R. v. C. (O.E.), 2013 MBCA 60

Citation: R. v. C. (O.E.), 2013 MBCA 60 Date: 20130624 Docket: AR 12-30-07811 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Madam Justice Diana M. Cameron Mr. Justice William J. Burnett BETWEEN : HER MAJESTY THE QUEEN ) S. A. Inness ) for the Appellant Respondent ) ) J. W. Field, Q.C. - and - ) for the Respondent ) ) Appeal heard: C. (O. E.) ) June 10, 2013 ) (Accused) Appellant ) Judgment delivered: ) June 24, 2013 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(

s) or a witness(es) (see s. 486.4 of the Criminal Code ). HAMILTON J.A. [ 1 ] The accused appeals his designation as a dangerous offender. He asserts that the sentencing judge erred when he did not designate him a long-term offender. [ 2 ] In March 2009, Justice Scurfield convicted the accused of nine offences after a trial at which the accused testified. The offences arose from six separate incidents that occurred over the course of 24 years. All the offences arose in the context of domestic violence and were against the same female complainant, who from time to time dated or lived with the accused.

They have two children together. [ 3 ] The convictions were for the following offences: indecent assault and possession of a weapon (1981), assault cause bodily harm (1982), assault (1983), sexual assault and utter threats (2005), assault and utter threats (2005) and assault (2005). [ 4 ] After the convictions, the Crown sought a dangerous offender designation for the 1981 offences of indecent assault and possession of a weapon (a knife) and the 2005 offence of sexual assault (the predicate offences).

The parties agree that the applicable legislation was the dangerous offender and long-term offender provisions in force prior to the 2008 amendments to the Criminal Code . [ 5 ] As a result of the death of Justice Scurfield, a new judge was assigned the sentencing. [ 6 ] The sentencing judge relied on the findings of fact made by Justice Scurfield in his reasons for decision.

These findings are not at issue. [ 7 ] The sentencing judge highlighted the following passages from Justice Scurfield’s decision in his reasons: The accused has confirmed the complainant’s description of his violent character and his propensity to quick and irrational anger. …

By his own description he describes himself as an extremely jealous and violent person who regarded the complainant as his property. … He volunteered that he always carried a gun in those days. He testified that he told the complainant that if he ever found her with another man he would shoot the guy she was with and make her watch. He volunteered numerous examples of his capacity for extreme violence. He volunteered that when he lost his temper he had beaten people senseless and that he had shot several people.

He suggested that the complainant should have feared and obeyed him. [ 8 ] Justice Scurfield found that the accused’s offences were motivated by extreme sexual jealousy and paranoia. They were often brutal, sadistic, degrading and threatening. A brief review of the facts underlying the predicate offences demonstrates this. [ 9 ] In 1981, the accused dragged the complainant from an apartment, pushed her down a flight of stairs and forced her to walk without shoes to his residence through the winter streets.

There, he forced her to disrobe and sit naked on a bed while he sniffed her vagina and later stabbed her in the hand as she tried to defend herself with a pillow. [ 10 ] In 2005, the accused ordered the complainant to take off her clothes, kneel on a bed and spread her legs. He forced her to remain in that position for hours, punched her in the head and threatened more punches if she did not answer his sexual questions. [ 11 ] The accused is 55 years of age. He was born in The Pas and grew up in the nearby community of Sherridon. He is aboriginal and is a member of the Opaskwayak Cree Nation.

His family background is extremely troubled, dysfunctional and violent. He was involved in gang activities with the Manitoba Warriors for many years. [ 12 ] His lengthy criminal record dates back to 1978. It includes numerous breach offences, an eight-year sentence (1985) for the offences of robbery and use of a firearm in the commission of the offence and another eight-year sentence (1996) for a home invasion robbery, forcible confinement and two robberies. After serving that sentence to warrant expiry he was released subject to a s. 810.2 recognizance.

He committed the 2005 sexual assault predicate offence while subject to that recognizance. [ 13 ] In his oral reasons, the sentencing judge noted that while the Crown and the defence agreed that the accused “meets the criteria for dangerous offender status pursuant to Section 753(1),” they disagreed as to whether the sentence should be based on long- term offender status or dangerous offender status, which would result in an indeterminate sentence. [ 14 ] The sentencing judge reviewed the applicable legal principles and correctly identified that the issue to be determined was whether “there is a reasonable possibility of eventual control of the risk in the community.” See s. 753.1(1) of the Criminal Code .

He concluded that there was no “reasonable prospect of managing the risk in the community” and designated the accused a dangerous offender. [ 15 ] As acknowledged by counsel for the accused, evidence as to treatability must be such that it is “more than an expression of hope …. or at best glimmers of hope” and that the individual can be treated within a definite period of time. See R. v. B.F.A. , 2012 MBCA 117 at para. 9 , 288 Man.R. (2d) 80.

The defence position is that the accused’s “recent history demonstrates change and this change demonstrates that the risk can be managed in the community.” [ 16 ] The sentencing hearing took place over several days. Thirty-three exhibits were filed and 14 witnesses testified, many of whom had dealings with the accused in the past in some capacity through Correctional Service of Canada or probation services. Two forensic psychologists testified. Dr. Holden was called by the Crown and Dr. Kolton was called by the defence.

Both addressed the accused’s mental health issues, noting, among other things, that he had elevated psychopathy scores, suffers from antisocial personality disorder and substance abuse disorder, and has demonstrated no (Dr. Holden) or limited (Dr. Kolton) response to treatment. [ 17 ] Dr. Holden concluded that the accused is a very high risk to reoffend violently in the community, that his risk for violence in the community cannot be controlled and that he is untreatable. Dr.

Kolton concluded that he is a high risk for general violence, that “he is also at particular risk to be violent within intimate partner relationships” and that “the prognosis for eventual management of [the accused’s] risk in the community should be considered to be guarded ” (emphasis added). [ 18 ] Included in the evidence from Correctional Service of Canada was the testimony of Ms Figur, a parole officer for the Ochichakkosipi Healing Lodge, a s. 81 facility pursuant to the Corrections and Conditional Release Act .

She testified that if the accused expressed interest and participated in prerequisite interviews, he could reside in the Aboriginal Pathways Unit while in prison, and if all went well, he could eventually serve his time in an aboriginal community. She explained that the Aboriginal Pathways Unit is available to both long-term and dangerous offenders, and includes aboriginal-specific counselling and programming, consultation with elders, aboriginal parole officers and, as much as possible, aboriginal correctional officers, as well as aboriginal healing ceremonies and activities.

She also explained that in that unit, the accused’s progress would be monitored and adjustments would be made, where appropriate, in light of the fact that some offenders complete the programming faster than others. [ 19 ] At this appeal hearing, the court received fresh evidence, by consent, confirming that the accused has met the criteria for the Aboriginal Pathways Unit and will be placed on a waitlist for the program. [ 20 ] In the course of commenting generally on the evidence and the positions of the Crown and defence, the sentencing judge stated:

…. The evidence covers the accused’s record and his behaviour in custody and during release on conditions. When the accused’s ownnarration is added in there is a fairly full description of his life. .... ... [I]t is a saga of violence and criminal conduct. …. The pattern of convictions combined with his own self description to Dr.

Holdenand Justice Scurfield describes a pattern of repetitive behaviour that makes him a threat to the safety and mental well being of otherpersons. …. [21] With respect to the safety of the community, the sentencing judge repeatedly expressed his concern that the accusedwould not be supervised during the day if he was sentenced as a long-term offender and released to a halfway house, as suggested by hiscounsel. [22] While the sentencing judge stated that “Dr.

Holden’s conclusions are not without flaws,” he concluded that: …. … [T]he expert conclusions taken together with all available current evidence still adds up to a problem for the accused. [23] He referred to the numerous court appearances that the accused made before various judges when he was notrepresented by counsel and stated that: …. In general, the above conversations, to summarize them, show an individual who shows no remorse and at times questions thevalidity of his convictions. One cannot help but feel sorry for what he has suffered as a child and a young adult.

One can understand andsympathize with the fact that his history still dominates his thinking and emotions. However, it is clear that he has a long way to go toheal the wounds that he has suffered, hopefully someday he will. In the interim the consequence of the wounds that he has suffered isstill clearly present, that is, his propensity to violence. The things that defence counsel has raised are at best glimmers of hope .... Atpresent, however, I cannot see a reasonable prospect of managing the risk in the community. .... [emphasis added] [24] The accused asserts that the judge made the following three errors: 1.

He misapprehended the evidence as to the accused’s lack of remorse. 2. He misapprehended the evidence as to the ability of conditions to protect the public during the day. 3. He failed to consider principles articulated in R. v. Gladue, (SCC), [1999] 1 S.C.R. 688. [25] The standard of review of a dangerous offender designation is reasonableness. As explained in B.F.A. (at para. 8): ….

This reasonableness standard is similar to an unreasonable verdict review and involves an examination of the weight of the evidenceto determine whether it was reasonable for the judge to make the dangerous offender designation …. [26] The first two grounds of appeal can be dealt with quickly. I see no misapprehension by the judge of the accused’s lackof remorse with respect to his convictions, which was clear from the accused’s own testimony at trial and at the sentencing.

As for thesecond ground of appeal, the accused argues that the judge failed to consider whether or not stringent conditions that could berecommended by the court could assist in controlling the accused’s risk within the community. While the judge did not mention thisspecifically, his reasons must be read in the context of the record and all the evidence before him.

The judge was alive to the fact thatthe accused has shown some signs of treatability over the years while incarcerated, but the evidence clearly supports the reasonablenessof the judge’s conclusion that there is no reasonable prospect of managing the accused’s risk within the community. [27] As for the third ground, I do not accept that the judge’s failure to avert to Gladue in his reasons constitutes a reversible

error of law in the circumstances of this case, nor does it impact on the reasonableness of the sentencing judge’s conclusion. [ 28 ] The judge understood that Gladue had to be addressed, as is evident from the record. For example, at the outset of the sentencing hearing, he inquired whether there was a Gladue issue, to which the Crown advised him that a Gladue report had been filed. [ 29 ] I agree with the accused that the Gladue report is lacking. In fact, it is the type of “generic” Gladue report that contains only general historical information about the accused’s home reserve.

As such, it is the type of report that was the subject of criticism by this court in R. v. L.L.G. , 2012 MBCA 106 , 284 Man.R. (2d) 285, released after the Supreme Court of Canada’s decision in R. v. Ipeelee , 2012 SCC 13 , [2012] 1 S.C.R. 433. [ 30 ] In Ipeelee , the Supreme Court of Canada wrote about the obligation of sentencing judges under s. 718.2 (

e) of the Criminal Code and emphasized that this

section applies in the context of breaches of long-term offender orders.

Section 718.2 (

e) directs that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.” [ 31 ] As explained in Gladue , this

section was “Parliament’s direction to members of the judiciary to inquire into the causes of the problem [the overrepresentation of aboriginal peoples in Canadian prisons and the criminal justice system] and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process ” (at para. 64) (emphasis added). [ 32 ] When sentencing an aboriginal offender, this requires a judge to consider ( Ipeelee at para. 59 ): …. … (

a) the unique systemic or background factors which may have played a

part in bringing the particular Aboriginal offender before the courts; and (

b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection …. …. [ 33 ] LeBel J. wrote in Ipeelee (at para. 87 ): The sentencing judge has a statutory duty, imposed by s. 718.2 (

e) of the Criminal Code , to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation. As these reasons have explained, such a failure would also result in a sentence that was not fit and was not consistent with the fundamental principle of proportionality.

Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender, including breach of [a long-term supervision order], and a failure to do so constitutes an error justifying appellate intervention. [ 34 ] The accused asserts that the sentencing judge failed to fulfill his statutory duty and submits that a new sentencing hearing ought to take place. In addition, he says that the Gladue report provided no information as to community-based supervision and treatment options geared to aboriginal offenders sentenced as long-term offenders.

He asserts that even if the sentence ends up being the same, the Supreme Court of Canada has mandated a different sentencing process for aboriginal offenders. [ 35 ] The Crown appropriately acknowledges that Gladue applies to dangerous offender applications. However, the Crown rightly asserts that the impact of Gladue must be considered in the context of the fact that the protection of the public is the paramount consideration in these proceedings.

As stated in Gladue , “Clearly there are some serious offences and some offenders for which and for whom separation, denunciation, and deterrence are fundamentally relevant” (at para. 78). [ 36 ] Ipeelee was released after the sentencing judge released his decision. It underscores that the sentencing judge should have addressed the Gladue principles directly.

Nonetheless, I agree with the Crown that in this case, when one reviews the extensive record, including the questions asked by the judge during the evidence of Ms Figur about the Aboriginal Pathways Unit, these principles were considered by the sentencing judge even though he did not specifically mention Gladue in his reasons. For recent decisions post Ipeelee see R. v. Ewenin , 2013 SKCA 50 (QL); R. v. Dunsford (H.S.) , 2013 SKCA 17 , 409 Sask.R. 51; R. v. Popowich (M.J.) , 2013 ABCA 149 , 544 A.R. 312; and R. v.

Gabriel , 2013 MBCA 45 . [ 37 ] The accused’s aboriginal background, his unique personal history, and his future treatment and risk-control prospects were central to the proceedings and the sentencing judge’s decision. His concluding comments demonstrate that he understood that the violence and abuse that the accused had suffered in his youth had marked him for life. Aside from the Gladue report, the judge was presented with a great deal of offender-specific information about the accused’s past treatment and program involvement, including those which focus on aboriginal offenders.

As well, various witnesses testified about current available programming, much of which has components specific to aboriginal offenders. [ 38 ] The accused has not demonstrated that this court should interfere with the sentencing judge’s conclusion that he be declared a dangerous offender. His conclusion that there was no reasonable prospect of managing the accused’s risk within the community was more than reasonable in light of the evidence before him. [ 39 ] I would grant the accused leave to appeal and dismiss his appeal. J.A.

I agree: J.A. I agree: J.A.