2015 MBPC 7, 2015 MBPC 7

CITE: 2015 MBPC 7 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) David Mann, and Cindy Sholdice, ) for the Crown - and – ) ) Daniel Andrew Campbell, ) ) Jody Ostapiw, for the Accused Accused ) ) ) Judgment delivered: February 4 , 2015 ) MARY KATE HARVIE, P.J. Introduction [ 1 ] The accused has entered guilty pleas to charges arising out of two incidents, being a robbery which occurred January 11, 2012 and an aggravated assault and housebreak and commit robbery which occurred January 21, 2012. At the time of these offences the accused was 22 years old.

Crown counsel seeks to have the accused declared a dangerous offender and asks for the imposition of an indeterminate sentence. Defence counsel opposes this application and argues for either a fixed sentence or a long term offender designation. The Facts in Support of the Guilty Pleas [ 2 ] On January 11, 2012, at approximately 7:30 P.M. the 63 year old complainant had left her place of work at the Portage Place Shopping Centre.

The accused had observed the complainant within the Mall and followed her as she walked northbound on Edmonton Street, attacking her from behind and physically pulling her purse from her grip. The complainant was not injured and did not require medical attention. The complainant’s purse was later recovered but the contents were missing, including a black wallet, approximately $400.00 in cash, and a set of car and house keys. [ 3 ] On January 21, 2012, the 88 year old complainant, who had been visiting a friend in a care home, boarded a Winnipeg Transit Bus on route to her residence on Henderson Highway.

The accused had observed the complainant and followed her onto the bus with the intention of robbing her. He exited the bus at the same time as the complainant, followed her to her residence and entered her apartment building. Once the complainant was in her suite, the accused knocked on her door, forcing his way in when she answered. [ 4 ] Once inside the suite, the assault which ensued was brief but vicious, particularly given the age and small stature of the complainant.

The accused punched the complainant multiple times in the face causing her to fall to the floor, striking and kicking her in the face and chest area. The accused stole her purse which contained approximately $100.00 in cash. As a result of the attack, the complainant sustained numerous facial fractures which required surgery. She lost a number of teeth and continues to experience numbness to her remaining teeth. She has lost the natural roof of her mouth and therefore cannot eat solid foods. She can no longer breathe through her nose which continues to be sore and numb.

She continues to experience soreness to her arms. Her sleep has been affected by the aftermath of this attack. The Dangerous Offender Application [ 5 ] The approach taken to this application by both crown and defence counsel has been extremely helpful, with a number of factual agreements and a substantial amount of material filed by consent. The agreements reached by counsel include the following: 1. That the prerequisites set out in Criminal Code s. 754 have been met; 2. That the Robbery and Aggravated Assault are “serious personal injury offences” as set out in Criminal Code s.753 (1) (a);

3. That the Crown bears the onus to prove beyond a reasonable doubt that the offender meets the criteria for a dangerous offender as set out in Criminal Code s. 753 (1)(a); 4. If the accused is found to be either a dangerous offender or a long term offender, defence counsel takes no issue with the ancillary orders sought by the crown; 5. If the accused is the subject of either a Dangerous Offender or Long Term Offender designation, the provisions set out in Criminal Code s. 760 will apply and the materials can be forwarded to the Correctional Service of Canada; 6.

Both counsel agree that the application is governed by the post 2008 amendments to the Criminal Code , and the case law which follows. [ 6 ] Specific information respecting the two incidents which give rise to this application was filed by consent, including a transcript of an interview with the complainant from the January 21, 2012 incident, photos of her residence, as well as photos and medical reports detailing her injuries. A victim impact statement, in the form of a transcript of a videotaped interview with the complainant was filed, as was a victim impact statement completed by the victim’s daughter.

A transcript of the police interview with the accused was also filed. [ 7 ] Both crown and defence counsel filed substantial material in support of their respective positions, including extensive details respecting Mr. Campbell’s previous offending behaviour, victim impact statements from the complainants in previous robberies, and the Manitoba Provincial Corrections “running record” of the accused. The Court heard testimony from Jeannette Acheson, a Community Parole Officer with Corrections Services Canada; Mr.

Douglas McKeever, the Probation Officer with Manitoba Probation Services who was supervising the accused at the time of these incidents; and Dr. Phillip Klassen, an expert in forensic psychiatry who provided the Court with a report and evidence with respect to the accused’s risk assessment as it relates to the dangerous offender/long term offender application. Dr. Klassen’s Curriculum Vitae and Report were also filed as Exhibits. The accused testified on his own behalf.

The Background of the Accused [ 8 ] Given the factors which must be considered in an application of this nature, it seems appropriate to begin with a review of the background of the accused. As it has already been noted, a considerable amount of information was provided to the Court through previous Pre-Sentence Reports (PSR) and other materials. [ 9 ] The background of the accused is a tragic one. Reports confirm that his mother, who was 16 years old at the time of his birth, struggled with addiction issues and with the care of the accused after his birth.

His biological father had little involvement with the accused during this time. In his early years the accused resided with his mother, either at the residence of his grandmother or in Winnipeg. A five year period in his early childhood was marked by a pattern of frequent moves as he was passed between relatives. The PSR notes that the accused “felt like nobody wanted me.” [ 10 ] After several years in Winnipeg, the accused moved to Thicket Portage, Manitoba, to live with his grandmother who acted as his guardian and care giver.

These periods were described by the accused “as the best times of his life” when he was able “to stop worrying about his survival as he was being cared for and focus on being a child.” His comments are supported by the educational documentation provided, confirming that the accused was a good student with a positive outlook. A year-end report card from this period includes the following comments: Daniel has proven himself to be a fine student. He reads well and is good at math. Daniel puts a lot of energy and enthusiasm into everything he does. He is a very hard worker and he does his best at all times.

Daniel is a remarkable athlete and was one of the best players on our senior baseball team. Great job Daniel! [ 11 ] Circumstances changed significantly for the accused at age 11 when he returned to live with his mother and her new partner. His mother had taken significant steps towards addressing her addiction issues, and was able to maintain employment. In her absence, however, the accused was subject to significant physical abuse at the hands of his stepfather, including physical assaults which escalated to the level of the accused being “knocked out”.

In response to threats from his stepfather, the accused did not disclose the abuse to his mother for several years. His grandmother attempted to re-involve herself with the accused “out of fear for his safety” and expressed concerns to her daughter about the treatment the accused had received at the hands of his stepfather, but with no success.

Although his grandmother confirmed seeing “cuts on his face and bruises around his body” on “countless” occasions, she did not feel that she had the legal authority to remove the accused from the home. [ 12 ] Reports from the school during this period confirm that the accused was struggling. His marks were drastically lower than they had been in earlier years. The teachers commented on his lack of preparation and unfinished homework: “Daniel is a nice person with many attributes.

He has not followed through with major assignments and tests.” [ 13 ] At age13 the accused disclosed to his mother that he was being physically abused by his stepfather. Sadly, his mother chose not to believe him. The PSR describes this period as a “turning point in his life”. The report indicates that his mother’s reaction was “the last straw” after which the accused essentially stopped living at home.

The PSR states that “the subject added his mother did not seem to care about his whereabouts and made no effort to reconcile the situation afterward.” He began living with friends or with whatever family members who would provide short term support. It was during this period of time that the accused began experimenting with drugs and alcohol.

[ 14 ] The accused came to the attention of the child welfare system in the spring of 2006. Reports indicate that he was suicidal, and was taken into the Royal Canadian Mounted Police (“RCMP”) detachment by his biological father under the provisions of The Mental Health Act . On April 21, 2006 he was taken into the care of Child and Family services directly from the Winnipegosis Hospital. A report from West Region Child and Family Services dated January 5, 2007 states that the agency was having difficulty dealing with the biological father, who was described as “drunk and belligerent”.

The accused was placed with his biological father’s former partner, but the placement broke down because the accused was repeatedly absent and because his biological father was showing up “at the placement in an intoxicated and belligerent condition, and had to be taken into custody by the RCMP.” [ 15 ] It is noteworthy that the accused’s first involvement with the criminal justice system occurred around this period of time. In 2005 the accused had been involved in a matter which was diverted out of the justice system.

There is confirmation that the accused successfully completed the Onashowewin Program by November 29, 2005. On June 15, 2006 the accused was charged with mischief under $5000. Police reports indicate that the accused had been with family members in the area of the Manitoba First Nations Education Resource Centre in Dauphin, Manitoba when an argument broke out, in response to which the accused punched a hole in an already broken window, slicing his wrist. He then ran to a nearby garage with a piece of rope, threatening to hang himself.

He was arrested, charged and released on an Undertaking to a Peace Officer in Charge. [ 16 ] On August 24, 2006, the accused was charged with the Possession of a Weapon for a Purpose Dangerous to the Public Peace and Theft under, when he stole a package of socks and was found to have been in possession of a pool ball wrapped in a bandana. These offences and the Mischief charge were disposed of in Dauphin Manitoba on October 25, 2006, and the accused was sentenced to 1 year of supervised probation.

While the totality of his criminal record will be the subject of later comment, it should be noted that these charges are his only criminal convictions prior to being sentenced for eight counts of robbery on July 5, 2007. [ 17 ] The report of Dr. Klassen indicates that during this period the accused “asked his mother if he could return to live with her, and she said no, as Terry (his step-father) did not want him home.

She ‘just drove off...’ This was a few weeks before his introduction to crack cocaine and consequent reoffending.” [ 18 ] After being sentenced on October 25, 2006, the accused relocated to Winnipeg and was placed in a MacDonald Youth Services (MYS) Transition Group Home. His probation was transferred to Winnipeg and he was placed on the Intensive Support and Supervision Program (ISSP). There were immediate problems with curfew compliance and program participation.

He was arrested for breaching his probation on October 29, 2006 and was released on an undertaking, the police being unaware that, by then, he had been involved in two robberies. By his own admission, the accused was associating with a “negative peer group” and was using drugs and alcohol. The first robbery was committed on October 27, 2006, and was quickly followed by seven others. The robberies were committed to feed his escalating drug and alcohol addiction. The accused was arrested on November 27, 2006, approximately 12 hours after committing his last robbery.

He made a statement to the police admitting his involvement in some of the offences and was detained in custody until he was sentenced. [ 19 ] Reports which outline the accused’s behaviour while pending on the robbery charges show an individual struggling with a significant number of issues. The Manitoba Provincial “Running Record” outlines a number of incidents of poor behaviour, immaturity and, at times, aggression. While inconsistent, his behaviour seemed to improve somewhat while in custody at the Aggassiz Centre, where he attended school. [ 20 ] A forensic report, prepared by Dr.

Kent Somers on February 7, 2007 indicated that the accused would benefit “from formal interventions to address substance abuse, anger management and violence prevention. He presents as being earnest in his stated desire to conduct himself in a pro-social manner, and does not present as callous or criminalized in his attitude towards others.” [ 21 ] On July 5, 2007 the accused appeared in Provincial Court and was sentenced on two counts of robbery with a weapon; six counts of robbery; one count of overcoming resistance; and six counts of failing to comply with an undertaking.

All offences occurred between October 27, 2006 and November 27, 2006. The sentence was one of two years of secure custody and one year of community supervision. [ 22 ] On August 14, 2008, the sentence was the subject of an Annual Review pursuant to Youth Criminal Justice Act sec. 88. After considering the materials filed, crown counsel consented to the sentence being converted to Open Custody, noting that the accused was re-establishing contact with family, was making efforts towards academics and job training and continued to express remorse for what had occurred.

His behaviour continued to improve, although incidents of “immaturity and selfishness” were noted. He continued contact with family and continued to attend programming after the sentence had been converted. [ 23 ] By July of 2009, the accused was released from custody and was bound by a series of Community Supervision Conditions. He was breached on those conditions on July 29, 2009, when he was found to be consuming alcohol. On August 4, 2009 his community supervision order was terminated. He remained in custody where he continued to participate in programming.

While his overall demeanour had improved, he continued to struggle with a number of issues until his release on July 21, 2010. [ 24 ] On January 6, 2011, the accused attended to a pawn shop and cashed three stolen cheques. He was identified but not arrested until a later date. [ 25 ] On February 2, 2011, the accused was seen driving a vehicle which had been stolen three days earlier. After a short pursuit, he was rearrested. He dealt with these charges on February 24, 2011, at which time he was sentenced to 69 days in custody along with the 21 days of pre-sentence custody.

This was followed by one year of supervised probation. [ 26 ] Upon being released from Headingley Correctional Centre, the accused was once again without a stable address or residence. He quickly fell out of reporting to probation, and continued to struggle with addictions issues.

Despite this, he reported participating in a ball hockey league and working intermittently. [ 27 ] On July 12, 2011 the accused was back before the Courts, having been charged with Failing to Comply with his Probation order by failing to report between April 12-15, 2011; domestic assault committed on May 14, 2011 involving his girlfriend while both

were “heavily intoxicated”; and for the fraud charges from January, 2011. He was sentenced to four months over and above the 56 days he had spent in pre-sentence custody, followed by 15 months of supervised probation. [ 28 ] After serving his sentence the accused was once again released from Headingley Correctional Centre, prior to which he met with his probation officer, Mr. Doug McKeever. The expectations of probation were reviewed with the accused, but no counselling or programming was scheduled prior to his release, despite the fact that his living arrangements upon release were somewhat tenuous.

The accused began reporting and was compliant with his curfew checks. He became re-involved with floor hockey, was abstaining from drugs and alcohol and obtained work. [ 29 ] Things took a turn for the worse in January, 2012, when the accused was locked out by his roommate, whom he reported had stolen all his money. While regular contact with probation continued, the accused reported that his situation was becoming increasingly desperate, advising probation that “he was considering doing something to get locked up”.

The running record entry of January 22, 2012 states that “subject states that his brother died of an overdose. The subject feels that he is falling apart, advised subject to find shelter and to contact his probation officer on Tuesday and to still maintain contact with this writer.” The accused was subsequently arrested for the offences which are the subject of this application. The Legislative Provisions [ 30 ] The crown’s application is governed by Criminal Code section 753(1)(

a) which states: 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; [ 31 ] If the application for a Dangerous Offender designation is successful, the sentencing provisions are governed by Criminal Code ss. 753(4) and (4.1) which state:

(4) If the court finds an offender to be a dangerous offender, it shall (

a) impose a sentence of detention in a penitentiary for an indeterminate period; (

b) impose a sentence for the offence for which the offender has been convicted — which must be a minimum punishment of imprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or (

c) impose a sentence for the offence for which the offender has been convicted.

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(

b) or (

c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence [ 32 ] In the event that the evidence falls short, pursuant to Criminal Code sec. 752 (5) the Dangerous Offender application can be treated as a Long Term Offender application, or alternatively the court may sentence the offender as is deemed appropriate. Both counsel have agreed that this process can be adopted in these proceedings, and that a further Long Term Offender hearing would not be necessary. The provisions which govern a Long Term Offender application are set out in Criminal Code s. 753.1 which states: 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. 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 imprisonmentfor 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. [33] The provisions governing Dangerous Offender applications have been the subject of several legislative amendments, with theinclusion in 1997 “long term offender” designation and the introduction of “long term supervision orders (LTSO).

Further amendmentsin 2008 addressed the process by which offenders could be designated a “Dangerous Offender”, replacing the permissive “may” with“shall” and therefore mandating a Judge to make a Dangerous Offender designation where the criteria in Criminal Code s.753.1 are met.The amendments also addressed the penalties to be imposed. Under the previous regime, once a Dangerous Offender designation wasmade, an indeterminate sentence was mandatory. Since the 2008 amendments, however, a sentencing Judge has the discretion to imposeeither (

a) an indeterminate sentence of detention; (

b) a sentence of at least two years (or more as is appropriate) along with a LTSO of notmore than 10 years; or (

c) a sentence which the Judge determines is fit and proper for the offence(s). [34] Further, there is no requirement to consider the appropriateness of a Long Term offender designation prior to making aDangerous Offender designation. It is only in those cases where the evidence does not support a Dangerous Offender designation that thesentencing Judge should consider the Long Term Offender provisions. The Role of Traditional Sentencing and Gladue Factors [35] The role of the sentencing provisions in Criminal Code s. 718-718.2 as they relate to Dangerous offender proceedings were thesubject of comment in R. v.

Osborne, 2014 MBCA 73, where MacInnes J.A. noted (at paras 44-48) [44] As the dangerous offender and long-term offender proceedings form part of the sentencing process, the relevantprovisions 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 bythe 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 1782014 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. …. [36] Similarly, the applicability of the “Gladue” provisions of the Criminal Code was considered by the Court in the Osborne,supra. Adopting the comments of the Alberta Court of Appeal in R. v.

Mattson, 2014 ABCA 178 MacInnes J.A. concluded thatGladue’s specific applicability is also to the “sentencing” rather than the “designation” portion of the proceedings (at para 49): [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. [37] The Court is left with the clear direction to consider whether the evidence presented satisfies the specific requirements set out inCriminal Code sec. 753(1) (a), in which case a Dangerous Offender designation is mandatory.

While the role of the Youth CriminalJustice Act has not specifically been considered, it stands to reason that the provisions should be considered in the sentencing, rather thanthe designation portion of the hearing. Having said that, designation provisions require crown counsel to provide evidence which provesspecific prerequisites beyond a reasonable doubt. To that end, an assessment of the evidence adduced must include consideration of theage and maturity level of the individual at the time period referenced by the evidence.

The Requirements of Criminal Code

Section 753 Section 753(1)(a)(

i) and (ii))- A “Pattern” of “Behaviour” [38] Both counsel have focused their submissions on the provisions of Criminal Code subsection 753 (1) (a) (

i) and (ii). Theseprovisions invite the Court to draw inferences from the past “behaviour” of the accused. It is conceded that the type of informationwhich the court can receive in order to assess past “behaviour” of the accused is very broad, even allowing the crown to call evidenceabout incidents which have not been the subject of charges or conviction.

In that regard, the criminal record of an offender is always afactor for the Court’s consideration, and convictions entered while the offender was a youth are certainly admissible and ought to beconsidered. [39] However, defence counsel raises an issue as to how a youth record ought to be assessed when it is offered as a basis forestablishing past “behaviour”. In this case the offender’s youth record is the central evidence for establishing the criteria for theDangerous Offender application.

Should a youth criminal record be treated in the same fashion as an adult criminal record whenassessing the past “behaviour” of an offender in a Dangerous Offender application? [40] Some general observations about criminal youth proceedings are helpful. In R. v. D.B. (2008), SCC 25 (S.C.C.), the SupremeCourt of Canada addressed the validity of the “presumptive offence” provisions of The Youth Criminal Justice Act. Writing for themajority, Abella J began her comments with the following observation (at para. 1): “Young people who commit crimes have historicallybeen treated separately and distinctly from adults.

This does not mean that young people are not accountable for the offences theycommit.

They are decidedly but differently accountable.” In concluding that the onus placed on the accused by those provisions violatedsec. 7 of The Canadian Charter of Rights and Freedom (“The Charter”), the court commented on the diminished moral culpability ofyoung offenders, stating that “we have a separate legal and sentencing regime for young people, namely that because of their age, youngpeople have heightened vulnerability, less maturity and a reduced capacity for moral judgment.” The Court went on to note (at para. 47): [47] The first question therefore is whether the presumption of diminished moral culpability is a legal principle.

In my view it is. Special rules based on reduced maturity and moral capacity have governed young persons in conflict with the law from “the beginning oflegal history” (Nicholas Bala and Mary-Anne Kirvan, “The Statute: Its Principles and Provisions and Their

Interpretation by the Courts”,in Ruth M. Mann, ed., Juvenile Crime and Delinquency: A Turn of the Century Reader (2000), at p. 45). [41] The Court concluded (at para. 61) “that a presumption of diminished moral blameworthiness for young persons” is a principlewhich “is fundamental to the operation of a fair legal system.” Adopting the comments of Fish J., for the majority, in R. v.

R.C., [2005]3 S.C.R. 99, 2005 SCC 61 at para. 41, the court accepted that in “creating a separate criminal justice system for young persons,Parliament has recognized the heightened vulnerability and reduced maturity of young persons”. [42] Bearing in mind the foregoing, defence counsel submits that a youth criminal record should be considered differently in that itrepresents offences which were committed by an offender who had “diminished moral blameworthiness”. I agree that youth convictionsshould be considered and weighed differently than adult convictions.

While a youth record can be used as a basis for an application ofthis nature, the presumption of diminished moral culpability respecting young offenders affects the weight to be attached to the offencescommitted. It is open to the crown to rebut that presumption, failing which the Court must bear in mind that on a legal and practical levela young person’s criminal record reflects the behaviour of someone presumed to be of heightened vulnerability, reduced maturity anddiminished moral culpability. A “Pattern” of Behaviour [43] Both subsection (a) (

i) and (ii) contemplate the crown establishing a “pattern of behaviour”- either “repetitive” or “persistentaggressive”. The term “pattern” has been the subject on judicial consideration. In R. v. Dow 1999 BCCA 177 1999CarswellBC 592 (BCCA), the court considered the use of the term in the context of Dangerous Offender proceedings, noting: [21] The elements of subpara.(

i) of para.753(

a) are: (1) that there be a pattern of repetitive behaviour revealed in the offences and thatthe pattern be present in the offence which gave rise to the dangerous offender proceeding; and (2) that the pattern of repetitive behaviourcontained two essential elements: first, a failure to restrain the relevant repetitive behaviour and, second, a likelihood of causing death orinjury through a failure to restrain that behaviour in the future. [22] So there must be a pattern revealed by repetitive behaviour; the pattern must contain an element that the dangerous behaviour wasnot restrained in the past; and there must be a likelihood that the same behaviour in the future will not be restrained and will cause deathor injury. [23] Each of those three elements must be present in the pattern and those three elements serve to define the relevant characteristics ofthe pattern for the purposes of subpara.753(a)(i).

But, necessarily, the description of the three elements in subpara.(

i) is couched ingeneral terms. So, in any particular case, for the purposes of describing the pattern, each of the three elements may be particularized in away that gives individuality to the pattern by indicating specific similarities between one incident and another.

But it is important thatthe process of particularization not result in a level of detail which obscures the common characteristics which embody and reveal thethree essential elements of the pattern. [24] In short, the significance and the relevance of common elements of the pattern must be determined by whether they tend to showfirst, repetitive behaviour, second, that there has been a failure in each case to restrain the behaviour, and third, that there has been injuryto other persons arising from that failure. If any of those three elements is missing, then there may be a pattern but it will not be a

relevant pattern. But if all three are present then the essential elements of a relevant pattern are revealed. [25] I add that it is the very essence of a pattern that there be a number of significant relevant similarities between each example of thepattern that is being considered, but that, at the same time, there may be differences between each example, some of them quitedistinctive, so long as the differences leave the key significant relevant elements of the pattern in place.

That is, after all, what is meantby a pattern........ [44] Crown counsel asserts that the convictions on the accused’s criminal record, considered alongside the two recent offences towhich he has entered pleas, are sufficient to establish a “pattern” of behaviour. The complete criminal record of the accused is attachedas Appendix “A” to this decision. Of particular significance for the purpose of this application are the eight robbery- related offences towhich the accused pleaded guilty on July 5, 2007.

While the matters were disposed of together on July 5, 2007, the offences werecommitted between October 27, 2006 and November 27, 2006. The accused also pleaded guilty to six counts of failing to comply with anundertaking related to his criminal re-involvement.

Also relevant to this application is the conviction for assault with an offence date ofMay 14, 2011, arising out of an incident of domestic violence for which the accused was sentenced, with other matters, on July 12, 2011. [45] Defence counsel argues that the offences which are the subject of this application must form part of a pattern, and that theevidence provided falls short for a number of reasons. She points out that the assault conviction was an incident of domestic violenceand in no way similar to the robberies. She submits that the breach charges do not contribute to an assessment of a “pattern”.

She alsoargues that there are sufficient differences in which the robbery offences were committed so as to allow the Court to conclude that a“pattern” has not been established. [46] While the totality of the offender’s record is relevant, for the purpose of this application it is the acts of violence which arecentral to this application. When the facts of the various robbery offences are considered, I am satisfied that they are sufficiently similaras to establish a “pattern” of behaviour on the part of the accused.

Of the 11 convictions for violent offences (including the two offenceswhich are the subject of this application) 10 were robbery-type offences. Of those robberies, 10 were committed on strangers who wereconsiderably older than the accused. Some of those offences included a level of violence beyond what was needed to commit the offence,the most serious of which is the January 21, 2012 Housebreak, enter and commit robbery and aggravated assault.

By his own admissionin the PSR completed at the time of the 2006 robberies, the accused chose his victims “because they were easy targets due to their age.”All of the offences were committed while the offender was either under the influence of or seeking money to purchase drugs and/oralcohol. While I recognize that some of the offences did not result in injuries to the victim, the manner in which each offence iscommitted need not be virtually identical in order for a “pattern” to be established.

A pattern of “repetitive” or “persistent aggressive behaviour” [47] Having concluded that a “pattern” of behaviour has been established, the Court must then consider whether the number andnature of the offences relied upon meet the requirements of either Criminal Code subs.753(1)(a)(i)- “a pattern of repetitive behaviour” orsubs.753(1)(a)(ii)- “a pattern of persistent aggressive behaviour”. While these subsections set out somewhat different tests, theSaskatchewan Court of Appeal in R. v.

Yanoshewski (1996), (SK CA), 104 C.C.C. (3d) 512 had this to say about theterminology used (at p. 512): The appellant argued that since Parliament had used the term “repetitive behaviour” in s. 753(a)(i), and the term “persistent aggressivebehaviour” in s. 753(a)(ii), the term “persistent” in the latter clause should be read as meaning something more than merely repetitive:that there should be proof that the behaviour continued in the face of obstacles or remonstrance, something which was not established inthis case, since the appellant had never been previously convicted or otherwise impeded in the pursuit of his activities.

However, theOxford Concise Dictionary defines the word persistent as meaning “enduring” or “constantly repeated”. The judge made no error infinding that the behaviour of the appellant was persistent in view of the fact that the period of time during which he committed theoffences of which he was convicted extended from 1964 to 1992 without any significant periods during that time when no offences werebeing committed. [48] The evidence in this case lends itself to an analysis of these provisions together. There are several factors which are of particularnote.

First, as noted earlier, I am mindful of the fact that eight of the robberies were committed while the accused was a youthfuloffender. The “reduced moral culpability” of youthful offenders, as noted earlier in this decision, must be borne in mind when assessingthe conduct. [49] In R. v. Pascal 2013 SKQB 447 (Sask QB) Zarzeczny J. rejected a Crown application for a Dangerous Offenderdesignation for an 18 year old accused, noting that the evidence failed to establish a “pattern” of behaviour, or behaviour whichamounted to that which was “repetitive” or “persistent”.

In doing so, the Court noted (at para. 88) : One cannot escape the observation that it almost presents a contradiction in terms to suggest that an offender, as young as Mr. Pascal waswhen he committed the underlying offence, can have established a “pattern of repetitive behaviour” or “a pattern of persistent behaviour”sufficient to support a dangerous offender determination in the circumstances outlined by ss. 753(1)(a). While I do not suggest that it cannever be the case that someone as young as Mr.

Pascal was can be found a dangerous offender, I have concluded that in his particularcircumstances the evidence falls short of supporting such a conclusion. [50] Secondly, the offences which were committed by the offender as a youth were committed over a period of approximately onemonth in October and November of 2006, approximately four years prior to the offences which are the subject of this application.

Forthose offences crown counsel did not seek an adult sentence, but did seek the maximum youth sentence of two years secure custody andone year of community supervision, which was ultimately imposed concurrently on all charges. The fact that the offences were dealtwith concurrently is primarily consistent with the Youth Criminal Justice Act sentencing principles. However, the comments of ManitobaCourt of Appeal in R. v. Arbuthnot 2009 MBCA 106 (Man.C.A.) respecting the approach to be taken when an accused commits anumber of similar offences over a “relatively short period of time” are instructive.

Recognizing that the court was addressing the “crimespree” of a 32 year old accused with serious addiction issues, Chartier J.A. stated:

In my view, in light of the fact that there were a series of similar, continuous and recurring offences with the same gravamen within asustained and relatively short period of time, the accused’s offending conduct with respect to the robbery offences can be viewed assufficiently interconnected to form a single criminal transaction or crime spree and thereby attract concurrent sentences. This court, as well as other appellate courts, has reached similar conclusions with respect to interrelatedness when dealing with offenderswho commit a series of robberies to feed an addiction.

For the most recent examples, see R. v. Simon, 2007 MBCA 97 220Man.R. (2d) 43, R. v. Thompson, 2008 BCCA 350 and R. v. Lagimodière (S.M.E.), 2008 MBCA 137 231 Man.R.(2d) 261. [51] It would seem appropriate to consider the robberies from October 27, 2006 to November 27, 2006 as a “crime spree”.

Whilesuch an assessment does not detract from the seriousness of the offender’s behaviour, it does impact on the overall assessment of theseoffences, particularly when they form the foundation of a Dangerous Offender application. [52] While the accused has other entries on his criminal record during the intervening period, including a domestic violence assault,the gap in time between these offences and the 2006 robberies is of considerable note. In R. v.

Cook 2010 MBQB 237 2010CarswellMan 622, Duval J. considered a Dangerous Offender application for an accused with a record, which ....includes three convictions for assault causing bodily harm (two in 1986 and one in 1992), five convictions for simple assault (in1989, 1991, 1996, and two in 2007), two convictions for robery (in 1992 and 1996), and a conviction for manslaughter (in 1998). Thepredicate offence for which Mr.

Cook has not yet been sentenced is a conviction on January 18, 2007 for assault causing bodily harm(incident date of April 23/24, 2005). [53] In Cook, supra, Duval J. adopted the approach taken by the Alberta Court of Appeal in R. v. N.(L.), 1999 ABCA 206, stating(at para. 43): The terms "a pattern of repetitive behaviour" and/or "a pattern of persistent aggressive behaviour" require some degree of actual orattempted violence or endangerment, which can be established by similarities in the kind of offences, or in the degree of aggression orviolence.

The fewer the incidents, the more similar they must be to constitute a "pattern". The conduct must also demonstrate arelatively high degree of intractability, in that the reasons for the behaviour should militate against any reasonable prospect formeaningful change in the future. Therefore, the context of the past criminal conduct will be relevant. See Neve. [54] I am mindful of the fact that the accused was in custody for varying periods over the four year period.

Having said that, I amnot satisfied that the evidence supports a finding that the offending behaviour of the accused can properly be categorized as “repetitive”or “persistently aggressive”.

A spree of robberies committed as a youth over a period of one month followed by a gap of almost fouryears before another robbery is committed is not sufficient to meet the test of “repetitive” or “persistently aggressive” behaviour, eventaking into account the other actions of the accused during this period of time, regardless of whether those acts resulted in criminalconvictions. “A substantial degree of indifference” to “foreseeable consequences”; [55] In assessing whether the evidence supports a finding under these provisions, the Court must consider both the conduct of theaccused at the time of the offence as well as “any genuine expressions of remorse after the crime”: see Cook, supra (at para. 44). [56] By virtue of facts of the January 21, 2012 incident, including the excessive and unnecessary level of violence of the assault onan elderly complainant, one could conclude that the accused was indifferent to the consequences of his actions.

However, his post-offence conduct must also be assessed. Throughout the materials, beginning with his statement to the police, the accused expresseddisgust with his own conduct. In his police interview, he admitted the offence and stated “I’m not in here to feel sorry for myself”. Theaccused entered a guilty plea to the offences, knowing that the crown would be making a Dangerous Offender application. Heacknowledged in his interview with Dr.

Klassen that his offences were “quite heinous”. [57] This must be balanced against the assessment in the PSR that the accused was not taking responsibility for his actions but ratherwas emphasizing that he was “drunk and “high” at the time of the offence. It appears from the totality of the information that the accuseddoes have a level of awareness as to the seriousness of the offence and the consequences of his actions. This awareness, as with his levelof maturity, seems to have increased over time, as is reflected in the Corrections “Running Record”.

For example, the entry of November27, 2007 indicates that “he is disgusted with his offence” and that “he should have received more time”. A failure to “restrain behaviour”- past and future [58] This requires the Court also to consider the attitude and behaviour of the offender as it relates to his risk for future offending.Crown counsel rightly points out that the accused struggled while in the community, often lasting only a short period of time before re-offending. The fact that the accused continued to be involved in criminal activity demonstrated a level of failing to restrain his criminalbehaviour.

But again, this

section must be read in the context of what the provisions are trying to identify, that is, offenders whosebehaviour is so continuously unrestrained that they represent a future risk to the public of such a magnitude that a special designation iswarranted. [59] The risk of future criminal involvement was addressed by the evidence of Dr. Phillip Klassen. His report and testimonyrepresent the central evidence presented by crown counsel on this point. The Evidence of Dr. Phillip Klassen [60] Prior to testifying, Dr.

Klassen met with the accused, reviewed all relative documentation, and prepared a report for the Court.After a thorough review of the materials, Dr. Klassen concluded that the accused “suffers from a personality disorder, and from multiplesubstance abuse or dependence diagnoses (which may be referred to....as polysubstance dependence).” Given the lack of reliableinformation as to the accused’s early years, the doctor would not go so far as to confirm a diagnosis of antisocial personality disorder.

[61] Dr. Klassen provided information about the risk assessment tools used to assess the accused. The doctor was respectful in hisevidence and made it clear that he was not attempting to usurp the role of the Court. His evidence tended to focus, appropriately in myopinion, on the issue of “risk management” rather than the legal test to be applied by the Court. To that end, he was clear that the riskassessment tools employed are “actuarial” tools that have considerable accuracy when used to assess a group of offenders.

Speaking towhat he described as the “clash” of “paradigms”, he noted that “the use of group data is more reliable than individual data” whilerecognizing that the Court “needs to deal with the individual and not a group of people”. (transcript p.25) Using the Psychopathy Checklist-Revised (PCL-R), the accused scored “moderately high” at 27 out of 40 points, placing the accused in the 71st percentile.

Using the Violence Risk Appraisal guide (VRAG), the accused scored 20, placing him in the 93rd percentile. “Similar scoringindividuals in the construction sample recidivated violently at the rate of 64% over 10 years opportunity in the community.” Using theHCR-20 test, the accused scored 29, meaning that the risk of recidivism violently up to 7 ½ years is 69%. [62] Dr. Klassen reviewed the evidence which supported his conclusions.

After paraphrasing the Criminal Code provisions whichset out the criteria for a Dangerous Offender application, he concluded that “from a purely psychiatric perspective, I believe that the testfor a Dangerous Offender finding has been met.” [63] Does the evidence of Dr. Klassen establish that the accused is a risk for future criminal involvement in that there is a“likelihood” he will cause “death or injury to other persons” through a “failure in the future to restrain” his behaviour? In assessing thisissue, there are several important factors which must be weighed. [64] First, Dr.

Klassen freely acknowledged that risk assessments become more difficult as the period of time under considerationincreases, and that the risk assessment tools tend to deal with offenders “10 years out”. He acknowledged that a sentence longer than 10years would mean that the individual would less resemble the group referenced by the risk tools. The practical effect of considering asentence beyond 10 years means that the data and risk assessments provided by Dr. Klassen are important but somewhat less reliablepredictors of future behaviour. [65] Added to this is Dr.

Klassen’s evidence on the impact of “aging out” on criminal behaviour. He confirmed that typically anoffender is “a more manageable individual” over the age of 40 years, and that serious offending has usually stopped when an offender isover the age of 50 years. [66] Dr. Klassen has impressive credentials and a wealth of experience, having provided assessments in approximately 150 cases.

Heacknowledged that with the two youngest individuals against whom Dangerous Offender designations were sought, one being 19 yearsold and one being 22 years old, both were sexual offenders, for whom the legislation has specific criteria not applicable to thisapplication. That is not to say, as was noted by the Court in Pascal, supra, that a relatively youthful offender can never meet the test for aDangerous Offender.

But it is consistent with the overall goals of the legislation, that is, to have specific designation and sentencingprovisions for a specific subset of offenders whose pattern of violent and repetitive behaviour over a period of time demonstrate that theypose a significant and ongoing risk to the community that cannot reasonably be expected to be restrained in the future. [67] The thorough review of the facts and the accused’s background demonstrates that Dr. Klassen was certainly aware that theaccused was a youthful offender when the 2006 robberies were committed.

He also acknowledged that some of the behaviour reliedupon for his conclusions were based on a limited period of time, given the age of the accused, as compared to information for otheroffenders he has assessed. [68] In his report, however, Dr. Klassen does not comment that 2006 robberies were committed over a very short period of time. Andwhile his report notes that “youth as a risk factor” in assessing re-involvement, he does not recognize the presumption of diminishedmoral culpability of youthful offenders.

This is perhaps because the doctor was, as he acknowledged, approaching the DangerousOffender assessment from “a purely psychiatric perspective”. [69] Having said that, Dr. Klassen did have some helpful insights with respect to his experience in treating a broad range ofoffenders. For example, Dr. Klassen confirmed that while the accused had been through the EQUIP program while serving his youthsentence, he had only limited substance abuse programming.

In his testimony he acknowledges that, from a treatment perspective the“buy-in” to a treatment regime “in 17 and 18 year olds is maybe less than you would see, typically, in a 30 year old.” Referring to hisown experience at an Addictions Center, the doctor went on to comment that “the profound lack of future orientation that you do see inthe 17 and 18 year olds, mitigates against the kind of treatment investment that you get when people might be 35....” (Transcript p.64).

The doctor agreed that the programming available in a Federal Institution would be “much more intense” than the programming theaccused had received to date, running in “the hundreds of hours”. While the effectiveness of such treatment was the subject ofdiscussion, the doctor indicated that “if someone wanted to have the skills to help manage their life, the number of hours and theempirically driven approach of Correctional Services Canada would be a good place to get that kind of treatment.” (Transcript p. 92) [70] Dr.

Klassen’s evidence provides a helpful perspective by which to assess the treatment efforts made by the accused in the past,and his expressed interest in future counselling. For his part, the accused has confirmed a desire to address his underlying issues, and hisevidence in that regard seems genuine. His own level of maturity and awareness, as reflected in the Running Record, has increased overtime, and an increased awareness level in the future would be consistent with Dr. Klassen’s experience with other offenders. d(at para. 42): The Court cannot forget that s. 753(

b) does not require proof beyond a reasonable doubt that the respondent will re-offend. Such astandard would be impossible to meet. Instead, s. 753(

b) requires that the court be satisfied beyond a reasonable doubt that there is a“likelihood” that the respondent will inflict harm [72] It is important to consider the evidence in light of the proposal put forward by defence counsel that the accused be the subject ofa 15 year sentence followed by a 10 year supervision order. Dr. Klassen agreed that such a proposal was an alternative that could be

reasonably contemplated. Bearing in mind the impact of a lengthy sentence on the reliability of the risk assessments, the “aging out” ofoffenders, the evidentiary burden on the crown, along with the other factors previously reviewed, I am not satisfied that the crown hasproven beyond a reasonable doubt that there is a “likelihood” that the accused will reoffend if he is the subject of the type of lengthysentence proposed by defence counsel.

Does the Evidence Support a Dangerous Offender Designation? [73] For the reasons already stated, I am satisfied that crown counsel has established a “pattern” of offending on the part of theaccused. However, given that the 2006 robberies were in the nature of a “spree” committed by a youthful offender, even taking intoaccount his other criminal activities I am not satisfied that the crown has established that the offender has been involved in the type of“repetitive” or “persistently aggressive” behaviour that should attract a Dangerous Offender Designation.

While the accused, by virtue ofthe callous nature of the January 21, 2012 attack, showed a degree of indifference to the “foreseeable consequences” of his actions, thismust be tempered by the expressions of remorse for his behaviour. Finally, while the risk assessment tools provide information which ishelpful in assessing risk in the short term, their accuracy diminishes as the length of the proposed sentence increases beyond 10 years. [74] For all of the forgoing reasons, I am not satisfied that the accused should be the subject of a Dangerous Offender Designation.

Long Term Offender Designation [75] As indicated earlier, counsel have agreed that the Court can consider a Long Term Offender designation without furtherhearing. [76] In R. v.

S.D.B. 2012 SaskCA 119, the Saskatchewan Court of Appeal considered the fine but important distinction between thetwo designations, stating (at para. 56) [56] The provisions of ss. 753 and 753.1, when working in tandem, are concerned to segregate the truly dangerous offender from otheroffenders whose risk of re-offence, while exceptional in nature and severity, appears nonetheless to be open to eventual control in thecommunity through the imposition of a long-term offender sentence. [77] The court went on to note: Subsection 753.1(1)(

c) assumes the existence of a substantial risk the offender will re-offend, given the nature and severity of the risk ofre-offence identified in the particular case. This is the risk of which the subsection speaks. And it speaks to it in terms of whether there isa reasonable possibility, neither more nor less, of eventual control of the risk in the community, not the elimination of the risk, nor of itscontrol other than in time and as the result of a process, which is to say by means of the imposition of a long-term offender sentence.

Asentence, that is, consisting of both a fixed period of imprisonment of suitable duration in excess of two years and an appropriate periodof long-term supervision in the community under appropriate conditions for up to ten years. [78] It is not necessary to review all of the evidence from the Dangerous Offender proceedings.

It is clear from all the evidence thatwhile there is a risk of re-involvement on the part of the accused, there is also a reasonable possibility of eventual control of that risk.That possibility, however, flows from both the imposition of a lengthy period of imprisonment followed by a lengthy Long TermSupervision Order. Indeed, defence counsel concedes that it is only with the combination of the two that risk management becomesrealistic.

Gladue and other Sentencing Considerations [79] As noted earlier, the sentencing provisions set out in Criminal Code sec 718- 718.2 play a role in determining the length of thesentence to be imposed. Defence counsel fairly concedes that principles of denunciation and deterrence are paramount given the natureof these offences. [80] Similarly, pursuant to the Gladue provisions, the aboriginal background of the accused merits consideration. Much of theinformation related to Gladue factors are set out in the various PSRs. There is no doubt but that there are “systemic and background” or“Gladue” factors present.

The accused has a family history which has been marked by issues of substance abuse and violence. His fatherattended a residential school, has been in and out of jail throughout his life and has never provided the accused with any meaningfulparental support. The struggles his mother experienced with alcohol have already been the subject of note, as have her challenges inpartner choices and parenting. For his part, the accused has had only sporadic family support throughout his life, and was the subject of aconcerning level of physical abuse at the hands of his stepfather.

He learned little of his own culture and experienced racism within theschool system. He was ultimately apprehended by Child and Family Services, removed from his community, and was the subject of anumber of unsuccessful placements. His issues related to alcohol and drug abuse have been central to his offending behaviour. [81] The importance of considering “Gladue” factors has been repeatedly emphasized by courts across the Country. In R. v. Ipeelee,2012 SCC 13 [2012] 1 S.C.R. 433 LeBel J. stated (at paras. 72-73): ....

The methodology set out by this Court in Gladue is designed to focus on those unique circumstances of an Aboriginal offenderwhich could reasonably and justifiably impact on the sentence imposed. Gladue directs sentencing judges to consider: (1) the uniquesystemic and background factors which may have played a

part in bringing the particular Aboriginal offender before the courts; and (2)the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or herparticular Aboriginal heritage or connection. Both sets of circumstances bear on the ultimate question of what is a fit and propersentence. [82] Courts have also recognized that, as a practical reality, “Gladue” factors ought not to be considered an automatic reduction in asentence, and may not result in any reduction where an offence attracts a lengthy period of incarceration. In R. v. Gladue 1999

679 (S.C.C.) the Supreme Court made the following practical observation (at para 79): Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing. That is not to say that they should not be taken into account when considering and assessing the moral culpability of the offender.

Conclusion and Sentence [ 83 ] Any sentencing requires a balancing of the circumstances of the offence and the background of the offender. The offences for which the accused is being sentenced are extremely serious, with the January 21, 2012 robbery involving a level of violence which was gratuitous and excessive, and the resulting injuries, both physical and emotional, were extensive and life altering. The offence cries out for a sentence which denounces the behaviour of the accused.

This is a case where both issues of public safety and the ultimate rehabilitation of the accused cry out for a lengthy penitentiary sentence. [ 84 ] Taking into account all of the information presented about the accused, including his criminal record, his personal background and the Gladue factors, as well as the recommendations of counsel, I am satisfied that the accused should be sentenced as follows:

a) With respect to the charges of break, enter and commit robbery and Aggravated assault from January 21, 2012- • I am prepared to find the accused to be a Long Term Offender– • the sentence is one of 15 years- • this will be followed by a 10 year Long Term Supervision Order

b) With respect to the robbery of January 11, 2012- sentence will be one of one year concurrent. [ 85 ] The accused has spent a total of 1107 days in pre-sentence custody, being the equivalent of three years and 12 days. Given that he has used some of his pre-sentence custody on other matters I am satisfied that he should be given credit for 1027 days of pre-sentence custody. I am not satisfied that the accused should be granted any significant enhanced credit for this period of time. I am prepared to conclude that accused should be given credit for effectively three years of presentence custody.

He therefore must serve 12 years on a “go forward” basis, followed by a 10 year Long Term Supervision Order. [ 86 ] The provisions set out in Criminal Code s. 760 will apply and a copy of all reports and testimony given by psychiatrists, psychologists, criminologists and other experts and any observations of the court with respect to the reasons for the finding, together with a transcript of the trial of the offender, will be forwarded to Correctional Services of Canada ; [ 87 ] In terms of other orders, I am directing that the accused provide a sample suitable for DNA analysis within the next 30 days as this matter is a primary designated offence. [ 88 ] I am ordering that the accused be the subject of a mandatory lifetime weapons prohibition pursuant to Criminal Code sec. 109. [ 89 ] Given the length of the sentence, I am waiving any costs and surcharge. “Original signed by” MARY KATE HARVIE, P.J.