.M. on August 5, 2007. Mr. Kenning who was the intake parole officer at the time Mr. Levac first came to Stony Mountain Penitentiary in Manitoba, testified he initially assessed Mr. Levac as a high risk to reoffend. Yet, he did not consider him to be a detention candidate. [ 46 ] Mr. Levac’s time as a federal prisoner was difficult, to say the least. Dr. Lohrasbe recounted Mr. Levac’s experiences at page 9 of the Lohrasbe Report as follows: Mr.

Levac acknowledged that he has had difficulty complying with expectations while in custody. He estimates he has been in segregation on about six occasions, the longest was between nine and 12 months at Stony Mountain. He states that it was due to “negative behavior on and off the unit”, using the official language. Asked about the homemade shanks found in his cell, Mr. Levac stated that he did not know about them but was fearful of stating that they were not his, as that would lead to the prior inmate who lived in the cell being charged, who was a gang member.

He decided to simply pay the price with one more term of segregation. Asked if he could recall the most serious institutional charge he faced during his incarceration, he stated “ I threw a coffee pot at the guard .” He worked various jobs during his federal term, including a cook, cleaner, canteen, and being a member of the Inmate Committee. He estimates that he spent between two and two and a half years of his federal sentence at Stony Mountain and about six at the Saskatchewan Penitentiary.

There was also a brief stay at Edmonton Max after the riot. [Italics in original] [ 47 ] The specific incident referred to in Dr. Lohrasbe’s

summary occurred in December 2012 when Mr. Levac threw two coffee pots at a corrections officer and then barricaded himself in a room. He received an institutional penalty of 30 days segregation. He was eventually released from segregation back to maximum security on or about February 7, 2013. Subsequently, he pled guilty to a criminal charge arising from this altercation and was sentenced on November 13, 2013. [ 48 ] As a result of Mr.

Levac’s time in segregation, as well as travelling between Manitoba and Saskatchewan in order for him to be present for criminal proceedings against him in the Manitoba courts, he was never able to complete any of the programming he so desperately needed. [ 49 ] For example, in October 2016, Mr. Levac commenced the moderate version of the National Sex Offender Program. However, his participation in that program was disrupted when he was again placed into segregation after he allegedly assaulted another inmate on or about October 17, 2016. Subsequently, it was determined that Mr.

Levac should be transferred to maximum security, and he was transferred to the Edmonton Institute due to a major riot at the Saskatchewan Penitentiary. When Mr. Levac was returned to the Saskatchewan Penitentiary, he remained in segregation until his warrant expiry date of April 6, 2017. Nevertheless, he remained on remand at a provincial correctional centre on a charge of aggravated assault on a fellow inmate. [ 50 ] On September 15, 2017, Mr. Levac was acquitted by a provincial court judge on the charge of aggravated assault. [ 51 ] After Mr. Levac’s acquittal, Sgt. Decterow swore a s. 810.2 application. Mr.

Levac was again arrested and released from custody on September 20, 2017 on an interim release document. In accordance with its conditions, Mr. Levac reported to Sgt. Decterow on September 26, 2017. His mother attended with him. At that time, they discussed Mr. Levac voluntarily entering into a s. 810 recognizance; however, he demurred. [ 52 ] Almost immediately, after his meeting with Sgt. Decterow, Mr. Levac was discovered to have breached a condition of his interim release, namely, to report all sexual or close personal relationships to his probation officer.

On October 6, 2017, he was charged with a breach and remanded into custody. [ 53 ] On October 26, 2017, Mr. Levac was sentenced to 60 days in jail for this breach, less 33 days credited for time spent in pre-sentence custody. After his release back into the community on or about November 10, 2017, Mr. Levac continued to report to his probation officer regularly. [ 54 ] On December 12, 2017, Mr. Levac’s probation officer advised he would be required to attend sex offender programming in the new year. Mr.

Levac was less than enthusiastic about this prospect. [ 55 ] Between January 8, 2018, and March 26, 2018, however, Mr. Levac did participate in Community Corrections Psych- Education Program for Sexual Offending Behaviour. At its conclusion, Mr. Levac was assessed as having participated in the program fully. Indeed, on March 26, 2018, the program facilitator had this to say about Mr. Levac’s participation: [Mr. Levac] attended to group as directed. [Mr. Levac] presented a thorough and thoughtful Safety Plan. It is evident that [Mr.

Levac] has a good understanding of his risk areas as well as strategies for remaining offence free. (Crown’s brief of law at para. 55) [ 56 ] It was shortly after he had completed this sex offender programming that Mr. Levac made initial contact with Ms. Z.H., the female victim in the predicate offences for which he was found guilty, and now awaits sentencing. [ 57 ] On April 16, 2018, Mr. Levac was arrested on charges of sexually assaulting the female minor victim and has been held on remand ever since. Currently, he awaits sentencing on this dangerous offender application brought by the Crown.

[58] Most recently, on February 2, 2022, Mr. Levac was convicted of yet another assault on a fellow inmate. At the time thisoffence took place he was awaiting the hearing of this dangerous offender application brought by the Crown. [59] Particularly relevant to this proceeding, it is important to note that Mr. Levac has only recently begun to acknowledgehis Indigenous ancestry which he traces through his paternal grandmother. He is of Métis descent. At the hearing his counsel, Mr.Hitchcock, filed a treaty card which was entered into evidence as Exhibit D-2. This fact engages a consideration of

section 718.2(

e) ofthe Criminal Code, and the principles identified in R v Gladue, (SCC), [1999] 1 SCR 688 [Gladue], and its progeny.See, especially: Laprise at paras 34-37; R v Ballantyne, 2022 SKCA 13 at para 23 [Ballantyne], and R v Moise, 2015 SKCA 39 at paras24-26, 457 Sask R 190. VII. ANALYSIS [60] I propose to analyse the Crown’s application to have Mr. Levac sentenced as a dangerous offender in accordance withthe two stages of this regime identified in Boutilier, namely the designation stage, and the penalty stage. A.

The Designation Stage [61] To have an offender designated as a dangerous offender, the Crown must prove four elements beyond a reasonabledoubt. These elements are: (1) the offender has committed, and is to be sentenced for, a serious personal injury offence; (2) the seriouspersonal injury offence is part of a broader pattern of violence as described in s. 753(1) of the Criminal Code; (3) there is a highlikelihood of violent recidivism, and (4) the violent conduct of the offender is intractable.

See, especially: Boutilier at para 26 referring toLyons at 338. [62] The Boutilier majority at para. 27 understood “‘intractable’ conduct as meaning behaviour that the offender is unable tosurmount”. At para. 26, the Boutilier majority referred to the Supreme Court of Canada’s seminal decision in Lyons, where La Forest J.stated at page 338 that “the court must be satisfied that the pattern of conduct is substantially or pathologically intractable”. 1. A Serious Personal Injury Offence [63]

Section 752(

b) of the Criminal Code expressly identifies a conviction for sexual assault contrary to s. 271 as a “seriouspersonal injury offence”. Mr. Levac has been found guilty on two counts of sexual assault contrary to s. 271. Accordingly, there can beno doubt that he has been convicted of a serious personal injury offence for purposes of s. 753(1)(a). 2.

The Predicate Offences Form Part of a Pattern of Violent, Harmful And/Or Persistent Aggressive Behaviour [64] In order for the court to determine if the offender has engaged in a pattern of violent behaviour, there must besimilarities in the types of prior offences committed by the offender, or similarities in the degree or nature of violence used or threatened.See: R v Knife, 2015 SKCA 82 at paras 69-72, and 78, [2015] 12 WWR 469 [Knife]. [65] In Knife, Lane J.A. on behalf of the court articulated a number of principles for a sentencing judge to consider whendetermining if a pattern of violent or aggressive conduct exists.

I adopt the

summary of those principles as set out by Crown counsel inhis brief of law. They are: a. For a pattern to exist, the offender must have prior violent offences, and the predicate offence must constitute a repetition of thatviolent behaviour; b. There are two main ways of identifying repetitive behaviour: there may be similarities in the types of offences, or similarities in thenature of the violence or degree of violence used. Another way of characterizing the latter consideration is to refer to it as the “nature ofthe violence”; c.

The focus must remain on the similarities in the offender’s behaviour that show a failure to restrain behaviour; d. In addition to demonstrating unrestrained or persistent aggressive behaviour, the additional element of future risk must also beestablished, and e. Offences committed by the offender when a youth may be considered in the pattern analysis, as all past behaviour may be predictiveof future behaviour. [66] The purpose of identifying a pattern of past violent conduct is to assist in predicting future risk.

See, for example: R vWilton, 2016 SKCA 131 at para 24 quoting R v Hogg, 2011 ONCA 840 at para 40, 287 OAC 82. [67] The use of forensic psychiatric evidence is helpful when assessing an offender’s pattern of offending. See: Knife at para83. As noted, however, it is not determinative. See: Allen. [68] I am satisfied that the predicate offences of sexual assault are part of a larger pattern of violent conduct engaged in byMr. Levac. [69] The predicate offences represent the fourth and fifth occasions where Mr. Levac has been convicted of serious sexualassaults on female victims.

On every occasion, he took advantage of vulnerable females, and on at least two occasions – the sexualassaults on C.C. and M.M. – violently and viciously assaulted them. As well, the female victim of his first sexual assault conviction –R.C. – who was only 13 years of age at the time was also physically injured. [70] The circumstances of the predicate offences are egregious. The young female victim was a minor at the time. Mr. Levactook advantage of her age and enticed, if not coerced, her into having sex with him.

The fact that she was under the age of 16 and unableto consent to this intimate sexual contact is an aggravating factor which only exacerbates the pattern of his violent conduct and his

disregard for the safety and well-being of others. [ 71 ] In addition to his record of sexual offences, Mr. Levac has committed other acts of violence, usually physical assaults, some of which have caused serious injury to his victims. To be sure, most of these assaults have occurred in the institutional context, and, for the most part, the victims have been Mr. Levac’s fellow inmates. This should hardly occasion surprise as Mr. Levac has spent the majority of his adult years to date in custody. [ 72 ] In his report, Dr. Lohrasbe notes that Mr.

Levac suffers from “a long-standing Personality Disorder that is strongly associated with risk for violence and sexual violence”: Lohrasbe Report at page 19. [ 73 ] Dr. Lohrasbe opines further at page 19 of the Lohrasbe Report: Clinical risk factors are those that are acute and immediately enhance the possibility of violence, including acute mental dysfunction, acute substance abuse, and intense interpersonal conflicts in the community; these are risk factors most clearly related to the imminence facet of risk.

These are dynamic , acute factors that are amenable to monitoring and treatment by correctional and mental health personnel if the individual is carefully supervised. With Mr. Levac: Clinical factors are also present and relevant to risk. A pervasive one relevant to his prior offending was substance abuse, recently in abeyance. His violence has been associated with a range of other acute influences occurring in interpersonal situations, including anger at rejection, frustration, and entitlement. Taken collectively, Mr.

Levac’s history indicates that his violence has been driven by a diverse range of risk factors and hence there is no single or simple path toward desistance from violence. The final common denominator impaired self-regulation (of emotions, thoughts, behaviour), and to reduce his risk Mr. Levac will have to learn to be self-aware, continually alert to the diverse range of mental habits that perpetuate his violence. Such a high and continuous degree of self-awareness is a challenging task for most people and will be more so for Mr.

Levac who has had little training or practise in self-awareness (one of the many consequences of institutionalization, see below). Until he demonstrates that he has achieved at least enough self-awareness to exercise behavioural self-control, it will have to be assumed that he remains at high risk for violence both in and out of institutions . [Emphasis added, underlining in original] [ 74 ] I am persuaded, as well, that the acts of violence and sexual violence committed repeatedly by Mr.

Levac over a period of at least 17 years evidences a pattern of “persistent aggressive behaviour” as contemplated by s. 753(1) (a)(ii) of the Criminal Code . He has been convicted of multiple violent offences. Yet, despite being arrested many times, prosecuted, convicted, and incarcerated for such actions, Mr. Levac continues to reoffend. Even knowing that he could be in jeopardy of being declared a dangerous offence, Mr. Levac persisted in his anti-social behaviour, and committed the predicate offences.

This repeated pattern of behaviour demonstrates a substantial degree of indifference to the reasonably foreseeable consequences of his behaviour to other people. [ 75 ] Dr. Lohrasbe made this very point at pages 20-21 of the Lohrasbe Report. He stated: Also related to severity is Mr. Levac’s recklessness. Mr. Levac has been remarkably blind to obvious consequences. He knew that he was under scrutiny when he committed his sexual offences in 2007 (on probation; on bail). In 2010, he was warned by Judge Midwinter [of the Provincial Court of Manitoba].

Most strikingly, he committed the predicate offences when he was quite literally under daily surveillance. It is difficult to know whether Mr. Levac’s narcissism includes a persistent belief that he will escape consequences, or that he simply does not care about the consequences for himself, or whether other factors are involved, but the bottom line is that Mr. Levac has not integrated an awareness of potential consequences for himself or his victims . [Emphasis added] [ 76 ] Consequently, I am satisfied beyond a reasonable doubt that the criteria of s. 753(1) (a)(

i) and (ii) of the Criminal Code are met in this case. The Crown has demonstrated that Mr. Levac has engaged in a pattern of repetitive behaviour including the predicate offences which he is unlikely to restrain in the future and which is likely to cause injury to others. As well, the Crown has demonstrated that Mr. Levac has engaged in a pattern of persistent aggressive behaviour which demonstrates his substantial degree of indifference towards the reasonably foreseeable consequences to others resulting from his conduct. 3.

Failure to Control His Sexual Impulses and Likelihood to Reoffend [ 77 ] In order to be designated a dangerous offender, the Crown must establish in cases such as Mr. Levac’s that he is unable to control his sexual impulses and there is a likelihood that he will reoffend. The Crown need not prove beyond a reasonable doubt that the offender will reoffend. Rather, only proof beyond a reasonable doubt that there is a high likelihood of harmful recidivism is required. Simply put, these elements of the designation stage analysis are forward looking.

See: Boutilier at paras 35 and 36 . [ 78 ] A likelihood of future harm is more than a mere possibility but does not mean a certainty of harm. See: R v A.R. , 2018 ONSC 2226 at para 21 , aff’d A.R. [ 79 ] The best determination of future risk involves examining the offender’s past conduct, identifying the risk factors, and examining those factors for manageability. See: Johnson . [ 80 ] As noted, Mr. Levac has already been convicted of violently sexually assaulting vulnerable female victims. Indeed, apart from the predicate offences for which I found him guilty, Mr.

Levac has pled guilty to all other charges of sexual assault against him. I accept the Crown’s submission that his pattern of anti-social behaviour patently demonstrates a failure by or inability of Mr. Levac to control his sexual impulses.

[ 81 ] Dr. Lohrasbe speaks to this element at page 20 of the Lohrasbe Report. He states: Of concern with Mr. Levac is the severity facet of risk. It is relatively unusual for a first contact offence sexual offence to involve the degree of physical violence that is present in this case. As has been noted by prior assessors, choking or strangulation can be an ominous indicator of severity. Although not an issue in the predicate offences, the fact that Mr. Levac had choked prior victims indicates the potential for serious victim harm, if only accidentally, due to Carotid Sinus Hypersensitivity (CSH).

Unfortunately, in some individuals, stimulation of the carotid artery baroreceptors in the neck results in a greater than expected fall in heart rate and drop in blood pressure, leading to unexpected seizures or even death. [Emphasis in original] [ 82 ] Two of Mr. Levac’s female victims – including the victim in the predicate offences – were minors. The potential for long-term severe psychological harm to children who have been sexually abused was underscored recently by the Supreme Court of Canada in R v Friesen , 2020 SCC 9 at paras 50-73 , 391 CCC (3d) 309. [ 83 ] Further, in Dr.

Lohrasbe’s professional opinion, Mr. Levac exhibits a high risk to continue to commit acts of sexual violence. In the Lohrasbe Report, he referred to the 22 individual risk factors listed in the Risk for Sexual Violence Protocol [RSVP]. He describes the RSVP as “one of the most commonly-used structured professional guidelines for sexual violence” [emphasis in original]. It is firmly grounded in science and was specifically designed to assist clinicians in assessing individuals: Lohrasbe Report at page 20. This tool assesses 22 risk factors which are divided into 5 domains –

(1) Sexual violence history;

(2) Psychosocial adjustment;

(3) Mental disorder;

(4) Social adjustment, and

(5) Manageability. [ 84 ] Dr. Lohrasbe set out the RSVP table at page 20 of the Lohrasbe Report. I reproduce it below: The RSVP lists 22 Risk factors subdivided into five domains Sexual violence history 1. Chronicity of Sexual Violence 2. Diversity of Sexual Violence 3. Escalation of Sexual Violence 4. Physical Coercion in Sexual Violence 5. 5. Psychological Coercion in Sexual Violence Psychosocial adjustment 6. Extreme Minimization or Denial of Sexual Violence 7. Attitudes That Support or Condone Sexual Violence 8. Problems with Self- Awareness 9. Problems with Stress or Coping 10.

Problems Resulting from Child Abuse Mental disorder 11. Sexual Deviance 12. Psychopathic Personality Disorder 13. Major Mental Illness 14. Problems with Substance Abuse 15. Violent or Suicidal Ideation Social adjustment 16. Problems with Intimate Relationships 17. Problems with Non- Intimate Relationships 18. Problems with Employment 19. Non-Sexual Criminality Manageability 20. Problems with Planning 21. Problems with Treatment 22. Problems with Supervision [ 85 ] After he set out the RSVP table, Dr.

Lohrasbe stated: “Even a passing glance at the factors listed in the RSVP reveals that the overwhelming majority are present in this case”: Lohrasbe Report at page 20. [ 86 ] Taking account of all these factors, I am satisfied that the Crown has demonstrated beyond a reasonable doubt that Mr. Levac has failed to control his sexual impulses, and there is a high likelihood he will reoffend and commit other sexual assaults or physical assaults on future victims. Accordingly, the Crown has satisfied the requirements of s. 753(1) (

b) of the Criminal Code .

4. Intractability [ 87 ] The final element to consider on the designation stage is whether the offender’s violent conduct is intractable. This consideration is critical to ensure the constitutionality of

Part XXIV of the Criminal Code . See: Boutilier at para 35 . The term “intractable” is best understood as descriptive of “behaviour that the offender is unable to surmount”: Boutilier at para 27 . [ 88 ] To make such a determination it is necessary for the court to assess whether treatment and programming could assist him to successfully control his behaviour. As Côté J. stated in Boutilier at para 45 : [45] The same prospective evidence of treatability plays a different role at the different stages of the judge’s decision-making process.

At the designation stage, treatability informs the decision on the threat posed by an offender, whereas at the penalty stage, it helps determine the appropriate sentence to manage this threat.

Thus, offenders will not be designated as dangerous if their treatment prospects are so compelling that the sentencing judge cannot conclude beyond a reasonable doubt that they present a high likelihood of harmful recidivism or that their violent pattern is intractable. . .However, even where the treatment prospects are not compelling enough to affect the judge’s conclusion on dangerousness, they will still be relevant in choosing the sentence required to adequately protect the public. [ 89 ] The evidence of Mr. Levac’s repeated sexually predatory behaviour is extensive.

Certain of his female victims were strangers to him. At least two of Mr. Levac’s female victims were minors, one of whom suffered serious physical injuries as a result of his attack upon her. [ 90 ] For various reasons, some self-induced, Mr. Levac was not able to complete a full treatment program while he was incarcerated.

The evidence is that he would commence a program offered in a federal institution, like the Saskatchewan Penitentiary, for example, but would be unable to complete it because his risk level was reassessed and he was placed in segregation or he was shunted between Saskatchewan and Manitoba and back to attend court proceedings in Manitoba. The inability of Mr. Levac to complete any treatment programming, let alone high intensity sexual offender programming, for whatever reason, is a troubling aspect of his case. [ 91 ] It appears that the only programming Mr.

Levac completed was a psycho education program beginning in January 2018 when he was living in Regina with his mother. In his review of Mr. Levac’s files, Dr. Lohrasbe stated: His handwritten entries for homework assignments indicate that at the intellectual level he has no difficulty grasping the antecedents (crime cycle) and consequences of his violence on himself and his victims. His participation was positive. For example, in a report dated 15 January 2018 , Facilitator Rebecca Wytrykush writes: “[Mr. Levac] reported for group as directed.

He participated well in the group discussion and has a good understanding of the materials/information presented. [Mr. Levac] completed his homework thoroughly and it was apparent he had put thought into his answers. He was able to express empathy for the victims of his sexual offences as well as secondary and third party victims. No major concerns noted.” [Emphasis in original] See: Lohrasbe Report, Phillip Levac, Appendix A: File Review at page 27. [ 92 ] Yet, in spite of the fact that Mr.

Levac completed this program with some success, and a commendation from the facilitator, he went on to commit the predicate offences just a few short weeks later. It is apparent that a program of this nature is not sufficient to enable Mr. Levac to overcome his predilections. This juxtaposition of events demonstrates that, at present, Mr. Levac remains a high risk to reoffend if he is returned to the community at this time. [ 93 ] In assessing treatment prospects and community management, the attitude of the offender and his motivation to change are highly relevant factors.

Offenders who are insightful and remorseful, for example, instil greater confidence for successful rehabilitation and community management. See: R v Goodpipe , 2019 SKQB 221 at para 48 [ Goodpipe QB ], aff’d: 2021 SKCA 122 . Dr. Lohrasbe noted that during the interviews he had with Mr. Levac prior to compiling and filing his report, Mr. Levac “express[ed] the desire for treatment repeatedly”. He emphasized, however, that the real question is Mr. Levac’s sincerity and truthfulness “going forward”. See: Lohrasbe Report at page 22. [ 94 ] Mr. Levac did not testify.

Regrettably, then, there is no direct evidence that, indeed, he is remorseful or that he has sufficient insight into, and awareness of, the reasons for his anti-social and criminal behaviour. [ 95 ] Based upon all this evidence, I find that Mr. Levac’s persistent violent and aggressive behaviour is intractable. [ 96 ] Therefore, I find that the Crown has proven beyond a reasonable doubt that Mr. Levac has demonstrated a persistent pattern of violent and aggressive sexual behaviour, and that currently, his conduct is intractable, the elements of s. 753(1) (

b) are satisfied. 5. Conclusion on the Designation Stage [ 97 ] Accordingly, for all these reasons, I find that the Crown has proven beyond a reasonable doubt that Mr. Levac is a dangerous offender, and I make such a designation. B. The Penalty Stage [ 98 ] Public protection from the risk of violent harm is the primary objective of the dangerous offender regime set out in

Part XXIV. See, for example: Johnson at para 29 and A.R. at para 33 . A sentencing judge must impose the least intrusive sentence required to achieve this objective. [ 99 ] For this reason, there is some judicial discretion at the second or penalty stage. Three sentencing options exist:

i) an

indeterminate sentence of imprisonment in a penitentiary; ii) a composite sentence consisting of a term of imprisonment of at least twoyears, followed by a long-term supervision order for not more than 10 years; or a determinate sentence for the predicate serious personalinjury offence(s). Under s. 753(4.1), a sentencing judge must impose an indeterminate sentence on a designated individual unless he orshe is satisfied there is a reasonable expectation that a lesser measure will adequately protect the public. This

section requires the judge toassess whether the offender’s risk can be managed outside of the indeterminate sentence, and to impose the least intrusive sentencenecessary to reduce the public threat posed by the offender to an acceptable level.

See: Boutilier at paras 31 and 65; Straub at paras 56-58, and R v Hamer, 2021 BCCA 297 at para 49, leave to appeal refused: . [100] Our Court of Appeal, for example, has held that for purposes of s. 753(4.1) a “reasonable expectation” means a likelihood: R v Pelly, 2021 SKCA 50 at para 45, 403 CCC (3d) 127; R v Toutsaint, 2015SKCA 117, [2016] 5 WWR 269; R v Bird, 2015 SKCA 134, 467 Sask R 277. See also: Straub at para 62.

The risk imposed by any givenoffender need not be eliminated; there need only be a likelihood that it be reduced to “an acceptable level”: Goodpipe QB at para 54citing R v Daniels, 2011 SKCA 67, [2011] 8 WWR 605 [Daniels]. [101] Once an offender has been designated a dangerous offender, there is no presumption that an indeterminate sentence isthe fit and proper sentence.

Rather, a sentencing judge should consider whether a lengthy determinate sentence coupled with a long-termsupervision order would in future adequately protect the public from the commission by the offender of another violent or seriouspersonal injury offence. See, especially: Daniels at para 80, and Boutilier at para 70. [102] As Laprise at para 34 admonishes, a sentencing judge under

Part XXIV must heed s. 718.2(

e) of the Criminal Code, and“consider the unique circumstances of Indigenous offenders in every case before a sentence is imposed”. This includes applying theprinciples articulated in Gladue and its progeny. See especially: Ballantyne at para 23. This consideration is relevant to Mr. Levac’s case,as he has recently acknowledged his Métis ancestry which he can trace through his paternal grandmother who was a member of theMi’kmaq Nation in Nova Scotia, but who lost her Indigenous status when she married Mr.

Levac’s paternal grandfather who wasFrench-Canadian and Caucasian. [103] With these legal principles identified, I turn now to consider what is a fit sentence for Mr. Levac. Is it an indeterminatesentence; a determinate sentence followed by a long-term supervision order; or a determinate sentence? [104] Mr. DeCorby on behalf of the Crown says that in this case, an indeterminate sentence is the only fit sentence for Mr.Levac. [105] Mr. Hitchcock on behalf of the defence submits that should I designate Mr.

Levac as a dangerous offender, a fit sentencewould be a determinate sentence of 2 or 3 years followed by a long-term offender supervision order of 10 years. [106] I would not give effect to either of these proposals. After considering the evidence and Mr. Levac’s admittedly troublinghistory of recidivism and his current inability to comply with restrictions placed upon him by authorities, as well as Dr. Lohrasbe’sconsidered expert opinion as a forensic psychiatrist respecting a risk assessment of Mr.

Levac, I am persuaded that a lengthy determinatesentence for the predicate offences followed by a long-term supervision order in the range of 10 years would, to paraphrase Côté J. inBoutilier, adequately protect the public from the commission by Mr. Levac of further serious personal injury offences. [107] I have come to this conclusion for the following four reasons. [108] First, Dr. Lohrasbe stated that in his considered opinion Mr. Levac is an intelligent individual who during theirinterviews “expressed the desire for treatment repeatedly”: Lohrasbe Report at page 22. Dr.

Lohrasbe went on to state: “Moreover, Mr.Levac is intelligent enough to know what he faces if he does not take all available opportunities to turn things around, and made it clearduring our interviews that he is aware that if and when he is back in the community, it will be his “last chance” [italics in original]. Putsimply, Mr. Levac is smart enough to know he is almost at the end of the road. [109] Second, Dr. Lohrasbe opined that in view of Mr.

Levac’s sorry “history of sexual violence”, he deemed it “mandatorythat he participate and successfully complete a high intensity violence prevention program” such as the high-intensity sex offenderprogramming currently delivered by Correctional Services Canada through its Integrated Correctional Program Model [ICPM]. Suchprogramming is only offered in the federal penitentiary system. See: Lohrasbe Report at page 24. [110] In Ballantyne, the court described the ICPM as follows at paras. 18-19: [18] According to the evidence, CSC implemented a new program in 2018.

The program, which is called the Integrated CorrectionalProgramming Model [ICPM], has these features: (

a) it integrates and addresses the four reasons why people commit crimes: (

i) their emotional management, (ii) their thinking, (iii) their associates, and (iv) their chosen behaviours; (

b) it is a more holistic model than previous programming and is based on the “Good Lives Model” where individuals identify whatthey want out of life, what they need to do to get that and what has kept them from such goals in the past; and (

c) it uses cognitive behavioural therapy, which looks at the way people think and how their thinking and behaviour needs to changein order to make better choices.

[19] There are several different streams available within the ICPM program, including one specifically for Indigenous offenders, with both moderate and high intensity substreams. The Indigenous stream is intended to help individuals have a better understanding of “culture, intergenerational impacts, and Aboriginal social history factors”. A motivational module is included where a staff member is assigned to assist offenders to get the most out of the program.

The motivational aspect of the ICPM program involves the appointment of an assistant to motivate individual offenders, but such an initiative would have to be accepted by the offender. The ICPM program also includes a maintenance component to help prevent breaches in the community. [ 111 ] Dr. Lohrasbe elaborated at page 24 as follows: [Mr. Levac’s] therapeutic contact with a psychologist in the past was also helpful, and given his need to develop trust, it is likely that additional individual therapy will be helpful and can complement group therapy.

During individual therapy, his mother should be involved, even if not in person. There are secrets that hurt them both and clearing the air will help him and [ sic ] is his primary support. Until he has completed a high intensity violence prevention program, it is difficult to know whether his risk can be reduced to the point where he can be managed in the community, but it would be unreasonable to dismiss the possibility of progress in reducing risk via therapy. [ 112 ] As already noted, Mr. Levac did not complete any programming while in the federal penitentiary system.

Indeed, the ICPM was implemented only after he was released into the community. I accept Dr. Lohrasbe’s opinion that it is imperative Mr. Levac participate and complete the high intensity sex offender programming before any consideration be given to the possibility of his returning to live in the community. I am then prepared to accept that Mr. Levac would now benefit from such programming, programming which events whatever their origin prevented him from completing earlier.

A determinate sentence in a federal prison will provide him the opportunity, perhaps his last opportunity, to receive the therapeutic assistance he so obviously requires. At the very least, in my view, he should be given this last chance. [ 113 ] Third, Mr. Levac has only recently acknowledged his Indigeneity. The fact that he has done so and seems sincere in wanting to explore this facet of his heritage more deeply, in my view, may motivate him to move forward more positively and contribute to Mr. Levac’s betterment, if not rehabilitation. As well, the ICPM includes an Indigenous stream in which Mr.

Levac may participate and which may further assist in his treatability. See further: Ballantyne at para 23 . [ 114 ] Fourth, Mr. Levac has been incarcerated for virtually all his adult life. He is characterized as an immature offender, meaning he has never functioned responsibly as an adult in the community for an extended period of time. Consequently, as noted by Dr. Lohrasbe, Mr. Levac suffers from “a range of negative psychosocial reactions and adaptations to prolonged or repeated incarceration”: Lohrasbe Report at page 24. Dr.

Lohrasbe reiterated this fact in the Addendum at page 2. [ 115 ] To overcome these adverse effects, and if he successfully completes high intensity sexual offense programming, Dr. Lohrasbe recommends that “Mr. Levac will need a very gradual transition, and not simply walk out of the custody of the Justice System with no clear transition, support and risk management plan – as occurred in 2017”: Lohrasbe Report at page 25. He goes on to recommend that Mr.

Levac should be transferred to a federal institution in British Columbia to be closer to his mother who is his primary support person, and in a place where he is not “well known”: Lohrasbe Report at page 25. [ 116 ] In other words, Dr. Lohrasbe seems to conclude that when Mr. Levac was released into the community for the few months prior to committing the predicate offences, he was set up to fail. Much closer supervision and supports will have to be in place should Mr.

Levac be released into the community on a long-term supervision order, at some unknown time in the future. [ 117 ] Accordingly, for these reasons I am satisfied that a composite sentence consisting of a lengthy determinate sentence of imprisonment pursuant to s. 753(4) (

b) of the Criminal Code followed by a lengthy long-term supervision order will adequately protect the public against Mr. Levac committing another serious personal injury offence in the future. [ 118 ] When counsel presented their closing arguments to me in June, Mr. DeCorby stated that in the event I decided a determinate sentence was the appropriate disposition, he wanted to make considered submissions as to the duration of that sentence as well as the duration of any long-term supervision order. [ 119 ] In consultation with counsel, I will

schedule a date and time for argument on that issue. J. G.G. MITCHELL