HIS MAJESTY THE KING - v. –, 2024 SKKB 7

KING’S BENCH FOR SASKATCHEWAN Citation: 2024 SKKB 7 Date: 2024 01 12 File No.: CRM-PA-00318-2019 Judicial Centre: Prince Albert BETWEEN: HIS MAJESTY THE KING - and – MYLES SEWAP Counsel: Shawn E. Blackman for the Crown Christopher M.J. Koban for the accused ___________________________________________________________________________ DANGEROUS OFFENDER DECISION SCHERMAN J. January 12, 2024 ___________________________________________________________________________ Introduction [ 1 ] On April 5, 2021, I found Myles Sewap [Mr. Sewap] or the [offender], guilty of the charged offence of aggravated assault, contrary to

section 268 of the Criminal Code , RSC 1985 c C-46 , [the predicate offence]. Following this conviction, the Crown applied for an order remanding Mr. Sewap for an assessment under

Part XXIV of the Criminal Code , which order Mr. Sewap did not oppose. I granted the order for assessment, which was performed by Dr. Alberto Choy. [ 2 ] On receipt of the report of Dr. Choy, the Crown brought an application pursuant to s. 753 of the Criminal Code in which it sought to have Mr. Sewap declared a dangerous offender and seeking a sentence of indeterminate custody. This application was heard in May 2023 during which eight witnesses, including Dr. Choy, testified at the request of the Crown and Dr.

Terry Nicholaichuk at the request of the defence. [ 3 ] This decision analyzes, inter alia : a. what the requirements are under s. 753 of the Criminal Code for designation of an individual as a dangerous offender;

b. if the dangerous offender designation requirements are met, the considerations in relation to imposing an indeterminate sentence or a determinate sentence; and c. what designation and/or sentence should result for Mr. Sewap. Facts regarding Mr. Sewap’s history of violent offences [ 4 ] Mr. Sewap has a long history of committing acts of violence against others dating back to December 5, 2006. As of May 15, 2023, he had 43 convictions on his criminal record, including one conviction for assault, two convictions for assault with a weapon, one conviction for robbery, five convictions for aggravated assault and one conviction for assault causing bodily harm. [ 5 ] The following is a

summary of Mr.

Sewap’s convictions for violence offences, other than the predicate offence, established by the evidence: • s. 266 – Assault – October 20, 2006, in his home community of Pelican Narrows, Saskatchewan; • s. 267(a) – Assault with a Weapon – April 29, 2008, in his home community; • s. 267(a) – Assault with a Weapon – June 1, 2009, in Prince Albert, Saskatchewan; • s. 344(b) – Robbery – May 22, 2010, in his home community; • s. 268 – Aggravated Assault – September 26, 2011, in Prince Albert, Saskatchewan; • s. 268 – Aggravated Assault – November 1, 2011, (Count 1) in Pelican Narrows, Saskatchewan – stabbed his cousin with a knife; • s. 268 – Aggravated Assault – November 1, 2011 (Count 2) in Pelican Narrows, Saskatchewan – stabbed another individual at the same time as his cousin; • s. 267(b) – Assault Cause Bodily Harm – August 1, 2015, in Prince Albert, Saskatchewan – this was an assault causing bodily harm of an acquaintance; • s. 268 – Aggravated Assault – September 1, 2016, in Pelican Narrows, Saskatchewan – Mr.

Sewap and four other males beat the victim to unconsciousness; and • s. 268 – Aggravated Assault – October 7, 2019, in Prince Albert Penitentiary – Mr. Sewap and three other inmates beat and stabbed a fellow inmate. [ 6 ] The facts surrounding the predicate offence are outlined in my decision of April 5, 2021 ( 2021 SKQB 103 ). What is not stated in that decision, but which I find and state for the purpose of this s. 753 application, is that Mr. Sewap was involved in the organizing and initiation of the aggravated assault, as well as physically participating in it. The requirements of

section 753 of the Criminal Code [ 7 ] The Crown and defence appropriately agree that s. 753 of

Part XXIV of the Criminal Code creates a two-stage process regarding the designation and sentencing of dangerous offenders. In the designation stage, the Court must determine whether the evidence proves beyond a reasonable doubt the elements required to declare an offender a dangerous offender. In the penalty stage, the Court’s focus is on assessing the future threat posed by the offender and the appropriate penalty to manage that threat. [ 8 ] Section 753(1), which addresses the designation stage, reads, in part, as follows: 753

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

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

a) of the definition of that expression in

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

i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, … [ 9 ] Section 753(4) and (4.1), which addresses the penalty stage if a dangerous offender designation is found to apply, provides as follows: Sentence for dangerous offender 753(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 ofimprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed10 years; or (

c) impose a sentence for the offence for which the offender has been convicted. Sentence of indeterminate detention

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidenceadduced 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. Mr. Sewap’s position on whether the designation criteria have been proven [10] During his oral submissions and at paragraphs 15 and 24 of his written brief, Mr. Koban, counsel for Mr.Sewap, conceded that: a. Mr.

Sewap’s predicate offence was a serious personal injury offence; b. he constitutes a threat to the life, safety or physical or mental well- being of other persons based on evidenceestablishing: i. a pattern of repetitive behaviour on his part showing a failure to restrain his behaviour; and ii. a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on otherpersons, through failure in the future to restrain his or her behaviour (s.753(1)(a)(i)). [11] Defence counsel’s concessions aside, I find on the evidence these elements to have been proven beyond areasonable doubt.

However, defence counsel says the Crown had failed to prove beyond a reasonable doubt that Mr. Sewap’s broaderpattern of violent conduct is intractable and thus takes the position that the requirements to designate Mr. Sewap as a dangerous offenderunder s. 753(1)(a)(

i) have not been met. [12] Counsel argues that “treatability and intractability must be considered at the designation stage” and says theevidence establishes that Mr. Sewap is an involuntary untreated offender who has not been provided the opportunity to participate inprograms capable of assisting him and, thus, there is no basis to conclude that his behaviour is intractable. [13] Defence counsel also concedes at paragraph 29 of his brief of law and fact that Mr.

Sewap’s pattern ofbehaviour meets the threshold of “persistent and aggressive behaviour” and thus meets the first requirement of s. 753(1)(a)(ii), butsubmits that the evidence fails to establish the second requirement, i.e., that his behaviour displays a substantial degree of indifference onhis part respecting the reasonably foreseeable consequences to other persons of his behaviour. Defence counsel’s concessions aside, Ifind that Mr. Sewap’s pattern of behaviour meets the threshold of “persistent and aggressive behaviour”. Mr. Sewap’s position with respect to the penalty stage [14] Counsel says that even if Mr.

Sewap is designated a dangerous offender, that the appropriate sentence is 10years imprisonment to be served consecutively to the sentence that he is currently serving and that such a sentence is sufficient on itsown to satisfy the principles of sentencing, including proportionality, parity, deterrence and public protection. Judicial directions regarding the section 753(1)(

a) designation stage criteria [15] In R v Boutilier, 2017 SCC 64, [2017] 2 SCR 936 [Boutilier], the Supreme Court of Canada stated as follows: [25] This Court considered the constitutionality of this statutory scheme in the leading case of R. v.

Lyons, (SCC), [1987] 2 S.C.R. 309. [26] In Lyons, Justice La Forest read the objective element of the designation — the requirement that the predicateoffence be a “serious personal injury offence” — together with the subjective element — the “threat” assessment — and concluded thatfour criteria were “explicit” from the language of s. 753(1): (1) the offender has been convicted of, and has to be sentenced for, a “seriouspersonal injury offence”; (2) this predicate offence is part of a broader pattern of violence; (3) there is a high likelihood of harmfulrecidivism; and (4) the violent conduct is intractable (p. 338).

The last three criteria are part of the assessment of the “threat” posed bythe offender. The last two of these are future-oriented, and Justice La Forest explained them as follows: Thirdly, it must be established that the pattern of conduct is very likely to continue and to result in the kind of sufferingagainst which the

section seeks to protect, namely, conduct endangering the life, safety or physical well-being of others or, in the case ofsexual offences, conduct causing injury, pain or other evil to other persons. Also explicit in one form or another in each subparagraph ofs. [688, now 753] is the requirement that the court must be satisfied that the pattern of conduct is substantially or pathologicallyintractable. [Emphasis added; p. 338.] [27] The language of s. 753(1), which led Justice La Forest to develop the four criteria outlined above, has never beenamended since its enactment in 1977.

Before designating a dangerous offender, a sentencing judge must still be satisfied on the evidencethat the offender poses a high likelihood of harmful recidivism and that his or her conduct is intractable. I understand “intractable”conduct as meaning behaviour that the offender is unable to surmount. Through these two criteria, Parliament requires sentencing judgesto conduct a 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) criteria define 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 characteristicsand particular circumstances militate strenuously in favour of preventive incarceration, but it would be difficult to imagine a bettertailored set of criteria that could effectively accomplish the purposes sought to be attained. [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. [16] In R v Parfitt, 2019 SKCA 55, 378 CCC (3d) 490 [Parfitt], a subsequent decision of the Saskatchewan Court ofAppeal, the Court said the following: Impact of Boutilier on Mr.

Parfitt’s designation as a dangerous offender [65] The most significant aspects of Boutilier, which are in play in this case pertaining to the designation stage, are asfollows: (a) “an offender cannot be designated as dangerous unless the judge concludes that he or she is a future ‘threat’ aftera prospective assessment of risk”, which includes a “consideration of future treatment prospects” (italic emphasis in original, at para 23); (

b) following Lyons [ (SCC), [1987] 2 SCR 309], a sentencing judge must still be satisfied on theevidence that (

i) the offender poses a high likelihood of harmful recidivism; and (ii) his or her conduct is intractable, which is defined as “behaviour … unable to surmount” (Boutilier at paras27 and 43); (c) “determining whether or not a high risk of recidivism and intractability are present necessarily involves aprospective inquiry into whether an offender will continue to be … ‘a real and present danger to life or limb’” (at para 35); (d) “a past pattern of violence is considered in the global assessment of an offender’s future behaviour, which, inturn, is considered by the court in determining whether the offender constitutes a ‘threat’” (at para 37); (e) “the judge ‘shall’ designate an offender as dangerous only if he or she is satisfied beyond a reasonable doubt thatthe offender actually constitutes a future threat to safety in light of all the relevant evidence” (at para 41); (

f) treatability and intractability must be considered at the designation stage (at paras 42–43); (

g) the Crown is required to demonstrate “beyond a reasonable doubt, a high likelihood of harmful recidivism andthe intractability of the violent pattern of conduct” before an offender can be declared dangerous (at para 46); (

h) the dangerous offender designation is limited to a small group of offenders (at paras 3 and 90); and (i) “a rigorous application of the designation criteria under s. 753(1) ensures that the provision does not overreach bycapturing offenders that should not face the risk of a sentence of indeterminate detention” (at para 77). [17] The Crown must demonstrate the offender poses a high likelihood of harmful recidivism and the intractability ofhis violent pattern of conduct before an offender can be declared a dangerous offender.

It is clear that treatability must be considered atthe designation stage when deciding whether the offender’s behaviour is intractable. Has the Crown proven beyond a reasonable doubt that Mr. Sewap’s behaviour is intractable? [18] The defence has conceded all elements of s. 753(1)(a)(

i) other than the intractability issue. Embedded within thedefence’s position is the proposition that the Crown’s burden of proving beyond a reasonable doubt that Mr. Sewap’s behaviour issubstantially intractable includes an obligation on the part of the Crown to prove that there is no potential treatment that Mr. Sewapmight receive that could potentially modify his intractability. [19] The defence argues that:

a) a prospective assessment of his risk includes a consideration of future treatment prospects;

b) Mr. Sewap has not received any treatment appropriate to address his risks given his cognitive issues; and

c) therefore, the Crown has failed to prove beyond a reasonable doubt that his behaviour is intractable. [20] The defence is correct that a prospective assessment of risk includes consideration of future treatment prospects.In Parfitt, the Court of Appeal noted an offender cannot be designated as dangerous unless the judge concludes he is a future threat aftera prospective assessment of the risk, which includes a consideration of future treatment prospects. [21] The Crown’s position is that their obligation to prove the elements of s. 753(1)(a)(

i) beyond a reasonable doubtdoes not extend to disproving speculative possibilities. I must decide whether his behaviour is substantially intractable on the basis of theevidence before me. They say there is nothing in the evidence that alters the fact that a present and prospective assessment of the riskMr. Sewap presents meets the criteria of his behaviour being substantially intractable.

[ 22 ] The argument that Mr. Sewap has not received treatment appropriate to address his risks given his unique cognitive issues is based upon the opinion evidence of Dr. Nicholaichuk to that effect. There are issues with respect to this evidence which are considered below. [ 23 ] Assuming for present purposes Mr.

Sewap did not receive a potential treatment that might modify his risk profile, this does not, ipso facto , lead to the conclusion that the Crown has failed to prove beyond a reasonable doubt that his behaviour is, presently and insofar as one can conclude on a prospective assessment, substantially intractable. [ 24 ] The fact that Mr. Sewap has not received some specialized treatment the defence says should have been made available which might ameliorate his risk does not mean that I can fail to decide the designation issue on the basis of the evidence I have before me.

Evidence or argument that an offender has not received some potential treatment that could possibly improve the offender’s risk profile in the future cannot be a trump card for the defence. More than speculation is required. The Crown’s burden of proof does not extend to negating speculation. [ 25 ] As the Supreme Court of Canada stated in Boutilier at para 41 : . [41] … a prospective assessment of the future risk posed by an offender is embedded within the dangerous offender criteria.

Thus, a judge “shall” designate an offender as dangerous only if he or she is satisfied beyond a reasonable doubt that the offender actually constitutes a future threat to safety in light of all of the relevant evidence.

Once a judge finds an offender to be a “threat” after a prospective assessment of the harmful recidivism and intractability, requiring a future exercise of discretion to determine whether the offender poses a future risk would be unnecessary and would contradict the very conclusion a judge has just reached. [ 26 ] At para. 101 of its decision in R v Lonechild , 2023 SKCA 75 [ Lonechild ], the Court quoted Boutilier with the following emphasis added: [101] The key paragraphs from Boutilier are as follows: [27] … Before designating a dangerous offender, a sentencing judge must still be satisfied on the evidence that the offender poses a high likelihood of harmful recidivism and that his or her conduct is intractable .

I understand “intractable” conduct as meaning behaviour that the offender is unable to surmount. Through these two criteria, Parliament requires sentencing judges to conduct a prospective assessment of dangerousness. … [31] … the purposes of prospective evidence at the designation and sentencing stages are different. The designation stage is concerned with assessing the future threat posed by an offender. The penalty stage is concerned with imposing the appropriate sentence to manage the established threat .

Though evidence may establish that an offender is unable to surmount his or her violent conduct, the sentencing judge must, at the penalty stage, turn his or her mind to whether the risk arising from the offender’s behaviour can be adequately managed outside of an indeterminate sentence. … [45] The same prospective evidence of treatability plays a different role at the different stages of the judge’s decision-making process.

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

Thus, offenders will not be designated as dangerous if their treatment prospects are so compelling that the sentencing judge cannot conclude beyond a reasonable doubt that they present a high likelihood of harmful recidivism or that their violent pattern is intractable: [references omitted]. (Emphasis added) [ 27 ] I take from these statements that at the designation stage offenders will not be designated as dangerous if their treatment prospects are so compelling that the sentencing judge cannot conclude beyond a reasonable doubt that the offender presents a high likelihood of harmful recidivisim or that his or her violent pattern is intractable.

Background Evidence [ 28 ] The fact that the defence has conceded all elements of s. 753(1)(a)(

i) required for designation as a dangerous offender, other than the intractability issue, makes a review of much of the evidence, other than evidence relevant to the issue of intractability, unnecessary. [ 29 ] The Crown’s evidence established that from 2006 to 2017 Mr. Sewap was supervised by provincial correctional authorities during his incarceration and his releases. His institutional behaviour and his behaviour while supervised in the community were problematic throughout. He was uncooperative and repeatedly found to be in breach of the rules or conditions imposed on him. During his provincial correctional time he completed (attended), inter alia :

i) an Aboriginal program; ii) an addictions education program; iii) a Basics and Lifestyles (Criminal Thinking) program; and iv) an anger management program. [ 30 ] He was assessed as having low motivation to learn coupled with a low literacy level and minimal comprehension skills. During the years, 2011 to 2015, he declined participation in programming offered on the basis that he had

previously taken it, that he did not see the need to take the programming again and stating he wished to do his own time. [ 31 ] In June 2017 he began serving time as a federal inmate and has continually been incarcerated at the Prince Albert Penitentiary, on different offences, except for the period February 24, 2020 to June 28, 2021 when he was out on parole.

During this parole period, he committed an assault on a member of his own Pelican Narrow’s community. [ 32 ] The Crown’s evidence establishes that, on his entries into the federal penitentiary system, intake assessments were conducted and correctional plans developed for him that identified programming to assist in his rehabilitation and reintegration into the community. [ 33 ] From August 2017 to February 2018, he participated in the Aboriginal Hybrid Multi-Target Primer/Moderate Intensity Program.

At the end of this programming his rated ability/commitment to use the skills to manage impulses and temptations remained the same and that he needed lots of improvement. During January and February 2018, he participated part time in the ABE 1- Adapted Upgrading Program, but was suspended from it for unexcused absences. Within seven months of his completion of the above programing he committed, on September 18, 2018, the predicate aggravated assault offence. This offence was not an impulse offence but clearly a planned and coordinated attack. [ 34 ] In June 2018, following Mr.

Sewap’s completion of the Aboriginal Integrated Correctional Program Model Hybrid Program, a security level review increased his security rating from moderate to high and then in September 2018, following commission of the predicate offence, his security rating was further increased to high with maximum security placement within the institution, which it has remained to date. [ 35 ] On October 7, 2019, Mr. Sewap committed the offence of aggravated assault when, together with three other inmates, they beat and stabbed their victim in the Prince Albert Penitentiary.

For this offence he received a four-year sentence. Following this sentencing he refused to participate in an interview for the development of his correctional plan. From November 2018 to September 2019 he re-enrolled in the ABE I – Adapted Program and worked on upgrading his mathematics and English until being transferred to a new unit within the institution on September 2, 2019. [ 36 ] Mr. Sewap’s history of some 43 criminal convictions includes the 10 convictions for crimes of violence since October 2006.

Between September 2011 and October 2019 there were six offences of aggravated assault or assault causing bodily harm. [ 37 ] I turn in my analysis to the evidence of Dr. Nicholaichuk, which the defence relies upon for its submissions that Mr. Sewap is an untreated offender. At times during the examination-in-chief of Dr. Nicholaichuk, I was concerned that the opinion evidence being sought of him was opinion on the efficacy of the policies and procedures at Correctional Service Canada [CSC] or respecting CSC’s efforts regarding Mr. Sewap. Consistent with my gatekeeper role, I asked counsel to restrict Dr.

Nicholaichuk’s testimony to opinion evidence within the scope of his qualifications. [ 38 ] In

summary, Dr. Nicholaichuk testified that he categorized Mr. Sewap as an untreated offender who had not been provided with the opportunity to participate in treatment programs suitable for his cognitive impairments and appropriately tailored to his needs. This opinion was offered without an opinion as to whether such treatment programs were likely to modify Mr. Sewap’s current and future risk profile. [ 39 ] Following are extracts from Dr.

Nicholaichuk’s subsequent evidence in chief: (Transcript of Dangerous Offender Hearing, Court of King’s Bench for Saskatchewan, Prince Albert, May 25, 2023, Volume 1) [Transcript] Page 192, Line 27 to Page 193, Line 15 of the Transcript: Q MR. KOBAN: So in conducting your assessment and preparing your report, what observations did you make of the type and degree of programming that Mr. Sewap [was] provided with throughout his penitentiary terms: A It’s been pretty cursory and part of this, I think, has been affected by his placement in maximum security.

Ordinarily, programming is not really easily available there. Q Okay. Did you find any evidence that Mr. Sewap had refused to participate in programming? A Not that I recall. Q Of the programming that Mr. Sewap was provided, what comments can you make from your professional opinion about the usefulness of that programming towards addressing the risks that Mr. Sewap poses or the risk areas that Mr. Sewap has? A Well, in my reading of the file, I was struck by how little attention people have paid to his – the severity of his learning problems. Q And so, given that there –

THE COURT: You mean paid to the severity of his brain problems or his cognitive – A His learning problem – learning problems. If I can be direct about this, he’s got an IQ in the low 50s. That’s variable. Q MR. KOBAN: Certainly. And so in your professional opinion, do you believe that the programming that he was provided with had any realistic chance of being of benefit to him? A I can’t imagine he understood very much of it. … Page 194, Line 11 to Page 195, Line 5 of the Transcript: Q MR. KOBAN: So I’m going to rephrase that question, Dr. Nicholaichuk. Do you believe that Mr.

Sewap was provided programming that was appropriate in light of his cognitive impairments? A No, but I would like to add a comment to that, if I may. Q Certainly. THE COURT: Just a second. Okay, go ahead. A It is, in my experience, quite common for people with Mr. Sewap’s level of difficulty to be overlooked in the correctional planning process. To do the kind of intellectual – THE COURT: Correctional plan process, you said? A Planning process.

To the type of cognitive assessment that I did, that kind of assessment really typically only takes place either at the pre-sentence stage or if the person is transferred to the Regional Psychiatric Centre. In institution – THE COURT: Only happens at the – did you say pre-sentence stage? A Yes. Like, in hearings such as this one. THE COURT: Okay. Okay. That’s what you meant, then. Just let me – let me get that in my notes. Okay. Got it. Thank you.

A And to the best of our – their ability, the psychology department at the Regional Psychiatric Centre tries to conduct assessments such as the one I did when new patients are admitted to the facility. The ability for the other institutions, in the Prairies anyways, to conduct the kinds of assessments that I did is limited either by availability of staff or availability of staff with the training an [ sic ] experience to do what I did. So for Mr. Sewap or people like him to be overlooked is pretty common.

… Page 196, Lines 7 to 25 of the Transcript: Q MR. KOBAN: So Dr. Nicholaichuk, would you consider Mr. Sewap [a] treated or untreated offender? A He’s untreated. In the sense that when it’s properly done, treatment begins with an assessment of the individual both in terms of criminal risk as well as ability to learn. And then a program is selected or modified for use in that case. That, to the best of my knowledge, never happened in Mr. Sewap’s case. Q And so, in your professional opinion, what needs to be done for Mr. Sewap to be able to get the treatment that he needs? A Okay.

The mandate of the Regional Psychiatric Centre [RPC] and the other RPCs around the country changed somewhat in the last 15, 20 years. So that now the RPC only admits people with significant problems with learning, brain damage due to things like well, say FASD or pretty significant mental disorder, or some combination of all of those things. Ordinarily somebody as limited as Mr. Sewap, would be sent there for assessment and treatment which could last for years. That hasn’t been done in this case. … Page 199, Line 20-28 of the Transcript: Q You indicate on page four in the top paragraph that Mr.

Sewap has completed the Hybrid Aboriginal Multi-Target Primer Program in 2017. A Yes. Q What insights could you take away from your review of Mr. Sewap’s performance of that – in that program? A You know, I don’t know much about the program. I think he was given a score of all sessions attended. My information is that you get that rating if you just showed up. It has nothing to do with whether or not you learned anything. … Page 211, Lines 1 to 15 of the Transcript: Q Certainly. And so from your perspective, what would be [the] treatment plan that you believe would best reduce Mr.

Sewap’s risk to reoffend look like? A He needs to be seen at the RPC. THE COURT: Just a second. So you went on to say he needs to be seen at RPC?

A Yes. The RPC is the only facility of which I’m aware that is designated to address the needs for people like Mr. Sewap. In addition, Doctor Mela consults there as well. And Mansfield is head of the Saskatoon FASD Network and does occasional FASD assessments at the RPC. I think Mr. Sewap would benefit from both of those services. The amount of time that he spends there would be dependent on how well he does and I don’t know – I can’t – I can’t tell you what the outcome would be. … Page 212, Lines 2 to 27 of the Transcript: Q Now, in your report you state – sorry, I’ll just pull up the exact page.

On the last page, page 13, under Conclusions, the second full paragraph beginning with “In my view,” you indicate, and I quote: (as read) In my view, it’s probably premature to conclude that Mr. Sewap cannot be managed in the community. A M-hm. Q And so do you believe that it’s possible at this point to conclude whether or not Mr. Sewap is unable to surmount or move past his previous violent behaviour? A Yes, it’s it’s never been tried. I don’t see how we can predict at this stage that’s [ sic ] it’s going to fail. Q Okay.

And so when you say, “It’s never been tried and it’s going to fail,” what do you mean by that? A Well, he is [ sic ] never received the kinds of services that he requires based on his impairments. Q Okay. So just to summarize what you’ve said correctly, do you believe that he needs to be sent to RPC in order to have those programs and assessments done? A I highly recommended it. Q Okay. Generally speaking, though, can individuals who have the same sorts of disabilities as Mr. Sewap be managed in the community? A Yes. … [ 40 ] It is noted that in the last excerpt, Dr.

Nicholaichuk’s evidence is in the context of the penalty stage of a dangerous offender proceeding and not directed at the designation stage, and the final quoted statement does not address whether Mr. Sewap could be managed in the community. [ 41 ] During cross-examination of Dr. Nicholaichuk he provided the following testimony: Page 227, Lines 23 to 24 of the Transcript: Q And as it stands now, there’s no compelling evidence of his treatability. A We won’t know that until we try. …

Page 228, Line 32 to Page 229, Line 10 of the Transcript: Q Now, in terms of the programs delivered at CSC, are you familiar with the details of the Aboriginal Hybrid Multi- Target Primer? A No. Q Which is a moderate intensity program? A No. Q Can you speak to any treatment that he would have received during that program? A No. Q So coming to the conclusion that he’s untreated might not be entirely accurate, then. A That’s – no, I don’t agree. Somebody like him with his assessment needs requires a pretty high level, prolonged, intense intervention process. A primer won’t provide that. Q Okay.

But are you aware of what particularly is involved within that hybrid primer? A No. … Page 233, Lines 15-33 of the Transcript: Q Now, just one last thing if I may, Dr. Nicholaichuk. In your report, I think it was at the very end of that report, page 13. THE COURT: Of his report? MR. BLACKMAN: Yes. A M-hm. Q MR. BLACKMAN: It would be the second last paragraph: (as read) In my view it’s probably premature to conclude that Mr. Sewap can not be managed in the community.

Based on the information that we have and that you’ve had the opportunity to review, is it also the same that it’s probably premature to conclude that he could be managed in the community?

A I think both are an open question. At this stage, we simply don’t know. [42] In response to questions from the Court he testified as follows: Page 235, Lines 3 to 26 of the Transcript: Q THE COURT: You’ve made it clear in your evidence that Mr. Sewap is not suitable for treatment – or forrelease at this point in time. And you’ve made it clear as well, that you say yes, the programming that he should have, he hasn’t had. Butyou say given his prognosis, his prognosis should be guarded. We don’t know his treatability – but you don’t know what happened.

Inour minds, you don’t know what benefit might be obtained – A Correct. Q -- from what you consider appropriate programming. A Correct. Q In terms of his ultimate risk education. A Yes. Q And then you go on to say, in any event,, it doesn’t change his current risk assessment. A Yes. Q Okay. So the problem I have here is in terms of what the Court – the decision the Court is being asked to make atthis time comes down to this. Isn’t the reality, then, the lack of what you consider appropriate treatment for him, the unknown prognosisor the benefit, if any, of that treatment?

And what his ongoing risk assessment might be. A Correct. Q I look at the criteria for

Section 753 for finding an offender a dangerous offender, and it seems to me thatdetermination is made in the present. I have to decide on the information that’s available to me. Now, and it’s not your – or your opinion now he’s not currently suitable for release. A Correct. [43] Given Dr. Nicholaichuk’s straightforward acknowledgement that he had no knowledge of the AboriginalHybrid Multi-Target Primer/Moderate Intensity Program and whether the specialized treatment he felt Mr. Sewap should receive at theRegional Psychiatric Centre [RPC] would ever moderate Mr.

Sewap’s risk profile, I am unable to conclude that Mr. Sewap cannot orshould not be classified as intractable because he has not received such treatment. [44] Dr. Nicholaichuk’s opinion evidence essentially comes down to the proposition that an offender cannot beclassified as intractable unless and until every potential treatment has been tried and found to have failed. The facts relating toMr. Sewap’s persistent history of violent offences are foundational. The public protection concerns of

Part XXIV must have properregard to both the present and prospective risk assessments. [45] Intractability must be proven beyond a reasonable doubt; but in my opinion that does not extend to the Crownbearing the burden of proving beyond a reasonable doubt that every suggested potential treatment an offender might benefit from hasbeen provided. In Lonechild, the Court of Appeal said the following: [122] The Crown is correct in its statement of the law but not in its application here.

As the British Columbia Court of Appeal observedin R v Pedden, 2005 BCCA 121, 194 CCC (3d) 476, leave to appeal to SCC refused, , “the [Criminal] Code does notrequire that the Crown prove absolute ‘intractability’ … i.e., that the offender will never be treatable in his lifetime” (at para 26). Similarcomments appear in R v Goforth, 2007 SKCA 144 at paras 64 and 65, 302 Sask R 265, and R v Haug, 2006 SKQB 140, 278 Sask R 28[QB-Haug], varied 2008 SKCA 23, 229 CCC (3d) 132 [CA-Haug]. … [126] Goforth and CA-Haug continue to be relevant and applicable, notwithstanding that they were decided before the 2008amendments.

More recent authorities have held similarly: see, for example, R v Straub, 2022 ONCA 47, 411 CCC (3d) 119, where theCourt of Appeal held that “evidence of treatability must extend beyond speculative hope about successful treatment” (at para 63).

[46] The decision on intractability must be made on the basis of the relevant evidence provided at this hearing,including a prospective assessment of future risks. Dr. Nicholaichuk’s evidence was clear that while he classified Mr. Sewap as anuntreated offender, he was unable to provide any opinion of whether or not the treatment he thought Mr. Sewap should undergo at RPCwould benefit him. It was also clear in his evidence that such an assessment or treatment could take years before it was possible to saywhether it provided a benefit.

In a prospective assessment of the risks in the future, the lack of evidence regarding the prospects forpotential treatments or associated timelines are significant considerations. [47] I also find that the evidence of Dr. Nicholaichuk with respect to the effect of “aging” on offenders generally tobe of no assistance in the decision I must make. Mr. Sewap is now 32 years of age. As Dr. Choy testified, given Mr. Sewap’s risk profilethe prospect of the “aging effect” having any significant effect on Mr.

Sewap’s risk profile is not likely to occur until into his sixth orseventh decade of life. [48] As the Court of Appeal said in Lonechild, at the designation stage offenders will not be designated as dangerousif their treatment prospects are so compelling that the sentencing judge cannot conclude beyond a reasonable doubt that they present ahigh likelihood of harmful recidivism or that their violent pattern is intractable. The only element of the s. 753(1)(a)(

i) criteria fordesignation as a dangerous offender not conceded by the defence was whether or not Mr. Sewap’s pattern of behaviour was substantiallyintractable. I am unable to find any basis to conclude that compelling treatment prospects for Mr. Sewap’s exist. [49] I must decide the issue of intractability on the basis of the evidence I have. This includes the evidence of Dr.Choy, which I accept over the evidence of Dr. Nicholaichuk where they differ. [50] I find and declare Mr. Sewap to be a dangerous offender pursuant to the provision of s. 753(1)(a)(

i) of theCriminal Code. Has the Crown proven the requirements of section 753(1)(a)(ii) to declare Mr.

Sewap a dangerous offender? [51] Defence counsel also says the Crown has failed to prove the criteria for a dangerous offender designation unders. 753(1)(a)(ii), which requires proof of a pattern of persistent aggressive behaviour by the offender, “of which the offence for which heor she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonablyforeseeable consequences to other persons of his or her behaviour.” [52] While acknowledging a pattern of persistent aggressive behaviour on Mr.

Sewap’s part, defence counsel saysthe evidence fails to establish that his behaviour displays a substantial indifference to the reasonably foreseeable consequences of hisbehaviour. His counsel argued that both Dr. Nicholaichuk and Dr. Choy provided testimony to the effect that they did not diagnose Mr.Sewap as being a prototypical psychopathic personality, and Dr. Choy testified that in respect of some of his prior assaults Mr. Sewapsaid he felt badly. Nonetheless, Dr. Choy did testify that in his opinion Mr.

Sewap did display a substantial degree of indifference torespecting the reasonably foreseeable consequences to other persons of his or her behaviour. [53] The evidence as a whole satisfies me that the Crown has proven beyond a reasonable doubt that, in fact, therehas been a pattern of persistent aggressive behaviour on Mr. Sewap’s part that displays a substantial degree of indifference respecting thereasonably foreseeable consequences to other persons of his or her behaviour.

The offences summarized in paragraph 5, which includedan assault of his own brother, the stabbing of a cousin and another person in his home community, and the persistent pattern of suchviolent offences satisfies me that notwithstanding occasional expressions of regret, he routinely displays a substantial degree ofindifference to the reasonably foreseeable consequences of his behaviour. [54] The evidence relating to Mr. Sewap’s assault of the victim of his predicate offence satisfies me that Mr.

Sewapnot only planned, coordinated and physically participated in that serious assault, together with his actions following the assault,demonstrated that he had no compassion for his victim or remorse for what he had done. Both the predicate offence and the October 7,2019 prison assault were clearly planned and deliberate and intended to cause significant harm to the victims. [55] I find and declare Mr. Sewap to be a dangerous offender pursuant to the provision of s. 753(1)(a)(ii) of theCriminal Code.

The Penalty Stage [56] Section 753(4.1) of the Criminal Code provides that if an offender is found to be a dangerous offender, then: Sentence of indeterminate detention

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidenceadduced 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. [57] Defence counsel argues that notwithstanding the increased emphasis

Part XXIV places on the protection of thepublic, that: (

a) dangerous offender proceedings are sentencing proceedings in which judges must apply the sentencing principles andmandatory guidelines outlined in s. 718 to s. 718.2 of the Criminal Code; (

b) when sentencing dangerous offenders, the Court must consider the offender’s moral culpability, the seriousness ofthe offence and any other mitigating factors; and (

c) the Gladue principles (R v Gladue, (SCC), [1999] 1 SCR 688), developed for Aboriginal offendersare applicable.

[ 58 ] I accept that each of these considerations is relevant in the sentencing phase but within the context that when an individual is declared a dangerous offender, the focus becomes protection of the public. Having found Mr.

Sewap to be a dangerous offender, the Criminal Code directs that I shall impose a sentence of detention in a penitentiary for an indeterminate period unless I am satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. [ 59 ] The evidence of Dr. Nicholaichuk does not satisfy me that there is a reasonable expectation that a lesser measure than indeterminate detention will adequately protect the public.

What the evidence established is that it is an unknown whether the specialized treatment Dr. Nicholaichuk had in mind would modify the behaviour and risks Mr. Sewap presently presents. Dr. Nicholaichuk was clearly of the opinion that he was not presently suitable for release or management in the community and while he testified that generally speaking individuals with Mr. Sewap’s “same sort of disabilities” can be managed in the community, he did not provide an opinion specific to Mr. Sewap.

This is logical because his opinion was that it was premature to conclude he could not be managed in the community given it being an unknown whether future treatment would modify his pattern of violent behaviour. [ 60 ] As stated in Lonechild , “The penalty stage is concerned with imposing the appropriate sentence to manage the established threat.” The evidence does not satisfy me that there is a reasonable expectation that a lesser measure will adequately protect the public against the commission by Mr. Sewap of a serious personal injury offence.

As the Court of Appeal stated in R v Bunn , 2014 SKCA 112 , 446 Sask R 184, an expectation equates to a likelihood as opposed to a possibility. [ 61 ] The fact that Mr. Sewap is viewed by Dr. Nicholaichuk as an untreated offender does not provide guidance on the issue of whether, if he received the treatment Dr. Nicholaichuk says he should receive, such treatment would give rise to a reasonable expectation that a lesser measure would adequately protect the public.

I have no evidence and, thus, I must follow the direction contained in s. 753(4.1) . [ 62 ] It lies with CSC and the Canadian Parole Board to fulfill their duties under the applicable legislation. As the Court of Appeal stated in R v Peekeekoot , 2014 SKCA 97 , 446 Sask R 22: [125] On this front, I do not, and cannot, accept the suggestion that a dangerous offender designation must be considered to be, in reality, a “life sentence” which involves no hope of ever being discharged from prison.

This Court must proceed on the basis that the Parole Board will fairly and faithfully discharge its statutory responsibilities. It must assume that, if Mr. Peekeekoot makes appropriate progress, he will ultimately be released. The courts cannot be asked to make their decisions in relation to dangerous offender designations on the basis of an assumption that, in effect, the Parole Board will act improperly and will hold offenders in custody beyond the point at which the law says they should be released. If, for some reason, the Parole Board should ultimately fail to act in accordance with its mandate, Mr.

Peekeekoot’s remedy must be found in proceedings taken against the Board itself. [ 63 ] I have found Mr. Sewap to be a dangerous offender. I sentence him to an indeterminate sentence because I am not satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under s. 753(4)(

b) or (

c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. J. B. SCHERMAN