HIS MAJESTY THE KING - v. -, 2023 SKKB 123

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 123 Date: 2023 06 15 Docket: QBJ-RG-00012-2013 Judicial Centre: Regina ___________________________________________________________________________ BETWEEN: HIS MAJESTY THE KING - and - RYAN SAULTEAUX Counsel: Kelly L. Kaip for the Crown Ryan Saulteaux self-represented offender Thomas P. Hynes court-appointed Amicus Curiae ___________________________________________________________________________ JUDGMENT ELSON J. June 15, 2023 ___________________________________________________________________________

Preamble [ 1 ] In an oral decision, dated May 25, 2023, I pronounced the Court’s decision in this application under

Part XXIV of the Criminal Code , RSC 1985, c C-46 [

Part XXIV ] . In the pronouncement, I delivered a brief

summary of my reasons. I also informed the parties and counsel that a written judgment, formally reflecting the Court’s decision, would follow. This is that written judgment. Introduction [ 2 ] On October 23, 2015, this Court found Ryan Saulteaux guilty of three counts in the indictment then before the Court. Specifically, he was found guilty of one count of break and enter and aggravated assault, one count of using a weapon in the commission of an assault and one count of assaulting a peace officer in the execution of her duty.

The offences in question all occurred in Regina, Saskatchewan, in the early morning of January 20, 2013. [ 3 ] Following the Court’s verdict, the Crown brought an application for an assessment pursuant to s. 752.1 of the Criminal Code , which application was granted on December 9, 2015. After the receipt of the assessment, prepared by Dr. Todd Tomita, a general and forensic psychiatrist, the Crown advised the Court, on March 8, 2016, of its intention to seek a dangerous offender designation of Mr. Saulteaux pursuant to

Part XXIV . Hearings were subsequently scheduled to address the Crown’s application. As will be discussed later in this judgment, many hearing dates were vacated. [ 4 ] At the outset, I think it is important to note that sentences or dispositions under

Part XXIV are exceptions to the commonly accepted understanding about sentencing. That understanding, readily apparent in

Part XXIII of the Criminal Code [

Part XXIII ], is that sentences, including imprisonment, arise solely from past misconduct. On the other hand, imprisonment sentences under

Part XXIV are principally based on assessing an offender’s risk of future misconduct. [ 5 ] Mr. Saulteaux’s risk of future misconduct must be addressed in the context of the two stages set out in

Part XXIV . The first stage is the designation stage, where the Court was asked to determine whether Mr. Saulteaux should be designated a dangerous offender or a long-term offender or whether there should be no designation at all. Where a designation is made, the form of designation will depend largely on the treatability of the offender’s risk of future violence. The second stage of the

Part XXIV framework is sentencing, where the Court must impose an appropriate sentence. The propriety of a sentence depends largely on the specific designation. [ 6 ] More than eight years after the Crown gave notice of its intent to seek a designation, this Court is now able to decide whether to designate Mr. Saulteaux to be a dangerous offender and impose a sentence that the law and evidence demands. The alternative disposition, advanced by Mr. Saulteaux and the amicus curiae appointed to assist him, called for a long-term offender designation and a sentence based on that designation.

[ 7 ] In this judgment, I have set out a description of the related evidence as well as the background information that informs the Court’s decision. I have also set out, under the next heading, the circumstances that prolonged the duration of this proceeding. Most of those circumstances are attributable to questionable decisions made by Mr. Saulteaux in his dealings with the various counsel who tried to assist him.

For reasons that should readily become apparent in this judgment, including the delay in receiving the high intensity programming and the inability to pursue parole, these decisions and the resulting delay have not served Mr. Saulteaux well. Predicate Offences [ 8 ] As mentioned in the introduction, the predicate offences pertained to events that occurred in the early morning of January 20, 2013. The principal complainants in the matter were Michael Scott and Mavis Bird, then living in a common-law relationship at their home in east central Regina. Sadly, both Mr. Scott and Ms.

Bird died from unrelated causes before the trial. Even so, their evidence at the preliminary inquiry was received at trial, pursuant to an order under s. 715(1) (

a) of the Criminal Code . This evidence was supplemented with testimony from the two officers who had attended the scene after Ms. Bird called 911. [ 9 ] According to the narrative of the evidence, Mr. Saulteaux and Mr. Scott had become acquainted while they were both incarcerated at the Regina Correctional Centre [RCC] in 2012. After their release, they maintained a modest friendship. A few days before the events in question, Mr. Saulteaux had been released on parole for an earlier sentence. The conditions of his release required him to reside at a specific motel. Instead, Mr.

Saulteaux essentially lived at the complainants’ home. [ 10 ] On the afternoon and evening of January 19, the complainants spent most of the time drinking. When testifying at the preliminary inquiry, the couple candidly admitted their alcoholism. For part of that day, Mr. Saulteaux spent time at the home, drinking Mr. Scott’s coolers with him. He eventually left the residence that evening after 10:00 p.m. The complainants went to bed sometime after that. In keeping with his habit, Mr. Scott said he locked both doors of his house before retiring. [ 11 ] At some point during the night, Ms.

Bird was awakened by someone knocking at the front door. After hearing the knocking, both complainants heard a noise which led them to believe the door was being kicked in. Ms. Bird placed a 911 call just before the phone was disconnected. Soon after the disconnection, Mr. Saulteaux appeared in the bedroom doorway. [ 12 ] Both complainants testified that Mr. Saulteaux came into the bedroom and assaulted each of them. He kicked Mr. Scott in the face while he still sat on the bed, followed by a second kick to the knee. When Mr. Scott tried to defend himself, Mr.

Saulteaux pulled out a screwdriver from his back pocket. He then stabbed Mr. Scott with the screwdriver in various parts of his body, including an area near his left ear, the left side of his neck, the left side of his chest and torso, and his left arm. Photographs of these injuries were presented in evidence. They depicted puncture wounds and other lesions consistent with Mr. Scott’s evidence. Eventually, Mr. Scott was able to defend himself by grabbing hold of Mr. Saulteaux’s arm. This allowed Ms. Bird to grab the screwdriver and throw it behind the bedroom door. [ 13 ] Ms.

Bird also sustained injuries in the attack, although not as seriously as her spouse. She believed her injuries occurred when she was trying to take the screwdriver from the accused. Her injuries included a puncture wound to the inside of her left elbow, bruising on her shoulder, small lacerations to her head and some bruising on her leg. [ 14 ] At approximately the same time that Ms. Bird took the screwdriver from Mr. Saulteaux, two police officers arrived, entering the home through the damaged front door. Upon entering the house, they saw Mr.

Saulteaux standing in the doorway of the bedroom holding an object in his hand, which neither officer could immediately identify. As Mr. Saulteaux handled the object, he shouted, “I have a gun. I have a gun.” These words prompted both officers to draw their service weapons and direct Mr. Saulteaux to get down. When he did not comply, the officers assumed a tactical “L” position with one officer standing just inside the front door and the other officer standing off to his left. At this point, Mr. Saulteaux began advancing toward the officer at the front door.

Before that officer could respond, the other officer realized the object in Mr. Saulteaux’s hand was a television remote control and not a gun. She called off her colleague. Both officers then holstered their weapons and took Mr. Saulteaux down to the floor. [ 15 ] It is noteworthy that the officer at the front doorway told the Court that, before learning the offender did not have a gun, he was seconds away from discharging his weapon. Mr. Saulteaux was very fortunate to have survived this encounter. [ 16 ] The attending officers also testified that after Mr.

Saulteaux was subdued, he remained very active and very agitated. During his interaction with police, the offender threatened to spit on the officers and informed them that he had HIV and was hepatitis C positive. Shortly thereafter, Mr. Saulteaux did spit in the direction of one of the officers. [ 17 ] The Court also received into evidence Mr. Saulteaux’s statement, which had earlier been found to have been voluntarily given. Certain aspects of that statement deserve comment here. According to the statement, the reason he confronted Mr. Scott that evening was because he had told Mr.

Saulteaux’s girlfriend that the offender had left the residence with another woman. The offender told the officer that he was upset about this and decided to confront Mr. Scott and “straighten things out”. [ 18 ] Although Mr. Saulteaux denied kicking the front door in, he admitted going into the home and confronting Mr. Scott in the doorway of the couple’s bedroom. He also denied attacking Mr. Scott with the screwdriver, but later admitted that he “wanted to hurt him”. Still later in his statement, the offender said he went to Mr. Scott’s place to “go fucking fight”. As to what happened in the fight with Mr.

Scott, Mr. Saulteaux said that he “got him once in the shoulder”. [ 19 ] Mr. Saulteaux also testified at the trial in his own defence. Some of the testimony he gave was directly inconsistent with his earlier statement. Mr. Saulteaux told the Court that, when he came to the residence and knocked on the door, Mr. Scott showed up wearing a bedsheet and armed with a screwdriver. He told the court that it was Mr. Scott who initiated the confrontation by attempting to stab him at the doorway of the house.

He said that a scuffle ensued, which progressed into the living room of the home and from there to the adjacent bedroom. He also told the Court that it was during the scuffle when Mr. Scott had stabbed himself, either intentionally or by accident.

[20] After reviewing all the evidence, I made specific findings of fact, based almost entirely on the Crown’sevidence. In doing so, I rejected Mr. Saulteaux’s claim of self-defence. Specifically, I concluded that shortly before 2:00 a.m. onJanuary 20, 2013, Mr. Saulteaux and a woman arrived at the complainants’ home, at which time the offender forced the front door openand damaged it. He then entered the home without the complainants’ consent. Once inside, Mr. Saulteaux confronted both complainantsin their bedroom. During the confrontation, he kicked Mr.

Scott multiple times and then used a screwdriver to inflict further wounds thatrequired medical care. I also concluded that Ms. Bird entered the fray by attempting to take the screwdriver out of the accused’s hands.During that effort, she sustained her injury. [21] I also accepted the police officers’ evidence related to Mr. Saulteaux’s post-arrest conduct. In this regard, I wassatisfied that he had spit at one of the officers, thereby assaulting the officer in the exercise of her duty. [22] As the complainants passed away before the trial, no victim impact statements were presented in the

Part XXIVhearing. Prolonged Duration of this Hearing [23] Under this heading, I will describe the circumstances that have prolonged the duration of this

Part XXIVproceeding. Aside from the explaining the duration, the circumstances also provide some insight into Mr. Saulteaux’s attitude as hefaced this proceeding. [24] The narrative for the delay in this proceeding essentially begins before the trial on the predicate offences. In thepre-trial phase, Mr. Saulteaux was represented by five different counsel, all appointed either by this Court or the Provincial Court. Atleast two of the counsel appointed prior to the trial withdrew because of irreconcilable differences in their respective dealings with Mr.Saulteaux.

Further, on the day the verdict was delivered, the Court learned that Mr. Saulteaux had dismissed his then court-appointedtrial counsel. She sought and received the Court’s leave to withdraw. [25] By the time Dr. Tomita’s assessment was received in March 2016, the Court had appointed new counsel torepresent Mr. Saulteaux in the

Part XXIV proceedings. She was the first of seven counsel, or prospective counsel, in this proceeding. Iwill refer to her as Counsel A. [26] Unfortunately, the

Part XXIV hearing could not begin until May 23, 2017. There were two reasons for thedelay. The first related to Mr. Saulteaux’s health. In the spring of 2016, Mr. Saulteaux developed a life-threatening heart condition forwhich he required open heart surgery, including the placement of a bioprosthetic valve. This was followed by a period of convalescence.He could not appear before the Court or provide instructions to Counsel A until June 2, 2016.

Even then, he was still receiving inpatientmedical care and could only appear by a video link. [27] The second reason for the delay related to difficulties in securing a writer for a Gladue report (R v Gladue, (SCC), [1999] 1 SCR 688) to address the implications of Mr. Saulteaux’s Indigenous ancestry. Initially, Counsel A raisedthe matter of a Gladue report in March 2016 but expressed concern about the identity of the report’s writer. She proposed a writer whothen resided in British Columbia. While the Court expressed a willingness to direct such a report, the order was not made until June 2,2016.

Before the order could be made, the Court learned that the proposed writer and the Court Services Branch were stalled innegotiations on compensation. Accordingly, the Court directed preparation of a report written by the proposed writer or a personsimilarly qualified. Eventually, by September 9, 2016, an experienced Gladue writer from Saskatchewan agreed to prepare the orderedreport. The Court appointed this writer to prepare the report and submit it no later than November 3, 2016. [28] For reasons never fully disclosed, the appointed writer failed to complete any report.

Counsel A expressedserious reservations about scheduling the formal hearing until a report was completed and received. Accordingly, the matter wasadjourned to a case conference on January 5, 2017. On that date, after the matter was vigourously argued by counsel, the Court acceptedthe defence argument and appointed another Gladue writer, Christine Sagassige (formerly Christine Goodwin), to complete her report byApril 30, 2017. At the same time, the Court directed that the

Part XXIV sentencing hearing be scheduled for May 23 to June 2, 2017.The Gladue report was subsequently filed within the directed time. [29] The hearing commenced, as scheduled, on May 23, 2017. Unfortunately, it was not completed within the timeset aside. Indeed, despite the considerable evidence it presented, the Crown could not complete its case by the end of the hearing. Due toissues relating to the availability of both counsel and me (largely attributable to unfilled vacancies on this Court), the hearing wasadjourned to February 26, 2018.

At that time, both counsel confidently told the Court that the hearing would conclude by March 2, 2018. [30] Alas, and for circumstances I will describe below, the dates set for continuation of the hearing were vacated.This was followed by the setting, and subsequent vacating, of five more hearing dates.

The particulars of all six hearing dates that wereset and later vacated are as follows: Hearing Dates Date Set Date VacatedFebruary 26 - March 2, 2018 June 2, 2017 October 20, 2017December 10 - 14, 2018 August 24, 2018 November 21, 2018October 7 - 11, 2019 January 9, 2019 September 11, 2019February 10 - 14, 2020 September 11, 2019 February 7, 2020 October 26 - 30, 2020 February 7, 2020 October 22, 2020April 26 - 30, 2021 January 29, 2021 April 9, 2021 [31] The February 26 to March 2, 2018 hearing dates were vacated after Mr. Saulteaux advised the Court, onAugust 29, 2017, that he wished to dismiss Counsel A.

The Court reluctantly granted Counsel A leave to withdraw on September 1,2017. Mr. Saulteaux then sought another court-appointed counsel, which resulted in the appointment of Counsel B. As Counsel B was

not available for the scheduled hearing dates, they were vacated. New hearing dates were set for December 10 to 14, 2018. [ 32 ] Counsel B remained on record for only five months. On March 23, 2018, she contacted the local registrar’s office and advised that she could not see how the solicitor-client relationship with Mr. Saulteaux could continue. This resulted in a case conference on March 26, 2018, where Counsel B was granted leave to withdraw. Eventually, Counsel A returned as counsel of record in June 2018. [ 33 ] Counsel A’s return to the case lasted only four months.

The lead-up to her second departure began at the case conference on August 24, 2018. At that conference call, Mr. Saulteaux was given leave to address the Court personally. In his remarks, he asked if he could have an “advocate” to assist him in understanding the proceedings. As Counsel A remained in place, the Court did not specifically address his rather curious request. [ 34 ] At the next case conference, on October 10, 2018, Mr. Saulteaux advised the Court that he again wished to terminate his relationship with Counsel A.

This was despite Counsel A’s representation to the Court that she was prepared to remain on the record and would keep the December hearing dates open. Mr. Saulteaux was unmoved. Counsel A was again granted leave to withdraw. As a final note to this conference, Mr. Saulteaux advised the Court that he would seek another court-appointed counsel. It is also noteworthy that counsel for Court Services Branch attended this conference. She advised that her office would oppose Mr. Saulteaux’s application. [ 35 ] As noted above, the December 2018 hearing dates were not vacated until November 21, 2018.

In the weeks leading up to that decision, Mr. Saulteaux did not have counsel. Aside from not having completed his application for court-appointed counsel, he hinted that Counsel A might return to his defence or that he would retain private counsel to represent him. The hearing dates were vacated to allow Mr. Saulteaux the opportunity to explore his options. By January 2019, when nothing materialized, the Court decided to press the matter forward. On January 9, 2019, new dates for continuation of the hearing were set for October 7 to 11, 2019. [ 36 ] After these new dates were set, Mr.

Saulteaux agreed to be represented by Counsel C, a lawyer with the Regina City office of Legal Aid Saskatchewan. However, this did not occur until September 2019, less than a month before the hearing was to resume. Counsel C was not available for the October hearing dates and asked that the hearing be adjourned. The Crown did not oppose the request. Accordingly, the October 2019 dates were vacated and later rescheduled for February 10 to 14, 2020. [ 37 ] Unfortunately, Counsel C did not remain on record long enough to attend the hearing. In early February 2020, he informed the local registrar’s office that Mr.

Saulteaux had lost confidence in him and that he was ethically required to withdraw. At the February 6, 2020, case conference, Counsel C was granted leave to withdraw. The February 10 to 14, 2020, hearing dates were vacated the next day. [ 38 ] In the same case conference, Mr. Saulteaux advised of his intention to seek an order that the Court appoint proposed Counsel D, an Edmonton lawyer, to represent him. The matter was adjourned to February 7, 2020, to hear that request. [ 39 ] At the next case conference, the Court heard from Mr. Saulteaux, Crown counsel, counsel for Court Services and Counsel D.

In addition, it should be noted that counsel for Court Services opposed the request to appoint Counsel D. Instead, she proposed that Thomas Hynes be appointed as amicus curiae for Mr. Saulteaux. Accordingly, Mr. Hynes was also present. [ 40 ] In her submission, counsel for Court Services argued that there was no reason not to expect similar irreconcilable difficulties to arise with another court-appointed counsel. Even so, she accepted that Mr. Saulteaux required advice and assistance. She submitted that an amicus curiae provided a reasonable alternative. The Court agreed.

Without reserving the decision, I denied Mr. Saulteaux’s request and appointed Mr. Hynes as amicus curiae . [ 41 ] It would be an understatement to say that Mr. Saulteaux was unhappy with the Court’s decision. In an impulsive, uncontrolled and profanity-laden outburst, which Counsel D, who was still on the call, aptly described as “toxic”, Mr. Saulteaux expressed outrage at the Court’s decision. Despite this outburst, the Court was unmoved. The hearing continuation was re-scheduled for October 26 to 30, 2020. [ 42 ] I digress from the narrative, to note that Mr.

Saulteaux later apologized for his conduct at the February conference call. While the apology was brief and somewhat muted, it should be acknowledged. [ 43 ] The next notable development in this proceeding occurred in late April 2020 when Counsel E contacted the local registrar’s office, advising that Mr. Saulteaux asked her to represent him. The Court understood that Counsel E was a former member of the Law Society of Saskatchewan. In an email message to one of the deputy registrars, Counsel E explained that she was seeking re-admission to the Law Society and would be prepared to represent Mr.

Saulteaux as private counsel. [ 44 ] There was no further contact with Counsel E until the summer of 2020. In July, she responded to an email message from the deputy registrar with whom she had earlier corresponded. In her reply, Counsel E advised, among other things, that she planned to retain a psychiatrist for an independent evaluation of Mr. Saulteaux. [ 45 ] After I was advised of this message, I felt it necessary to arrange a further case conference. I was concerned that the request for a further psychiatric evaluation would impact the scheduled hearing dates in October 2020.

This case conference took place on August 7, 2020, with Crown counsel, Mr. Hynes, Counsel E and Mr. Saulteaux in attendance. In that conference, the Court learned that Counsel E had not yet been re-admitted to the Law Society. She also repeated her intention to seek an independent psychiatric assessment for the

Part XXIV proceeding. [ 46 ] When the Court heard nothing further by early October, another case conference was held on October 9, 2020, with Crown counsel, Mr. Hynes and Mr. Saulteaux in attendance. Counsel E did not call in to the conference call and did not respond to email communications from the deputy registrar. Subsequently, a further case conference call took place on October 22, 2020, with all counsel present, including Counsel E. In that conference call, the Court learned that Counsel E had still not been re-admitted to the Law

Society and that no arrangements had yet been made for an independent psychiatric evaluation. In the interests of fairness, the Court felt it necessary to vacate the October 26 to 30 hearing dates. Mr. Saulteaux and Counsel E then requested an adjournment of any further conference calls to December 14, 2020. [ 47 ] Conference calls then took place on December 14, 15 and 21, 2020, and January 5, 15 and 29, 2021. Mr. Saulteaux participated in all but two of these calls. He refused to participate in the January 15 call and could not be reached for the January 29 call.

Meanwhile, Counsel E participated only in the January 29 call, in which she finally advised that she was unable to assist Mr. Saulteaux. At the conclusion of this call, the Court adjourned the continuation of the hearing on the merits to April 26 to 30, 2021. [ 48 ] I again digress from this narrative to note one other matter, unrelated to representation of Mr. Saulteaux, that delayed proceedings. This relates to applications culminating in a fiat dated June 30, 2022, reported as R v Saulteaux , 2022 SKQB 156 . As that fiat notes, Mr. Saulteaux had been remanded to a federal penitentiary in January 2019.

This had been at the request of Counsel A when she still represented the offender. It was Counsel A’s candidly expressed hope that, while remanded to a federal institution, Mr. Saulteaux might be placed in the Regional Psychiatric Centre [RPC] in Saskatoon where he could undergo a psychiatric assessment that might be available for the

Part XXIV proceeding. Although that placement did not occur, Mr. Saulteaux remained on federal remand. [ 49 ] Eventually, the Correctional Service of Canada [CSC] applied to remove a geographic limitation in the federal remand warrant. This application prompted Mr. Saulteaux to bring his own application, asking the Court to remand him back to a provincial facility but with a specific direction that he be remanded to Saskatchewan Hospital North Battleford, along with an order that he undergo a psychiatric assessment. While the CSC took no position on Mr.

Saulteaux’s application, it was vigourously resisted by the Saskatchewan Ministry of Corrections, Policing and Public Safety [Ministry], which oversees provincial correction facilities. [ 50 ] To address these applications, the Court held additional conference calls to address their related circumstances, including the evidence required, some of which would be presented by affidavit, subject to cross-examination, and some of which would be presented through oral testimony. These conference calls took place between the spring of 2021 and December 3, 2021.

Eventually, the two applications were heard on January 10 to 12, 2022, with additional evidence and argument received on March 3, 2022. The Court’s decision followed. In that decision, the Court allowed the CSC’s application and dismissed the cross-application filed by Mr. Saulteaux. [ 51 ] In the early spring of 2021, while the Court was addressing the remand issue, it learned that Mr. Saulteaux had reached out to a sixth possible defence counsel, Counsel F, an experienced criminal defence counsel from Toronto. A conference call was then arranged for April 9, 2021.

While Counsel F agreed to participate in the call, she candidly advised that she could not go on record until retainer arrangements were concluded with Mr. Saulteaux. She explained that Mr. Saulteaux anticipated receiving compensation through the Federal Indian Day School class action. It was hoped that the offender would receive sufficient compensation to retain Counsel F and possibly call additional expert evidence in his favour. Counsel F requested, with Mr. Saulteaux’s agreement, that the hearing dates for later that month be vacated.

Reluctantly, but in the interests of fairness, the Court agreed. [ 52 ] Conference calls followed on July 9 and September 1, 23 and 28, 2021. As the amount of anticipated compensation had not yet been determined, the Court agreed to adjourn the

Part XXIV proceedings. Shortly after the conference call of September 28, 2021, the Court learned that the amount of compensation available to Mr. Saulteaux would not be sufficient to allow him to retain Counsel F. [ 53 ] Following the Court’s decision on the remand issue, the

Part XXIV proceedings continued, with further Crown evidence, defence evidence and submissions received in May, June and October 2022. The Evidence [ 54 ] During the hearing on the

Part XXIV proceedings, the Court received six binders of documents and heard testimony from eight witnesses. The documents included information related to Mr. Saulteaux’s criminal record and his history in both provincial and federal facilities. Aside from Dr. Tomita, the Crown witnesses included four employees of the CSC and one employee of the Ministry. The CSC employees who gave evidence were the Regional Program Manager for the CSC’s Prairie Region, a community parole officer, the senior project officer for segregation and oversight and the manager of programs at the RPC.

The defence, with the assistance of the amicus curiae , called three witnesses. They were Mr. Saulteaux, his then spouse/partner (K.S.) and Sherrie Maier, a prison advocate. The Gladue writer, Ms. Sagassige, also testified. Mr. Saulteaux ’ s Personal Circumstances and History [ 55 ] Mr. Saulteaux’s biographical information came to the Court through records, the report and testimony of Dr. Tomita, and the Gladue report, as well as the testimony of Mr. Saulteaux himself. [ 56 ] Mr. Saulteaux was born on April 17, 1977, and is presently 46 years old.

He is of Nakoda ancestry and is registered with Carry the Kettle Nakoda Nation [Carry the Kettle], his parents’ home community. He is the third of eight children (one child died at birth). [ 57 ] Ms. Sagassige noted that Mr. Saulteaux’s parents attended residential school in Lebret, Saskatchewan. The parents’ respective experiences at residential school were far from positive. Both parents faced abuse, including sexual abuse experienced by Mr. Saulteaux’s mother. The intergenerational impact of the parents’ experiences and upbringing left a lasting impact.

In particular, alcohol and substance abuse were constants in the Saulteaux family. [ 58 ] Given these circumstances, Mr. Saulteaux’s childhood was far from ideal. He informed Dr. Tomita that when he was seven or eight years old, a family physician expressed the belief that he had fetal alcohol spectrum disorder [FASD]. The alcoholism and addictions that plagued his parents eventually resulted in Mr. Saulteaux’s placement in foster care at the age of five. He remained in foster care for two years. That said, there is some question as to the number of foster homes he had been placed in during this time.

[ 59 ] When he was seven years old, Mr. Saulteaux’s mother removed him from foster care. Instead of taking him to the family home, she placed him primarily with his grandparents, where he lived for approximately four years. The evidence also suggests that Mr. Saulteaux spent some time at his mother’s home. It was during these occasions that he had learned, well after the fact, about his father’s suicide. Shortly after, at the age of nine, Mr. Saulteaux had the traumatic experience of witnessing his mother’s collapse and subsequent death from a suspected substance overdose. Mr.

Saulteaux spoke about this memory in his testimony. I accept that it has had a lasting impact. [ 60 ] Mr. Saulteaux’s time with his grandparents was also difficult. He acknowledged drinking and sniffing gasoline with his peers during this time. He also did not get along well with his grandfather, who was a strict disciplinarian and a heavy drinker himself. [ 61 ] Between the ages of 11 and 15 years, Mr. Saulteaux lived at a Ranch Ehrlo group home. While at Ranch Ehrlo, he was enrolled in two schools but rarely attended classes. Aside from running away from school with peers and drinking alcohol, Mr.

Saulteaux told Dr. Tomita that he found it difficult to focus on homework and was easily distracted. After he sustained a serious leg injury at the Ranch Ehrlo summer camp, Mr. Saulteaux returned to live with his grandparents. At that time, he also enrolled at a high school in Indian Head, from which he was expelled after attending for only a week or two. The expulsion resulted from a confrontation with a non-Indigenous student. It is not clear to me that Mr. Saulteaux attended school after this expulsion. [ 62 ] In his lifetime, Mr.

Saulteaux has had several relationships with women, including three common-law relationships and one brief marriage while a serving prisoner. Indeed, during the hearing of this matter, the Court heard evidence of a whirlwind courtship with K.S. The Court was told that this relationship started in January 2022 and resulted in an informal marriage ceremony, after which the witness took Mr. Saulteaux’s surname. While the woman told the Court she wanted a more permanent relationship, Mr. Saulteaux later testified that the couple had taken a “step back” from the relationship.

Still later, when the brief oral decision was delivered, another woman, whom Mr. Saulteaux also described as his wife, attended Court and gave him advice. [ 63 ] The Court was also told about Mr. Saulteaux’s membership in a well-known Regina street gang. Although Mr. Saulteaux told Dr. Tomita that his relationship with the gang had ended in 2001, he testified at the hearing that his membership had extended to January 2022. [ 64 ] Mr. Saulteaux has not hidden the impact that alcohol and drug abuse has had on his life, both as a child and an adult. He told Dr.

Tomita that he began using alcohol when he was nine years old and drank more frequently on the occasions when he ran away from Ranch Ehrlo at the age of 13. After he left Ranch Ehrlo, Mr. Saulteaux’s alcohol consumption became even more frequent. Although Mr. Saulteaux told Dr. Tomita that he did not believe his alcohol use was a problem, he also told the assessor about problems he had with physical withdrawal from alcohol when spending time in custody. He described these periods as lasting for two or three days, including physical discomfort and hallucinations. [ 65 ] As for other substances, Mr.

Saulteaux acknowledged using cocaine, marihuana, hash oil, ecstasy and morphine. Of these substances, cocaine has been the most prevalent. He first used cocaine in 2000. By 2007, after his release from a federal sentence, he used cocaine regularly. [ 66 ] Having said all the above, there is evidence that Mr. Saulteaux’s health scare in 2016 changed his perspective about substance abuse, particularly relating to alcohol. In this regard, Mr. Saulteaux testified to his understanding that because of his health crisis, his life expectancy was now quite short.

He based this understanding on advice from his cardiologist. This testimony prompted me to inquire about the possibility of receiving a report from the treating cardiologist. That report, dated June 22, 2021, was subsequently received. [ 67 ] The report provided some helpful insight. In it, Dr. Stephen Korkola wrote that Mr. Saulteaux presented with infective endocarditis, which had essentially destroyed one of the valves in his heart. For a patient of this age, Dr. Korkola opined that the usual cause for infective endocarditis is illicit drug use.

The bacteria that presents through the infectious process leads to destruction of the valve tissue. [ 68 ] The treatment for Mr. Saulteaux’s clinical presentation was a valve replacement. Although a mechanical valve would have been preferred, primarily due to its propensity to last for a patient’s lifetime, Dr. Korkola concluded that Mr. Saulteaux’s preoperative history made him an unreliable candidate for this option. Instead, a bioprosthetic valve was used. Unlike mechanical valves, bioprosthetic valves last an average of between 8 and 12 years.

While a bioprosthetic valve can be replaced, the implications of ongoing drug use and possible reinfection makes valve replacement problematic. Dr. Korkola wrote that he had explained this issue to Mr. Saulteaux. In this regard he wrote the following: It is possible to redo the surgery to replace this valve for structural deterioration that occurs naturally. I had explained to Mr.

Saulteaux that if he ever had a deterioration of the valve that was from drug use and reinfection of the valve then he would never be an operative candidate again as the same thing would likely keep happening over and over again . [Emphasis added] Dr. Korkola added that regular consumption of large amounts of alcohol would similarly be contraindicated. Mr. Saulteaux’s Criminal Record [ 69 ] Mr. Saulteaux’s criminal history is long and extensive, beginning when he was 13 years old.

The criminal record discloses 29 youth and adult sentences, as well as occasions when he was recommitted for violating statutory release conditions. The non-violent offences in his record include theft, possession of property obtained by crime, uttering a forged document, mischief, escape lawful custody, breach of a recognizance and impaired driving. The particulars of the violent offences in his criminal record are as follows: Date Offence Disposition

July 21, 1992 Regina, SK (Youth Court) • Assault [266] • Probation for 18 months April 26, 1994 Indian Head, SK (Youth Court) • Assault with a Weapon [267(1) (a)] • Assault CBH [267(1)(b)] • Open custody 4 months & probation 1 year August 21, 1995 Fort Qu’Appelle • Robbery with Violence [344] • Sexual Assault CBH [272(c)] • 2 years less 1 day concurrent January 4, 1996 Regina, SK • Uttering Threats [264.1] • 15 days consecutive to serving sentence December 23, 1997 Regina, SK • Assault [266] • 9 months consecutive & prohibited firearms, ammunition or explosive substances 5 years April 6, 2000 Regina, SK • Assault [266] • 30 days & probation 2 years August 25, 2000 Regina, SK • Assault [266] • 4 months consecutive December 3, 2001 Brandon, MB • Assault [266] • Time served & probation 2 years January 7, 2002 Regina, SK • Assault [266] • 2 months September 19, 2002 Regina, SK • Assault a Peace Officer [270(1) (a)] • 4 months February 17, 2003 Regina, SK • Aggravated Assault [268] • 4 years & mandatory probation order s. 109 September 4, 2008 Regina, SK • Assault a Peace Officer [270(1) (a)] • Assault a Peace Officer [270(1) (a)] • 1 year on each charge consecutive February 10, 2010 Prince Albert, SK • Assault a Peace Officer [270(1) (a)] • Assault a Peace Officer [270(1) (a)] • 4 months on each charge consecutive [ 70 ] Some victims of Mr.

Saulteaux’s violence include multiple women. His first adult conviction, for robbery with violence and sexual assault, victimized a woman more than twice his age. Mr. Saulteaux committed these offences on April 5, 1995, just 12 days before the offender’s 18th birthday. A transcript of the trial evidence was exhibited in the evidence presented by the Crown. The synopsis provided by Crown counsel in her written submission accurately describes the transcript evidence. That synopsis reads as follows: 19. On April 5, 1995, Saulteaux was drinking at a house party and left with a 41-year-old woman.

While they were driving, Saulteaux demanded that she take off her clothes. The victim refused. Saulteaux began punching her and slammed her head against the side window of the car. He pulled off her coat, ripped her pants and started to fondle her breasts under her shirt. He threatened to kill her if she fled the vehicle. He then put his hand inside her pants and inserted his finger into her vagina. During the sexual assault, he took $25 from the victim’s pants pocket. Fearing for her life, the victim told Saulteaux that if he stopped beating her, she would take off her clothes.

She invited him to take his clothes off as well. When he stepped outside to do this, the victim took the opportunity to run and hide. A doctor testified at trial that an emotional victim attended the hospital. Upon examination, he found that there was extensive swelling over her nose bridge that extended to below both eyes. She was swollen above the left eye as well.

There was bleeding “noted in the conjunctiva of that left eye…it was bloodied and that was fresh blood.” The victim had dried blood in both nostrils, swelling over her upper lip on the left side and bleeding on the inside of the lip “in keeping with a blow or force exerted to the lip that would push the lip onto the teeth.” X rays showed a fracture to the inferior orbital ridge and to the zygomatic process. It was the doctor’s opinion that the facial fractures had occurred that night. [ 71 ] It is perhaps noteworthy that, while serving the sentence for his August 1995 conviction, Mr.

Saulteaux was convicted of an offence while in custody. Specifically, on September 27, 1995, he uttered threats to kill staff at RCC. [ 72 ] Continuing with a description of Mr. Saulteaux’s offences against women, three of the above convictions relate to assaults on one of Mr. Saulteaux’s common-law partners, who I will identify by her initials, B.M. According to a

summary maintained in the CSC Criminal Profile Report for Mr. Saulteaux, the first offence involving B.M. occurred on the evening of July 7, 1997. On that date, the couple were in their home, with B.M. engaged in a telephone conversation with a friend. For reasons not disclosed in this

summary, Mr. Saulteaux told B.M. to discontinue the call and hang up. When she did not comply, he attacked her. He first punched her in the head, followed by punches to the back of her head and her left shoulder when she tried to protect herself. During this time, Mr. Saulteaux was apparently yelling at B.M. to “shut up” and “stop crying”. He then ripped the phone cord from the wall. B.M. suffered bruises to her face and shoulder. Mr. Saulteaux was convicted of assault and received a nine-month sentence as part of a total sentence of 25 months that included several other charges.

This was his first federal sentence. [ 73 ] The second conviction involving B.M. occurred on May 29, 2000. On this occasion, the offender went to B.M.’s house and demanded money from her. This led to an argument, followed by Mr. Saulteaux punching B.M. in the head, face and back. He received a four-month sentence for this assault. [ 74 ] The third offence involving B.M. occurred on October 9, 2001. By this time, B.M. had separated from Mr. Saulteaux and relocated to Brandon, Manitoba. She was then two months’ pregnant with his child. According to the

summary in the Criminal Profile Report, Mr. Saulteaux entered B.M.’s residence, uninvited, while she was asleep. He attacked her in her bedroom, hitting her numerous times on the head and her right forearm. As the confrontation continued, Mr. Saulteaux is said to have harmed himself by cutting his wrist with a small razor blade, causing a large quantity of blood to spill onto the floor and onto B.M. Mr.

Saulteaux was convicted of assault and mischief (for which he was on warrant status at the time), and received a time-served sentence and a two-year probation order. [ 75 ] The next conviction worth noting is the conviction for aggravated assault imposed on February 17, 2003. This offence occurred on March 29, 2002. On that occasion, Mr. Saulteaux and his then girlfriend, C.R., were in a bar in Wolseley, Saskatchewan. The couple later decided to join others in attending a nearby house party. Mr. Saulteaux and C.R. did not go into the house right away but remained outside for 15 to 20 minutes.

Eventually, one of their acquaintances went outside to look for the couple. When he did, he heard raised voices and rattling beer bottles nearby. Unable to find the couple, the acquaintance returned to the party. Approximately 15 minutes later, Mr. Saulteaux returned with blood on his hands and his sweatshirt. He told the acquaintance that C.R. had been abducted by four men and that the blood on his hands was from fighting two of the abductors, while the other two loaded C.R. into their vehicle. Later, when Mr. Saulteaux and the acquaintance attended at the hospital, Mr.

Saulteaux gave a false name and said he was related to C.R., who was then being treated in the hospital. Upon hearing Mr. Saulteaux’s voice, C.R. identified him as her assailant. [ 76 ] Although C.R. eventually recovered from her physical injuries, she had been seriously injured. She had sustained a broken jaw for which she was transported to a hospital where a surgeon repaired and reset her jaw. C.R. also complained about significant emotional consequences as a result of the attack. On his conviction, Mr. Saulteaux was sentenced to four years imprisonment. [ 77 ] Following the 2003 sentence, Mr.

Saulteaux was held to warrant expiry and released in February 2007. At the time of his release, he entered a recognizance under s. 810.2 of the Criminal Code . He breached that recognizance as well as two more recognizances issued after the breach. After he missed a reporting obligation on August 25, 2008, Regina police saw him in the neighbourhood of a bar after midnight on August 28, 2008. As he was then in violation of the applicable recognizance, police attempted to arrest him. Mr. Saulteaux fled the arresting officers, precipitating a foot chase.

During the chase, the offender told the officers that he had a gun. After the canine unit was brought in, Mr. Saulteaux was tracked down and placed under arrest. During the arrest, he was uncooperative and told the officers, “You have no fucking idea who you are dealing with.” When one officer attempted to place Mr. Saulteaux in the back of the police vehicle, the offender attempted to bite the officer, his teeth making contact with the officer’s arm. As Mr. Saulteaux continued to struggle, he then attempted to kick the officer. Mr. Saulteaux then made two separate attempts to spit at the officers.

On conviction of two counts of assaulting a peace officer in the execution of his duties, Mr. Saulteaux received a sentence, on September 4, 2008, of one year consecutive on each charge, along with a consecutive sentence for breaching the recognizance. [ 78 ] As a footnote to this disposition, the profile report quotes a comment made by the sentencing judge of the Provincial Court of Saskatchewan.

At the time of sentence, the judge is reported to have said the following: Now the time you spend in custody need not be the full 30 months, but you would have to commit yourself, when you are in the institution, to some programs and show that you want to make some improvement in yourself. I hope you do that and that you don’t find yourself in this situation again. [ 79 ] Mr. Saulteaux did not heed the judge’s comments. On February 10, 2010, Mr. Saulteaux was sentenced to four months consecutive on two charge of assaulting peace officers in the execution of their duties. These offences occurred in June 2009.

On these occasions, Mr. Saulteaux spit at and threw coffee and unknown liquids at two correctional officers. Carceral History and Programming [ 80 ] Prior to the date of the predicate offences, Mr. Saulteaux’s carceral history was eventful, and not in a positive way. During his federal incarcerations, he participated in six programs. He completed only three programs on the first try, and was moderately successful in one program related to psychiatric rehabilitation.

It took him three attempts over eight years to complete the Aggressive Behavioural Control Plus Program [ABC], following two unsuccessful efforts in previous incarcerations. In both instances, the lack of success was due to behavioural issues. [ 81 ] A notable feature of Mr. Saulteaux’s carceral history is his bad relationships with correctional employees. This history is noted in the Crown’s brief and is borne out by the correctional records maintained during both provincial and federal incarcerations. The history begins in September 1995 when, at the age of 18, he threatened RCC staff with a pool cue.

This resulted in his conviction for uttering threats. Correctional records after this event also show instances of Mr. Saulteaux having assaulted other inmates and self-harmed before his transfer to the RPC. [ 82 ] The history of confrontational interactions with both federal and provincial correctional staff are too numerous to mention individually.

They include such behaviour as making threatening comments to guards, making threatening comments to third parties about hurting guards (such as comments to the ombudsman as well as an inquiry of the penitentiary library if it had any “books on how to kill a guard”), sexually inappropriate comments to female staff and multiple instances of throwing or threatening to throw

fluids (including bodily fluids) at correctional staff and healthcare providers working in the facilities. [ 83 ] In addition to these behaviours, it is also noteworthy that Mr. Saulteaux has frequently engaged in acts of self-harm while in custody, including attempts to cut himself with razor blades and attempting to swallow them. He has also taken to damaging property in facilities, often to protest rules or actions he disliked. [ 84 ] Mr. Saulteaux’s inappropriate behaviour continued while on provincial remand for the predicate offences and pending the

Part XXIV proceeding. An illustration of Mr. Saulteaux’s behaviour is accurately reflected in Crown counsel’s

summary of 15 incidents said to have occurred in August 2015, before the verdict on the predicate offences. These incidents, all borne out in the admitted records, are as follows: a. August 6, 2015 – Pulled fire alarm for no reason; b. August 6, 2015 – Swallowed razor blades; c. August 6, 2015 – Threatened staff with a “shit bomb”, followed by covering the window and slashing himself; d. August 9, 2015 – Opened up wound on his arm and spread blood over the cell window; e. August 9, 2015 – Attempted hanging; f.

August 10, 2015 – Plugged toilet, threatened to bite staff, throw liquid on them, smash anything he could, and to fire lawyer to prolong stay in remand; g. August 10, 2015 – Pulled fire alarm for no reason; h. August 12, 2015 – Pulled fire alarm after confronted about manipulating phone privileges; i. August 13, 2015 – Pulled fire alarm for no reason; j. August 25, 2015 – Caught “cheeking” his medication; k. August 25, 2015 – Pulled sprinkler and a bowl of urine and feces is discovered in his cell; l. August 27, 2015 – Held up a plate of feces in the medical unit and demanded to make a phone call.

He then threw feces and water that he had mixed in a cup outside his cell door; m. August 28, 2015 – Smeared feces on the camera and windows of his cell in the medical wing; n. August 30, 2015 – covered windows of his cell and a milk container full of feces is discovered. [ 85 ] Mr. Saulteaux’s behaviour during his provincial remand, prior to the federal remand warrant, was a principal factor in the Ministry’s opposition to Mr. Saulteaux’s request for remand back to a provincial facility.

In the Ministry’s evidence on that application, also reflected in the documents filed in this hearing, the Court learned that Mr. Saulteaux had accrued 75 discipline charge resulting in sanctions during the period from 2013 to 2018. The sanctions included reprimands, loss of privileges, extra duties, restitution and confinement. Further, in December 2018, Mr.

Saulteaux was also convicted of threatening to kill a correctional officer at the Saskatoon Correctional Centre [SCC], for which he was sentenced to one year imprisonment. [ 86 ] Despite the events described above, it would be wrong to conclude that all the evidence related to Mr. Saulteaux’s programming, and anticipated programming, was negative. It wasn’t. Aside from completing some programming before 2013, the evidence disclosed that, the offender completed some programming modules while on federal remand.

These modules are similar to, but not as comprehensive as, those in the Integrated Correctional Program Model [ICPM]. Unlike previous programming efforts, Mr. Saulteaux was noticeably pleased with the experience. He testified that, from this modest amount of programming, his “eyes have opened” to the importance of improving his behaviour. [ 87 ] Further to the ICPM, the Court heard testimony that the CSC transitioned to this model across Canada after Mr. Saulteaux’s last federal sentence.

The ICPM, with both High Intensity Aboriginal and non-Aboriginal streams, involves a multi-targeted approach, one that addresses all issues an offender presents. This differs from the previous approach, which provided issue-specific programming, with one program for one targeted issue and another program for a different targeted issue. As the amicus curiae accurately noted in his written submission, the former approach reflected a “patchwork of various programs” as opposed to one holistic program addressing all issues or needs. Psychiatric and Psychological Evidence (

a) Assessments Before 2013 [ 88 ] Mr. Saulteaux’s history of psychiatric and psychological assessment prior to the predicate offences is drawn from data from the CSC, primarily from the RPC and the Regional Treatment Centre, as well as some references in a Pre-disposition Report that was completed when the offender was a teenager. [ 89 ] In the second appendix to the psychiatric assessment report, Dr. Tomita summarized this history. As earlier mentioned, Mr. Saulteaux was believed to have been diagnosed with FASD as a child. There is no evidence of him having been treated for the condition.

The summarized history also discloses that Mr. Saulteaux was diagnosed with attention deficit hyperactivity disorder [ADHD] shortly after reaching adulthood. At that time, he was prescribed Ritalin, a medication he has received throughout his adult life.

[ 90 ] In the mid 2000s, Mr. Saulteaux underwent a psychological assessment at RPC. During the testing conducted for the assessment, the psychologist noted that Mr. Saulteaux found it difficult to maintain focus and appeared frustrated by his failures. The psychologist believed it was important for Mr. Saulteaux that he is not perceived as “dumb” or “stupid”. The testing results also indicated an impulsive cognitive style. The psychologist further noted that while Mr.

Saulteaux possessed the resources to perform complex cognitive tasks, he became emotionally distressed when he had difficulty maintaining a consistent train of thought and that his thoughts often became jumbled and disorganized. [ 91 ] The same psychologist performed an assessment for the National Parole Board in 2005. This assessment was done while Mr. Saulteaux was serving his sentence for the aggravated assault against C.R. [ 92 ] The 2005 psychological assessment also assessed Mr. Saulteaux’s level of psychopathy. In his report, Dr.

Tomita defined “psychopathy” as “a constellation of personality features reflecting a self centred, callous, and remorseless person who is profoundly lacking in empathy and the ability to form warm, emotional relationships with others” (paragraph 214). In the context of 2005 psychological risk assessment, a psychologist assessed Mr. Saulteaux’s level of psychopathy risk with the Hare Psychopathy Checklist-Revised [PCL-R].

She noted that the offender’s score placed him at the 94th percentile in comparison to federal male prison inmate norms, which is considered an extremely high score. [ 93 ] Further, a Violence Risk Appraisal Guide (VRAG) actuarial risk assessment was completed, which placed Mr. Saulteaux in the second highest risk category for violent recidivism. In his

summary of this risk assessment, Dr. Tomita noted the psychologist’s conclusions as follows: [58] In the 2005 psychological risk assessment, the psychologist noted, clinically, he presented with Borderline characteristics. The psychologist noted that part of this related to Mr. Saulteaux’s maladaptive pattern of coping. The psychologist noted that during challenging times, Mr. Saulteaux’s tendency was to hyperfocus on the source or cause of the distress to the relative omission of relevant strategies he could implement to manage his distress.

As a result, there was often a corresponding failure to place energy into effective problem-solving methods. In the face of high-risk triggers, such as negative feelings associated with rejection, abandonment, or disrespect; perceived wrongs or injustices; significant obstacles or challenges; lack of structure or support, Mr. Saulteaux tended to focus exclusively on the negative aspects of his life and had difficulty challenging himself or generating options.

During these times, there was heightened likelihood of him discounting contradictory viewpoints and he often resorted to characteristic response patterns, such as all-or-nothing thinking, catastrophizing, passive aggression, or attention-seeking behaviours. These tendencies served to keep him stuck in a negative cycle and entrenched and destructive, but familiar patterns. The psychologist noted that once his downward spiral started, it was difficult for him to independently interrupt this cycle. The psychologist summarized that Mr. Saulteaux remained at high risk for violent recidivism. She noted Mr.

Saulteaux’s affective instability was a significant factor in his interpersonal functioning, decision making, and general well-being. The psychologist recommended that he successfully complete the ABC program. [ 94 ] Subsequent psychological assessments, later in 2005 and again in 2009, were not inconsistent with this analysis. Notably, Mr. Saulteaux refused to participate in the 2009 assessment, leaving that psychologist to form conclusions based on information already contained in CSC files. As summarized by Dr. Tomita, the 2009 psychologist noted that Mr.

Saulteaux had never completed a period of community supervision without violating the conditions of the release order or accumulating new charges. It was further noted that Mr. Saulteaux had participated in, but never completed, any institutional program to address his history of substance abuse and violent offending. In short, the psychologist concluded that Mr. Saulteaux’s risk factors had not changed since 2005. (

b) Dr. Todd Tomita [ 95 ] As earlier mentioned, Dr. Tomita is a general and forensic psychiatrist. He is engaged in private practice in Vancouver. After the verdict on the predicate offences, Dr. Tomita was appointed to complete this forensic psychiatric assessment of Mr. Saulteaux pursuant to s. 752(1) of the Criminal Code . The assessment he prepared consisted of a five-page report as well as six appendices, consisting of 46 pages of historical review and analysis.

The appendices addressed background history, past psychiatric history, community legal supervision, institutional functioning, violence history and violence risk assessment. Certain of these historical matters have already been addressed. Dr. Tomita also testified in hearing. [ 96 ] Of course, the critically important part of Dr. Tomita’s report and evidence relates to whether Mr. Saulteaux presently represents “a threat to the life, safety or physical or mental well-being of other persons”, which is the second designation requirement stipulated in s. 753(1) (

a) of the Criminal Code . This aspect of Dr. Tomita’s opinion was fully developed in his violence risk assessment (Appendix VI). [ 97 ] In conducting this assessment, Dr. Tomita administered the PCL-R, which was the same test administered in the 2005 psychological assessment. As already mentioned, the PCL-R is a tool used to measure psychopathy. It assesses twenty features related to a person’s behaviour or attitude, described as “items”. Each item is scored on a three-point scale. If the item does not apply at all, it rates a “0” score.

If there is a partial match or mixed application of the item, it rates a “1” score. Where the item reflects a reasonably good match to the offender, it is rated a score of “2”. Mr. Saulteaux’s scores for the twenty items are as follows: [215] Mr. Saulteaux obtained the following scores on the 20 items of the PCL- R. 1. Glibness/superficial charm score = 1 2. Grandiose sense of self- worth score = 1 3. Need for stimulation/proneness to boredom score = 1 4. Pathological lying score = 1 5. Conning/manipulative score = 1

6. Lack of remorse or guilt score = 2 7. Shallow affect score = 0 8. Callous/lack of empathy score = 1 9. Parasitic lifestyle score = 1 10. Poor behavioural controls score = 2 11. Promiscuous sexual behaviour score = 1 12. Early behavioural problems score = 2 13. Lack of realistic, long-term goals score = 1 14. Impulsivity score = 2 15. Irresponsibility score = 2 16. Failure to accept responsibility for own actions score = 2 17. Many short-term marital relationships score = 2 18. Juvenile delinquency score = 2 19. Revocation of conditional release score = 2 20. Criminal versatility score = 2 Mr.

Saulteaux’s score was 29, which, according to Dr. Tomita, fell within a high level of psychopathic features. [ 98 ] Another tool Dr. Tomita administered is the HCR-20 Version 3. Under this tool, Dr. Tomita evaluated Mr. Saulteaux’s historical risk factors as well as clinical risk factors. This allowed Dr. Tomita to arrive at an estimate of future risk.

The historical risk factors that are assessed as a matter of professional judgment are: (1) problems with violence; (2) problems with other antisocial behaviours; (3) problems with relationships; (4) problems with employment; (5) problems with substance abuse; (6) problems with major mental disorder; (7) problems with personality disorder; (8) problems with traumatic experiences; (9) problems with violent attitudes; and (10) problems with treatment or supervision response. In Dr. Tomita’s opinion, nine of the ten historical risk factors were present. The only factor not in play was the one relating to employment.

That said, this was attributable to the absence of an established work record. [ 99 ] As I read Dr. Tomita’s report and heard his testimony, the factors of particular concern were Mr. Saulteaux’s antisocial behaviour, problems with substance abuse, personality disorders (antisocial personality disorder and borderline personality disorder), comfort with the use of violence to solve problems and problems associated with complying with or responding to correctional treatment. In Dr.

Tomita’s view, this last factor was particularly significant in that it indicated a failure to respond to correctional treatment. [ 100 ] Turning to the more dynamic factors, such as clinical and risk management factors, Dr. Tomita expressed concern about all of them, with particular attention to risk factors related to insight and the ability to make appropriate use of professional services and programs. With respect to insight, Dr. Tomita expressed the view that Mr. Saulteaux had “partial insight” into his violence risk. That said, he also opined that Mr.

Saulteaux did not understand the factors that placed him at increased risk of violence or the degree of planning and support that he would realistically need to contain the risk. In the same vein, Dr. Tomita expressed concern about Mr. Saulteaux’s responsiveness to the availability of programs designed to manage his risk through monitoring. In this regard, Dr. Tomita wrote the following: [239] … This risk factor is clearly present. Assuming Mr.

Saulteaux is eventually released on federal parole supervision, the necessary resources will be available to him; it is his responsiveness and whether or not those resources can contain his risk that are the question; in light of his past performance on parole release and continuing threatening and disruptive behaviour in custody, his ability to comply with

rules and conditions appears poor and there are really no indicators of substantial changes in this area . Although Mr.

Saulteaux maintains that his recent stability over the past few months is durable, to a large degree, what occurs after sentencing will be [ sic ] reveal to what degree his approaching sentencing hearing is the key motivator in his settling down; at this point, the weight of his history suggests that this period of stability will only be temporary and he will continue to fluctuate between periods of stability and instability marked by aggression, threatening, self-harm, property destruction and other disruptive behaviours. [Emphasis added] [ 101 ] Dr.

Tomita’s more specifically expressed opinions appear in his five-page report. There, he expressed his opinions about Mr. Saulteaux’s psychiatric diagnosis and his violent risk assessment, as well as his treatment needs and level of treatability. [ 102 ] The psychiatric conditions diagnosed, which are static risk factors, include: (1) antisocial and borderline personality disorders; (2) probable FASD; (3) possible ADHD; (4) alcohol use disorder; and (5) cocaine use disorder. Of these conditions, the personality disorders were the most concerning. Dr.

Tomita observed that the antisocial personality was reflected in Mr. Saulteaux’s evasive pattern of disregard for and violation of the rights of others, impulsiveness and failure to plan ahead, irritability and aggressiveness, recklessness, lack of remorse, rationalizing about past violence, and other antisocial behaviours. His borderline personality is reflected in his pattern of mood instability, instability in relationships, marked impulsivity, recurrent suicidal and self-harm behaviours, inappropriate and intense anger, and difficulty controlling anger. [ 103 ] As for the violence risk assessment, Dr.

Tomita opined that Mr. Saulteaux is at high risk for future violence and that the predicate offences reflected an escalation in his violence risk. Dr. Tomita went on to observe that there was no feasible way that Mr. Saulteaux’s violence risk could be managed in the community unless there is a reduction in the level of risk. The two factors that might lead to a reduction in the violence risk level were identified as treatment effects and the impact of aging. Even so, Dr. Tomita also observed that aging would not likely have any substantial effect because of the offender’s FASD and ADHD.

He explained that these are neuropsychiatric conditions that are likely to be permanent. [ 104 ] Turning to Mr. Saulteaux’s treatment needs and level of treatability, Dr. Tomita identified two types of treatment that would be available. The first types of treatment are those directed at reducing risk, such as the ABC Aggressive Behavioural Control program that he had previously participated in. Although Dr. Tomita noted variability in the findings from the treatment programs, he also expressed the view that, on balance, there was the potential for modest risk reduction.

The other types of treatments are more clinical in nature, focused either on decreasing psychiatric symptoms or helping offenders manage cognitive deficits in ways that will improve the level of functioning. [ 105 ] Despite the types of available treatment, Dr. Tomita did not express any optimism that they would reduce Mr. Saulteaux’s violence risk in a meaningful way. He attributed this to the offender’s inability to maintain sufficient stability to withstand the intensive treatment programs required. Moreover, even if he completed this type of programming, Mr.

Saulteaux’s clinical presentation would likely impact his ability to respond to the programming and, in turn, diminish his level of potential risk reduction. In sum, Dr. Tomita summarized his view on Mr. Saulteaux’s level of treatability as follows: [20] In light of these considerations, I would assess Mr. Saulteaux’s level of treatability for programs designed to reduce his violence risk as low . He will require intensive treatment programs addressing violence risk and these types of programs can last close to a year, particularly modified or adapted programs that proceed at a slower pace.

His ability to remain sufficiently stable in the institution is limited and I would expect a high risk of treatment interruptions as a result of disruptive behaviour, self-harm behaviour or inappropriate behaviour in treatment. There is a reasonable likelihood he might be again discharged from a program for disruptive, inappropriate or threatening behaviours.

If he completed an appropriate program, the level of potential risk reduction will probably be at the lower end given the presence of several clinical conditions that reduce his potential level of responsivity including FASD and high levels of Antisocial, Borderline, and Psychopathic personality features. [Emphasis added] Mr. Saulteaux’s Testimony [ 106 ] At the outset of the description of the offender’s testimony, I am compelled to comment about the change in Mr. Saulteaux’s demeanour during this prolonged proceeding. Until the unfortunate conference call in February 2020, Mr.

Saulteaux had proved to be difficult to deal with. Aside from not getting along with his counsel, he did whatever he could to control and, in my view, to delay these proceedings. It was also evident that he trusted very few people. Mr. Saulteaux rarely accepted the advice or assistance he received from counsel, the amicus curiae or the Court. In large measure, I discerned that this lack of trust stemmed from Mr. Saulteaux’s dislike of authority, something he readily acknowledged in his testimony.

He also testified about his feeling that others were judging him in such a way that they saw him as someone who “didn’t deserve being in society”. Curiously, and as noted in my fiat on the remand decision, Mr. Saulteaux seemed much more receptive to advice given to him by other prisoners. [ 107 ] I also saw Mr. Saulteaux testify in the trial on the predicate offences. To say he was a poor witness would be a gross understatement. His then counsel had considerable difficulty controlling him. Much of his testimony was laced with gratuitous profanity.

Aside from disbelieving his testimony in that trial, I was satisfied that Mr. Saulteaux was not prepared to accept any responsibility or remorse for his conduct. [ 108 ] After February 2020, there was a modest, but perceptible, shift in Mr. Saulteaux’s interactions with the Court.

While there was still evidence of distrust and a desire to control the process, particularly in the context of the remand applications, Mr. Saulteaux had become less antagonistic. It would be wrong to describe this shift in behaviour as a complete change. It clearly was not. That said, the shift was enough to make the experience of dealing with Mr. Saulteaux much better than it had been. [ 109 ] The less antagonistic demeanour carried over into Mr. Saulteaux’s testimony. He was reasonably controlled and testified in as straightforward a manner as he could.

The profanity still showed up on occasion, but it was much more controlled. [ 110 ] As for the substance of Mr. Saulteaux’s testimony, much of it has already been touched on elsewhere in this judgment. Under this heading, I will principally address relevant matters that have not already been covered. [ 111 ] After testifying to his childhood and background leading up to the date of the predicate offences, Mr. Saulteaux turned to some of the circumstances of the offences forming part of his criminal record. Many of these circumstances related to his relationships with girlfriends and common-law partners.

Notably, he denied responsibility for some of the offences, including the aggravated assault conviction involving C.R. Mr. Saulteaux did this despite the Court’s admonition that it could not make findings of fact that were inconsistent with the convictions. [ 112 ] A fair amount of Mr. Saulteaux’s testimony related to problems he experienced on remand. While he did not deny his record of misconduct, he spoke about how unfair he was treated at RCC.

Three episodes were specially identified, with the first incident having been the subject of considerable attention in Counsel A’s cross-examination of correctional staff. [ 113 ] The first incident occurred on June 15, 2016, after Mr. Saulteaux “popped” fire sprinklers in the range where he was held on remand. He testified that he did this damage because he was angry about being denied possession of certain personal property, including photographs of his brother. This vandalism and its aftermath were recorded on surveillance video.

It showed that after the sprinklers were damaged, multiple guards responded with what can only be described as a severe beating. The video captured certain guards repeatedly kicking and punching Mr. Saulteaux as well as grabbing him by the hair while he was down on the floor. [ 114 ] Mr. Saulteaux testified that he sustained injuries to his face, upper body, wrist and leg, none of which were treated. He also testified that he retained counsel from Pro Bono Law Saskatchewan to pursue a civil claim against the guards and that this claim was later settled.

The Court had earlier learned, from Counsel A’s cross-examination, that some guards faced discipline for their actions, including at least one case of dismissal from employment. [ 115 ] The second incident occurred on November 11, 2019, when Mr. Saulteaux stayed in RCC while attending Court. On this occasion, Mr. Saulteaux again expressed his unhappiness by damaging sprinklers with a broom and towel. After dropping the broom and towel at the guards’ instruction, the surveillance video showed the attending guards seize Mr. Saulteaux. In doing so, the guards punched and kicked the offender.

He told the Court that the guards’ actions resulted in a dislocated shoulder as well as other injuries depicted in still photographs taken the next day. [ 116 ] The third incident occurred on April 29, 2022, when Mr. Saulteaux was again in Regina for Court. While in a cell in the admitting area of RCC, Mr. Saulteaux covered the cell window. He testified that the guards responded by opening the cell door, throwing him to the ground and beating him. Photographs taken of his injuries show bruising on the right side of his upper body, near his rib cage. [ 117 ] Mr. Saulteaux also testified to his future plans.

In doing so, he acknowledged that he would still need a period of supervision, probably as a long-term offender. Following this period of supervision, Mr. Saulteaux plans to return to Carry the Kettle where he can further embrace his culture and heritage. He said he is confident he will be able to “self-check” and abide by whatever conditions are put in place. [ 118 ] Crown counsel’s cross-examination of Mr. Saulteaux was also somewhat revealing. In it, the offender disclosed that one of his principal reasons for drawing out this proceeding was that he was “scared” about the outcome.

Another reason was that the frequent production orders in Regina allowed him time to see family members. [ 119 ] The cross-examination also touched on some of Mr. Saulteaux’s previous offences, particularly those involving B.M. and C.R. In answering counsel’s questions, he acknowledged that he previously blamed B.M. for “putting him in jail”, following which he candidly admitted that it was his own conduct that put him in jail. In the questioning about the offence against C.R., Mr. Saulteaux openly wept when asked about that victim’s suicide. I have no reason to believe that his tears were not genuine.

Gladue Factors and Christine Sagassige’s Testimony [ 120 ] As mentioned, Ms. Sagassige prepared a report in April 2017. She also gave oral testimony near the end of the proceeding. [ 121 ] The report and Ms. Sagassige’s evidence was more suited to

Part XXIII sentences than for

Part XXIV dispositions. In her report, Ms. Sagassige wrote about Mr. Saulteaux’s personal and family history, as well as the background of the Lakota/Nakoda people and the origins of Carry the Kettle. The intergenerational effect of family attendance at residential school, earlier discussed in this judgment, figured prominently in the report. [ 122 ] Ms. Sagassige also wrote about the offender’s disconnection from his Indigenous community. That said, she acknowledged the evidence that, since her report, Mr.

Saulteaux has taken steps to re-connect with his culture and his community, all with the intention to grow that re-connection going forward. [ 123 ] Ms. Sagassige did not meaningfully identify any Indigenous-focused programs or means for addressing Mr. Saulteaux’s risk factors for violent recidivism. She did identify certain on-reserve programs, such as the National Native Alcohol and Drug Abuse Program, and the presence of a mental health worker, as well as off-reserve restorative justice options, such as FASD Network Saskatchewan and the File Hills Qu’Appelle Tribal Counsel Restorative Justice Program.

That said, the Court received no

evidence as to how any of the services offered by these entities could assist Mr. Saulteaux in controlling his risk to reoffend in a community setting. Law and Analysis

Part XXIV of the Criminal Code and Preventive Detention [ 124 ] As referenced in the introduction,

Part XXIV of the Criminal Code contains the statutory framework a court must apply to determine whether an offender should be designated a dangerous offender or a long-term offender, as well as the sentences to be imposed following the designation. For applications to designate a dangerous offender, the applicable provision is s. 753. In the circumstances of this case, the relevant portions of s. 753 read as follows: 753

(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied (

a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (

a) of the definition of that expression in

section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (

i) a pattern of repetitive behaviour by the offender , of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a br utal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or …

(4) If the court finds an offender to be a dangerous offender, it shall (

a) impose a sentence of detention in a penitentiary for an indeterminate period ; (

b) impose a sentence for the offence for which the offender has been convicted – which must be a minimum punishment of imprisonment for a term of two years – and order that the offender be subject to long-term supervision for a period that does not exceed 10 years ; or (

c) impose a sentence for the offence for which the offender has been convicted.

(4.1) The court shall impose a sentence of detention in a penitentiary for an inde

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