R. v. Hikoalok, 2023 MBKB 95

Date: 20230612 Docket: CR 18-01-36879 (Winnipeg Centre) Indexed as: R. v. Hikoalok Cited as: 2023 MBKB 95 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: ) HIS MAJESTY THE KING ) Chantal Boutin ) Monique Cam - and - ) for the Crown ) JASON JAY TOOK HIKOALOK, ) Brett Gladstone ) as amicus accused. ) ) ) Judgment Delivered : ) June 12, 2023 BAN ON PUBLICATION: Pursuant to s. 486.4(1) of the Criminal Code , any information that could identify the person described as the complainant in this judgment shall not be published, broadcast or transmitted in any manner. TOEWS J.

Introduction [ 1 ] This is an application by the Crown to have Jason Jay Took Hikoalok found to be a dangerous offender and to have an indeterminate sentence of detention in a penitentiary imposed in respect of the following counts on the indictment he faced at trial: • Sexual assault with a weapon; and • Forcible confinement. [ 2 ] The application is brought pursuant to s. 753 of the Criminal Code R.S.C. 1985, c. C-46 (the “ Code ”).

Section 753 of the Code falls under

Part 24 (dangerous offenders and long-term offenders). This application follows a multi-day trial after which I convicted Mr. Hikoalok of the following counts on the indictment: • Count 1: Assault; • Count 2: Sexual Assault with a weapon; • Count 3: Forcible confinement; and • Count 4: Uttering threats.

[ 3 ] I would note that Mr. Hikoalok pleaded guilty to the offence of Assault at the onset of the trial. [ 4 ] While the Crown states that counts 2 and 3 are subject to the

Part 24 sentencing regime, it is conceded that count 1 and count 4 are not subject to the

Part 24 sentencing regime. The Crown seeks a one-year concurrent period of custody in respect of counts 1 and 4. It is noted that in view of the time that Mr. Hikoalok has already spent in custody, this time has already been served. [ 5 ] The Crown also seeks the following ancillary orders:

a) A lifetime firearms prohibition order pursuant to s. 109 of the Code ;

b) A primary offence DNA order pursuant to s. 487.051(1) of the Code ;

c) A lifetime SOIRA order;

d) An order prohibiting Mr. Hikoalok from communicating with C.P. and D.T. directly or indirectly while in custody pursuant to s. 743.21 of the Code ; and

e) That a copy of relevant reports and transcripts of the trial and sentencing proceedings be forwarded to the Correctional Service of Canada pursuant to s. 760 of the Code . [ 6 ] The facts which I found in convicting Mr. Hikoalok on August 21, 2019, are summarized extensively in the material filed by the Crown on September 10, 2020, as part of this dangerous offender application (Court document 46 at pp. 46 and 47) and which is entitled “Summary of Background, Offending, Releases, Custodial Periods and Community Supervision of Jason Jay Took Hikoalok”. A

summary of the relevant facts are also set out at page 1 of the Crown’s Argument (Court document 89). For the purposes of these reasons, it is sufficient to reproduce a shorter

summary as found at p. 2 of the Crown’s brief (Court document 83) which provides at paras. 6 and 7: 6. On October 27, 2017, [Hikoalok] attended to the victim [C.P.’s] apartment suite. Once inside, he smoked a drug that the victim believed was either crack or crystal meth. [Hikoalok] then produced a pocket knife and hatchet, and threatened to kill her if she did not do what she said. [Hikoalok] pressed the weapons to the victim’s body and ordered her to undress. [Hikoalok] forced the victim to perform fellatio on him and then forced vaginal intercourse and anal intercourse.

The sexual assault continued for hours. 7. The victim was eventually able to flee her suite. [Hikoalok] ran after her and attempted to drag her back inside. A neighbour, D.T., heard the commotion and observed the struggle. He approached [Hikoalok], who punched him in the face. [Hikoalok] fled and police arrested him on November 24, 2017. [ 7 ]

Section 754 requires that the following procedural steps must be taken prior to a dangerous or long-term offender hearing:

a) The Attorney General must give his/her consent to the application;

b) At least seven days notice of the basis of the application must be given by the prosecutor to the offender; and

c) A copy of the notice of the application must be filed with the court. [ 8 ] In this case, the consent of the Attorney General was obtained (See Tab 1 of Volume lX, Required Materials on the Application). The notice of application was filed with the court on October 14, 2020 and provided to defence counsel (now amicus in these proceedings) and Mr. Hikoalok at Headingley Correctional Centre, on August 27, 2021. [ 9 ] It is noted that Mr.

Hikoalok and his successive legal counsel have not seen eye to eye in respect of the conduct of this matter during both the substantive trial and at the commencement of this proceeding. All have been allowed to withdraw as counsel of record when the application was made. Accordingly, when Mr. Hikoalok’s final counsel of record was allowed to withdraw at the commencement of this hearing, amicus was appointed by the court.

The actual appointment of the amicus took place well in advance of the actual hearing taking place as a precaution in the event that counsel of record would seek to withdraw. [ 10 ] Amicus here was formerly one of Mr. Hikoalok’s counsel and is well acquainted with the details of this particular case. The appointment was made in order to ensure that the court remained mindful that all appropriate steps are taken to ensure that Mr. Hikoalok’s interests are considered and respected in the course of this application. [ 11 ] I think it is also important to specifically acknowledge that since Mr.

Hikoalok was unrepresented in these proceedings, the court did not benefit from the type of detailed written or oral submissions that were presented by the Crown in favour of designating Mr. Hikoalok a dangerous offender and secondly, that there is no reasonable expectation that a measure less than an indeterminate sentence will adequately protect the public against the commission of murder or a serious personal injury offence by Mr. Hikoalok. [ 12 ] In the absence of counsel for Mr.

Hikoalok, I wish to acknowledge the assistance of the amicus in this case in reviewing the evidence and advancing in his argument the alternative to the case presented by the Crown.

His representations were of great assistance in ensuring that I properly considered the law applicable in this case and that I was mindful as to whether the evidence produced by the Crown here met the applicable statutory or constitutional evidentiary burden placed upon the Crown in the context of this hearing. [ 13 ] I am also satisfied that despite the efforts made by past and present counsel, including amicus, Crown counsel and the custodial

authorities, to ensure that Mr. Hikoalok was provided with every opportunity to prepare for this hearing in the absence of counsel, Mr. Hikoalok neglected to make any substantive effort in that respect. I do not believe his assertions that he was not accommodated in this regard by the custodial authorities are believable. [ 14 ] As set out in the letter from the Crown dated February 7, 2023, the custodial authority at the provincial gaol where he is presently being held, sent e-mail correspondence to the court at the request of the court.

The relevant portions of that e-mail were authored by the senior unit officer in the Differential Needs Unit of Headingley Correctional Institute where Mr. Hikoalok is being held. While the letter itself, including the relevant e-mail set out in the body of the letter, are before the court and filed as court document 91, it is instructive to reproduce it here. It provides: … I would like to state that Inmate Hikoalok, Jason has had ample opportunity to view his disclosure while in custody in the Differential Needs Unit.

I have spoken with Unit staff as well as Inmate Hikoalok about this matter and Inmate Hikoalok understands that the evenings are available on a daily basis unless an incident occurs that does not allow it. Inmate Hikoalok has been offered to view his disclosure multiple times while out on his free time however he chooses to refuse the opportunity in hopes he can view it while he is supposed to be locked in his cell. I had spoken with Inmate Hikoalok prior to his most recent court date about passing up opportunities to view disclosure and he stated he understood.

I will speak with all unit staff and ensure that we remain on the same page in providing Inmate Hikoalok daily opportunity to view his disclosure. I will also speak again with Inmate Hikoalok and inform him that staff will not be chasing him to view his disclosure, and that with a simple request, he will be provided the means to view his disclosure on a daily basis unless the unit/institution is locked in due to incident. [ 15 ] I am satisfied that Mr.

Hikoalok had the opportunity to access any material that is required for the purposes of his hearing, not only by requesting it from the custodial authorities, but that access has been offered to him by Crown counsel and amicus. The willingness of all counsel to provide appropriate assistance to him has been demonstrated to me in the course of this hearing. It is very clear that the greatest impediment for Mr. Hikoalok to access any material necessary for the purposes of this hearing is directly attributable to his own conduct, attitude, and behaviour.

This was very evident to me in the course of the proceedings before me. [ 16 ] It is evident that Mr. Hikoalok has done everything in his power to obstruct or delay these proceedings. In the result, the only written materials and oral argument directly related to the issues that I am able to consider are from Crown counsel and to a lesser, but nonetheless substantial way, from amicus counsel.

I have considered the submissions of both counsel carefully, and in the final analysis I find that the very extensive written submissions of Crown counsel, both in respect of the summation of the applicable law and the relevant evidence fairly and accurately summarize both the law and the facts in this matter. [ 17 ] Mr. Hikoalok’s comments and submissions in the course of this hearing have been less than helpful and indeed, detrimental to his own interests. Mr.

Hikoalok has not been helpful in terms of the issues that I am required to address in this matter, other than perhaps unintentionally confirming some of the significant concerns that the medical and other evidence presented here concludes is the case. [ 18 ] I note that the Crown has also accurately summarized Mr. Hikoalok’s comments in its material in relation to the issues. I acknowledge that the court should be very careful before adoptong portions of the written submissions of any party to litigation of this nature.

However, I am satisfied from my review of the materials, the evidence and the submissions of all parties, including amicus and Mr. Hikoalok, that the written material of the Crown fairly and properly summarizes the evidence and on the basis of the evidence, properly leads to the conclusions that the Crown urges I adopt in this matter. [ 19 ] Accordingly, rather than necessarily reproducing the extensive

summary of law and evidence relevant to my findings, I will from time to time simply reference, if not reproduce, the applicable law and relevant evidence, as well as Mr. Hikoalok’s submissions as found in the materials provided by the Crown. While amicus has provided me with oral arguments regarding the applicability of a sentence less than the indefinite or indeterminate sentence requested by the Crown, amicus does not dispute the evidence that the Crown relies on in advancing this application.

Nor are the legal principles which ground the Crown’s application disputed by amicus. [ 20 ] For the reasons that follow, I find Mr. Hikoalok to be a dangerous offender and I am imposing an indeterminate sentence of detention in a penitentiary in respect of the convictions that I entered on the counts of sexual assault with a weapon and forcible confinement. [ 21 ] I wish to thank both amicus and Crown counsel for their extensive work in respect of this difficult hearing. The Legal Issues I. Is Mr. Hikoalok a dangerous offender as described in s. 753 of the Code ? II.

If so, is there a reasonable expectation that a measure less than an indeterminate sentence will adequately protect the

public against the commission of murder or a serious personal injury offence by Mr. Hikoalok ? [ 22 ] My review of the legislative provisions and the relevant facts has led me to the conclusion that Mr. Hikoalok is a dangerous offender as described in s. 753 of the Code . I will set out the relevant provisions and my reasons for resolving that issue in that manner before dealing with the second legal issue. I. Legal Issue I: Is Mr. Hikoalok dangerous offender as described in s. 753 of the Code ? a. The Law [ 23 ] Subsection 753(1) (

a) of the Code prescribes three different sets of criteria which will lead to a dangerous offender designation if the court is satisfied they have been met. The Crown submits that Mr. Hikoalok meets the criteria set out in both ss. 753(1)(a)(

i) and 753(1)(a)(ii). The relevant portions of s. 753(1) provides: 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, … [ 24 ] In R. v.

R.M. , 2007 ONCA 872 , 228 C.C.C. (3d) 148 (QL), the court held it is the Crown that has the onus of establishing beyond a reasonable doubt that the offender meets the dangerous offender criteria under s. 753(1)(

a) or (b). However, once that onus is met, there is no particular burden of proof on either party to determine whether the offender can be managed with a less restrictive sentence. [ 25 ] Pursuant to s. 753 (4) of the Code , if the court finds an offender to be a dangerous offender it shall: (

a) impose an indefinite sentence; (

b) impose a fixed sentence followed by an long-term supervision order; and (

c) impose a fixed sentence. [ 26 ] However, it should be noted that s. 753(4.1) of the Code curtails the discretion of the court to impose an indefinite sentence. It provides: The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(

b) or (

c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. [emphasis added] [ 27 ] In R. v. Boutilier , 2017 SCC 64 , [2017] 2 S.C.R. 936 (QL) , at paras. 62-69 , the Supreme Court of Canada confirmed that s. 753(4.1) does not enact a presumption that an indeterminate sentence is a fit sentence for a dangerous offender. Nor does it impose a burden on the offender to adduce evidence to demonstrate a reasonable expectation that a lesser measure will adequately protect the public.

Rather, the Supreme Court explained that s. 753(4.1) simply guides the exercise of discretion by the sentencing judge who must determine a fit sentence based on all the evidence adduced at the hearing. [ 28 ] If the court does not find Mr. Hikoalok to be a dangerous offender, s. 753(5) of the Code allows the court to either, treat the hearing as a long-term offender hearing or to impose a sentence in accordance with the usual principles of sentencing outside of the dangerous offender provisions. [ 29 ] It is noted in this case the Crown’s position is that if Mr.

Hikoalok is not found to be a dangerous offender, then the Crown is seeking to have this hearing treated as a long-term offender hearing and to have Mr. Hikoalok declared to be a long-term offender. The long-term offender hearing procedure is set out in s. 753.1 of the Code and allows the court to find an offender to be a long-term offender if it is satisfied that:

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

b) there is a substantial risk that the offender will reoffend; and

c) there is a reasonable possibility of eventual control of the risk in the community. [ 30 ] The Crown notes in its argument that it is not asking the court to consider s. 753(1.1) of the Code and the court has proceeded on that basis. This

section purports to create a presumption of dangerousness. b. The Application of the Law to this case in respect of Legal Issue I [ 31 ] There are three significant determinations that the court must make in this context: i. Are the predicate offences “serious personal injury offences”? ii. What constitutes a “pattern” as contemplated in ss. 753(1) (a)(

i) and 753(1) (a)(ii) of the Code ? iii. What should the court consider in deciding whether there is a high likelihood of harmful recidivism that is intractable? [ 32 ] My conclusions in respect of these three legal issues are summarized as follows:

i) Are the predicate offences “serious personal injury offences”? [ 33 ] The relevant portion of the definition of “serious personal injury offence” is set out at s. 752 of the Code which provides: serious personal injury offence means (

a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving (

i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, and for which the offender may be sentenced to imprisonment for ten years or more, or (

b) an offence or attempt to commit an offence mentioned in

section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault). [ 34 ] Sexual assault with a weapon is specified as an offence falling under the legislation as a “serious personal injury offence.” While the offence of forcible confinement is not similarly specified, the Crown argues that Mr.

Hikoalok’s use of sharp-edged weapons in order to dominate and control his victim creates a situation whereby the offences he committed, including that of forcible confinement, are violent and therefore fall within the scope of the definition of a “serious personal injury offence” as determined by the Supreme Court of Canada in R. v. Steele , 2014 SCC 61 , [2014] 3 S.C.R. 138. [ 35 ] It is noted that in Steele , the Supreme Court of Canada held s. 752(a)(

i) does not involve a qualitative assessment of the degree of violence used. In that case, the court considered the scope of the definition of a “serious personal injury offence,” and the threshold for entering into the dangerous or long-term offender regime. [ 36 ] In Steele , the offender entered a drug store and said he had a gun even though there was no evidence of an actual gun, nor was any physical violence used. The court considered whether threats of violence met the requirement under s. 752(a)(

i) of “the use or attempted use of violence against another person”. The court held that all threats of violence are themselves violent, even though the seriousness of the violence might be limited. [ 37 ] I have no difficulty in accepting that the facts of this case leave no doubt that the offence of forcible confinement proven in this case, although not specified in the legislation, is violent as defined by the court in Steele and falls within the definition of “serious personal injury offence” as contemplated by s. 753 of the Code . ii) What constitutes a “pattern” as contemplated in ss. 753(1) (a)(

i) and 753(1) (a)(ii) of the Code ?

[ 38 ] While there is no requirement that a pattern of behaviour be demonstrated under s. 753(1) (

b) of the Code , subsections 753(1) (a) (

i) and (ii) both refer to patterns of behaviour which, if shown, may lead to a determination that the offender is a dangerous offender. [ 39 ] In R. v. McCallum , 2016 SKCA 96 , 484 Sask.R. 175 (QL), the court noted at paras. 45 and 46 that: 45 ... “intractability” is not a part of Parliament’s description of what constitutes a pattern of behaviour sufficient to ground a dangerous offender designation. As counsel for the Crown correctly points out, “intractability ceased to be a requirement with the 1997 amendments” to the dangerous offender provisions of the Criminal Code .

See: R v Szostak , 2014 ONCA 15 at paras 47-55 , leave to appeal refused in [2014] SCCA No 300 (QL); R v Pedden , at paras 22-26, leave to appeal refused in [2005] SCCA No 445 (QL); R v Wormell , 2005 BCCA 328 , leave to appeal refused in [2005] SCCA No 371 (QL); R v Moosomin , 2008 SKCA 169 at paras 58-61 , 320 Sask R 100 . 46 Second, it is important to note that ss. 753(1)(a)(

i) and (ii) refer to patterns of behaviour as opposed to offences. Thus, in order to establish the patterns referred to, it is not necessary that the offences be similar in nature or kind, nor must the behaviour constituting the pattern arise under the same types of circumstances. What is necessary to establish the pattern of repetitive behaviour contemplated by s. 753(1) (a)(

i) is an offender’s failure to restrain himself or herself and that the result of that failure is the likelihood of death, injury or severe psychological damage to others. To establish a pattern of “persistent, aggressive behaviour”, as envisioned by s. 753(1) (a)(ii), a substantial degree of indifference must be shown on the part of the offender to the reasonably foreseeable consequences to others of his or her behaviour. The predicate offence must be part of the pattern referred to in either ss. 753(1)(a)(

i) or (ii). Those patterns, however, are not mutually exclusive as suggested by Mr. McCallum. They may well overlap. By necessity, both ss. 753(1) (a)(

i) and (ii) will involve repetitive behaviour. After all, that is what a pattern entails -- repetition. [ 40 ] Further at para. 50 the court in McCallum stated: 50 In R v Knife , 2015 SKCA 82 , 460 Sask R 287 , Lane J.A., writing for this Court, stated: [64] Section 753(1)(

a) is aimed at identifying patterns of violent behaviour. It is the repetition of the violent behaviour which forms the pattern. [65] Repetition obviously implies there is more than one offence. Thus an offender must have prior violent offences (even if only one), and the predicate offence must constitute a repetition of the offender's violent behaviour. [66] This is true of both s. 753(1) (a)(

i) and s. 753(1) (a)(ii). Both are aimed at identifying repetitive violent behaviour. For s. 753(1)(a)(i), the repetitive behaviour must show a failure to restrain the offender's behaviour as well as a likelihood of causing death or injury to other persons.

For s. 753(1)(a)(ii), the repetitive behaviour must show a substantial indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her actions. [67] There are two main ways of identifying this repetitive behaviour: as stated in Neve at para. 111, there may be similarities in the types of offences, or similarities in the degree of violence used.

For example, an offender with a history of committing aggravated assaults has necessarily demonstrated a repetition of violent behaviour, as a high degree of violence is implied in the very nature of aggravated assault.

Rosenberg J.A. in the Szostak decision of the Ontario Court of Appeal, at para. 63, agreed with Neve stating "Similarity ... can be found not only in the types of offences but also in the degree of violence or aggression threatened or inflicted on the victims" ( Neve at para. 113). [68] However, despite similarities in the violent behaviour, the offences may be different due to extrinsic factors: for example, the victim may have died rather than been wounded (leading to a manslaughter charge rather than an assault charge); or the offender may have pleaded guilty to a lesser included offence for the purpose of a plea bargain.

These extrinsic factors may mean the types of offences on the offender's record are not the same, despite the fact the offender has repeatedly engaged in a similar degree of violent behaviour. To ensure the dissimilarities in extrinsic factors do not affect the issue of whether an offender is a dangerous offender, "repetition" can be demonstrated by similarities in the degree of violence used. [69] The Alberta Court of Appeal chose to use the phrase "degree of violence" to describe this latter idea in Neve . Another way of characterizing this same idea could be to refer to it as the "nature of the violence".

The nature of violence used may demonstrate significant similarities in the offender's behaviour which in turn may ground a finding of "repetitive behaviour"-- for example, an offender who continually uses weapons to committing violent offences, regardless of what the specific type of offence is. The point is that the focus should be on similarities in the offender's violent behaviour that show a failure to restrain that behaviour.

[ 41 ] I am of the opinion that the court in McCallum has properly summarized the law insofar as my consideration of this issue is concerned. iii) What Should the court consider in deciding whether there is a high likelihood of harmful recidivism that is intractable? [ 42 ] If the court is satisfied that the offender has committed a serious personal injury offence that is part of a larger pattern then the final part of the designation stage is to determine whether the offender poses a high risk of harmful recidivism that is resistant to treatment or change.

This prospective risk assessment is concerned with whether an offender will continue to be a real and present danger in the future, and whether the offender is able to surmount the sources of that risk. (See Boutilier ) [ 43 ] In this context the court should consider clinical evaluations, mental illnesses, presence of deeply ingrained personality traits or disorders, substance use disorders, impulsivity, lack of empathy, availability of treatment programs, willingness or ability to comply with and embrace those treatment programs and the efficacy of past treatments attempted. (See Boutilier ) The Evidence [ 44 ] The evidence relevant to the application of the principles discussed above are set out at pp. 15 through 55 of the Crown’s argument (Court document 89).

In my opinion, that

summary is fair and accurate and I note there is no substantive disagreement between counsel on the factual underpinnings of this case. At the same time, I note that Mr. Hikoalok takes the position that all of his convictions for sexual assault are based on false or otherwise flawed evidence, including two separate cases involving a four-year-old and a five-year-old respectively, in respect of which he pled guilty. [ 45 ] A detailed account of Mr.

Hikoalok’s early childhood, criminal offending, release history, behaviour in custody, and performance on community supervision, is found in the document entitled “Summary of Jason Jay Took Hikoalok’s Background, Offending, Releases, Custodial Periods and Community Supervision”. (Court document 46) [ 46 ] As summarized in the Crown’s argument at pp. 16 to 18 inclusive, and without minimizing any concern about other prior incidents and observations also set out in the Crown’s argument, some of the details of his very troubled childhood include: October 20, 1986 : A report

summary authored in 1998 for a later sentencing noted, “while Jason was in foster care with his aunt and uncle in Gjoa Haven, the principal at the elementary school, Brian Swan, reported that Hikoalok had been caught attempting to have anal intercourse with an unwilling boy, who had his pants down, in the school bathroom.” September 1988 - March 1989: Hikoalok was in William Roper Foster Home in Calgary, AB. His behaviour had become more serious and he could no longer be managed in a foster home.

During this six-month period, Hikoalok was reported to have assaulted childcare workers and teachers on 17 occasions and assaulted other residents on 10 occasions. 1991 : Over a two-month period, while placed in Woods Christian Home in Calgary, AB, Hikoalok was reported to have committed six assaults on staff, and five assaults on other residents. He was reported to have sexually assaulted a girl, by forcing his hand under her blouse and touched her breasts and also reported to have set a teacher’s hair on fire with a lighter.

November 1991 – February 1992 : During Hikoalok’s placement at the Territorial Treatment Centre in Yellowknife, NWT, there were two reported assaults on adults and eight assaults by Hikoalok on other residents. April 23, 1993 : Hikoalok was living in a Group Home in Cambridge, NWT, with group home father, Dave Peralla, and group home mother, Sarah. A room check was done and Hikoalok was in the possession of underwear belonging to group home mother Sarah and other residents. August 1993: Relief group home parent found her underwear under Hikoalok’s pillow and it was evident that he had ejaculated in them.

April 6, 1994: In a Ranch Ehrlo Society Referral Report, it is noted: “The group home parents do not possess the skills to adequately address the deviant sexual behaviour regarding the stealing of underwear. The social workers do not have the skills necessary and there are no resources in the community that can address this need. It is felt that this behaviour, combined with his going into houses uninvited will eventually escalate to some combination of sexually deviant and violent behaviour.

There is also a serious concern as to whether or not females placed in the group home or in homes in the community will be safe from Jason’s unpredictable behaviour.” … “Jason displays feelings of paranoia and persecution often citing that people don’t understand him or are not being fair to him. He also

constantly justified his actions through blaming others and has little ability to accept any responsibility for his own actions. Jason also appears to be very egocentric in the sense of being unable to see how his actions (stealing underwear, entering others homes…) affect and violate others.” … “There is also a very limited ability to resolve conflicts on his own or with help without resorting to violence.” … April 15, 1994 : Hikoalok committed his first offences punishable in Youth Court of Take Motor Vehicle Without Consent x 1, Theft Under, and Break and Enter x 3.

April 20, 1994 : Hikoalok committed offence of Take Motor Vehicle Without Consent. April 25, 1994 : Hikoalok committed Break and Enter commit Theft. April 26, 1994: Hikoalok committed Mischief Under x 2. April 28, 1994 : Hikoalok was arrested and returned to the RCMP detachment where he admitted to the offences that he committed. He was charged and released on an Undertaking which included conditions that he keep the peace and be of good behaviour, and abide by a curfew of 11:00pm to 7:00am. He was released to live with his grandmother, May Hikoalok.

May 1, 1994: Just days after release while subject to an undertaking, Hikoalok committed Sexual Assault and Fail to Comply with Undertaking. According to a Prosecutor’s Information Sheet, while on release on an Undertaking, in the early morning hours of May 1, 1994, Hikoalok sexually assaulted a young woman. The victim was walking home and noted Hikoalok and his younger brother near the Hamlet Office. She walked between the community hall and the hamlet building, where Hikoalok grabbed her. She tried to call out for help.

Hikoalok placed his hand over her mouth and nose until the victim lost consciousness and then Hikoalok touched her breasts. When the victim regained consciousness, she noted her shirt was open and her pant zipper was undone.

She looked around and saw Hikoalok come around the corner at her and then she ran towards her home. [ 47 ] Furthermore, the Crown’s argument at pp. 19 to 21 inclusive notes the following information (source references omitted): November 12, 1997: While in custody in SK, Hikoalok admitted that he was having difficulty controlling his anger and had assaulted another resident 2 weeks ago but was not charged. November 13, 1997 : A Discharge/Progress Report from Orcadia Youth Residence noted that Hikoalok refused to attend psycho- education program in Yorkton, SK.

A mental health worker from Yorkton was available for in-centre counselling, but once again Hikoalok was adamant in his refusal to participate. He did participate in alcohol/drug assessments and programming. (p. 30) The report noted Hikoalok was on a number of medications that he was initially compliant with. He later rationalized that he no longer needed it. Hikoalok’s doctor at Orcadia advised him that he should maintain the medication

schedule well into his twenties, as all testing (post and present) indicated that when he is off his medication, he deviates to violent paranoid behaviour. December 8, 1997 : Hikoalok punched another resident. April 9, 1998: After Hikoalok released from 1 year of custody, he resided in Cambridge Bay, NWT. May 19, 1998 : Just over a month after his release, Hikoalok committed Sexual Assault on 4-year old C. E. while on probation. According to a court transcript, the following facts were admitted in court at the time of sentencing. On May 19, 1998 in Cambridge Bay, the 4-year old female victim, C.

E. was being babysat along with two other children, by Donna Evaglok. Hikoalok arrived at the residence at 9:30 am, and Evaglok left the residence with two other intoxicated females who had convinced her to join them elsewhere for a drink, leaving Hikoalok in charge of the children. About a half hour later, Hikoalok showed up at another residence where he

located the babysitter, Ms. Evaglok, and asked her to return to the residence where the children were. When she returned, C.E. told her that Hikoalok “touched me there” [pointing to her vagina]. That same day, the child was interviewed by Social Services and an RCMP officer. In the interview, the child stated [in her own words] that Hikoalok introduced his finger into her vagina and turned it, causing her some discomfort. May 30, 1998 : Hikoalok was arrested and interviewed by the police. He denied the allegation. He was released the same day on a Promise to Appear and Undertaking.

June 6, 1998 : While on release on an Undertaking and on probation, Hikoalok committed Sexual Assault against 5-year old N.H. According to a court transcript, the following facts were admitted in court at the time of sentencing. On June 6, 1998 in Cambridge Bay, NWT, at approximately 3:00am, Hikoalok’s sister, Susie Rose, had left Hikoalok with two children, N.H. (female aged 5) and her own 4- year old son. When Susie Rose returned to the residence five hours later at about 8:00am, she found the exterior doors were barricaded with a wooden stud.

After attracting the attention of her 4-year old son, she was able to get him to help her open the door. Once inside, she found the 5-year old victim, N.H. naked, lying in a bed, wrapped in a towel and bleeding from the vagina. When Susie Rose asked the girl where her clothes were, the victim said “Uncle Jason took them off” and stated to Susie Rose that he had put his penis inside of her. Susie Rose took the child to the Health Centre, where the child was treated then air-evacuated to Yellowknife for further medical care.

In the end, the victim was in hospital for three days and had sustained tearing and internal tearing in the vagina that necessitated her hospitalization. She was examined under general anesthetic and sutured. July 14, 1998: In a Pre-Sentence Report prepared for the sentencing, the writer commented that Hikoalok did not appear to feel any remorse for the current convictions of sexual assault.

When asked how he felt about his sexual offence, he replied, “I don’t care.” When the writer enquired about if he at least felt sorry for the victim, he responded, “No, I really don’t give a shit.” [ 48 ] Again, without minimizing the relevance or significance of other evidence that has been submitted in this hearing, it is clear from the evidence generally and as summarized in the Crown’s argument, that Mr.

Hikoalok’s behaviour while in custody and out of custody demonstrates a failure to engage productively with those assigned to work with him in respect of the problem areas identified in relation to his behaviour. [ 49 ] For example, after he was convicted of sexual assault in October 29, 1998, in respect of the assault on the two very young children in May and June of 1998, and for which he was sentenced to a total of eight-years’ incarceration, the Federal Corrections material notes: January 20, 1999 : During the Intake Assessment, Hikoalok indicated that he felt “shitty” about what he did to the victims, “not shitty about getting caught, just shitty about it”.

The report noted that Hikoalok failed to have insight into the offences and was unable to explain his motivation for committing the assaults, denying he was sexually aroused.” (As summarized at p. 23 of the Crown’s argument) [ 50 ] In describing Mr. Hikoalok’s “Offence Cycle” the report noted (at p. 24 of Crown’s argument): File information indicates that Hikoalok has been displaying deviant sexual behaviour and sexual acting out since a very young age. It is without question family of origin issues, including a dysfunctional childhood dominated by physical and sexual abuse have contributed to his behaviour.

A Psychological Assessment completed at Alberta Hospital Edmonton reports substantial indications of pedophilia, although this remains unclear as his actions appear impulsive, with his choice of victims possibly stemming from the fact that these young girls were helpless to resist him.

It appears as if the subject’s sexual offending may be somewhat learned and opportunistic, with Hikoalok taking advantage of a situation where he can prey on individuals weaker than himself.” The Intake Assessment recommended Hikoalok take a number of programs and identified Cognitive Skills, Anger and Emotions Management, Sex Offender Low First Approximation and Sex Offender Intensive as the core programming.

[ 51 ] In May of 1999, and following, the Federal Corrections material notes (see pp. 24-26 of Crown’s argument): May 13, 1999: A Correctional Plan Progress Report described Hikoalok’s behaviour as deteriorating since arriving at FI on April 22, 1999. The report noted that at an initial case conference on April 26, 1999, Hikoalok said he would be willing to participate in whatever sexual offender programming was recommended.

On a subsequent case conference held on April 28, 1999, Hikoalok said that “he didn’t want any part of Kingston but would be willing to consider the Clearwater Program at RPC.” On a subsequent case conference, Hikoalok’s CMT learned that Hikoalok stopped taking his medication and began to rant that he “did not give a shit” about his victims, society, or anyone at all and that he adamantly refused to participate in RPC or any programming whatsoever.

September 13, 1999: In an Assessment for Decision report, Hikoalok’s CMT recommend an involuntary transfer to Kingston Penitentiary as Hikoalok continued to display an inability to function in the relatively open environment of Fernbrook Institution. In the opinion of his CMT, they note that Hikoalok is now a Maximum Security Offender due to a myriad of concerns including the HIGH degree of supervision and control required within the institutional setting and the HIGH risk the offender poses to the safety of the general public for sexual recidivism.

September 17, 1999 : The involuntary transfer to Kingston Penitentiary Special Needs Handling Unit was approved as Hikoalok’s behaviour consistently a problem. December 9, 1999 : Hikoalok attended interview regarding admission to KPSOP Long Termers’ sex offender program but refused the program. October 3, 2000 : In a Correctional plan Progress Report it was noted that Hikoalok made no progress on his correctional plan.

About Hikoalok’s attitude, the writer commented that “taking into account Hikoalok’s offences, his refusal of treatment, institutional behaviour, it would be justifiable to assert that he has little insight into his crimes and an unwillingness to change. Hikoalok is an offender who requires a secure, structured, setting in order to protect him and others.” December 13, 2000: Correspondence between CSC officials noted that Hikoalok was eligible for Day Parole on December 28, 2000 and Full Parole on June 28, 2001.

However, his parole officer noted, “Hikoalok has been interviewed for the KP sex-offender program but refuses to participate. Under these circumstances he is not suitable for early conditional release. In fact, if he continues to refuse treatment he may well end up being held until WED [warrant expiry date] .” May 31, 2001 : In a Correctional Plan Progress Report, it stated, “He refuses to open up and work out some of his issues. There is still little insight into the acceptance of responsibilities for the things that he does. He shows no remorse or understanding of his crime cycle.” [ 52 ] In the result, Mr.

Hikoalok was held for the full eight years of his sentence, that is, until the warrant expiry date. [ 53 ] Although Mr. Hikoalok has not been reinvolved in sexual assaults after his release from federal penitentiary until the most recent convictions arising out the October 2017 sexual assault, nevertheless his behaviour demonstrates his continued inability to stay out of conflict with the law. His failure to cooperate with correctional authorities either inside provincial custodial facilities or in respect of those assigned to supervise him out of custody is persistent and ongoing.

The Manitoba Correctional materials referred to in the Crown’s argument illustrates this failure to cooperate, as well as the hostility demonstrated towards the workers assigned to supervise him. For example, the following information set out at pp. 31 through 34 of the Crown’s argument illustrates this concern in respect of his behaviour and responses to supervision in the community: September 14, 2013 : Hikoalok was released after serving his sentence for breaching to continue on his Probation Order set to run until October 11, 2014.

January 22, 2014: Hikoalok did not show up for his reporting appointment after a breach warning was sent for previous missed reporting. Breach package submitted. (See CONVICTION DATE 13.) May 4, 2014: While at large on a warrant and subject to a probation order, Hikoalok committed Assault With a Weapon (stick), Mischief

Under, and Mischief to Motor Vehicle Under. (See CONVICTION DATE 13.) According to the Transcripts of Proceedings, on May 4, 2014, in Winnipeg, MB, Hikoalok was extremely intoxicated walking on a street at 5:30 am, holding a stick. He began to strike the window of a door to an apartment building, causing it to break. He continued walking down the street hitting the windows on cars and smashing the windshields, and the rear window on an additional vehicle. A witness called the police and provided WPS with a description of Hikoalok. Police attended and saw two people on the ground.

The accepted facts were that the victim of the assault, David Garmeda, yelled at Hikoalok to stop. Hikoalok disarmed the victim of bear spray that Hikoalok claimed Garmeda had, and eventually hit Garmeda with the stick. September 29, 2014 : Hikoalok is referred to the Criminal Organization High Risk Offender Unit (COHROU) caseload of Probation Services for supervision on his newest Probation Order set to expire on October 12, 2016. October 14, 2014 : Hikoalok released from custody and was to report directly to his COHROU reporting appointment.

He was late and Verville was about to submit a breach when Hikoalok called. Verville noted, “Jason minimized his alcohol problem … Lots of denial and minimization, and little interest in seeking counselling for his addictions and life traumas.” The COHROU reporting expectations including daily reporting to CCW were explained. Hikoalok indicated his understanding. October 22, 2014 : Hikoalok committed Breach of Probation when he failed to attend his meeting with Vicki Verville. (See CONVICTION DATE 14.) January 5, 2015 : Hikoalok is arrested and remanded into custody and sentenced on breach on January 8, 2015.

February 1, 2015: Hikoalok was released from custody to resume his Probation Order, which contained minimal conditions to report and attend AA. February 4 – 8, 2015 : Hikoalok failed to call in each day as directed. February 25, 2015: Hikoalok breached for failing to report to Probation as directed on February 25 and failing to attend AA at any point between February 2 -25, 2015. (See CONVICTION DATE 15.) March 2, 2015 : Hikoalok was arrested on warrant and remanded into custody.

March 4, 2015 : Hikoalok was released on a Recognizance again to reside on Ross Avenue and to attend court on April 22, 2015 at 1:00 pm. March 16 – 22, 2015 : Hikoalok refused to phone in daily as required. March 24, 2015: Hikoalok reported in person to Verville. In her report she noted, “Jason was visibly angry and called writer “fucking cunt” and “bitch” for advising him that he had to report again this week due to not calling in to his CCW daily as directed. He was adamant that this condition was not on his probation order or bail recognizance so he was not legally required to make the calls.

He waffled between attempting to intimidate this writer (name calling) and trying to cajole writer into not requiring him to call in or report again this week. Jason demanded to know why he was on COHROU and I explained how he was transferred for the intensive support offered, which he blatantly said he does not need, due to his high risk. He insisted that he is doing good and that he has been sober for a year. I told him I was required to work on his high risk areas as per LS/CMI assessment and asked him if he was prepared to work on a workbook with me. He refused outright.

He postured a number of times appeared to try to seem physically threating in his demeanor – low growling voice, fists clenching, eyes glaring, mouth clenched when he talked, avoiding eye contact and grimacing.” April 28, 2015 : Hikoalok failed to call in for a week and did not report in person as directed. (See CONVICTION DATE 15.)

May 13, 2015 : Hikoalok Failed to Attend Court while being at Large on his Recognizance. (See CONVICTION DATE 15.) July 5, 2015 : Hikoalok was arrested by WPS and taken into custody as “uncooperative and intoxicated”. [ 54 ] Numerous other entries throughout the voluminous material filed in these proceedings reflect a similar pattern of behaviour and conduct on the part of Mr. Hikoalok, including difficulties with correctional officers or other custodial inmates. The Assessment Report and Evidence of Dr. Woodside, Psychiatrist [ 55 ] In this case, an Assessment Report was prepared by Dr.

Scott Woodside, a Psychiatrist with the Centre for Addiction and Mental Health in Toronto, Ontario. In addition, Dr. Woodside gave viva vice evidence in this hearing and was qualified as an expert in the area of Forensic Psychiatry, including the Assessment and Treatment of Violent and Sexual Offenders. His expansive experience was detailed in these proceedings. [ 56 ] Dr. Woodside interviewed Mr. Hikoalok at the Headingley Correctional Centre for over nine hours over two days, prior to the preparation of the Assessment Report. In his report, Dr. Woodside detailed Mr.

Hikoalok’s description of his early childhood, family history, education history, employment history, and relationship history. He also explored Mr. Hikoalok’s self-concept, psychiatric history, and his alcohol and substance use. Dr. Woodside canvassed Mr. Hikoalok’s criminal offending, response to supervision and treatment and behaviour within the institution before coming to a number of psychiatric opinions and recommendations. [ 57 ] As summarized in the Crown’s argument, Dr. Woodside arrived at the following opinions and recommendations (see pp. 45-50): Dr. Woodside opined that it was likely that Mr.

Hikoalok suffers from PTSD and most likely ADHD as well. A diagnosis of FAS has never been confirmed although there is certainly evidence of his mother abusing alcohol prior to birth. . . . . Dr. Woodside determined that Mr. Hikoalok met the criteria for severe substance use disorders relating to alcohol, cocaine, crystal methamphetamines, and opiates. He found that in this case there was abundant evidence from both Mr. Hikoalok’s self-report and from collateral information of substantial difficulties with substances since early childhood and continuing through adulthood. Dr. Woodside noted that despite Mr.

Hikoalok acknowledging substance use difficulties, he was ambivalent at best regarding receiving treatment for these issues, and has typically rejected it, including to Dr. Woodside in his interview. . . . . . Dr. Woodside determined that there was “strong evidence” in support of his diagnosis for Mr. Hikoalok along with the presence of borderline and narcissistic traits. Dr. Woodside remarked that Borderline personality traits include recurrent, intense outbursts of anger, instability of mood, relationships, and self-image, and vulnerability to distorted thought and perception when under stress.

He noted that people with narcissistic personality traits present with a pattern of a grandiose sense of self-importance, a sense of entitlement, as somewhat interpersonally exploitive and as lacking empathy. . . . . . Dr. Woodside opined that another primary motivator for Mr. Hikoalok’s offending was the likely presence of other specified paraphilic disorder (non-consenting, coercive sexual preference) . … This paraphilic disorder reflects a primary interest in, and arousal to, forcing sexual activity on other people. . . . . .

Dr. Woodside found that much of Mr. Hikoalok’s offending was motivated by his substance use, anti-sociality, paraphilic interests and his anger/rage relating to his own childhood abuse. Dr. Woodside noted Mr.

Hikoalok’s criminogenic variables as follows: • Severe substance use difficulties; • Impulsivity; • Deficiencies in conscience development related to dysfunctional personality traits (antisocial); • Lack of supportive intimate or family relationships; • Lack of steady employment. • Ongoing contact with criminally-oriented and substance-using peers; and; • A significant history of trauma; and • Sexual deviance [ 58 ] In respect of the risk that Mr. Hikoalok presents, it is Dr. Woodside’s assessment that based on several test results, Mr.

Hikoalok as being at well-above average risk for violent and sexually violent re-offence. [ 59 ] It should be noted that in coming to this conclusion Dr. Woodside observed that an assessment of risk begins with an actuarial or statistical appraisal of risk, which takes into account the above noted variables and provides a numerical anchor-point as regards risk.

He states in his assessment that these anchor-points are under-estimates of risk, (in his testimony said “massive underestimates”) as it is well known that individuals commit offences both sexual and non-sexual for which they are never charged or convicted. [ 60 ] In respect of the additional evidence available for the court’s consideration, the Crown’s

summary of this evidence provides (at pp. 54-55 of Crown’s argument): The Evidence of Jason Hikoalok: Mr. Hikoalok testified that he has never committed a sexual offence and therefore has no intention of taking any sexual offender treatment, whether psychological or pharmacological. The early treatment and interventions in this regard as a youth under legal duress, had no lasting effect on Mr. Hikoalok. There is no prospect that he will do anything to mitigate his risk in this regard, as he views himself as the victim, and maintains he has only ever been falsely accused and convicted of sexual offences.

In terms of his substance use, Mr. Hikoalok testified that he used substances to cope with his past and to keep warm when homeless in the community. He did not view his drug use as contributing to his risk for criminal offending. He has never sought out intensive or residential treatment independently in the community, and the few AA meetings he did attend did nothing to curb his daily use of drugs while in the community. The Evidence of Karleigh Wilson and Cassidy Eakin: Both Karleigh Wilson and Cassidy Eakin work for Probation Services in Manitoba. At the time they had personal dealings with Mr. Hikoalok, Ms.

Wilson was a Probation Officer with the Criminal Organization/High Risk Offender Unit (COHROU) of Probation Services and Ms. Eakin was a Community Corrections Worker within that same Unit. The Court heard evidence that COHROU, was the most intensive level of support and supervision available to manage offenders’ risk in the community. COHROU clients have increased contact with their Probation Officer and are assigned a CCW to assist with their support and supervision in the community.

Their role, amongst many was to detect and respond to the deterioration of behaviour/attitudes before re-offending occurs and to provide support to offenders on probation orders including, where necessary, to bring offenders to various appointments and to facilitate engagement in treatment programs.

Both Karleigh Wilson and Cassidy Eakin testified that Mr. Hikoalok was confrontational and aggressive with them, and did not want to engage with Probation Services or want their support. They commented that he had a negative attitude toward them and they were unable to work with Mr. Hikoalok to make any real gains. Ms. Wilson described Mr. Hikoalok’s attempts as “doing the bare minimum as to not get breached.” The evidence of both Karleigh Wilson and Cassidy Eakin has more relevance regarding Mr.

Hikoalok’s previous response to supervision at the sentencing stage, when the Court must evaluate the likelihood of eventual control of risk in the community and whether it can be reduced to an acceptable level within a specified period of time. However, what is important to note at this stage in terms of the likelihood of recidivism, is that Mr. Hikoalok was not open to their assistance in seeking and following through on treatment available in the community. In fact, he was seemingly resentful of their intervention and involvement in his life. [ 61 ] I accept the foregoing

summary of the evidence given by Mr. Hikoalok and the two probation officers which is set out in the Crown’s brief, as being accurate and relevant to my determinations in this case. [ 62 ] In respect of Mr. Hikoalok’s evidence specifically, there is a refusal to acknowledge responsibility in any respect for the sexual offences of which he has been convicted, either by way of guilty plea or after a contested trial as is the case with the present case. His focus was on an argument that there has been a failure over the years on the part of authorities, including the court, to properly investigate and produce evidence that he says will exonerate him. A. Have the Requirements of s. 753(1)(a)(

i) been met in this case? [ 63 ] In order for the Crown to establish that the criteria under s. 753(1)(a)(

i) have been met, it must show beyond a reasonable doubt that Mr. Hikoalok constitutes a threat to others based on evidence establishing that:

a) the current predicate offences of sexual assault with a weapon and forcible confinement, form part of a pattern of repetitive behaviour;

b) the offender has failed to restrain his behaviour; and,

c) this pattern demonstrates a future likelihood of death, injury or severe psychological damage that will be inflicted on others. [ 64 ] I have concluded that the Crown has met its onus to establish the requirements of s. 753(1) (a)(

i) of the Code . [ 65 ] I find that the evidence establishes a pattern of repetitive violent behaviour by Mr. Hikoalok. This pattern of repetitive behaviour showing a failure to restrain began with the earlier sexual assaults for which he was convicted and although no further criminal convictions in respect of sexual offences occurred until the most recent predicate offences, his failure to restrain his behaviour occurred at a time while he was subject to probation orders, subject to recognizances containing conditions aimed at protecting the public. [ 66 ] Mr.

Hikoalok has committed offences while under the influence of intoxicants, and after having taken substance abuse programming. Materially, Mr. Hikoalok has also committed offences while sober demonstrating that a failure to restrain his behaviour is not solely attributable to substance use. Attempts at treatment for substance use have been minimal. Mr. Hikoalok has voiced his unwillingness to take any programming in this regard, and does not believe his drug use has caused him any problems. [ 67 ] Sex offender programming occurring early in Mr. Hikoalok’s life has not assisted in curbing Mr. Hikoalok’s offending.

Mr. Hikoalok committed several violent sexual offences after having taken sex offender programming as a youth. Conversely, after being convicted of violent sexual offences against two children in 1998, he refused to participate offender programming. He went on to commit the predicate offences, which involved a brutal and prolonged sexual assault. This pattern demonstrates a future likelihood of death, injury or severe psychological damage that will be inflicted on others. B.

Have the Requirements of Section 753(1)(a)(ii) been met in this case? [ 68 ] Under this subsection, the Crown must show beyond a reasonable doubt that Mr. Hikoalok constitutes a threat to others based on evidence that shows:

a) that the predicate offences form part of a pattern of persistent aggressive behaviour; and

b) that this pattern shows a substantial degree of indifference on the part of Mr. Hikoalok to the reasonably foreseeable consequences of his behaviour. [ 69 ] The Crown argues that there are two main aspects that both speak to the strong likelihood that Mr. Hikoalok will cause death or injury to other people through failure in the future to restrain his behaviour. The first is Mr. Hikoalok’s past offending behaviour that is undoubtedly the best predictor of future likelihood of similar behaviour. The second aspect is Mr.

Hikoalok’s historical and continued rejection of the supports, supervision, and treatment meant to assist him and manage his behaviour in the community. [ 70 ] I agree with the Crown’s submission that it is clear from Mr. Hikoalok’s criminal history and from Dr. Woodside’s viva voce evidence and assessment report that Mr. Hikoalok constitutes a future threat to the life, safety of physical or mental well-being of others. [ 71 ] Further, the evidence demonstrates that any attempts at treatment thus far have proven ineffective in rehabilitating Mr. Hikoalok. He has taken minimal programming in a custodial setting.

He has not pursued any form of detoxification, residential treatment, or

therapy when in the community to address his risk. He has also expressed contempt for those meant to provide him with support and supervision in the community. Presently, he rejects all forms of treatment, including treatment rooted in his Indigenous heritage with which he claims to have no connection. [ 72 ] It has been clearly established through evidence that there exists a pattern of repetitive behaviour, showing a failure to restrain his behaviour. The evidence of Mr.

Hikoalok’s denial of his previous offending, as well as the problems abusing substances has posed for him, are barriers to him seeking out treatment in the community. Likewise, his inability to engage with, and his resentment of, those in the system who could provide support and supervision, contribute to the likelihood that he will re-offend violently. [ 73 ] Additionally, Dr. Woodside’s expert evidence reveals that overall, when considering both clinical/dynamic and actuarial assessments of risk, Mr. Hikoalok is at well-above average, indeed high risk to re-offend violently and sexually violently in the future.

As the Crown points out, while it is impossible to prove that Mr. Hikoalok will re-offend, the evidence establishes beyond a reasonable doubt that there is a likelihood that Mr. Hikoalok will cause death or injury to others through failure to restrain his behaviour in the future. [ 74 ] Accordingly, I also find the dangerous offender criteria under s. 753(1) (a)(ii) have also been satisfied beyond a reasonable doubt, and therefore pursuant to s. 753 of the Code , I find that Mr. Hikoalok is a dangerous offender. II. Legal Issue II: Having found that Mr.

Hikoalok is a dangerous offender as described in s. 753 of the Code , is there a reasonable expectation that a measure less than an indeterminate sentence will adequately protect the public against the commission of murder or a serious personal injury offence by Mr. Hikoalok? a. The Law [ 75 ] Pursuant to subsection 753(4) of the Code , where the court finds an offender to be a dangerous offender it shall:

a) impose an indeterminate sentence of detention in a penitentiary;

b) impose a minimum two-year fixed sentence in conjunction with a long-term supervision order (LTSO) not exceeding 10 years; or

c) impose a fixed sentence for which the offender has been convicted. [ 76 ] The sentencing judge’s decision to impose one of those three options is guided by subsection 753(4.1) of the Code which provides:

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(

b) or (

c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. [ 77 ] In Boutilier , the court held that s. 753(4.1) does not enact a presumption that an indeterminate sentence is a fit sentence for a dangerous offender. Nor does it impose a burden on the offender to adduce evidence to demonstrate a reasonable expectation that a lesser measure will adequately protect the public. Rather, the court held at para. 69 that the

section should be interpreted in the following manner: 69 … s. 753(4.1) provides guidance on how a sentencing judge can properly exercise his or her discretion … As explained above, it is permissible for Parliament to guide the courts to emphasize certain sentencing principles in certain circumstances without curtailing their discretion.

Once the sentencing judge has exhausted the least coercive sentencing options to address the question of risk based on the evidence, indeterminate detention in a penitentiary is the last option. [ 78 ] At para. 70 of Boutilier , the court stated that the sentencing judge should adopt the following process when exercising his or her discretion under s. 753(4.1) of the Code : 70 … First, if the court is satisfied that a conventional sentence, which may include a period of probation, if available in law, will adequately protect the public against the commission of murder or a serious personal injury offence, then that sentence must be imposed.

If the court is not satisfied that this is the case, then it must proceed to a second assessment and determine whether it is satisfied that a conventional sentence of a minimum of 2 years of imprisonment, followed by a long-term supervision order for a period that does not exceed 10 years, will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. If the answer is “yes”, then that sentence must be imposed. If the answer is “no”, then the court must proceed to the third step and impose a detention in a penitentiary for an indeterminate period of time.

Section 753(4.1) reflects the fact that, just as nothing less than a sentence reducing the risk to an acceptable level is required for a dangerous offender, so too is nothing more required. [ 79 ] In exercising this discretion, it is important to emphasize that the sentencing judge is not entitled to set aside or otherwise

disregard the objectives and principles of sentencing set out elsewhere in the Code . As the court in Boutilier noted at para. 63 : 63 … an offender’s moral culpability, the seriousness of the offence, mitigating factors, and principles developed for Indigenous offenders are each part of the sentencing process under the dangerous offender scheme.

Each of these considerations is relevant to deciding whether or not a lesser sentence would sufficiently protect the public. [The] suggestion to the contrary has been repeatedly rejected by this Court in relation to any of the Criminal Code ’s sentencing regimes and, in effect, seeks to read a prohibition into s. 753(4.1) where none exists. b. The Application of the Law to the Evidence on the Hearing [ 80 ] In the course of the sentencing hearing, the court received 10 volumes of materials spanning Mr.

Hikoalok’s nearly 30 years of offending, releases, custodial periods and community supervision. [ 81 ] Further, the court received an Assessment Report prepared by Dr. Scott Woodside, a Forensic Psychiatrist, as well as evidence relating to the impact the offence has had on the victim. In addition to the exhibits filed in the hearing, the court heard viva vice from five witnesses for the Crown and one for the defence. [ 82 ] The Crown Witnesses are as follows:

a) Dr. Scott Woodside , a Forensic Psychiatrist, gave expert opinion evidence in the area of Forensic Psychiatry, including the Assessment and Treatment of Violent Offenders.

b) Valdene Lewis , the Acting Manager of Osborne Community Correctional Centre with Correctional Services of Canada testified, to how and what sorts of records are kept in the federal penitentiary system. She testified as to the treatment, supervision, release and internal discipline of offenders held in federal custody, including Dangerous and Long-Term offenders.

c) Karleigh Wilson , a Probation Officer with the Criminal Organization/High Risk Offender Unit (COHROU) of Probation Services gave evidence about the level of support and supervision available in the community for offenders such as Mr. Hikoalok. She also gave evidence respecting her dealings with Mr. Hikoalok, his level of engagement with Probation, and his attitude towards supervision generally.

d) Cassidy Eakin , a Community Corrections Worker (CCW) with Probation Services testified about her dealings with Mr. Hikoalok, including how he interacted with and reacted to, the CCWs who were assigned to assist in providing support and supervision to Mr. Hikoalok in the community.

e) Cindy Schulz , the Acting Assistant Superintendent of Infrastructure, and former Assistant Superintendent of Programming, with Manitoba Corrections testified about the different records that are kept in the provincial Corrections system, what they mean, and how they are kept. She gave evidence about the treatment and placement of various inmates within the provincial institutions, the programming available to them, and specific information about Mr. Hikoalok’s time spent in provincial custody. [ 83 ] The defence Witness is:

a) Mr. Hikoalok, who testified regarding his childhood, previous history and involvement with the justice system, and experiences as a victim of the system. He also testified (despite being told he would not be asked about his current offences) about his wrongful conviction on the index offences and all of his other sexual offences. [ 84 ] The evidence before the court has been extensively reviewed by the Crown in its written material and in its oral submissions.

I also note the very thoughtful observations and arguments of amicus as to why the court may wish to consider imposing a fixed sentence in respect of the offences for which the offender has been convicted or imposing a minimum two-year fixed sentence in conjunction with a LTSO not exceeding 10 years. [ 85 ] The evidence of Mr. Hikoalok is summarized on pp. 75 to 81 of the Crown’s argument. It is instructive to reproduce some of that material at this point. In arguing that Mr.

Hikoalok’s evidence exemplifies why the only sentence that can adequately protect the public is an indeterminate one, the Crown notes at pp. 75 and 76 of its argument: Mr. Hikoalok’s tragic life has given him every reason to be angry. Likewise, the various individuals, structures, and systems that have failed him since childhood, have given him many people to be angry at. These undeniable truths underscore Mr. Hikoalok’s commitment to his own alternate reality that sees himself as the sole victim of a series of miscarriages of justice spanning decades, despite clear evidence to the contrary. What Mr.

Hikoalok’s evidence also demonstrates is that his well-earned and persistent anger will always provide him with a reason to avoid doing the work necessary to ensure the long-term protection of society. He would be required to put his trust in people and systems that he views as responsible for his incarceration. There is no way to know or predict when or if he will ever be ready to take the first step in his own rehabilitation – acknowledging that he has committed violent crimes that caused serious harm to others. …

[ 86 ] The evidence supports the position of the Crown and persuades me that a conventional fixed sentence or a LTSO is not appropriate in this case. There are numerous examples set out in the Crown’s brief which illustrate how Mr. Hikoalok consistently denies responsibility for various criminal convictions and custodial infractions, despite the overwhelming evidentiary basis to the contrary. [ 87 ] The three concluding paragraphs summarizing Mr.

Hikoalok’s evidence at p. 81 of the Crown’s argument fairly set out the very troubling nature of the evidence before the court and why anything less than an indeterminate sentence will not adequately protect the public against the commission by the offender of murder or a serious personal injury offence: Mr. Hikoalok was purposefully not asked about the index offences in cross-examination.

However, he went on at length in his direct evidence that the evidence against him was flawed and unreliable and that he was wrongfully convicted, despite the powerful video, forensic and fingerprint evidence which contradicted his version of reality. In terms of what programming, treatment, and interventions we can expect Mr. Hikoalok to avail himself of on a go-forward basis, he maintained that he would not participate in any treatment respecting sex offending. He clearly stated he “would refuse any medication as is my right”.

When asked by amicus what he would do if he were ordered to take counselling that he did not agree with, Mr. Hikoalok stated, I would continue in the institution to say I am not guilty of those charges, you may as well call the cops now, I’m not taking counselling for a sexual assault that did not happen.” Mr.

Hikoalok either refuses to admit that he has been responsible for harming others at all or does not accept that his diagnoses, such as his substance use disorder, puts others in danger. [ 88 ] In arguing that the evidence militates against anything but the imposition of an indeterminate sentence of incarceration, the Crown urges the court consider two matters which it states demonstrate that Mr. Hikoalok’s risk to re-offend violently cannot be managed in the community within a specific time period during which the public could be adequately protected.

These two considerations are: (i) .. the cluster of difficulties that bely Mr. Hikoalok’s offending considered treatable, and, (ii) whether such treatment/supervision offers any assurance that his risk could be managed within the community. [ 89 ] In considering these two aspects, the Crown submits that a consideration of the following factors is appropriate:

a) The nature of the predicate offences;

b) Mr. Hikoalok’s background and personal circumstances;

c) Education and employment history;

d) Employment prospects and supports within the community;

e) Self report of current motivation for treatment and supervision;

f) Diagnosis and prognosis;

g) Denial of his sexual offences;

h) Age of the offender;

i) Previous response to treatment;

j) Response to previous supervision;

k) The availability and viability of resources to control risk; and

l) The opinion of experts. [ 90 ] The discussion of these factors in the context of the evidence before the court is set out in pp. 83 to 102 of the Crown’s argument. [ 91 ] In my opinion, based on the extensive viva voce testimony of the witnesses, including the testimony of Mr. Hikoalok, and the documentary evidence before me, there is no reasonable expectation that the accused’s danger to the public can be adequately managed by any measure short of indeterminate incarceration.

Indeed, despite the able submissions of amicus that a penalty less than an indeterminate sentence may be appropriate, in my opinion there is no persuasive evidence to suggest that the accused’s risk is manageable in any other way. [ 92 ] In saying this, and as reminded by both amicus and Crown counsel, I am mindful of the principles developed for Indigenous offenders and their relevance to the sentencing process under the dangerous offender scheme. However, there is nothing in the context of

those important principles governing indigenous offenders that persuade me that an indeterminate sentence should not be imposed. In this context I note that the sexual offences which Mr. Hikoalok has been convicted of were perpetrated against other Indigenous people, some of whom were very young and very vulnerable. In this context, the court should also be mindful of its obligation to protect members of the public who are Indigenous as well. This point is neatly summarized at p. 71 of the Crown’s argument where the following is stated: Mr. Hikoalok is an Indigenous offender. Section 718(2)(

e) sets out that “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or the community should be considered for all offenders , with particular attention to the circumstances of Aboriginal offenders.” Where a Judge is considering s. 718.2(

e) and the background of any offender, when determining the appropriate penalty to be imposed in the context of a Dangerous Offender application, the Judge’s discretion must be informed by the fundamental principle that the protection of the public is the paramount consideration in proceedings. [ 93 ] I accept the Crown’s analysis of the above-noted factors that the cluster of difficulties belie Mr. Hikoalok’s offending considered treatable, and, that past community treatment or supervision fails to offer any assurance that his risk could be managed within the community.

As stated by the Crown at p. 81 of its argument: Mr. Hikoalok either refuses to admit that he has been responsible for harming others at all or does not accept that his diagnoses, such as his substance use disorder, puts others in danger. In this regard, it is Mr. Hikoalok himself, who stands in his own way - preventing the imposition of a determinate as opposed to an indeterminate sentence [ 94 ] I specifically accept the expert evidence of Dr. Woodside, who testified at length regarding his report and who was subject to extensive cross-examination.

I accept the observations and conclusions set out in his assessment, and which are reproduced in the Crown’s argument. This includes, inter alia, the following ( at pp. 84 and 85 of the Crown’s argument): Mr. Hikoalok’s early childhood was characterized by momentous trauma and physical and sexual abuse. At a very young age, he witnessed his father kill his mother in their home. His placement with his grandparents resulted in his sexual abuse at their hands, which while seemingly known by those in authority, was never investigated.

He was sexually abused by other relatives, and in group homes where he was sent to live. Mr. Hikoalok described to Dr. Woodside that the abuse made him feel “ secluded…I did not play well with others, I was always damaging property, setting fires, stabbing other people .” Mr. Hikoalok expressed a great deal of anger toward his family and a stated intention on many occasions, to kill them for what they had done to him. Mr. Hikoalok began to use alcohol at the age of 3 or 4 and continued until about 2015 when he claimed to have quit drinking.

He reported heavy daily drinking in the community, often blacking out, and indicated that he experienced problems with relationships and friends because of drinking, but denied it had any role in his criminal offences despite clear evidence it had. Mr. Hikoalok reported significant drug use at an early age in childhood that escalated into harder drugs in his teens. He reported having used, marijuana, cocaine, ecstasy, meth, heroine and PCP. He maintained that his drug use did not cause him any problems, nor was it related to his criminal offences. Mr.

Hikoalok has never been in any detox or rehabilitation programs, nor has he claimed to have participated in any substance use programming in custody or sought out any treatment for his substance use in the community. He did attend some AA meetings while on probation, but never tried to complete any of the 12 steps. He “ was just there to attend the meetings ”. [ 95 ] As Dr. Woodside remarked in his viva voce evidence regarding missing out on developmental milestones, “When you miss these milestones they tend to be largely permanent – you don’t get a do-over, it’s hard to undo.

Having lived a lifestyle, the longer, the more entrenched it becomes and the more difficult it is to shift.” [ 96 ] At p. 86 of the

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