R. v. Osborne (C.G.), 2014 MBCA 73

Citation: R. v. Osborne (C.G.), 2014 MBCA 73 Date: 20140722 Docket: AR 12-30-07826 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Freda M. Steel Mr. Justice Alan D. MacInnes BETWEEN : ) D. M. Sawchuk and HER MAJESTY THE QUEEN ) T. D. Walker ) for the Appellant ) Respondent ) D. A. Mann , ) C. L. Sholdice and ) C.

Murray - and - ) for the Respondent ) CLIFFORD GARY OSBORNE ) Appeal heard: ) December 11, 2013 ) (Accused) Appellant ) Judgment delivered: ) July 22, 2014 MacINNES J.A. [ 1 ] The accused was designated a dangerous offender and was sentenced to an indeterminate term of incarceration. He seeks leave to appeal and, if granted, appeals the decision of the sentencing judge (the judge). As will become apparent, the essence of his intended appeal does not relate to his designation as a dangerous offender, but rather, to his sentence of indeterminate incarceration.

Background [ 2 ] The accused was convicted after trial of the offence of assault cause bodily harm (the predicate offence). [ 3 ] The predicate offence occurred on March 28, 2009, in Norway House, Manitoba. The victim was a female, 25 years of age and a cousin of the accused. The victim went out on the evening of March 28, 2009, with friends. When she returned to her residence, she discovered that an unauthorized party was occurring there. After clearing out most of the people from her house and giving some a ride home, the victim returned to find the accused’s girlfriend passed out on a bed.

She attempted to awaken her. A dispute arose with the accused who punched the victim in the face. The victim and the accused then got into a skirmish, during which the accused seriously assaulted the victim. [ 4 ] On the date of the predicate offence, there was a warrant out for the accused’s arrest. He had been released from custody on March 4, 2009, upon completion of the incarceratory portion of another sentence, and had failed to report to his probation officer on March 6, 2009, and thereafter.

As well, he had failed to appear in court on March 23, 2009, on an unrelated assault charge from an incident that occurred when he was in custody. [ 5 ] Following conviction for the predicate offence, the Crown applied for orders declaring the accused to be a dangerous offender and sentencing him to detention in a penitentiary for an indeterminate period. [ 6 ] At the time of the dangerous offender hearing, the accused had a criminal record of 47 convictions. The last 46 of those offences occurred while the accused was subject to a court order and/or parole conditions.

The record includes 18 distinct convictions for offences involving violence/threats of violence, namely, sexual assault, aggravated assault (two counts), assault with weapon (four counts), assault cause bodily harm, assault (three counts), resist arrest, utter threats (three counts), possess weapon dangerous to the public peace (two counts) and carry concealed weapon. In addition to the convictions for violence, the accused had been convicted of obstruct justice (two counts) and 22 counts of breaching court orders.

[ 7 ] At the hearing before the judge, a significant volume of documentary evidence was introduced and viva voce testimony received. The documentary evidence included a record of the accused’s previous convictions, his conduct and activities in provincial and federal institutions and his management during times in the community under court ordered supervision. As well, reports were received from Dr. Scott Woodside, a court ordered expert in forensic psychiatry, and Dr. David Kolton, the accused’s expert in forensic psychology. [ 8 ] Both Dr. Woodside and Dr.

Kolton testified, as did a number of other witnesses, including Ms Kimberley Duncan and Mr. Eric Ross, both probation officers in the employ of Manitoba Corrections. [ 9 ] Following the hearing, including argument from Crown and accused’s counsel, the judge, on June 20, 2012, designated the accused a dangerous offender and sentenced him to indeterminate incarceration in a penitentiary.

The Judge’s Decision [ 10 ] I note that there was no real contest before the judge on the issue of whether the accused should be designated a dangerous offender. [ 11 ] Indeed, at the hearing before the judge, the accused’s counsel stated that while he could not formally consent to a dangerous-offender designation, the evidence to found such a designation was there. [ 12 ] After considering all of the evidence and the criteria set forth in subss. 753(1)( a )(

i) and (ii) of the Criminal Code (the Code ), upon which the Crown’s application was based, the judge concluded that the accused was a dangerous offender and so designated him. [ 13 ] The judge went on to describe the real question in the case before him as being one of sanction, that is whether, pursuant to s. 753(4.1) of the Code , he should impose a sentence of indeterminate detention or whether he was satisfied by the evidence adduced during the hearing of the application that there was a reasonable expectation that a lesser measure contemplated in subss. 753(4) (

b) or (

c) of the Code would adequately protect the public against the future commission by the accused of murder or a serious personal injury offence. [ 14 ] He then went on to consider that question before concluding that the sentence to be imposed was one of indeterminate detention. [ 15 ] The reasons of the judge clearly demonstrate that he thoroughly considered the evidence adduced on the hearing before him.

This included the predicate offence and the accused’s age, upbringing, criminal record, periods of incarceration, his conduct when incarcerated, his conduct and supervision when on release in the community, and the expert evidence as to treatment options for, and risk assessments of, the accused. All of this was incorporated into his decision to order that the accused be incarcerated for an indeterminate period in the penitentiary. [ 16 ] He described the accused as being a 32-year-old aboriginal male, born in Winnipeg, but who spent most of his youth moving between there and Norway House, Manitoba.

He found that the accused grew up in a violent home environment, with a father who was physically abusive to his mother, to him and his siblings, and wherein there was widespread alcohol abuse and some drug abuse. He found that the accused was taken from his home and placed in many foster homes, that a series of placements often ended by his running away and that he had been sexually abused in at least one of these placements.

As well, he accepted the evidence that the accused quit school while in Grade nine at the age of 16, after experiencing a number of failed grades while in school, that he has had no education since then, had been involved in several acts of delinquency as a youth, had found some security in gang activity, having been affiliated with a number of gangs, and that he had been involved in several domestic relationships over the course of his lifetime, all of which had failed. [ 17 ] The judge described the accused’s criminal record as being atrocious.

He recounted the record in some detail, including the periods of time during which the accused has been out of custody between offences. He wrote that the accused has spent most of his adult life behind bars. He has been in the community on 18 different occasions since he turned 18, the longest stretch in that entire time without becoming criminally reinvolved being 65 days. [ 18 ] The judge considered the evidence of the two probation officers, Mr.

Eric Ross, an aboriginal probation officer in Norway House for 27 years, and Ms Kimberley Duncan, a probation officer in the employ of Manitoba Corrections for a period of 11 years and who, for approximately seven years prior to her testifying, had been a member of the Criminal Organization and High Risk Offender Unit (COHROU). COHROU is designed to provide a higher level of supervision and support for high risk offenders as they attempt to re-enter the community. [ 19 ] The judge wrote that Mr.

Ross found the accused was never responsive to him except, perhaps, when the accused had a court date facing him and perceived that he should be doing something to induce the judge to be more lenient. In Mr. Ross’s view, the accused never really changed. The judge concluded on the evidence adduced, that Mr. Ross had a negative view about the accused’s capacity or willingness to change. [ 20 ] The judge dealt extensively with the evidence of Ms Duncan who testified about her involvement with the accused from December 21, 2007, to March 2009.

While she was supportive of the accused and did much to attempt to help him, his failure to comply with court ordered obligations continued and placements she arranged for him were unsuccessful for various reasons. Notwithstanding, she testified that she felt the accused was genuine when he expressed to her that he wanted to do better, but alcohol and negative peer pressure always got in his way. She expressed the opinion that the accused needed a heavy care program and psychological services if he was ever going to reintegrate successfully into society.

The judge concluded, on the evidence of the accused’s conduct while Ms Duncan had involvement with him, that her opinion may be overly optimistic.

[21] He reviewed fully the evidence (both written and oral) of both Dr. Woodside and Dr. Kolton. He noted Dr. Woodside’sbasic conclusion as being (at para. 43): …. In

summary, I believe there is reason for significant pessimism, from a psychiatric perspective, regarding this individual’s futuremanageability within the community, even if strict conditions were put in place and Mr. Osborne were to agree to follow through withconditions and treatment recommendations. [22] As well, he reported Dr. Kolton’s opinion that (at para. 50): … Mr. Osborne presents as being a high risk for future violent re-offence. …. Dr. Kolton added to his opinion, saying that change in the accused’s case is possible. Dr.

Kolton said that the accused appeared to him tobe genuine in expressing the desire to change and he referred to the evidence of Ms Duncan (with whom Dr. Kolton spoke) as suggestingto him that the accused was motivated to change. The judge wrote, however, that “Dr.

Kolton recognized that the chances of asuccessful release lay somewhere between ‘possible and hopeful’” (at para. 50). [23] Having already designated the accused a dangerous offender, the judge considered subss. 753(4) and (4.1) of the Code,in light of the evidence, and concluded that the appropriate sentence was a sentence of indeterminate detention in a penitentiary. It isfrom that decision that the accused seeks leave to appeal. The Relevant Legislation [24] In R. v. Lyons, (SCC), [1987] 2 S.C.R. 309, the Supreme Court of Canada dealt with the dangerousoffender legislation then found in

Part XXI of the Code. La Forest J. wrote (at paras. 12-16) of the genesis and history of suchlegislation which, at the time Lyons was decided, was legislation enacted in 1977. Thereafter, in 1997, the legislation was amended. The 1997 amendment introduced the designation of long-term offender and provided for the availability of long-term supervision orders(LTSO) to fill what was viewed to be a gap between the alternatives of indefinite detention or definite detention and, thus, permit seriousoffenders the opportunity of extended community supervision other than through the parole process.

The 1997 amendment moved thedangerous offender legislation (including the new long-term offender provisions) to

Part XXIV of the Code. [25] In 2008, further amendments were made to the legislation. It is under the 2008 legislation (still found in

Part XXIV)that the process now appears for designating offenders as either dangerous or long-term offenders and for determining the penalties to beimposed consequent upon such designation, and that applied to this proceeding conducted before the judge. [26] The foregoing comments are to make the point that it was not long ago (1997) that the designation and penalty for long-term offenders first appeared and, as well, that the within proceedings are subject to the statutory regime created by the 2008amendments. [27] As will be seen, there are significant changes between the 1997 and the 2008 amendments. As well, I note, as did thejudge, that much of the jurisprudence relating to

Part XXIV of the Code pertains to the 1997 amendments and far less to the 2008iteration, presumably by reason of its recentness. Yet, that is the legislation that applies in this proceeding and one must be alive to thedifferences when considering the jurisprudence. [28] In my view, it would be helpful to set forth the relevant provisions of

Part XXIV as they existed under the 1997 regimeand as they now exist under the 2008 regime, and to briefly examine the differences between the two. 1997 Legislation [29] The 1997 legislation (the “Previous Regime”) provided: Application for finding that an offender is a dangerous offender 753.

(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), findthe 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 thedefinition of that expression in

section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of

other persons on the basis of evidence establishing (

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

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

b) of the definition of that expression in

section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses. . . . . . If offender found to be dangerous offender

(4) If the court finds an offender to be a dangerous offender, it shall impose a sentence of detention in a penitentiary for an indeterminate period. . . . . . If offender not found to be dangerous offender

(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. . . . . . Application for finding that an offender is a long-term offender 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 been convicted; (

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

(

c) there is a reasonable possibility of eventual control of the risk in the community. . . . . . If offender found to be long-term offender

(3) Subject to subsections (3.1), (4) and (5), if the court finds an offender to be a long-term offender, it shall (

a) impose a sentence for the offence for which the offender has been convicted, which sentence must be a minimum punishment of imprisonment for a term of two years; and (

b) order the offender to be supervised in the community, for a period not exceeding ten years, in accordance with

section 753.2 and the Corrections and Conditional Release Act . . . . . . If offender not found to be long-term offender

(6) If the court does not find an offender to be a long-term offender, the court shall impose sentence for the offence for which the offender has been convicted. 2008 Legislation [ 30 ] The 2008 legislation (the “Present Regime”) provides: Application for finding that an offender is a dangerous offender 753.

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

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

a) of the definition of that expression in

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

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

(

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

b) of the definition of that expression in

section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses. Presumption

(1.1) If the court is satisfied that the offence for which the offender is convicted is a primary designated offence for which it would be appropriate to impose a sentence of imprisonment of two years or more and that the offender was convicted previously at least twice of a primary designated offence and was sentenced to at least two years of imprisonment for each of those convictions, the conditions in paragraph (1)(

a) or ( b ), as the case may be, are presumed to have been met unless the contrary is proved on a balance of probabilities. . . . . . Sentence for dangerous offender

(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. 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 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. . . . . . If offender not found to be dangerous offender

(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. . . . . . Application for finding that an offender is a long-term offender 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 been convicted; (

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

c) there is a reasonable possibility of eventual control of the risk in the community. Substantial risk

(2) The court shall be satisfied that there is a substantial risk that the offender will reoffend if (

a) the offender has been convicted of an offence under

section 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), subsection 163.1(2) (making child pornography), 163.1(3) (distribution, etc., of child pornography), 163.1(4) (possession of child pornography) or 163.1(4.1) (accessing child pornography),

section 170 (parent or guardian procuring sexual activity), 171 (householder permitting sexual activity), 171.1 (making sexually explicit material available to child), 172.1 (luring a child) or 172.2 (agreement or arrangement — sexual offence against child), subsection 173(2) (exposure), 212(2) (living on the avails of prostitution of person under eighteen), 212(2.1) (aggravated offence in relation to living on the avails of prostitution of a person under the age of eighteen years) or 212(4) (offence — prostitution of person under eighteen) or

section 271 (sexual assault), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and (

b) the offender (

i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons, or (ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences. Sentence for long-term offender

(3) If the court finds an offender to be a long-term offender, it shall (

a) 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 (

b) order that the offender be subject to long-term supervision for a period that does not exceed 10 years. . . . . . If offender not found to be long-term offender

(6) If the court does not find an offender to be a long-term offender, the court shall impose sentence for the offence for which the offender has been convicted. [ 31 ] Though writing in respect of the 1977 legislation, it is my view that La Forest J.’s comments in Lyons remain apt in respect of the penological objectives of

Part XXIV as they pertain to the penalty of indeterminate detention. He wrote (at para. 27):

It is thus important to recognize the precise nature of the penological objectives embodied in

Part XXI. It is clear that the indeterminatedetention is intended to serve both punitive and preventive purposes. Both are legitimate aims of the criminal sanction. Indeed, whensociety incarcerates a robber for, say, ten years, it is clear that its goal is both to punish the person and prevent the recurrence of suchconduct during that period. Preventive detention in the context of

Part XXI, however, simply represents a judgment that the relativeimportance of the objectives of rehabilitation, deterrence and retribution are greatly attenuated in the circumstances of the individualcase, and that of prevention, correspondingly increased.

Part XXI merely enables the court to accommodate its sentence to the commonsense reality that the present condition of the offender is such that he or she is not inhibited by normal standards of behavioural restraintso that future violent acts can quite confidently be expected of that person. In such circumstances it would be folly not to tailor thesentence accordingly. [32] Under the Previous Regime, the Crown could apply to have an offender declared dangerous.

If satisfied that thedangerous offender criteria set out in s. 753(1) of the Code were met, the court “may” declare that the offender was a dangerousoffender. However, the court was not required to make this finding. Rather, the court retained a discretion. [33] This was confirmed by the Supreme Court of Canada in R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, whichconcluded that the word “may” in s. 753(1) denoted a discretion in the judge in deciding whether to designate an offender dangerous.

The court wrote (at para. 16): The language of s. 753(1) indicates that a sentencing judge retains a discretion whether to declare an offender dangerous who meets thecriteria for that designation. As mentioned above, s. 753(1) provides that the court may find an offender to be a dangerous offender if itis satisfied that the statutory criteria set out in paras. (

a) or (

b) are met. On its face, the word “may” denotes a discretion, while the word“shall” is commonly used to denote an obligation: see for example R. v. Potvin, (SCC), [1989] 1 S.C.R. 525, at p. 549. Indeed, s. 11 of the

Interpretation Act, R.S.C. 1985, c. I-21, requires “shall” to be construed as imperative and “may” to be construed aspermissive. If Parliament had intended that an offender must be designated dangerous if each of the statutory criteria have been satisfied,one would have expected Parliament to have used the word “shall” rather than “may”. As will be seen, that is precisely what Parliament did in the Present Regime.

It changed the word “may” to “shall” in s. 753(1). [34] In Johnson, the court concluded that, when considering whether or not to exercise its discretion to declare an offenderdangerous, the sentencing judge was required to consider whether sanctions available pursuant to the long-term offender provisionswould be sufficient to reduce the threat of harm by the offender to an acceptable level, thereby meeting the objective of protecting thepublic by using the least restrictive sanctions.

The court wrote (at para. 28): Like all discretion exercised in the sentencing context, a judge’s discretion whether to declare an offender dangerous must be guided bythe relevant principles of sentencing contained in ss. 718 to 718.2 of the Criminal Code. As mentioned above, these include thefundamental principle of proportionality contained in s. 718.1 and, most relevant to the central issue in the present appeal, the principle ofrestraint enunciated in paras. (

d) and (

e) of s. 718.2, which provide as follows: 718.2 A court that imposes a sentence shall also take into consideration the following principles: . . . (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, withparticular attention to the circumstances of aboriginal offenders. The joint effect of these principles is that a sentencing judge must consider the possibility that a less restrictive sanction would attain thesame sentencing objectives that a more restrictive sanction seeks to attain. [35] As well, under the Previous Regime, if the court made a dangerous offender finding, then it was required to impose anindeterminate sentence of detention under s. 753(4) of the Code.

[ 36 ] The Previous Regime also first introduced the long-term offender provisions in s. 753.1 of the Code . Those provisions provided that the court “may” find an offender to be a long-term offender if it was appropriate to impose a minimum two-year sentence for the predicate offence, there was a substantial risk that the offender would reoffend and there was a reasonable possibility of eventual control of the risk of reoffence within the community.

Under s. 753.1(3) of the Code , if a court found an offender to be a long-term offender, it was required to impose a minimum two-year sentence of imprisonment along with an LTSO not exceeding ten years. The Present Regime [ 37 ] Under the Present Regime, however, there is no longer a discretion whether or not to designate an offender dangerous if the criteria set forth in s. 753(1) (

a) or (

b) of the Code are proved beyond a reasonable doubt. Now, upon the Crown’s application for an order designating an accused a dangerous offender, the court, upon the requisite proof of the stipulated criteria, shall find the offender to be a dangerous offender. This represents a significant change from the previous legislation, as it removes the court’s discretion in declaring the offender dangerous. [ 38 ] A further significant change has also been made.

Under the Previous Regime, while the court had discretion as to whether to declare an offender dangerous, once it made a dangerous offender declaration, it had no discretion in the penalty to be imposed. It had to impose an indeterminate sentence of detention. Under the Present Regime, however, if the court declares the offender to be a dangerous offender, it now has three sentencing options. Section 753(4) provides that the judge may:

a) impose an indeterminate sentence of detention; or

b) impose a minimum two-year term of imprisonment in conjunction with an LTSO not exceeding ten years; or

c) it may simply impose a sentence for the offence for which the offender has been convicted, i.e., for the predicate offence. [ 39 ] However, that discretion is circumscribed by the provisions of subs. 753(4.1) of the Code . That subsection provides that an indeterminate sentence of incarceration shall be imposed unless the court is satisfied by the evidence adduced 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.” [ 40 ] In R. v. Warawa (R.A.) , 2011 ABCA 294 , 519 A.R. 140 , leave to appeal ref’d, [2012] S.C.C.A. No. 66 (QL), the court dealt with a dangerous offender application under the Present Regime. Rowbotham J.A. summarized the 2008 amendments to the dangerous offender provisions (at paras. 9-10): The wording in section 753(1) has changed from “may” to “shall”, making the finding that an offender is dangerous mandatory once the statutory criteria are made out.

Prior to the 2008 Amendments, sentencing judges retained discretion to decline to declare as dangerous an offender who met the statutory criteria. With the 2008 Amendments, the discretion has shifted to the sentencing stage. Whereas previously an indeterminate sentence was mandatory when an offender was declared dangerous, now the court sentencing a dangerous offender has discretion to impose an indeterminate sentence or a fixed sentence, with or without a long-term supervision order ( section 753(4) ).

However, that discretion is limited by the newly added section 753(4.1) which creates a presumption that an indeterminate sentence shall be imposed unless the court is “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.” [ 41 ] As can be seen, under the Present Regime, there is no longer any requirement to consider the long-term offender provisions prior to making the decision to designate an offender as a dangerous offender.

In fact, to do so would be an error as the dangerous offender designation is now mandatory once the statutory criteria have been proven. [ 42 ] It is only in those cases where the court is not satisfied that the dangerous offender statutory criteria have been met, that s. 753(5) (

a) of the Code provides that the court may treat the Crown’s application as an application to find the offender to be a long-term offender and consider the long-term offender provisions contained in s. 753.1 of the Code . [ 43 ]

Section 753.1 of the Code remains generally unchanged from the Previous Regime and continues to allow a court to find an offender to be a long-term offender if the court is satisfied that:

a) it would be appropriate to sentence the offender for two years or more for the offence;

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.” If an offender is declared to be a long-term offender, the court must (there is no discretion) impose a prison sentence of two years or more in conjunction with an LTSO to a maximum of ten years.

If the court does not find the offender to be a long-term offender, the court simply sentences the offender to the fit and proper sentence for the predicate offence. [ 44 ] As the dangerous offender and long-term offender proceedings form part of the sentencing process, the relevant provisions in ss. 718 - 718.2 of the Code apply.

However, in my opinion, they apply only in respect of those areas where discretion exists; not to those areas where the sentencing judge is mandated, without discretion, to make a decision. [ 45 ] As the Supreme Court of Canada wrote in Johnson (at para. 28 ): Like all discretion exercised in the sentencing context, a judge’s discretion whether to declare an offender dangerous must be guided by the relevant principles of sentencing contained in ss. 718 to 718.2 of the Criminal Code . ….

[46] Although Johnson was a case decided under the Previous Regime where there was a discretion as to whether to declarean offender dangerous, the principle I take from that statement is that, where a discretion exists in a sentencing judge, the relevantprinciples of sentencing contained in ss. 718-718.2 of the Code apply and that principle continues in respect of those provisions of thePresent Regime where discretion is afforded to the judge. [47] In my view, Warawa and a more recent decision of the Alberta Court of Appeal, R. v.

Mattson, 2014 ABCA 178 (QL),support my views expressed in paras. 44 and 46 of these reasons. [48] In Warawa, Rowbotham J.A. wrote (at para. 40): The 2008 Amendments create a high degree of rigidity in sentencing. Parliament has clearly placed the protection of the public ahead ofany other sentencing principle and has greatly circumscribed judicial discretion.

However, in my view, the surrounding context of thestatements by Parliament of the fundamental principles of sentencing found in sections 718, 718.1 and 718.2 may be relevant even at thestage of determining whether to impose an indeterminate sentence. …. [49] In Mattson, the court wrote (at para. 44): In oral argument before this court, counsel for the appellant conceded, quite properly, that the appellant’s status as an Aboriginal does notplay a role in determining whether or not the requirements of section 753(1) have been met, i.e., whether he is to be declared a dangerousoffender.

His status as an Aboriginal does, however, come into play at the “back end” of the sentencing process in determining what is afit and proper sentence and in particular whether the appellant should have received an indeterminate sentence. Points in Issue on Appeal [50] The accused raises the following points on his appeal: 1) Did the judge err in relying on s. 753(1.1) which has since been deemed unconstitutional in the case of R. v.

Hill, 2012 ONSC5050, 291 C.C.C. (3d) 321? 2) Can this court consider the constitutionality of the provision given that it was not raised at the trial level? 3) Did the judge err in determining that the accused is required to do more than establish “there is a reasonable possibility ofeventual control of the risk in the community” as enunciated in s. 753.1(1)(

c) of the Code? 4) Once the judge considered that the criteria for dangerous offender had been met, did the judge err in not considering theprovisions of s. 718 of the Code in assessing whether the accused should receive an indeterminate sentence, a minimum sentence of twoyears combined with an LTSO, or a determinate sentence for the offence the offender has been convicted? 5) Did the judge err in imposing an indeterminate sentence rather than a long-term sentence order? Standard of Review [51] In R. v.

B.F.A., 2012 MBCA 117, 288 Man.R. (2d) 80, Chartier J.A. (as he then was) wrote (at para. 8): On the sentence appeal, the standard for appellate review of a dangerous offender designation is reasonableness and, while appellatecourts need not show the “great deference” usually reserved for sentence appeals, some deference is owed to the judge’s decision (see R.v. Currie (R.O.R.), (SCC), [1997] 2 S.C.R. 260; 211 N.R. 321; 100 O.A.C. 161, at paras. 33-34).

This reasonablenessstandard is similar to an unreasonable verdict review and involves an examination of the weight of the evidence to determine whether itwas reasonable for the judge to make the dangerous offender designation (see Currie, at para. 33 and R. v. Daniels (D.) (2011), 2011SKCA 67 , 375 Sask.R. 1; 525 W.A.C. 1; 2011 SKCA 67, paras. 31-34, leave to appeal refused [2011] S.C.C.A. No. 312;(2012), 434 N.R 392 (S.C.C.)). [52] I turn then to consider the points in issue on the accused’s proposed appeal. The accused did not appeal the dangerousoffender designation in his notice of appeal.

Nor has the accused argued that the appropriate disposition was simply a determinatesentence. Rather, while his counsel has argued error by the judge in relying on s. 753(1.1) of the Code, a subsection since deemedunconstitutional in Hill, the essence of the appeal pertains to the imposition of a sentence of indeterminate detention and seeks to havethat sentence varied and a determinate sentence with an LTSO substituted under s. 753(4)(

b) of the Code. [53] I will deal with points one and two together.

1. Did the judge err in relying on s. 753(1.1) which has since been deemed unconstitutional in the case of Hill ? 2. Can this court consider the constitutionality of the provision given that it was not raised at the trial? [ 54 ] In my view, these grounds can be disposed of very briefly. The accused correctly asserts that Hill , a decision of the Superior Court of Justice of Ontario, determined that s. 753(1.1) was unconstitutional in that it created a reverse onus against the accused.

In light of that, the accused argues that the judge erred by relying upon this reverse onus provision in reaching his conclusion that the accused should be designated a dangerous offender. [ 55 ] The Crown argues that whether s. 753(1.1) is unconstitutional or not, the judge did not commit reversible error in this matter as he did not rely on that subsection in making his declaration. [ 56 ] Careful reading of the judge’s reasons for decision leads to the conclusion that the Crown’s position is correct.

While the judge made mention of s. 753(1.1) in his reasons, it is clear that he did not rely upon that provision in order to reach his conclusion designating the accused a dangerous offender. [ 57 ] Having so concluded, there is no need to consider the second point raised by the accused on his appeal. 3. Did the judge err in determining that the accused is required to do more than establish “there is a reasonable possibility of eventual control of the risk in the community” as enunciated in s. 753.1(1) (

c) of the Code ? [ 58 ] The accused refers to s. 753(4.1) which provides that the court shall impose a sentence of indeterminate detention in a penitentiary 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.” The accused, as well, points to s. 753.1(1) which provides that the court may, on application made under this part, find an offender to be a long-term offender if it is satisfied of three things, including that “(

c) there is a reasonable possibility of eventual control of the risk in the community.” [ 59 ] The accused argues that there is an inconsistency in the legislation. He submits that the judge found that the use of the phrase “reasonable expectation” suggested there was a higher standard than the “reasonable possibility” standard and then applied the higher standard in ultimately determining that a fit sentence was that of an indeterminate sentence. [ 60 ] The accused says that, where there is a matter of

interpretation under the legislation, the court is obliged to rely on the

interpretation that is most beneficial to an accused.

He argues that the judge was thus required to apply the “reasonable possibility” standard found in s. 753.1(1) ( c ), and that, in failing to do so, the judge erred. [ 61 ] The Crown asserts that, having correctly found the accused to be a dangerous offender, the judge also correctly considered the appropriate sections, namely ss. 753(4) and (4.1) , in determining the disposition to be made in terms of penalty. [ 62 ] The Crown argues that the changes in the legislation introduced by the 2008 amendments specifically provide that the court shall order an indeterminate sentence unless it is 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.

It says that the judge committed no error in his application of the “reasonable expectation standard” under s. 753(4.1) in concluding that an indeterminate sentence was necessary. [ 63 ] Alternatively, the Crown argues that the judge was also correct in his conclusion that, even had he applied the reasonable possibility of eventual control of the risk in the community standard as enunciated in s. 753.1(1) ( c ), an indeterminate sentence would have been necessary considering the evidence and, in particular, the evidence of the accused’s own expert, Dr. Kolton.

Analysis [ 64 ] The Crown’s application was for an order declaring the accused to be a dangerous offender and for an order that an indeterminate sentence be imposed. This application engages s. 753(1) of the Code . It was not an application for a long-term offender order which would have engaged s. 753.1(1) . [ 65 ] Section 753(1) requires that the court first determine whether an offender is a dangerous offender. It removes any discretion from the judge and mandates that the judge shall find the offender to be a dangerous offender if the criteria in subss. (

a) or (

b) have been proved beyond a reasonable doubt. Once that occurs, then subss. 753(4) and (4.1) become engaged and the judge moves on to decide the appropriate penalty to be imposed upon the dangerous offender. [ 66 ] Section 753(5) provides that if the court does not find an offender to be a dangerous offender, it may then treat the application as one to find the offender a long-term offender, in which case s. 753.1 applies and the court may find the offender to be a long-term offender. [ 67 ] In this case, the judge found that the criteria under s. 753(1) (

a) and (

b) had been proved and he declared the accused to be a dangerous offender. Thus, subss. 753(4) and (4.1) come into play and s. 753.1 , including subs. ( c ), does not. [ 68 ] There is no inconsistency in the legislation as asserted by the accused. Indeed, as is apparent, the phrase “reasonable expectation that a lesser measure under paragraph (4)(

b) or ( c )” as found in subs. 753(1)(4.1), and the phrase “reasonable possibility of eventual control of the risk in the community” in s. 753.1(1) ( c ), serve two entirely different purposes under

Part XXIV. [ 69 ] The former pertains to the issue of penalty to be imposed once a designation of dangerous offender has been made (not to the issue of designation of the offender), whereas the latter is one of the criteria to be considered in determining whether a designation

of long-term offender will be made (not to the issue of penalty). [70] Having said that, ss. 753(4) and (4.1) require that the court consider whether a less severe measure than indeterminatedetention should be imposed.

Here, the measure under consideration is subs. (4)(b), namely, a minimum punishment of imprisonmentfor a term of two years – and an order that the offender be subject to long-term supervision for a period that does not exceed ten years. [71] It makes sense that a sentencing judge would consider the jurisprudence which has developed in reference to theconcerns which would exist and the considerations which would arise in attempting to decide whether a sentence of a minimum of twoyears followed by an LTSO not to exceed ten years will adequately protect the public.

However, that does not equate, in my opinion, tothe application of a standard of “reasonable possibility” of eventual control of the risk in the community rather than the standard of“reasonable expectation that a lesser measure” will adequately protect the public against the commission by the offender of murder or aserious personal injury offence. [72] The case law does indicate a different and higher standard in “reasonable expectation” than in “reasonable possibility.” See R. v. J.E.M., 2011 BCSC 715 at paras. 53-54 (QL); R. v. Downs (C.J.), 2012 SKQB 198 at paras. 7-8, 397 Sask.R. 83; and R. v.

Cote(K.J.), 2012 SKQB 508 at paras. 20-24, 416 Sask.R. 1. [73] A most succinct expression of the difference between the phrases is found in R. v. J.T.M., 2011 SKPC 109, 379 Sask.R.211, a decision of the Saskatchewan Provincial Court where, after briefly discussing the difference between the two phrases, LabachP.C.J. wrote (at para. 114): Both of these phrases really involve an assessment of the offender’s risk to the public. They ask a judge to consider if the offender’s riskin the community can be lowered to an acceptable level by a lesser punishment.

The only difference is under the old regime the questionwas one of “reasonable possibility” whereas under the new amendments the test is one of “reasonable expectation”. The difference inwording, while subtle, is significant. A “reasonable possibility” connotes a belief that something may happen while a “reasonableexpectation” speaks to a belief that something will happen. The onus for finding a reasonable expectation then is somewhat higher butthe factors to consider under both tests would essentially be the same.

I would substitute the word “standard” for the word “onus” in the above quotation, but otherwise adopt the statement. [74] It would seem to me that the higher standard flows reasonably from the enhanced dangerousness of one designated adangerous offender, as compared with the lower standard applicable to the lesser dangerousness of one designated a long-term offender. [75] There was no error made by the judge in applying the “reasonable expectation” standard rather than the “reasonablepossibility” standard.

In fact, had the judge done as submitted by the accused, he would have erred because the application before himwas one under s. 753(1), and he had made a dangerous offender declaration leading to the consideration of penalty under ss. 753(4) and(4.1).

The long-term offender status never came under consideration and, accordingly, neither did the “reasonable possibility” standardprovided for in s. 753.1(1)(c), which is one of the criteria for consideration in a long-term offender application when deciding whether ornot to make a long-term offender designation. [76] I note, in any event, the judge’s conclusion that, even applying the “reasonable possibility” standard, he would havefound that the accused did not qualify for a sentence of at least two years in custody followed by an LTSO, and would still have imposedan indeterminate sentence. [77] That conclusion was driven by Dr.

Kolton’s opinion that the chances of a successful release of the accused in thecommunity lay somewhere between “possible and hopeful,” whereas the jurisprudence has established that the “reasonable possibility”standard required more than a mere hope that the accused could be controlled within the community, noting that the French version ofthe phrase “reasonable possibility” was “une possibilité réelle” or “a real possibility.” (See R. v. Otto (M.E.), 2006 SKCA 52 at para. 25,279 Sask.R. 182.) [78] I will now turn to consider points four and five together. 4.

Once the judge considered that the criteria for dangerous offender had been met, did the judge err in not considering the provisionsof s. 718 of the Code in assessing whether the accused should receive an indeterminate sentence, a minimum sentence of two yearscombined with an LTSO, or a determinate sentence for the predicate offence for which he was convicted. 5.

Did the judge err in imposing an indeterminate sentence rather than an LTSO? [79] The accused argues that the dangerous offender proceedings form part of the sentencing process, thus theirinterpretation must be guided by the fundamental purpose and principles of sentencing set forth in ss. 718 to 718.2 of the Code. Inparticular, he argues that the judge was required to consider the unique systemic background factors that may have played a

part inbringing the accused before the court and the types of sentencing procedures and sanctions which may be appropriate in thecircumstances, especially since the accused is an aboriginal offender. [80] Relying upon the principles enunciated in R. v. Gladue, (SCC), [1999] 1 S.C.R. 688; and R. v. Ipeelee,2012 SCC 13, [2012] 1 S.C.R. 433, the accused says that s. 718.2(

e) of the Code does more than affirm existing principles of sentencing;it calls upon judges to use a different method of analysis to determine a fit sentence for aboriginal offenders. The accused asserts that thejudge failed to consider, or properly consider, the provisions of s. 718 and, in particular s. 718.2(e), in assessing what sentence was fit forhim.

[81] The accused submits that the evidence before the judge established that there was a reasonable possibility of eventualcontrol of the risk in the community and, therefore, that the judge erred in imposing an indeterminate sentence rather than an LTSO. [82] The Crown acknowledges that the principles enunciated in ss. 718 to 718.2 of the Code apply to dangerous offenderproceedings. This includes consideration of the principles articulated by the Supreme Court of Canada in Gladue and Ipeelee.

Notwithstanding, the Crown argues that the protection of the public is the paramount consideration in dangerous offender proceedings. In so arguing, the Crown refers to Warawa (at para. 40) (see para. 48 of these reasons). [83] The Crown argues that the judge was alive to the issues required for consideration by him in accordance with Gladueand Ipeelee.

It asserts that the judge was aware of and referred to the accused’s aboriginal background and summarized his difficultchildhood, both in Norway House and Winnipeg, which included physical abuse, wide spread alcohol abuse, foster placements andeducation difficulties. [84] The Crown says that, while the judge must consider the principles enunciated in Gladue and Ipeelee, he must do so inthe context of the dangerous offender legislation and the paramount consideration under that legislation, namely, the protection of thepublic. [85] The Crown refers to the accused’s numerous failures to comply with court orders and, as well, to comply with the rulesof, and/or complete, aboriginal specific programs offered to him in recent years.

One such program, “In Search of Your Warrior,” wasoffered to the accused on each of his last federal sentences.

On the first occasion, he quit after two weeks of the three-month program,and on the second occasion, he was suspended from the program after two weeks as his behaviour became unmanageable. [86] As well, the Crown says that the judge had evidence before him that the accused had, on four occasions, been grantedbail to an aboriginal specific correctional residential facility and, on all four occasions, breached and/or went absent within ten days ofhis release to the facility. [87] The Crown argues that the judge specifically turned his mind to the aboriginal antecedents of the accused and to theeffects they appear to have had upon him, but on the specific facts of this case, the evidence strongly demonstrates that there was noreasonable expectation that the accused’s risk could be managed with a less restrictive sentence than an indeterminate sentence, so thoseconsiderations carried much less weight. [88] The Crown also submits that both Dr.

Woodside and Dr. Kolton were very pessimistic that the accused’s risk could bemanaged under an LTSO. It says that the accused’s expert, Dr.

Kolton, noted that if a long-term offender designation is to be consideredfor the accused, then it needs to be acknowledged that he will be a high-risk release, even to a structured setting. [89] The Crown asserts, therefore, that the judge’s conclusion that the attendant risk of the accused in the community couldnot be adequately managed under an LTSO, and that an indeterminate sentence was necessary, was a reasonable conclusion on theevidence and should not be subject to appellate intervention.

Analysis [90] As I have indicated, a discretion, albeit a limited discretion, does exist in the judge who, having declared an accused tobe a dangerous offender, turns to consider the penalty to be imposed (ss. 753(4) and (4.1)). [91] As a discretion exists, the judge must, therefore, consider the sentencing principles enunciated in ss. 718 to 718.2 of theCode and, in particular, must consider s. 718.2(d), namely, that an offender should not be deprived of liberty if less restrictive sanctionsmay be appropriate in the circumstances, and s. 718.2(e), all available sanctions other than imprisonment that are reasonable in thecircumstances, with particular attention in this case to the circumstances of the accused, an aboriginal offender. [92] In this case, it is clear that the judge did consider the criteria enunciated in ss. 718-718.2 of the Code, and, particularly,s. 718.2(

e) pertaining to the aboriginality of the accused in light of Gladue and Ipeelee. [93] He wrote in his reasons (at para. 62): Counsel for Mr. Osborne cited R. v. Ipeelee (M.) (2012), 2012 SCC 13 , 428 N.R. 1; 288 O.A.C. 224; 318 B.C.A.C. 1; 541W.A.C. 1; 2012 SCC 13, in which the majority of the Supreme Court reaffirmed the need for sentencing judges to remember the Gladueprinciples when aboriginal offenders are sentenced. That case, however, did not deal with s. 753(4.1) of the Code. Although anindividual like Mr.

Osborne might ordinarily qualify for Gladue considerations, in my respectful opinion, such considerations in adangerous offender application do not override the protection of the public. Gladue considerations thus only receive predominantweighting in a s. 753(4.1) sentencing if the public can reasonably be protected with the sentence which is motivated by the Gladueconsiderations. That is the logical result of the wording of the legislation. And, as well, he wrote (at para. 74): ….

Proportionality, rehabilitation and the Gladue principles might otherwise be the guiding principles when an offender is beingsentenced for an offence, but the legislation suggests that protection of the public trumps those criteria in the case of a dangerousoffender application. Mr. Osborne will need to obtain his next chance for release from the parole board.

[ 94 ] While I agree with the conclusions reached by the judge, with respect, I do not agree with the language which he has used. Ipeelee did not reaffirm the need for sentencing judges to remember the Gladue principles when aboriginal offenders are sentenced. Rather, it emphasized that sentencing judges are required to consider the Gladue principles in every case involving the sentencing of an aboriginal offender, including those involving “serious” offences. The court re affirmed in Ipeelee (at para. 85 ) the statement made in Gladue that (at para. 82 ): ….

There is no discretion as to whether to consider the unique situation of the aboriginal offender; the only discretion concerns the determination of a just and appropriate sentence. [ 95 ] Further, it is not the case that the accused here “might ordinarily qualify for Gladue considerations” (see judge’s reasons at para. 62).

Section 718.2(

e) of the Code and the principles enunciated in Gladue and Ipeelee are to be considered and, in my view, are applicable in every sentencing, which I believe is what the judge understood and what he did, but they are principles to be considered and applied within the applicable sentencing context. Thus, their practical impact upon the ultimate sentence imposed will follow upon that contextualized consideration. [ 96 ] Dangerous offender applications must be considered on the basis that the paramount purpose of the dangerous offender regime is the protection of the public.

Although decided in respect of the Previous Regime, the comments of Cronk J.A. in R. v. Little (G.) , 2007 ONCA 548 , 226 O.A.C. 148 , are apposite (at para. 70): As I have indicated, the overriding purpose of the dangerous and long-term offender regimes is the protection of the public. Thus, “real world” resourcing limitations cannot be ignored or minimized where to do so would endanger public safety. The court is required on a dangerous offender application to balance the liberty interests of an accused with the risk to public safety that will arise on the release of the accused into the community.

That balancing exercise is informed by this fundamental principle: in a contest between an individual offender’s interest in invoking the long-term offender provisions of the Code and the protection of the public, the latter must prevail.

This accords, in my opinion, with the intention of Parliament as expressed in the dangerous and long-term offender provisions of the Code , and in the Corrections and Conditional Release Act . [ 97 ] While that statement is not directly applicable to this case because of the change of legislation and the fact that the accused here had been designated a dangerous offender with the consequent penalty considerations which have to be addressed, the point remains that, where a judge is considering the appropriate penalty to be imposed under s. 753(4.1) and is thus required to consider s. 718.2(

e) and the aboriginality of an accused, the balancing exercise is informed by the fundamental principle that protection of the public must prevail. [ 98 ] This was clearly stated by Hamilton J.A. of this court in R. v. O.E.C. , 2013 MBCA 60 , 294 Man.R. (2d) 122 , where she wrote (at para. 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. …. [ 99 ] Again, while that case was one decided under the Previous Regime, the statement is, in my view, of equal application when a sentencing judge is required to exercise his/her discretion in considering penalty under s. 753(4.1) of the Code . [ 100 ] As to the accused’s submission that the judge erred in failing to impose an LTSO, asserting that there was evidence before the judge that established a reasonable possibility of eventual control in the community, I disagree. [ 101 ] Rather, it is my opinion that the judge clearly considered the possibility of a lesser measure, including in light of the aboriginality of this accused, but did so, as he was required to do, against the “reasonable expectation” standard and concluded that there was no reasonable expectation that a measure less than an indeterminate sentence of imprisonment would adequately protect the public against the commission by the accused of murder or a serious personal injury offence. [ 102 ] In my opinion, the judge’s conclusion was not only reasonable on the evidence, but was abundantly correct. [ 103 ] In conclusion, I would grant leave to appeal, but dismiss the accused’s appeal.

J.A.

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