HIS MAJESTY THE KING - v. -, 2023 SKKB 23

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 23 Date: 2023 02 06 Docket: CRM-PA-00209-2018 Judicial Centre: Prince Albert ___________________________________________________________________________ BETWEEN: HIS MAJESTY THE KING - and - AARON JACK JAMES DOUGLAS Counsel: Shawn E. Blackman for the Crown Christopher M. Koban for the accused ___________________________________________________________________________ JUDGMENT SCHERMAN J.

February 6, 2023 ___________________________________________________________________________ Introduction [ 1 ] In my decision of May 28, 2020, reported at R v Douglas , 2020 SKQB 155 , 64 MVR (7th) 62 , I found Aaron Douglas guilty of the following offences committed on October 28, 2017: i. operating a motor vehicle on a street, roadway, highway or other public place in a manner that is dangerous to the public, contrary to s. 249(1) (

a) of the Criminal Code , RSC 1985, c C-46 ; ii. having care, charge or control of a motor vehicle that was involved in an accident with a vehicle at 6th Avenue West, Prince Albert, Saskatchewan, with intent to escape civil or criminal liability, failing to stop his vehicle and give his name and address, contrary to s. 252(1) of Criminal Code . iii. operating a motor vehicle on a street, roadway, highway or other public place while being pursued by a peace officer operating a motor vehicle and failing, without reasonable excuse and in order to evade the peace officer, to stop the motor vehicle as soon as was reasonable in the circumstances, and thereby did cause bodily harm to Cst.

Bear, contrary to s. 249.1(3) of the Criminal Code . [ 2 ] The conviction on the s. 249.1(3) charge is a conviction of a “serious personal injury offence” for the purpose of the Criminal Code provisions respecting dangerous offender or long-term offender proceedings. [ 3 ] Subsequently, the Crown gave notice it intended to make an application for a finding that Mr. Douglas is a dangerous offender and applied, pursuant to s. 752.1 of the Criminal Code for an order that Mr. Douglas be remanded in custody for an assessment on the grounds that he might be found to be a dangerous offender. Mr.

Douglas did not oppose this application, and I ordered that an assessment be so undertaken. Dr. Alberto Choy was designated by me to make the assessment. [ 4 ] After Dr. Choy’s assessment was filed with the Court, the Crown made an application under s. 753 for a designation of Mr. Douglas as a dangerous offender. The dangerous offender hearing commenced on September 7, 2021, but due to a variety of circumstances, including COVID infection of Mr. Douglas, of Crown counsel and other circumstances, completion of the hearing of evidence did not occur until February 24, 2022.

Then further adjournments occurred at the request of counsel for the preparation of their written submissions, with their oral submissions occurring and concluding on December 2, 2022. [ 5 ] The Crown’s position is the evidence establishes, beyond a reasonable doubt, that Mr. Douglas meets the criteria for designation as a dangerous offender and that he should be designated a dangerous offender and given a sentence of indeterminate incarceration to protect the public. [ 6 ] Mr.

Douglas’s position is that on the evidence: a. a dangerous offender designation should not be made as it has not been proven beyond a reasonable doubt that he meets the criteria

to be so designated; b. a conventional four-year custodial sentence is the appropriate penalty in his case; and c. in the alternative, he should be designated as a long-term offender, rather than a dangerous offender, and sentenced to a custodial sentence of four years followed by a long-term supervision order. [ 7 ] A focus of the evidence was whether the combination of Mr.

Douglas’s pattern of impulsive and dangerous behaviour, especially when under the influence of drugs and/or alcohol (to which he is addicted), is intractable and, thus, creates serious ongoing risks of him reoffending in ways that will put the safety of the public at risk. Counsel for Mr. Douglas argues the evidence supports the conclusion that a combination of the ageing effect, programming that Mr. Douglas has received and compliance with Suboxone therapy ameliorates the future risks the Crown alleges such that he does not meet the criteria for designation as a dangerous offender.

The Statutory Criteria Regarding Dangerous Offender Proceedings [ 8 ]

Section 752.01 specifies criteria that must exist before a dangerous offender application can be made by the Crown. These criteria are: a. the offender was convicted of a serious personal injury offence; b. that offence is a “designated offence”; and c. the offender was at least twice previously convicted of serious personal injury offences and sentenced to at least two years imprisonment for each of those convictions. Mr. Douglas acknowledged these criteria are met. I found him guilty of a serious personal injury offence that is a designated offence under s. 752.

His criminal record shows he was previously convicted, at least twice, of other serious personal injury offences for each of which he was imprisoned for at least two years. These prerequisites to the present proceeding have been established beyond a reasonable doubt. [ 9 ] The provisions of s. 753 that the Crown then relies upon are the following: 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 …

(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 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. …

(5) If the court does not find an offender to be a dangerous offender, (

a) the court may treat the application as an application to find the offender to be a long-term offender,

section 753.1 applies to the application and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or (

b) the court may impose sentence for the offence for which the offender has been convicted. …

753.1

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

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

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

c) there is a reasonable possibility of eventual control of the risk in the community. [Emphasis added] Judicial

Interpretations of the Legislation [10] The leading authority with respect to the

interpretation and application of s. 753 is the Supreme Court decisionin R v Boutilier, 2017 SCC 64, [2017] 2 SCR 936 [Boutilier].

Referring back to its earlier decision in R v Lyons, (SCC),[1987] 2 SCR 309 [Lyons], the Court reiterated at paragraph 26 that to secure a dangerous offender designation, the Crown must provefour things: a. the offender has committed, and has to be sentenced for, a serious personal injury offence; b. the serious personal injury offence is part of a broader pattern of violence as described in s. 753(1); c. there is a high likelihood of violent recidivism; and d. the violent conduct of the offender is intractable.

It continued that the last two criteria are future-orientated, quoting from La Forest J. in Lyons who said at page 338: … Thirdly, it must be established that the pattern of conduct is very likely to continue and to result in the kind of suffering againstwhich the

section seeks to protect, namely, conduct endangering the life, safety or physical well-being of others or, in the case of sexualoffences, conduct causing injury, pain or other evil to other persons.

Also explicit in one form or another in each subparagraph of [s. 687,now s. 753] is the requirement that the court must be satisfied that the pattern of conduct is substantially or pathologically intractable. …[Emphasis added]. [11] The Court in Boutilier then said the following: [27] The language of s. 753(1), which led Justice La Forest to develop the four criteria outlined above, has never been amended sinceits enactment in 1977.

Before designating a dangerous offender, a sentencing judge must still be satisfied on the evidence that theoffender poses a high likelihood of harmful recidivism and that his or her conduct is intractable. I understand “intractable” conduct asmeaning behaviour that the offender is unable to surmount.

Through these two criteria, Parliament requires sentencing judges to conducta prospective assessment of dangerousness. [28] Justice La Forest concluded what would today be referred to as an overbreadth analysis by finding that the four s. 753(1) criteriadefine a very small group of offenders for whom the risk of indeterminate preventive detention is constitutional: Not only has a diligent attempt been made to carefully define a very small group of offenders whose personal characteristics andparticular circumstances militate strenuously in favour of preventive incarceration, but it would be difficult to imagine a better tailoredset of criteria that could effectively accomplish the purposes sought to be attained. [[Lyons] p. 339] He held that the designation criteria are sufficiently narrow and precise so as to apply only to offenders that pose a future threat to otherpersons, such that the risk of indeterminate detention is rationally tied to the public protection purpose of the scheme.

Since these criteriahave not subsequently been amended, the Court’s conclusion that s. 753(1) does not overreach still applies. [Emphasis in original] [12] Further it stated that prospective evidence of treatability is to be considered on both the designation phase ofwhether the offender is a dangerous offender and at the penalty stage: [41] Section 753(1) states that, once the judge is satisfied that the designation criteria are met, the judge “shall” designate theoffender as dangerous.

Recall that before the 2008 amendments, the legislation provided that, once these criteria were met, the judge“may” make the designation. Some interveners suggested that this amendment requires the judge to declare an offender dangerous assoon as the statutory criteria are met, even if the judge is not satisfied of his or her future dangerousness. This argument is based on thepremise that the statutory criteria for designation are overbroad and might apply to non-dangerous offenders.

However, as explainedabove, a prospective assessment of the future risk posed by an offender is embedded within the dangerous offender criteria. Thus, ajudge “shall” designate an offender as dangerous only if he or she is satisfied beyond a reasonable doubt that the offender actuallyconstitutes a future threat to safety in light of all the relevant evidence.

Once a judge finds an offender to be a “threat” after a prospectiveassessment of harmful recidivism and intractability, requiring a further exercise of discretion to determine whether the offender poses afuture risk would be unnecessary and would contradict the very conclusion the judge has just reached. … [45] The same prospective evidence of treatability plays a different role at the different stages of the judge’s decision-making process.At the designation stage, treatability informs the decision on the threat posed by an offender, whereas at the penalty stage, it helpsdetermine the appropriate sentence to manage this threat.

Thus, offenders will not be designated as dangerous if their treatment prospectsare so compelling that the sentencing judge cannot conclude beyond a reasonable doubt that they present a high likelihood of harmfulrecidivism or that their violent pattern is intractable: see Neuberger, [Joseph A. Neuberger, Assessing Dangerousness: Guide to theDangerous Offender Application Process, loose-leaf (updated 2017) (Toronto: Carswell, 2011)] at p. 7-1, by M. Henschel. However,

even where the treatment prospects are not compelling enough to affect the judge’s conclusion on dangerousness, they will still be relevant in choosing the sentence required to adequately protect the public.

(3) Conclusion [46] In sum, a finding of dangerousness has always required that the Crown demonstrate, beyond a reasonable doubt, a high likelihood of harmful recidivism and the intractability of the violent pattern of conduct. A prospective assessment of dangerousness ensures that only offenders who pose a tremendous future risk are designated as dangerous and face the possibility of being sentenced to an indeterminate detention. This necessarily involves the consideration of future treatment prospects.

Had the prospective aspects of the dangerousness criteria been removed by the 2008 amendments, the constitutionality of the provision might have required a deeper analysis.

But that is not the case. … [ 13 ] In R v Laprise , 2022 SKCA 77 at paras 29-30 , [2022] 9 WWR 191 ; R v Bird , 2021 SKCA 35 at para 20 , [2021] 5 WWR 441 [ Bird ] , and elsewhere, the Court of Appeal for Saskatchewan has stated that dangerous offender proceedings are at their core sentencing proceedings where: a. the objective is to determine a fit sentence; b. the sentencing judge in a dangerous offender application is to apply a two-stage assessment process of first considering the designation issue and then moving to the penalty stage; and c. that all evidence is to be considered at each stage. [ 14 ]

Section s. 753(1) directs the court to find the offender to be a dangerous offender if satisfied the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing either s. 753(1)(a)(

i) or: 753 (1) … (a) … (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 … As I read this language, the basis under ss. (ii) for a dangerous offender finding is proof of a past pattern of persistent aggressive behaviour of the offender, showing a substantial degree of indifference to the “reasonably foreseeable consequences of other persons”, and it does not expressly require the court to conclude there will be in the future a substantial degree of indifference to the “reasonably foreseeable consequences of other persons” as ss. (

i) does. [ 15 ] This lacuna in the drafting of the legislation aside, I read the decisions of the Court of Appeal as requiring that all evidence ( i.e. , evidence of the past and/or likelihood or probabilities for the future) be considered at both the designation stage and at the penalty stage under both ss. (

i) and (ii). [ 16 ] In R v Pelly , 2021 SKCA 50 , 403 CCC (3d) 127 , the Court of Appeal provided the following guidance with respect to the penalty stage: [23] Section 753(4.1) requires a judge to impose an indeterminate sentence unless they are satisfied by the evidence adduced during the hearing that there is a reasonable expectation that a lesser sentence will adequately protect the public in the future from the commission of murder or a serious personal injury offence by the offender.

This does not create a presumption of an indeterminate sentence, but a judge is required to address the question head-on of whether something less than an indeterminate sentence can be reasonably expected to adequately protect the public. [24] A person is only designated as a dangerous offender once they have crossed the threshold of posing a future threat to the public. In any such case, the protection of the public would be most completely accomplished by the imposition of an indeterminate sentence in order to remove the offender completely from society and eliminate the risk faced by members of the public.

However, such a draconian result is not how proceedings under

Part XXIV are meant to function. As noted by the sentencing judge, s. 753(4.1) requires that the sentence provide adequate protection of the public not the best protection possible. [25] Further, a sentencing judge is required to utilize the least restrictive means that will provide an adequate level of protection to the public. In Boutilier , Côté J. described the approach to be followed in these terms: [ 65] Section 753(4.1) guides the discretion of the judge, who ultimately must determine the fittest sentence in a given case based on the evidence adduced during the sentencing hearing.

This Court in Johnson [2003 SCC 46] stated that the “sentencing judge should declare the offender dangerous and impose an indeterminate period of detention if, and only if, an indeterminate sentence is the least restrictive means by which to reduce the public threat posed by the offender to an acceptable level”: para. 44.

Again, s. 753(4.1) is simply a codification of the exercise of discretion required by Johnson in light of the regime’s general purpose of public protection in dealing with offenders presenting a very high likelihood of harmful recidivism. … [68] Under s. 753(4.1), the sentencing judge is under the obligation to conduct a “thorough inquiry” into the possibility of control in

the community: Johnson, at para. 50. The judge considers all the evidence presented during the hearing in order to determine the fittestsentence for the offender: The judge should … take into account all the evidence available before making a determination, which will inevitably require a thoroughinvestigation. Once such an investigation has been conducted, it will be up to the judge to determine the sentence; there is no obligationon any of the parties to prove on any standard the adequate sentence one way or another. (Neuberger, [Assessing Dangerousness: Guide to the Dangerous Offender Application Process.

Toronto: Carswell, 2011 (loose-leafupdated 2017)] at p. 4-4.1; see also p. 10-10.) [69] In other words, s. 753(4.1) provides guidance on how a sentencing judge can properly exercise his or her discretion in accordancewith the applicable objectives and principles of sentencing. As explained above, it is permissible for Parliament to guide the courts toemphasize certain sentencing principles in certain circumstances without curtailing their discretion.

Once the sentencing judge hasexhausted the least coercive sentencing options to address the question of risk based on the evidence, indeterminate detention in apenitentiary is the last option. [70] The framework a sentencing judge should adopt in exercising his or her discretion under s. 753(4.1) has been aptly explained byJustice Tuck-Jackson of the Ontario Court of Justice: R. v. Crowe, No. 10-10013990, March 22, 2017.

First, if the court is satisfied that aconventional sentence, which may include a period of probation, if available in law, will adequately protect the public against thecommission of murder or a serious personal injury offence, then that sentence must be imposed.

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

Section 753(4.1) reflects the fact that, just as nothing less than a sentence reducing the risk to an acceptablelevel is required for a dangerous offender, so too is nothing more required. [26] Subsequent to Boutilier, Ottenbreit J.A., in R v S.P.C., 2018 SKCA 94, discussed the requirement that the judge determining thepenalty must assess the management of risk, not its complete elimination: [41] Management of the risk posed by the individual is central to the application of the test set out above and to the determination of theappropriate sentence.

Of necessity, this is partly an exercise of looking into the future and examining the prospective evidence asdescribed in Boutilier (at para 31). [42] Justice Côté in Boutilier referred to the role of the sentencing judge as “managing” the risk or threat posed by the accused (atparas 44-45). While the decision of the sentencing judge in the matter under appeal was issued prior to Boutilier, the language of“management” employed by him is reminiscent of Côté J.’s language. [43] Other courts have also determined that management of the risk or threat is a relevant consideration in achieving a fit sentence.

Forexample, Watt J.A. in R v Spilman, 2018 ONCA 551, 362 CCC (3d) 415, focuses on “management”: [30] Section 753(4.1) provides guidance on how hearing judges can properly exercise their discretion, in accordance with theapplicable objectives and principles of sentencing, to impose the appropriate sentence to manage the established threat that the offenderposes to society.

The provision requires the judge to examine the evidence adduced at the hearing to determine whether there is areasonable expectation that a lesser measure – a conventional fixed-term sentence or a fixed-term sentence of at least two years followedby a long-term supervision order – will adequately protect the public against the risk that the offender will commit murder or a seriouspersonal injury offence.

The hearing judge must first exhaust the less coercive sentencing options to address this risk of recidivism beforeimposing a sentence of indeterminate detention in a penitentiary: Boutilier, at para. 69. [44] It was therefore essential for the sentencing judge to consider what mechanisms could be used to manage the risks posed byS.P.C.

Examination of whether the offender’s risk could be managed by some internal or external controls informs whether the risk issuch that there is a reasonable expectation the public will be adequately protected by the lesser sentence. [27] In conducting the assessment of whether a lesser sentence will adequately protect the public, as mandated under s. 753(4.1) of theCriminal Code, a judge is required to apply the sentencing principles found in

Part XXIII. This is made in clear in Boutilier: [52] … The sentencing principles and objectives set out in the Criminal Code, including the fundamental principle of proportionalityin s. 718.1, do not have constitutional status and may be limited by Parliament where necessary to achieve a valid penal purpose, so longas a sentencing judge is not required to impose a sentence that is “grossly disproportionate” to the sentence normally mandated by ss. 718to 718.2 of the Criminal Code …. [53] This Court has consistently affirmed that dangerous offender proceedings are sentencing proceedings: R. v.

Steele, 2014 SCC 61,[2014] 3 S.C.R. 138 (S.C.C.), at para. 40; Jones [ (SCC), [1994] 2 SCR 229], at pp. 279-80 and 294-95; Lyons, at p. 350.Accordingly, a sentencing judge in a dangerous offender proceeding must apply the sentencing principles and mandatory guidelinesoutlined in ss. 718 to 718.2: R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357 (S.C.C.), at para. 23; Neuberger, at p. 3-4. These sectionsof the Criminal Code set out the purpose and objectives of sentencing (s. 718), the fundamental principle of proportionality (s. 718.1) –“the sine qua non of a just sanction” (R. v.

Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433 (S.C.C.), at para. 37) – and the other sentencingprinciples that a court “shall” consider before imposing any sentence on an offender (s. 718.2). An error in the application of theseprinciples is reviewable by an appellate court: R. c. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 (S.C.C.). … [56] Mr. Boutilier contends that, by referring solely to the objective of public protection, the wording of s. 753(4.1) excludes othersentencing objectives and principles from the sentencing judge’s discretion. In my view, a fair reading of s. 753(4.1) does not result in the

exclusion of these principles. Parliament is entitled to decide that protection of the public is an enhanced sentencing objective forindividuals who have been designated as dangerous. This does not mean that this objective operates to the exclusion of all others. It ispermissible for Parliament to guide the courts to emphasize certain sentencing principles in certain circumstances without curtailing theirability to look at the whole picture. Emphasis on the public safety component is consistent with the fact that public protection is thegeneral purpose of

Part XXIV of the Code: Steele at para. 27. Further, because the enhanced objective of public safety parallels thejustification for imposing an indeterminate detention, such emphasis is also consistent with the principles of sentencing generally. … [61] Against this backdrop, it would strain credulity to suggest that the principles enumerated in ss. 718 to 718.2 are irrelevant to theexercise of the sentencing judge’s newly codified discretion in s. 753(4) and (4.1) when they were relevant even under the formerscheme, which imposed automatic indeterminate detention for every dangerous offender.

The 2008 amendments replaced mandatoryindeterminate detention with a codification of the principle that a sentencing judge must impose a sentence that is tailored to the specificoffender and consistent with the principles of sentencing. When considered in its historical context, the current s. 753(4.1) confers adiscretion to apply general sentencing principles more explicitly than the former scheme did.

It does so for the benefit of the offender,who cannot complain of a discretion that can only operate to his or her benefit: see Lyons, at pp. 348-49. … [63] For all these reasons, an offender’s moral culpability, the seriousness of the offence, mitigating factors, and principles developedfor Indigenous offenders are each part of the sentencing process under the dangerous offender scheme. Each of these considerations isrelevant to deciding whether or not a lesser sentence would sufficiently protect the public. [28] Despite the requirement that the sentencing principles from

Part XXIII of the Criminal Code are to be applied, a judge cannotlose sight of the fact that

Part XXIV proceedings are different than conventional sentencing, and their sentencing deliberations must giveparamount consideration to the protection of the public as set out in s. 753(4.1). Protection of the public through the prevention of furtheroffences has been described in the jurisprudence as the “enhanced objective”, “dominant purpose”, “paramount sentencing objective”,“paramount purpose” and “primary consideration” in the sentencing process under

Part XXIV: Boutilier at paras 55-56; R v Steele, 2014SCC 61 at para 29, [2014] 3 SCR 138; R v Standingwater, 2013 SKCA 78 at para 49, [2013] 10 WWR 277 [Standingwater]; R vSpilman, 2018 ONCA 551 at para 32, 362 CCC (3d) 415; and R v Warawa, 2011 ABCA 294 at para 38, 278 CCC (3d) 409, leave toappeal to SCC refused, . It is an error of law to allow the factors from

Part XXIII to dominate the determination of anappropriate sentence under

Part XXIV: Boutilier at paras 55-57, Standingwater at para 49, R v Toutsaint, 2015 SKCA 117 at paras22-25, [2016] 5 WWR 269 [Toutsaint], and R v Osborne, 2014 MBCA 73 at paras 95-97, [2014] 10 WWR 262 [Osborne]. The Determination Stage [17] Here the issue is whether the Crown has proven beyond a reasonable doubt that Mr.

Douglas is a dangerousoffender on the basis of evidence establishing: a. a pattern of repetitive behaviour showing a failure to restrain his behaviour and a likelihood of causing death, injury or severepsychological injury to others through failure in the future to restrain his behaviour (s. 753(1)(a)(i)); or b. a pattern of persistent aggressive behaviour showing a substantial degree of indifference respecting the reasonably foreseeableconsequences to other people of his behaviour (s. 753(1)(a)(ii)). [18] In R v Knife, 2015 SKCA 82, [2015] 12 WWR 469 [Knife], the Court of Appeal for Saskatchewan provided thefollowing guidance with respect to what constitutes such patterns of behaviour: [56] Both ss. 753(1)(a)(

i) and (ii) require the Crown to establish the existence of a pattern of behaviour, whether it be a “pattern ofrepetitive behaviour” or a “pattern of persistent aggressive behaviour”. For both subparagraphs of this provision, the predicate offencemust form part of that pattern—in the words of the Newfoundland Court of Appeal, the predicate offence serves as the “last straw in aseries of dangerous violence on the part of the perpetrator” (R v Newman (1994), (NL CA), 115 Nfld & PEIR 197(Nfld CA) at para 71). … [64] Section 753(1)(

a) is aimed at identifying patterns of violent behaviour. It is the repetition of the violent behaviour which formsthe pattern. [65] Repetition obviously implies there is more than one offence. Thus an offender must have prior violent offences (even if onlyone), 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 toother persons.

For s. 753(1)(a)(ii), the repetitive behaviour must show a substantial indifference on the part of the offender respecting thereasonably 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 [1999 ABCA 206, [1999] 11 WWR 649] atpara. 111, there may be similarities in the types of offences, or similarities in the degree of violence used.

For example, an offender witha history of committing aggravated assaults has necessarily demonstrated a repetition of violent behaviour, as a high degree of violence isimplied in the very nature of aggravated assault. Rosenberg J.A. in the Szostak decision [2014 ONCA 15, 306 CCC (3d) 68] of theOntario Court of Appeal, at para. 63, agreed with Neve stating “Similarity… can be found not only in the types of offences but also in thedegree 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. [70] Thus, where an offender has repeatedly engaged in violent behaviour and a pattern has been established showing (

a) a failure to restrain his or her behaviour and (

b) a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons in the future through a failure to restrain such behaviour, the offender must be designated as a dangerous offender.

The fact of repetition demonstrates a failure to restrain the violent behaviour but the additional element of future risk must also be established. [71] Similarly, once a pattern of persistent aggressive behaviour has been demonstrated under s. 753(1)(a)(ii) showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences of his or her actions, then the offender must be designated as a dangerous offender. [72] Thus, the pattern/repetition analysis provides the evidentiary basis for assessing the future threat.

It is this future threat the dangerous offender provisions are aimed at curbing. Broadly speaking, if a court is unable to conclude the offender will pose a danger to the public in the future based on the offender’s prior violent offences, the requirements of s. 753(1) (

a) have not been met and the offender must not be designated as a dangerous offender.

However, if it is apparent the predicate offence is not an isolated occurrence but is rather a repetition of violent behaviour which shows a failure to restrain violent behaviour and is likely to continue in the future causing injury or death to others (for s. 753(1) (a)(i)), then the offender does pose a danger to the public in the required sense and should be accordingly designated as a dangerous offender. [ 19 ] In R v Wilton , 2016 SKCA 131 , the Court said the following: [22] In R v McCallum , 2016 SKCA 96 , this Court recently considered whether a predicate offence fit a “pattern of repetitive behaviour” within the meaning of s. 753(1)(a)(

i) or a pattern of “persistent aggressive behaviour” within the meaning of s. 753(1)(a)(ii). In that regard, Ryan-Froslie J.A. wrote: [46] …[I]t 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. [Emphasis in original] [23] As R v McCallum indicates , there is nothing particularly difficult about determining the type of pattern required under each subparagraph. In its own words, s. 753(1)(a)(

i) requires that the Crown establish “a pattern of repetitive behaviour” on the part of an offender “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”. As Ryan-Froslie J.A. observed, this requirement does not concern itself so much with the offences the offender has committed as it does with the offender’s behaviour when committing those offences.

In R v Knife , 2015 SKCA 82 at para 64 , 460 Sask R 287 , Lane J.A. pointedly remarked: “It is the repetition of violent behaviour which forms the pattern.” [24] Moreover, there is no suggestion in either s. 753(1)(a)(

i) or s. 753(1)(a)(ii) that the Crown must establish a “general similarity” among the offences that comprise the record of an offender’s violent behaviour, nor do those subparagraphs require “general similarity” in the nature or substance of the violent acts committed by the offender. In R v Hogg , 2011 ONCA 840 at para 40 , 287 OAC 82 , Feldman J.A. interpreted the requirement of s. 753(1)(a)(

i) in these clear terms: “[T]he pattern of repetitive behaviour that includes the predicate offence has to contain enough of the same elements of unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future” (emphasis added) [Emphasis in original] [ 20 ] Mr. Douglas’s criminal record shows six convictions in Youth Court followed by some 31 convictions between 2000 and 2018, including the following offences involving assaults or personal violence and aggressive criminal behaviour that either caused death or injury or had a serious risk of doing so: Offence: s. 266 Assault Victim: Herb Spalding Place: Terrace, BC

Date: February 25, 1998 Sentence Date: February 1, 2000 Sentence: 14 days secure custody, 18 months probation Offence: s. 268 Aggravated Assault Victim: Robbie Elliot Place: Terrace, BC Date: February 25, 1999 Sentence Date: December 1, 2000 sentence: 6 months secure custody (to be served in an adult facility) Mr. Douglas stabbed the victim during an evening of drinking, apparently in relation to drinking from a bottle of alcohol. Offence: s. 220(

b) Causing Death by Criminal Negligence Victims: Renaud Fontaine (deceased) and Laura Lee (deceased) Place: Terrace, BC Date: June 12, 1999 Sentence Date: October 18, 2000 Sentence: 4 years Facts: On June 12, 1999, at 18 years of age, he stole a car. When spotted by police, he drove away at high speeds in an erratic manner to avoid apprehension at speeds up to 140 kilometres per hour in inhabited sections of Terrace, which had speed limits of 50 kilometres per hour.

During the police chase, he took evasive action at police barricades and ran a four-way stop-signed intersection at a speed of some 130 kilometres per hour, broadsiding another vehicle and killing its two occupants. A blood-alcohol reading taken two hours later showed a reading of .077%. Offence: s. 344(

b) Robbery Victim: Charlene Stretch Place: Saskatoon, SK Date: May 22, 2006 Sentence Date: September 27, 2006 Sentence: 3 years custody (4 months pre-sentence custody) Facts: Mr. Douglas entered a business premises and demanded all the money, When the clerk said no, he shoved her away from the till, produced a knife and demanded the till be opened and took the contents. The clerk was injured when he shoved her. She was traumatized and, as a result of the incident and injury, ceased to work there. He appeared agitated throughout. Offence: s. 267(

b) Assault Cause Bodily Harm Victim: Amber Vevang Place: Saskatoon, SK Date: January 16, 2009 Sentence Date: January 27, 2009 Sentence: 6 months custody Facts: This was an assault causing bodily harm where Mr. Douglas punched and kicked the complainant in a domestic setting. Offence: s. 249.1(1) Operate a Motor Vehicle and Evade Police Victim: General Public Place: Saskatoon, SK Date: October 9, 2017 Sentence Date: October 25, 2018 Sentence: 15 months custody time served

Facts: This is an instance of Mr. Douglas fleeing from police when they turned on their flashers to stop a suspected stolen vehicle in the early hours of the morning. Mr. Douglas accelerated to high speeds, ran a red light and continued within the city at speeds in excess of 120 km per hour. The police terminated the pursuit but were later able to seize the vehicle and, based on identification found in the vehicle and police officer identification of Mr. Douglas as the driver, the matter went to trial, with Mr. Douglas being convicted.

O ffence: s. 249.1(1) Operate a Motor Vehicle and Evade Police Victim: General Public Place: Davidson, SK Date: October 21, 2017 Sentence Date: November 15, 2018 Sentence: 147 days custody Facts: Mr. Douglas rapidly accelerated away from an attempted police check and then avoided an attempted secondary stop where all police emergency equipment were activated. The black pickup truck did not stop, sped through a residential school zone area in Davidson and rapidly drove through intersections, disobeying stop signs on Highway 44. The police terminated the pursuit for public safety reasons, but Mr.

Douglas was identified as the driver by witnesses. [ 21 ] Mr.

Douglas’s present conviction of the s. 249.1(3) offence (the predicate offence) combined with his prior convictions prove beyond a reasonable doubt that there has been both: a. a pattern of repetitive behaviour showing a failure to restrain his behaviour and a likelihood of causing death, injury or severe psychological injury to others through failure to restrain his behaviour (s. 753(1)(a)(i)); and b. a pattern of persistent aggressive behaviour showing a substantial degree of indifference respecting the reasonably foreseeable consequences to other people of his behaviour (s. 753(1)(a)(ii)). [ 22 ] Mr.

Douglas’s pattern of exceedingly dangerous driving shows a past failure to restrain his behaviour and a likelihood of causing death, injury or severe psychological injury to others through failure to restrain his behaviour. In 1999, some 22 years ago, he killed two people attempting to evade police.

Most recently, in the predicate offence of 2017, he drove in a manner that put the lives and safety of other users of the road in serious peril – to the extent of running red lights and stop signs and forcing other vehicles to take the evasive action of leaving their driving lane to avoid a head-on collision – in the course of which he injured a police officer.

On two other known occasions, both in 2017 shortly before the predicate offence, while not classified as serious personal injury offences because no one was injured, his actions taken to evade police while driving an automobile also had the potential to be incidents causing death or serious personal injury. [ 23 ] These driving-related offences, including the predicate offence, along with the assaults and robbery, can also be categorized as a pattern of persistent aggressive behaviour showing a substantial degree of indifference respecting the reasonably foreseeable consequences to other people of his behaviour within the meaning of s. 753(1)(a)(ii).

His repeated attempts to evade police through dangerous operation of a motor vehicle can properly be classified as “persistent aggressive behaviour”, as are robbery and assaults. [ 24 ] As stated by Ryan-Froslie J.A in McCallum , 2016 SKCA 96 : [46] … 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. I find there has been a past pattern of persistent aggressive behaviour showing a substantial degree of indifference respecting the reasonably foreseeable consequences to other people of his behaviour. [ 25 ] The fact of his past patterns leads, in the required analytical approach, to assessing the future threat of this pattern continuing. As stated in Knife , and quoted here again: [72] Thus, the pattern/repetition analysis provides the evidentiary basis for assessing the future threat.

It is this future threat the dangerous offender provisions are aimed at curbing. Broadly speaking, if a court is unable to conclude the offender will pose a danger to the public in the future based on the offender’s prior violent offences, the requirements of s. 753(1) (

a) have not been met and the offender must not be designated as a dangerous offender.

However, if it is apparent the predicate offence is not an isolated occurrence but is rather a repetition of violent behaviour which shows a failure to restrain violent behaviour and is likely to continue in the future causing injury or death to others (for s. 753(1) (a)(i)), then the offender does pose a danger to the public in the required sense and should be accordingly designated as a dangerous offender. [Emphasis added] [ 26 ] As stated by La Forest J. in Lyons , at page 338, and reiterated in Boutilier , at para 26 : … Thirdly, it must be established that the pattern of conduct is very likely to continue and to result in the kind of suffering against which the

section seeks to protect, namely, conduct endangering the life, safety or physical well-being of others…. Also explicit in one form or another in each subparagraph of [s. 687, now s. 753] is the requirement that the court must be satisfied that the pattern of conduct

is substantially or pathologically intractable. … [Emphasis added]. [ 27 ] While the evidence proves beyond a reasonable doubt that Mr. Douglas meets the criteria of s. 753(1)(a)(

i) and (ii) in respect of his past patterns of behaviour, I must also be satisfied that it is “likely” that past pattern will continue in the future. In so deciding, I have assessed all the evidence.

This includes the past programming he has undergone in prison to address his risks to reoffend, the successes or failures within that programming, the psychiatric evidence relating to his ongoing recidivism risks, the availability of additional programming, his probabilities of successfully incorporating such programming into his decision-making, the “ageing out” effect, whether Suboxone therapy could manage his to-date intractable drug and alcohol addiction and whether he can be expected to be compliant with such therapy.

This evidence includes the evidence with respect to future prospects outlined below. [ 28 ] The evidence establishes that during his past imprisonment terms, Mr. Douglas received all the then programming that might assist him in addressing his criminogenic risks. As Dr. Choy testified, the evidence is that he has the knowledge of how to apply that programming and knowledge; the issue is whether he can or will do so in the future. The Evidence Relating to Past Programming, Assessments and Performance [ 29 ] The evidence on the hearing included the Correction Services Canada [CSC] records in relation to Mr.

Douglas’s past incarcerations in federal prisons, filed as Exhibits P-3 and P-4, and the evidence of CSC personal in respect thereof. These exhibits record in detail information relating to Mr.

Douglas throughout his prison time including: a. general psychological/psychiatric assessments; b. security and recidivism risk assessments; and c. programming required to address his various risk factors, including criminogenic factors relating to his offending, his recidivism risks generally, his substance abuse and violence risks specifically and generally, to assist with his rehabilitation and re-integration into the community.

First Federal Prison Sentence Assessments and Programming [ 30 ] A Correctional Plan Progress Report of January 16, 2002, assessed his then Reintegration Potential as low, his Need for Intervention Based on Static and Dynamic Factors as high and having “considerable difficulty with each of his Attitude, Motivation, Personal/Emotional Orientation and Associates/Social Interaction (Exhibit P-3 page 83). That Progress Report stated, inter alia : The most salient dynamic factor involved in this case is Mr.

DOUGLAS’ [ sic ] system of antisocial values and attitudes, including an antiauthoritarian and oppositional defiance that manifests in virtually all his contacts with prosocial persons. To-date [ sic ] he has demonstrated no curiousity [ sic ], dissonance, or insight into his criminality. Moreover, despite his protests to the contrary, his appreciation of his victims’ suffering has failed to influence subsequent criminal acting out. Mr. DOUGLAS’ offence pattern has in fact remained relatively stable in terms of criminogenic factors but it has escalated in severity rapidly.

His impulsive nature and reckless attitude towards others’[ sic ] has also failed to remit, even with the passing of time from adolescence and into adulthood. It appears that his crime cycle has become more entrenched. Mr. DOUGLAS claims to [ sic ] achieved some insight into his crime cycle and the causes of his acting-out [ sic ], but he failed to articulate them adequately to convince the writer of their accuracy and/or salience. A second dynamic factor is Mr. DOUGLAS’ untreated and rampant substance abuse problem.

His alcoholism has been a key factor in his offence history, and he has continued to drink in flagrant violation of court orders for offences that also involved alcohol. Mr. DOUGLAS does not acknowledge the detrimental effects of alcohol use nor his compulsive drinking behaviour. Instead, he denied to the writer that he was impaired at the time of the current offence by citing the below-legal limit blood-alcohol reading taken two hours post-accident. He did not refer to the extrapolated accident-level estimate that placed the reading at a level of legal impairment. A third dynamic factor in Mr.

DOUGLAS’ history of offending is his association with criminal and/or antisocial acquaintances. It appears that he has developed a circle of friends commencing in early adolescence that upholds an antisocial worldview and possibly reinforces Mr. DOUGLAS’ criminal activities by association and by creating a reputation of notoriety that probably supports Mr. DOUGLAS’ otherwise poor self-esteem. Mr. DOUGLAS alluded to his tough-guy, dangerous reputation when he informed the writer that persons at the grad-party [ sic ] he spoke to “should have known better” than to enter into conflict with him.

Certainly ongoing associations with these parties restricts [ sic ] Mr. DOUGLAS’ likelihood of pursuing alternate prosocial activities and contacts. A fourth dynamic factor contributing to Mr. DOUGLAS’ difficulties is his emotional and social immaturity, including poor impulse control and disregard for the consequences of his behaviours for others. This egocentric worldview ensures that Mr. DOUGLAS’ focus in his life remains on himself and on meeting his needs in ways that assure him the least effort and most gain.

He also has a history of anger management problems that have been observed in the community as well as in his history of poor institutional behaviour. His record of violence consistently indicates poor self-management skills that are exacerbated to levels of dangerous acting out when he is under the influence of substances. It appears that he is especially vulnerable to quick escalations and acting-out [ sic ] when he is frustrated, when his attitude of entitlement is challenged, and when he is bored. Former reports confirm that Mr.

DOUGLAS has difficulties with impulsiveness and that he has in the past sought out criminal activities because of the associated stimulation and excitement, and the social reinforcement from his antisocial associates. Inability or unwillingness to monitor and more appropriately respond to his needs for stimulation as likely still a risk factor for him. [Exhibit P-3, CSC documents, pages 106-107] [ 31 ] The evidence establishes that during his first prison term, Mr. Douglas received the following programs: a. Cognitive Skills Training;

b. Offender Substance Abuse Pre-Release Program; and c. Anger and Emotions Management Training Program. He did not receive the planned Violent Offender Treatment Program (Moderate Intensity) because, as stated in his Progress Report: Mr. DOUGLAS was referred in RRAC intake documents to the Violent Offender Treatment Program (Moderate intensity) but due to program unavailability he has not attended the program. There are no alternatives to the VOP which will adequately address Mr. DOUGLAS’ [ sic ] antisocial personality and his engrained crime cycle. This deficit in treatment bodes poorly for Mr.

DOUGLAS’ successful completion of his correctional plan. Moreover, it renders him unduly vulnerable to reoffending. Without the VOP he has not been challenged to address his antisocial proclivities, to identify the factors contributing to his crime cycle, to learn new coping skills, and to establish some vision of himself as a prosocial individual. In conversation, however, Mr. DOUGLAS maintains that he has figured out his criminality. [Exhibit P-3, CSC documents, page 108] [ 32 ] He was granted parole on September 8, 2003.

Prior to that, his Correctional Plan Progress Report stated that: In terms of a willingness to change, he has voiced an attitude that says he wishes to but his actions have established otherwise. He has completed correctional programming but a recurring theme in many of the Program Performance Reports indicate [ sic ] that he chooses not to use the skills that he has been taught. This is reaffirmed by his more recent actions at Matsqui Institution as he has admitted to substance abuse to “take the edge off” and he has assaulted another inmate.

For someone who has voiced that he wishes to change his actions have definitely indicated otherwise. [Exhibit P-3, CSC documents, page 126] [ 33 ] During parole, he participated in the Community Orientation Program, the National Substance Abuse Maintenance Program and the Counterpoint Program, but his parole was revoked on July 15, 2004, for repeated violations of his conditions to abstain from the use of drugs. He was granted statutory release on November 3, 2004, into a Community Residential Facility of CSC.

While he admitted to a further breach of his condition to abstain, his release continued in light of his Warrant Expiry Date being February 17, 2005. Second Federal Prison Sentence Assessments and Programming [ 34 ] On September 27, 2006, he was sentenced to a federal term of three years for the offence of armed robbery committed on May 22, 2006, some 15 months after his prior warrant expiry date. During this sentence and prior to statutory release, he participated in and successfully completed the following programming: a. National Substance Abuse High Intensity – as of November 2, 2007; b.

Moderate Intensity Violence Prevention Phase 2 – as of December 7, 2007; and c. National Substance Abuse Maintenance – as of September 4, 2008. [ 35 ] A Correctional Plan Progress Report dated April 30, 2008, stated, inter alia , as follows: The offender has completed programs identified in his Correctional Plan. The offender has completed the National Substance Abuse Program – High Intensity the domain of substance abuse is reassessed from Considerable Need to Some Need for Assistance. DOUGLAS has completed the Moderate Intensity Violence Prevention Program.

Personal/Emotional Orientation is reassessed from Considerable Need to Some Need for Assistance. DOUGLAS’ [ sic ] institutional behaviour has shown a significant change from his first federal sentence. In his prior sentence, the offender demonstrated significant institutional behavioural problems such as substance abuse, assaulting Correctional Officers and other inmates and exhibiting disruptive behaviour.

File information indicates that the offender was initially resistant to institutional programming, however successfully completed identified programming with the exception of the National Substance Abuse Maintenance Program. The offender has shown some resistance to his CMT and to programming elements in his Correctional Plan. The domain of Attitude is reassessed from Considerable Need to Some Need for Assistance. These domains have shown improvement, but the offender must continue to address these areas in order to increase his overall Reintegration Potential.

As a result of completion of his Correctional Plan and showing some gain in the domains of Substance Abuse, Personal/Emotional Orientation and Attitude the level of intervention based on dynamic factors is reassessed from High to Medium. DOUGLAS’ Reintegration Potential is reassessed from Low to Medium. [Exhibit P-3, CSC documents, page 396] DOUGLAS has completed his Correctional Plan. Reintegration Potential has been reassessed from Low to Medium. DOUGLAS’ main contributing risk factor is substance abuse. Engaging in substance abuse will elevate the offender’s risk to re-offend.

This risk to re-offend will include substantially increasing his risk to re-offend violently. To reduce this risk the offender will have to continue to address substance [ sic ] on an ongoing basis through substance abuse maintenance or self-help groups such as AA or NA. Peer group associations are a negative influencing risk factor in the offender’s past.

Monitoring of his peer group will allow the offender to be less easily influenced by his criminally oriented friends. [Exhibit P-3, CSC documents, pages 397-398] [ 36 ] A May 22, 2008, CSC Assessment for Decision prepared for the National Parole Board stated, inter alia :

Douglas has completed programs designed to mitigate risk if he applies the concepts and follows relapse planning. File information however suggest that he is generally a high risk to re-offend and high risk to re-offend with violence. During Statutory Release Douglas will be supervised as a high risk-high needs offender. Douglas will have to remain substance-free to achieve any success.

Remaining fully employed will also assist with his reintegration. [Exhibit P-3, CSC documents, page 403] It recommended his parole be subject to conditions to abstain from drugs and alcohol. [ 37 ] A Program Performance Report Final dated September 18, 2008, recorded as follows: During NSAP maintenance, relapse prevention planning continued to be a target to provide Mr. Douglas an opportunity to explore his triggers and update his plans to deal with risky situations. On numerous occasions, he explained that he no longer has cravings for drugs and has no intention of returning to his former lifestyle.

In addition, he repeatedly expressed his belief that he will be able to utilize the skills he has learnt to avoid relapsing. He explained recognizing the consequences of his actions and recalling how much he has lost as a result of his substance use and criminal involvement will help him maintain his motivation to change. … [Exhibit P-3, CSC documents, pages 419-420] [ 38 ] The National Parole Board, by decision dated September 9, 2008, approved his statutory release with parole conditions of abstaining from the use of alcohol or drugs. However, on January 16, 2009, Mr.

Douglas assaulted his girlfriend with whom he was residing. The National Parole Board revoked his parole on March 31, 2009, stating, inter alia : You have clearly demonstrated you are either unwilling or unable to abide by conditions of release given your decision to use intoxicants, your involvement in further criminal activity of assault cause bodily harm against your common law spouse, mischief, and possession of marijuana. All of the circumstances surrounding your suspension were within your control. The Board is satisfied your risk has escalated to an unmanageable level warranting revocation.

Therefore your statutory release is revoked. [Exhibit P-3, CSC documents, page 445] [ 39 ] On November 2, 2009, Douglas was granted statutory release and was released to reside in Regina, but he remained under supervision for only ten days, at which time he failed to report to his parole supervisor. As noted in the Assessment for Decision dated March 11, 2010: … On or about 2010-01-15 DOUGLAS was identified as being involved in an incident in East Regina in which he was accused of operating a motor vehicle and driving into two individuals. Fortunately, neither of these individuals was seriously hurt.

The offender was later apprehended on 2010-03-05 after a search warrant was executed at a local hotel room. The offender along with three others, Jordon Bundas, Jason Bolton, and David Wall were also charged in connection of possession of cocaine and weapons charges. [Exhibit P-3, CSC documents, pages 472-473] … On or about 2010-01-15, Douglas is suspected of attending to a house party in East Regina during which an altercation occurred. Apparently his friend Josh Bundas was stabbed several times. DOUGLAS went into his vehicle and with Bundas also in the vehicle he drove into two individuals.

One of these individuals went under the vehicle and one over top of the hood. Injuries included scrapes, bruises and broken bones. Neither of them suffered from life threatening injuries. [Exhibit P-3, CSC documents, page 476] [ 40 ] On April 26, 2010, Douglas’s statutory release was revoked by the National Parole Board stating: … However, of serious concern is that almost immediately upon release you chose to not report for supervision meetings and exhibited a negative attitude towards the supervision process.

Despite being aware that a warrant was issued for your arrest, you chose to remain unlawfully at large and obtained numerous new criminal charges. Your actions and decisions in the community are not consistent with an individual motivated to change or the expectations of an individual on statutory release. The reasons for your suspension were definitely within your control and the Board concludes your risk in the community rose to an unmanageable level. Therefore, your statutory release is revoked. [Exhibit P-3, CSC documents, page 493] [ 41 ] Mr.

Douglas was then incarcerated at Stony Mountain Penitentiary where he completed the National Moderate Intensity Family Violence Program. In the Assessment for Decision – Detention Review dated November 19, 2011, it states: During his previous Statutory Release, DOUGLAS was given numerous opportunities to change his behaviour, but kept returning to substance abuse. After receiving bail for the current ROBBERY charge, the subject cut the electronic monitoring device, drove without a licence, abused substances, misled police by using false names and disregarded all reporting procedures.

Despite the opportunities and repeated ‘chances’ DOUGLAS has received to follow through on his promises, he continues to demonstrate a marked lack of respect for all aspects of the criminal justice system. His youth and verbalized promises to change have garnered compassion and extra measures to assist this individual; all to no avail. During his most recent Statutory Release he again returned to substance abuse, went UAL and returned to criminal behavior. DOUGLAS has demonstrated that he has no respect for the law, authority or other people.

He is able to justify his behavior and does not take full responsibility for his actions. He has no qualms about lying, manipulating, or breaking the law in order to meet his perceived needs.

While previous program involvement resulted in some gains, he has failed to incorporate his knowledge and skills into his lifestyle. To date, the programs he has participated in have been ineffective as he continues to resort to criminal behaviour when challenges in his life occur. Presently, it does not appear that DOUGLAS has yet reached the point where he is ready to make significant positive changes in his lifestyle.

Although DOUGLAS commenced participation in the High Intensity National Substance Abuse Program on 2007-06-21 a review of the IPSO file on 2007-10-30 indicates that information from September of 2007 suggests that the subject was involved in the institutional drug trade. This may be an indication that the subject is merely ‘going through the motions’ in terms of his program participation.

This supports the conclusion that there is a substantial degree of indifference as to the consequences to other persons. [Exhibit P-3, CSC documents, page 515] [ 42 ] On June 22, 2011, the National Parole Board determined that Mr. Douglas would serve the remainder of his second federal term of incarceration to warrant expiry, reasoning that: … The Board also recognizes your recent completion of the National Family Violence Moderate Intensity Program and gains made. However, you have amassed a lengthy and violent criminal history that has shown a complete disregard for the law as a well as numerous victims.

Despite previous program interventions you continually chose to reoffend and continued to accumulate victims with minimal signs of improvement. You currently lack credibility with regards to claims that you are a low risk to reoffend violently when your past actions and decision [ sic ] have been taken into consideration. You have threatened victims, assaulted victims, caused the death of two people, used numerous weapons and have demonstrated a complete disregard for court imposed sanctions and the supervision process.

As such, the Board is satisfied that if released, you are likely to commit an offence causing the death of or serious harm to another person prior to the expiration of your sentence. Therefore your detention is ordered. [Exhibit P-3, CSC documents, pages 564-565] [ 43 ] From June to September 2011, Mr. Douglas completed the National Family Violence Maintenance Program, and the National Substance Abuse Maintenance Program from November 2011 to January 2012.

His annual review of detention occurred in October 2011, and the Assessment for Decision report prepared in respect thereof stated: Douglas again reverted to blaming external reasons for his lack of success while in the community, and stated that the CSC has failed to rehabilitate him. Although he has verbalized responsibility for his offending, Douglas takes far less responsibility regarding how his poor choices, relating to compliance with conditions imposed by the courts, and his failure to adhere to the institutional rules and regulations, have negatively impacted his life.

Douglas continues to minimize the impact his drug use has had on his offending, and his commitment to sobriety appears to be somewhat lacking. … Douglas continues to be assessed as a high risk to commit an offence involving serious harm to another person prior to Warrant Expiry. Therefore, the CMT is not recommending any modification to the Detention Order at this time and a Community Strategy is not being requested. [Exhibit P-3, CSC documents, page 576] [ 44 ] Following this assessment, the National Parole Board decide he would be held to warrant expiry, which occurred on July 16, 2012, when he was released.

By September 20, 2012, he was arrested for possession of a loaded handgun, sentenced to a four-year term for unauthorized possession of a loaded prohibited firearm and to one year consecutive for breach of s. 810.2 recognizance conditions. Third Federal Prison Sentence Assessments and Programming [ 45 ] During his third prison term, Mr. Douglas participated in the Alternatives, Associates and Attitudes Program in July 2013 and the Community Integration Program in August and September of that year. He had been assessed prior thereto of having a low level of motivation and not being presently engaged.

In an October 28, 2014, Assessment for Decision, it was recommended he be transferred from medium to maximum security resulting from his involvement in intimidating and threatening another inmate. That Assessment for Decision stated: “DOUGLAS was segregated on 2014-10-17 after the offender was observed making threats. Since 2013-06-28, DOUGLAS has been identified as both Instigator and associate in 7 institutional incidents including Uttering Threats, Assault on Inmate x3, Possession of Unauthorized Item x 2 and Possession of Contraband.

Most recently, on 2014-10-25 while CX staff were moving the offenders [ sic ] effects to his segregation cell. It was observed that DOUGLAS had concealed 5 Olanzipine pills in a modified soup can discovered in his cell. DOUGLAS has been found Guilty of 5 Serious institutional charges since 2014-04-19 relating to Drug use and violence. DOUGLAS’s behaviour has deteriorated to the point that it is believed he is not presently manageable in a Medium Security setting.

There are no security concerns with DOUGLAS transferring to Saskatchewan Penitentiary Maximum Security Unit.” [Exhibit P-4, CSC documents, page 693] [ 46 ] He was returned to medium security in July 2015 but by October was returned to maximum security. The Assessment for Decision in this respect reported, inter alia , that: This report was generated in response to reassessed security requirements for DOUGLAS, due to his recent involvement in institutional subculture which involves attempts to traffic drugs into the institution and using drugs at Saskatchewan Penitentiary Medium Security

Unit. This report will address DOUGLAS’ [ sic ] intra-regional involuntary transfer to Stony Mountain Maximum Security Unit. [Exhibit P-4, CSC documents, page 722] … DOUGLAS has struggled with maintaining appropriate institutional behavior since the commencement of his sentence.

He has received the following serious institutional charges since his sentence commenced on 2013/01/24: 2014/02/14 – refused or failed to provide a urine sample. 2014/03/07 – refused or failed to provide a urine sample. 2014/03/27 – found to have taken an intoxicant – THC. 2014/07/15 – assaulted another offender by deliberately head butting him in the face. 2014/09/05 – failed or refused to provide a urine sample. 2014/10/28 – possession of illegal substance. 2015/05/07 – found to have taken morphine as confirmed from a urinalysis test. 2015/10/21 – syringe found in the offender’s cell.

DOUGLAS received the following incident reports: 2013/06/28 / associate in an assault on another inmate. 2014/03/21 – possession of homemade syringe.

Found in condition other than normal. 2014/04/31 – associate in an assault on another inmate. 2014/07/15 – assault on inmate 2014/10/15 – threatened inmates working in the kitchen. 2014/10/25 – in possession of unauthorized medication. 2015/04/05 – disruptive behaviour in canteen operations. 2015/10/20 – syringe found in the offender’s cell. [Exhibit P-4, CSC documents, pages 725-726] [Exhibit P-4, CSC documents, page 742] … The offender demonstrates instability in managing himself in the offender population and has been non compliant with application of his Correctional Plan. [Exhibit P-4, CSC documents, page 727] [ 47 ] On March 5, 2016, Douglas was released on his statutory release date.

On March 9, 2016, Douglas commenced the Community Maintenance Program, and attended nine sessions before absenting himself from supervision, resulting in his statutory release being suspended on May 7, 2016. He was arrested later that day with a stolen vehicle and a large amount of drugs in his possession for the purpose of trafficking. On May 11, 2016, Douglas was sentenced to 12 months custody for trafficking and being in possession of a stolen vehicle concurrent with his existing sentence. [ 48 ] Mr.

Douglas was released again on a statutory release on April 8, 2017, with the requirement that he reside at the Meewasinota Community Residential Facility [CRF] in Prince Albert. His parole release was suspended on June 23, 2017, when he failed to return to the CRF. Urinalysis of a sample provide June 21, 2017, was positive for amphetamines and THC. Warrants were issued for his arrest, but his whereabouts were unknown until October 28, 2017, when he was arrested on the charges presently before the court. [ 49 ] Mr.

Douglas’s warrant expiry date on the prior sentences imposed on him was September 23, 2017, and he has served his prior sentences to their expiry. Since his arrest on October 28, 2017, he has been on remand and has not received any additional programming. [ 50 ] It is significant that between his statutory release on April 8, 2017, and his arrest on October 28, 2017, on the charges presently before the court, he also committed the s. 249.1 offences of operating a motor vehicle and evading police on October 9 in Saskatoon and October 21 in Davidson, Saskatchewan, as detailed in paragraph 22 above.

Thus, within a period of some 20 days between October 9 and October 28, 2017, on three occasions he placed lives in danger by his operation of a vehicle attempting to evade police, essentially the same offence as he committed some 17 years earlier in Terrace, British Columbia, where he killed two people.

The Psychiatric Evidence at Trial [ 51 ] Two psychiatrists, Dr. Alberto Choy and Dr. Terry Nicholaichuk, were qualified as expert forensic psychologists and testified at the dangerous offender hearing in respect of their current assessments of Mr. Douglas. [ 52 ] Dr. Choy’s involvement arose pursuant to an assessment order I made on June 23, 2020, under s. 752.1 of the Criminal Code . The report he prepared was filed on the hearing as Exhibit P-9. Dr. Nicholaichuk was engaged by the defence, and his report was filed as Exhibit D-2. [ 53 ] The report of Dr. Choy contained extensive reviews of Mr.

Douglas’s family, schooling, employment, personal relationships, psychiatric, criminal offences and correctional/institutional histories. The report of Dr. Nicholaichuk was more

summary, stating that his history had been given in previous reports, the most recent being in the assessment prepared by Dr. Choy. [ 54 ] Each of Drs. Choy and Nicholaichuk, with the background knowledge provided by the above noted histories, conducted warned interviews of Mr. Douglas and administered various tests designed to assist in their assessments of his mental and psychiatric status, his risks to further offend and, more generally, to guide them in their psychiatric diagnoses and their opinions with respect to whether he met the criteria for designation as a dangerous or long-term offender. Dr.

Choy’s Evidence [ 55 ] At trial, Crown counsel asked that Dr. Choy be qualified to provide opinion evidence with respect to “risk and risk reduction in violent men”. He took the position that a voir dire to establish such qualification was not required based on the Crown’s position that in

Part XXIV proceedings, the assessor’s qualifications have been accepted at the time of the ordering of the assessment report. Defence counsel agreed that Dr. Choy’s qualifications had been previously acknowledged by the defence at the time of making the assessment order and that this qualification continued up to the time of him giving evidence at the hearing. With that, I found Dr. Choy qualified in forensic psychiatry and found him qualified to give opinion evidence in the area of risk assessment in adult men. [ 56 ] Dr.

Choy’s psychiatric diagnoses are set forth at pages 31 to 32 of his assessment report as follows: It is clear that the diagnoses of antisocial personality disorder and other substance use disorder can be confirmed for Mr. Douglas. Antisocial personality disorder describes a pervasive pattern of disregard for, and violation of, the rights of others, in his case starting prior to the age of 15. He has shown a pattern of failing to comply to social norms and conditions, impulsivity and failure to plan ahead, reckless disregard for the safety of others, and in the past, irritability and aggressiveness.

Other substance use disorder describes Mr. Douglas’ [ sic ] long-standing pattern of use of intoxicants that clearly have led to repeated functional difficulties such as failure to comply to his obligations and continued use in spite of significant social and interpersonal problems. He has described cravings with opioids but all illicit substance use, which can also include stimulants, alcohol, cocaine, and marijuana, appears intimately associated with his failures in the community and criminal recidivism.

This diagnosis can be described as severe given the plethora of criteria, but also in remission in a controlled setting given the apparent success in abstaining over the last year while in remand. Consideration was given to other diagnoses in the realm of mood and anxiety disorders but he does not fulfill criteria to confirm any of these. He indicated he has experienced both mood and anxiety symptomatology at various times in the past, perhaps even in periods that have been independent from the use of substances, but these symptoms did not rise to a level that confirms a formal diagnosis at this time.

There may be historical diagnoses of a learning disorder and ADHD. The Psychopathy Checklist – Revised (PCL-R, 2nd Edition) was scored by the undersigned on Mr. Douglas. My raw score for him was 24 out of a possible 40 points which places him squarely within the average score on this measure for a general correctional population. For reference, the average inmate population score is in the low 20s with the standard error of measurement being three points on either side of the average. The score of 24 suggests that Mr. Douglas is unlikely to share all of the features of a prototypical psychopath.

Rather, he is not dissimilar on the scale to the average federal inmate. Sub scores on this instrument in factor one (the interpersonal and affective components of psychopathy) was 8, which is considered just below average for a correctional population, and factor two (the social and behavioral deviancy) was 14, which is above average but not necessarily considered a high score. The scores would suggest that Mr.

Douglas can profit from typical treatment programs in institutions and should be no more difficult to supervise [ sic ] the community than the average offender, but clearly, this has not been the case for Mr. Douglas on the latter point. In addition, it may be expected that the trajectory of his offending as he

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