R v Sanderson, 2018 MBCA 63

Citation: R v Sanderson, 2018 MBCA 63 Date: 20180525 Docket: AR15-30-08487 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Madam Justice Freda M. Steel Mr. Justice Alan D. MacInnes BETWEEN: HER MAJESTY THE QUEEN ) S. Zaman and ) J. Kostiuk ) for the Appellant Respondent ) ) D. A. Mann- and - ) for the Respondent ) walter joseph sanderson ) Appeal heard: ) April 19, 2018 ) (Accused) Appellant) Judgment delivered: ) May 25, 2018 On appeal from 2015 MBQB 142 STEEL JA [1] The accused appealed against conviction as well as his indeterminate sentence as a dangerous offender.

He wasconvicted after a trial by judge alone of aggravated assault, two counts of assault with a weapon and breach of probation. He wasdesignated a dangerous offender and sentenced to an indeterminate period of incarceration with respect to each offence. [2] The conviction appeal was heard and dismissed on December 6, 2016 (see 2016 MBCA 116). [3] The sentence appeal was adjourned at the request of the accused pending the decision of the Supreme Court ofCanada in R v Boutilier, 2016 BCCA 235. At issue in that case was the constitutionality of

section 753 of the Criminal Code (the Code),the same

section under which this accused was sentenced. [4] The Supreme Court of Canada issued a decision approximately one and one-half years later, the majority finding thatthe dangerous offender scheme met constitutional standards (see R v Boutilier, 2017 SCC 64). [5] Therefore, the sentence appeal of the accused proceeded only on the ground that the sentencing judge erred indetermining that no measure short of an indeterminate sentence would protect the public.

The accused submits that the trial judge didnot attach sufficient weight to the Gladue factors (see R v Gladue, (SCC), [1999] 1 SCR 688) or to the availability of,and willingness of the accused to participate in programming designed for Indigenous offenders. The accused contends that the expertreport of Dr. Lawrence Ellerby (Dr.

Ellerby) supports the argument that, upon consideration of the Gladue factors present in the case,combined with the accused’s demonstrated interest in heretofore unavailable Indigenous specific and high-intensity programming, thereis a demonstrable reasonable expectation of eventual control in the community. [6] The Crown submits that the only conclusion available to the sentencing judge on the evidence was that the accused’srisk to the public could not be managed in any way other than through an indeterminate sentence. [7] The accused also argues that he should not have received an indeterminate sentence for the breach of probationcharge, as this is not a serious personal injury offence.

The Crown agrees that a fixed sentence should have been imposed for thisoffence.

[ 8 ] The standard of review in an appeal of a dangerous offender designation is more robust than that in ordinary sentence appeals, but nonetheless, the appellate court must give some deference to the findings of the sentencing judge.

The question to be asked by the appellate court is whether the decision of the sentencing judge was reasonable (see R v Osborne (CG) , 2014 MBCA 73 at para 51 , citing R v Atatise (BF) , 2012 MBCA 117 at para 8 ; and more recently, R v Laporte (PLR) , 2016 MBCA 36 at para 188 ). [ 9 ] The purpose and principles of sentencing contained in sections 718 - 718.2 of the Code apply to dangerous offender proceedings at the sentencing stage (see Osborne at para 44).

Among the principles of sentencing that are to be taken into account is the principle 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” (at

section 718.2(

e) of the Code ). [ 10 ] In R v Ipeelee , 2012 SCC 13 , the Supreme Court of Canada emphasized that sentencing judges are required to consider the Gladue principles in every case involving the sentencing of an Indigenous offender (see paras 84-85, 87).

In every dangerous offender proceeding, Gladue factors, as well as the other relevant principles of sentencing, must be considered and applied. [ 11 ] This will include not only the history and background of the accused and his family, but should also involve a consideration of the type of Indigenous programs and services available to the offender, both in prison and in the community.

If, after consideration of the Gladue factors and the other sentencing principles, the sentencing judge cannot be satisfied that there is a reasonable expectation that the public will be adequately protected by imposing a lesser sentence upon the offender, then an indeterminate sentence will have to be imposed. [ 12 ] This was clearly stated by Hamilton JA in R v C (OE) , 2013 MBCA 60 , 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. [ 13 ] The sentencing judge did consider the appropriate Gladue factors that pertained to the accused. He was well aware of the importance of the Gladue factors in this case. He referred to the pre-sentence/ Gladue report which indicated that the accused was a third generation victim of an Indian Residential School and the trauma suffered by the family as a result.

He acknowledged that the Crown had indicated that there were significant Gladue factors present and referred to defence counsel’s argument that the Gladue factors provide context to his criminal conduct and are relevant to management of the risk and reasonable expectation.

In the sentencing judge’s conclusion, he repeated that he was taking Gladue factors into account when he stated (at para 35): Keeping in mind all the evidence which has been adduced, including the effect of the impact of the Gladue factors on his conduct since 1999 and on the reservations expressed by the experts about his treatability. [ 14 ] The accused also submits that the sentencing judge did not put enough weight on the evidence of Dr.

Ellerby that the accused should receive more intense Indigenous programming and that there was evidence of “buy in” from the accused, as he had a positive relationship with his most recent Indigenous probation officer. Yet, his contact with his Indigenous probation officer was only for a period of months, after being released on probation on February 23, 2011. As well, while he told the probation officer that he was abiding by the law, the truth is that he was flouting the terms of his probation by drinking, using cocaine, partying and going to strip clubs.

Finally, he committed those serious predicate offences on June 5, 2011, a mere 14 weeks after being released on probation. [ 15 ] Moreover, it appears that the accused did have access to, and interest in, a number of Indigenous programs during his youth, none of which prevented his participation in a long line of offences. The sentencing judge stated (at para 25): Since his days in the Manitoba Youth Centre (“MYC”) [the accused] has developed a strong interest in aboriginal spirituality. At the MYC he attended sweat lodge ceremonies.

While in the penitentiary he applied to participate in at least one aboriginal based program. In his current incarceration he has shown an active interest in his aboriginal culture. He attends sweat lodge ceremonies every six weeks and meets with an elder on occasion. [ 16 ] In fact, the accused had some opportunity to engage in culturally appropriate programming. While serving his federal sentence for manslaughter, the accused was released on parole to an Indigenous-specific halfway house.

He stayed there for about one month before he breached parole by leaving and remaining at large for about three weeks until his arrest during the execution of a drug search warrant. [ 17 ] In coming to his decision, the sentencing judge had, not only reports from Dr. Phillip Klassen (Dr. Klassen) and Dr.

Ellerby, but also court transcripts, Correctional Service Canada (CSC) materials, Manitoba Corrections materials, Winnipeg Police Service records, a pre-sentence/ Gladue report, and the evidence of an expert on matters related to gangs, as well as the evidence of a CSC supervisor, a probation officer and an assistant superintendent of the Headingley Correctional Centre. [ 18 ] Both Dr. Klassen and Dr. Ellerby agreed that the accused met the psychiatric and psychological criteria for a finding against him under sections 753(1) (a)(

i) and (ii) of the Code . They agreed that he is at a high risk to reoffend violently, that he meets the criteria for antisocial personality disorder, alcohol use disorder and that he has a high score on the psychopathy scale. After a review of

his past conduct, the sentencing judge held that all the criteria of both sections 753(1) (a)(

i) and (ii) had been established. [ 19 ] The real issue was whether a sentence of indeterminate detention should be imposed or whether the sentencing judge could be satisfied by the evidence adduced during the hearing of the application that there was a reasonable expectation that a lesser measure would provide adequate protection for the public. Section 753(4.1) of the Code indicates 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.” [ 20 ] “Reasonable expectation” does indicate a different and higher standard than the former provision in the legislation of “reasonable possibility” (see Osborne at para 72). While the factors to be considered are essentially the same, a “reasonable expectation” requires a higher level of confidence that the risk to the public can be managed in the community, than that required under the previous language of “reasonable possibility”.

In R v Walsh , 2011 BCSC 1911 , the Court described the phrase “reasonable expectation” as (at para 291): What I draw from the above authorities as to the meaning of the phrase “reasonable expectation that a lesser measure … will adequately protect the public” in s. 753(4.1) is that it amounts to “a confident belief, for good and sufficient reasons” to be derived from the quality and cogency of the evidence heard on the application. [ 21 ] The conclusions of Dr. Klassen and Dr. Ellerby matched in many respects. The only real difference was as to the treatability of the accused. Dr.

Klassen concluded that the accused was “at significant risk of violent recidivism” and that he was untreatable. In his report, Dr. Klassen concluded: I do not feel that I can offer psychiatric support for “… 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 serous personal injury offence .” [ 22 ] While Dr. Ellerby also felt that the accused was at high risk for general criminal and violent recidivism, he concluded that if certain conditions were fulfilled, there was a chance that the accused was treatable. In his report, Dr. Ellerby concluded: It is a difficult task to quantify whether there is a reasonable possibility of managing the risk that [the accused] poses to the community.

In my opinion, the prognosis for eventual management of [the accused’s] risk in the community must be guarded. [The accused] presents as being a high risk for future violent re-offence.

If a Long-Term Offender designation is to be considered for him, then it needs to be acknowledged that he will be a high-risk release, even to a structured setting. [The accused] has demonstrated, over his last three releases to the community, two prior to his current charge and one mistaken release after his current charge, quickly engaging in multiple acts of non-compliance with his parole and then probation, and becoming involved in numerous high risk and criminal behaviours (e.g., not reporting for his curfew, being unlawfully at large, associating with antisocial peers, being in the possession of drugs, assault, attempting to discourage a witness and a complainant from providing evidence).

This highlights his considerable difficulty in past attempts to adjust and integrate into the community. [ 23 ] While it is true that Dr. Ellerby was less pessimistic than the court-ordered expert, Dr. Klassen, not even Dr. Ellerby indicated that he felt there was a reasonable expectation that the accused’s risk could be managed under a long-term supervision order. At most, his view was that it was possible that, after a lengthy series of programs and psychotherapy, the risk of danger to the community would be manageable provided that the accused bought into the process. Indeed, Dr.

Ellerby uses the test of “reasonable possibility” in his conclusion, not the higher standard of reasonable expectation. [ 24 ] When questioned specifically on that issue, Dr. Ellerby would only say that there was a “potential” for there to be a reasonable expectation if a number of factors occur, including the impact of age, the accused benefitting from certain programs and the “buy in” from the accused. [ 25 ] Dr. Ellerby testified that part of the buy in was that the accused be open and honest with those that are supervising him.

He agreed in cross-examination that it was very concerning that the accused was going out in the evening and drinking, despite presenting well to his probation officer. In addition, the writer of the pre-sentence/ Gladue report indicated that she believed “[the accused] does not demonstrate internal motivation for change.” [ 26 ] I agree with the sentencing judge that a reading of Dr.

Ellerby’s entire report and his evidence does not support the accused’s position that there is a reasonable expectation that the accused’s risk can be managed with a less restrictive sentence. [ 27 ] Given all of the evidence, including that of both Dr. Klassen and Dr.

Ellerby, the accused’s continued reinvolvement despite programming, his failed efforts while under supervision, including both an Indigenous halfway house and intense supervision by an Indigenous probation officer, and his efforts to manipulate witnesses and obstruct justice, the sentencing judge’s conclusion that the accused could not be managed with a less restrictive sentence is reasonable and should not be interfered with. His conclusion that there was no reasonable expectation of managing the accused’s risk within the community was more than reasonable in light of the evidence

before him. [ 28 ] Leave to appeal sentence is granted. The appeal as to the breach of the probation offence is allowed and a sentence of six months’ incarceration is substituted for the indeterminate sentence imposed by the sentencing judge. The appeal is otherwise dismissed. JA I agree: CJM I agree: JA