2012 SKCA 119 Date:, 2012 SKCA 119

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 119 Date: 2012-12-07 Between: Docket: 1773-CR S.D.B. Appellant - and - Her Majesty the Queen Respondent Restriction on Publication: An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published. Coram: Cameron, Ottenbreit and Herauf JJ.A. Counsel: Bob Hrycan for the appellant Anthony Gerein for the respondent Appeal:

From: 2008 SKQB 494 Heard: October 5, 2012 Conviction Appeal: Dismissed Sentence Appeal: Allowed Written Reasons: December 7, 2012 By: The Court The Court I. Introduction [ 1 ] S.D.B. was convicted by a Court of Queen’s Bench justice of the following offence: THAT he, the said S.D.B., between the 15 th day of May and the 16 th day of May, 2006 at Kamsack District, in the Province of Saskatchewan did commit a sexual assault on J.G., contrary to

Section 271 of the Criminal Code . [ 2 ] Following his conviction he was declared to be a dangerous offender and was sentenced as such to an indeterminate period in a penitentiary. [ 3 ] Mr. S.D.B. then appealed both his conviction and sentence. For the reasons that follow we have decided to dismiss the appeal against conviction, but allow the appeal against sentence. II. Background facts [ 4 ] A comprehensive review of the facts is set out in the trial judgment (see 2008 SKQB 494 ). For the purposes of the conviction appeal, a condensed version of the relevant facts follows. [ 5 ] On the day of the incident, Mr.

S.D.B. and J.G. were driving around in the evening on a First Nations reserve for recreation after the two had consumed large quantities of alcohol. Mr. S.D.B. stopped the vehicle on an infrequently travelled road and allegedly sexually assaulted J.G. twice. Later, when the two drove to a gas bar, J.G. ran away and sought help from the police. Mr. S.D.B. denied the charges. He claimed that he and J.G. had consensual sex three times during the period that they were together. Mr. S.D.B. also claimed that he and J.G. had a prior and existing sexual relationship.

When J.G. entered the gas station, she was barefoot and without her glasses. J.G. was crying hysterically and had visible injuries to her face and neck. A DNA analysis taken from J.G. confirmed Mr. S.D.B.’s semen on vaginal and anal swabs taken from her. III. Conviction appeal [ 6 ] The appeal against conviction was taken on the grounds the trial judge erred in three respects: (

i) he discredited Mr. S.D.B.’s credibility on the impermissible basis of the pre-trial disclosure made to him by the Crown in response to his constitutional right to make full answer and defence; (ii) he mis-assessed the evidence in determining credibility; and (iii) he mistakenly allowed the Crown to tender rebuttal evidence. We shall address these in turn, beginning with the first. 1. The Judge’s References to Pre-trial Disclosure [ 7 ] The judge, in assessing Mr. S.D.B.’s credibility, is said to have wrongly considered the knowledge of the case gained by Mr.

S.D.B. through the pre-trial disclosure made by the Crown, thereby turning Mr. S.D.B.’s constitutional right to make full answer and defence against him. [ 8 ] According to Mr. S.D.B., the offending portions of the reasons of the trial judge are found at paras. 47 and 48 of the judgment.

They read as follows: [47] S.D.B. knew, at the time that he gave his evidence, that the police had a forensic report and other objective evidence placing him and the vehicle at the location where this alleged assault took place, that his semen (as a result of DNA testing and matching) that was recovered from J.G.’s vagina and anus and the pictures depicting the injuries to her face, neck and other areas of her body existed and would need to be explained.

He testified that he reviewed this evidence, the preliminary hearing transcript and witness statements prior to testifying at the trial. [48] His evidence respecting the three occasions of consensual intercourse served his need to explain the presence of his semen on and in J.G.’s body. His admission that he drove through the barb wire fence and did park at the alleged scene, the location of two further episodes of consensual sex, served to address that objective evidence.

His testimony that an argument ensued between the second and third episodes causing him to strike her with the back of his hand under her chin was an admission of an assault. That evidence, however, comes nowhere close to explaining the nature and extent of her physical injuries. To this he added the explanation of her inexplicable

wandering (apparently without shoes), into thick bush and his evidence that she fell when doing so. This, he testified, might account for any injuries she might have had. His evidence on these matters notwithstanding, he testified in cross-examination, on a number of occasions, that he saw no apparent physical injuries or marks on her face even up to the point when they were driving to the Cote gas bar.

These statements lack all credibility when one considers J.G.’s appearance in the photographs in Exhibit P-3 taken less than an hour later. [ 9 ] To put the issue of disclosure into perspective, it is appropriate to set out those portions of the trial transcript where disclosure is addressed. It becomes even more appropriate since counsel for Mr. S.D.B. contends the trial judge expanded the scope of the disclosure Mr. S.D.B. actually reviewed by suggesting that Mr. S.D.B. had access to the forensic reports. The first exchange regarding witness statements took place during the cross-examination of Mr. S.D.B..

The relevant questions and answers are as follows (Vol. III, pp. 513 - 514): Q Before you went to the river, you were at W.G.’s? A Yes, at 9:30. Q At 9:30. You remember that time? A Yes. Q How do you remember that time, sir? A It was just -- Q Pardon me? A I -- I remember the time, I read the statements and that’s what they said, 9:30. Q So you read the statements, so you don’t really remember it, you’re just guessing it -- you’ve just pieced it from the statements you read?

A Yeah, well, nobody was -- I wasn’t checking the times though, you know, but it was in the general area. [emphasis added] [ 10 ] The second exchange relating to a review of the witness statements also took place during cross-examination of Mr. S.D.B.. The relevant questions and answers are as follows (Vol. III, pp. 609 - 610): Q That’s an amazing memory, you remember every road you took that night it seems? A Well, this is a -- this is a -- an important case here, I can’t forget. I can’t afford to forget anything -- Q Mmhmm. A -- you know, I -- I’ve been sitting in jail for 14 months.

Q And planning what you’re going to say, haven’t you? A Remembering what I -- what happened. Q You’ve -- you’ve read other people’s statements and talked to other people to help you, haven’t you, remember? A I’m allowed to do that. Q Pardon me? A I’m allowed to read the transcript. Q Well, that means, I’d suggest to you, that maybe your memory is not that good of that night, Mr. S.D.B.? A I knew -- I -- I remember -- I remember that evening, sir.

Q Then why bother reading what any -- anybody else says, or why phone Seranda up and ask her questions about when -- when she picked up -- or when -- when D. got dropped off, why did you need to do that if you remember everything? A Because I wanted to have the exact time. [emphasis added] [ 11 ] Finally, three reports - Ident Occurrence Report and two forensic DNA reports - were filed by consent of defence counsel pursuant to s. 655 of the Criminal Code . See Vol. I, pp. 201 - 204. [ 12 ] These excerpts make it apparent Mr. S.D.B. did have the forensic reports disclosed to him.

It would be inconceivable that his trial counsel would have consented to the filing of the forensic reports without Mr. S.D.B.’s explicit permission to do so. It can be safely inferred that Mr. S.D.B. had access to these reports.

[13] It is also important to note Crown counsel’s submission at trial relating to the disclosure issue. At p. 49 of the submissions Crowncounsel stated: And, lastly, when dealing with credibility as a witness, Mr. S.D.B. admitted to reviewing other people’s evidence and talking to otherpeople to help his memory. There’s nothing wrong for an accused person to see disclosure. Don’t get me wrong. And I’m not trying tosuggest that in any way, that there’s something improper for doing that. He didn’t just say that, though.

He said it as a way to implicateor suggest during his evidence, “Well, that’s why I know this time because they said it in their statement,” so he was using it to refreshhis memory. Again, a significant and serious problem when you’re looking at credibility of a witness. [emphasis added] [14] From the perspective of Crown counsel, the line of questioning related to Mr. S.D.B.’s independent memory of events and was notan attempt to use his constitutional right to disclosure against him. [15] There are a series of decisions from the Ontario Court of Appeal which have dealt with the issue of disclosure. See R. v.

Cavan(1999), (ON CA), 139 C.C.C. (3d) 449 (Ont. C.A.) at paras. 36 - 49; R. v. White (1999), (ON CA),132 C.C.C. (3d) 373 (Ont. C.A.) at paras. 15 - 23; R. v. Schell (2000), (ON CA), 148 C.C.C. (3d) 219 (Ont. C.A.) atparas. 45 - 67; and R. v. Thain, 2009 ONCA 223, 243 C.C.C. (3d) 230 at paras. 18 - 29. [16] Each case depends upon its particular facts and the context as to how disclosure became an issue. It is apparent, however, questionsconcerning disclosure are not always improper. This proposition is concisely stated by Sharpe J.A. in R. v.

Thain at para. 24: 24 On the other hand, as White recognized at p. 768, while questions concerning disclosure are “always potentially dangerous”, theyare not always improper. Where, for example, the accused has suggested that records in the Crown disclosure confirm aspects of histestimony, it may be proper for the Crown to cross-examine on the fact that the accused received and reviewed the disclosure prior totrial so that his or her testimony can be viewed in that light: White at p. 768; see also R. v. Cavan and Scott (1999), (ON CA), 139 C.C.C. (3d) 449 (Ont. C.A.); R. v.

Kokotailo (2008), 2008 BCCA 168 , 232 C.C.C. (3d) 279 (B.C.C.A.). … [emphasis added] [17] At para. 42 of the trial decision the judge described Mr. S.D.B.’s evidence as “extraordinary and improbable, if not unbelievable,detail …”, “mechanical testimony” and “evidence much rehearsed”. In the situation at hand, the trial judge was simply contrasting Mr.S.D.B.’s ability to recall matters where he has disclosure to assist him and those instances where he did not. It was Mr. S.D.B. who firstreferred to disclosure as providing assistance in remembering the minute details he was able to testify to.

Defence counsel at trial did notobject to questions relating to disclosure. As noted by the Ontario Court of Appeal in R. v. Cavan at paras. 43 - 45, the contrast betweenthe ability to recall certain details based upon disclosure is a “reasonable line of cross-examination going to the issue of … credibility”. [18] Ultimately, as the trial judge stated in para. 48 of the judgment, Mr. S.D.B.’s evidence “comes nowhere close to explaining thenature and extent of her physical injuries”. Injuries which Mr.

S.D.B. did not notice until shortly before he abandoned her at the gasstation and then fled until arrested approximately 17 months later. [19] We can find no error in the trial judge’s handling of the disclosure issue and would not give effect to this ground of appeal. 2. The Trial Judge’s Assessment of the Evidence re: Credibility [20] The gist of Mr. S.D.B.’s contention in this area appears to be that the trial judge, in assessing the conflicting testimony betweenJ.G. and Mr.

S.D.B., failed to appreciate most of the circumstantial or corroborative evidence was equally supportive of his version ofevents as it was of hers. [21] The trial judge was alive to the issue of the diametrically opposed versions of events put forward by Mr. S.D.B. and J.G. He knewhe had to make his decision on the assessment of the whole evidence. At para. 35 of the trial judgment he stated: [35] It is not enough to determine the credibility and reliability of the evidence of witnesses simply based upon their demeanor. Thewhole of the circumstances must be considered.

The evidence of others and objective evidence, where available, must be reviewed andanalyzed. Ultimately a decision must be made based upon the whole of the evidence. [22] The trial judge weighed all the evidence prior to coming to his conclusions. The trial judge did not simply dismiss Mr. S.D.B.’sevidence. He carefully detailed those portions where there was evidence to support J.G.’s version of events. At no point in the judgmentdoes the trial judge state the physical evidence is inconsistent with Mr.

S.D.B.’s assertion. [23] The most telling piece of evidence which tipped the scale in favour of credibility and reliability of J.G.’s evidence was thephotograph of her personal appearance. The trial judge succinctly stated his rationale at para. 40: [40] Most telling of all, however, and the corroborating evidence having the greatest impact upon the credibility and reliability ofJ.G.’s evidence, are the photographs of her personal appearance. These illustrate the severity of the injuries which she presented whenCorporal Harry Searle picked her up at the Cote gas station and took her to the Kamsack Hospital.

There she was examined by medicalpersonnel and photographed by Constable Angela Searle. Her injuries and appearance are clearly shown in Exhibit P-3. J.G.’s mother,her daughter D.G. and S.D.B.’s son D. all testified that she did not have the injuries nor the appearance as shown in the photographs in P-3 the early evening and into the early morning of May 15th and 16th, 2006 before these alleged assaults took place. The injuries depictedin these photographs are significant and substantial. They depict a severe cut on the right side of J.G.’s cheek (the scar from which she

bears to this day), swollen cheeks, left and right, swollen right lip and numerous cuts and abrasions including significant bruising on herface and neck. This is not the appearance of a woman after having consensual sex. [emphasis added] [24] The trial judge then went on to reject Mr. S.D.B.’s unbelievable evidence of his supposed prior relationship with J.G. as“incredible”. This rejection was based upon Mr. S.D.B.’s uncertainties and vagueness on many points about this relationship. No onecan take issue with the trial judge’s assessment of this evidence. [25] The trial judge referenced R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742 in his analysis. At para. 55 of the trialjudgment he stated: [55] I believe and accept the testimony of J.G. supported, and corroborated as it is, by the objective evidence presented as exhibits bythe Crown and as further corroborated by the testimony of the other witnesses testifying for the Crown at the trial.

I am satisfied fromthe evidence of J.G. and the whole of the evidence, beyond a reasonable doubt, that the sexual assaults as testified to by J.G. occurred,that S.D.B. intentionally applied force to her during the two episodes of sexual intercourse to which J.G. testified and that these physicalassaults, as J.G. testified, put her in fear, not only of further injury, but for her very life.

I am further satisfied, beyond a reasonable doubt,that she did not consent to engage in the sexual activity which I have found occurred and by her actions, including her attempts atphysical resistance and her plea by words to S.D.B. that he stop, uttered on a number of occasions, she unequivocally communicated herlack of consent to him, that is to say, lack of agreement to continue to engage in the sexual activity he forced upon her. … [26] We find no error in the assessment of the evidence by the trial judge and would dismiss this ground of appeal. 3.

The Learned Trial Judge Improperly Admitted Reply Evidence [27] Prior to closing its case, the Crown applied to tender J.G.’s panties as rebuttal evidence. Its purpose in doing so was to rebut anassertion by the accused in his testimony that the complainant was not wearing panties on the occasion of the alleged sexual assault. Thealleged assault was said by the complainant to have occurred in the countryside, where the accused twice pulled down her panties andforced her to have sex with him.

In response, the accused testified to having had consensual sex with her on three occasions that evening,beginning with sexual intercourse at his nephew’s place of residence, and followed by two additional acts of intercourse in thecountryside.

In so testifying, he said she was not wearing panties on the first of the occasions in the countryside, which suggested byimplication that her panties had been left behind at his nephew’s place of residence following the act of intercourse that had occurredthere. [28] In fact, the police had taken possession of her panties, along with the rest of her clothing, while she was in the hospital followingthe events of the evening. This was not disputed. But when the Crown sought to tender her panties in rebuttal, defence counselobjected.

He took the position the Crown could have tendered the panties as part of its case, and should have done so (if it intended tomake something of the panties), for it could reasonably have anticipated that the panties formed an important part of its case. [29] Before ruling on the Crown’s request to tender the panties as rebuttal evidence, the trial judge received the agreement of counselthat the issue was simply whether J.G. was wearing panties or not. The trial judge permitted the panties to be tendered as rebuttalevidence since credibility was the primary issue and Mr. S.D.B. and J.G. had contradictory versions.

His reasons for doing so are asfollows (Vol. III, pp. 669 - 670): So Mr. Bishop, I can’t agree with you on that point. The sole relevance to the issue of the underwear, the panties, arises for the first timewhen Mr. S.D.B. testifies that she had no panties, and as Mr. Wyatt properly points out, and as I have already observed, and as counselhave both agreed, the primary issue, in this case, is an issue of credibility, and therefore, it seems to me that where that issue is put intodispute, the issue about whether she was wearing panties or not, proof of the situation is relevant.

It is not -- the panties are not beingtendered to prove their condition, or as I understand it in this case, to establish that from the panties, for example, any bodily substanceswere taken or tested. I don't understand that to be the Crown’s purpose. The sole purpose of the Crown is to establish that where Mr.S.D.B. has raised this contradiction in his evidence, and the issue is his reliability together with that of the complainant, it is an objectivepiece of evidence to resolve that conflict. That’s how I see it, Mr. Bishop. [emphasis added] [30] The Supreme Court of Canada in R. v.

G. (S.G.), (SCC), [1997] 2 S.C.R. 716 at para. 39 had this to say about theissue of rebuttal evidence: 39 In particular, the Crown should not be permitted to gain the unfair advantage which will inevitably arise from “splitting its case”.The rule against “splitting the case” developed primarily in the context of applications to adduce rebuttal evidence by the Crown.Applications to adduce rebuttal evidence and to reopen the case are “close cousins”, but not “identical twins”: R. v. M. (F.S.) (1996), (ON CA), 93 O.A.C. 201 at p. 208 (Ont. C.A.).

Rebuttal evidence is properly admissible where the matter addressedarises out of the defence’s case, where it is not collateral, and generally, where the Crown could not have foreseen its development: R. v.Krause, (SCC), [1986] 2 S.C.R. 466 at p. 474; R. v. Aalders, (SCC), [1993] 2 S.C.R. 482 at pp. 497-98. With rebuttal evidence, it is the rules of the adversarial process that justify the admission of the reply evidence. … [emphasis added] [31] In our view, the trial judge’s conclusion that the panties could be tendered as rebuttal evidence was appropriate in thecircumstances.

The issue of the panties was raised for the first time in the defence case. The evidence went to the credibility of J.G.’s

account. The need by the Crown to tender any part of J.G.’s clothing could not have been foreseen since the forensic reports, which were filed by consent, established that Mr. S.D.B.’s semen was found on the vaginal and anal swabs taken from J.G. As noted, the Crown had the clothing and there was no reason for the Crown to expect that Mr. S.D.B. would assert J.G. was simply not wearing panties. [ 32 ] The trial judge had to resolve the contradiction.

He admitted the panties as rebuttal evidence since credibility was the main issue and the admission of this evidence supported J.G.’s testimony that she was wearing panties during the period in question. [ 33 ] The trial judge exercised his discretion judicially and did not err in permitting the rebuttal evidence. This ground of appeal also fails. [ 34 ] For these reasons then, the conviction appeal is dismissed. IV. SENTENCE APPEAL 1 . The Sentence and its Imposition [ 35 ] Following upon Mr. S.D.B.’s conviction, the prosecutor applied to have him designated a dangerous offender and sentenced accordingly.

Since the conviction related to an offence committed in May of 2006 (the predicate offence), the trial judge, with the concurrence of counsel, addressed the application on the basis of the provisions of the Criminal Code then in existence. We shall address the appeal on the same basis. [ 36 ] The trial judge found Mr. S.D.B. to be a dangerous offender under s. 753(1) of the Criminal Code and sentenced him, as such, to an indeterminate period of imprisonment pursuant to s. 753(4) . He did so after having considered and rejected the idea that Mr.

S.D.B. be found to be a long-term offender under s. 753.1 and sentenced, as such, to a fixed period of imprisonment in excess of two years, followed by a period of long-term supervision in the community for up to ten years as provided for by s. 753.1(3). [ 37 ] The judge rejected this idea because he was not satisfied the risk of re-offence posed by Mr. S.D.B. could eventually be reduced to an acceptable level in the community through the imposition of a long-term offender sentence.

More particularly, he was not satisfied there existed “a reasonable possibility of eventual control of the risk in the community” as contemplated by s. 753.1(1)(c), given Mr. S.D.B.’s extensive criminal record, high risk of re-offending, and repeated failures in the past to profit from corrections programs aimed at his rehabilitation. [ 38 ] While the judge was not satisfied of this, the psychologist designated by the court to perform the assessment contemplated by s. 752.1 took something of a different view of the matter. The psychologist was Dr.

Stephen Wormith Ph.D., a professor on the Faculty of Psychology, University of Saskatchewan. As the trial judge observed, Dr. Wormith has a most impressive set of academic and clinical credentials, has conducted many such assessments, and is familiar with the Federal and Provincial correctional systems, including the treatment and other corrections programs available to inmates to assist in their rehabilitation. [ 39 ] It was Dr. Wormith who raised the idea that Mr. S.D.B. might be found to be a long-term offender and sentenced as such. He did so based on his assessment of the prospects of eventually reducing Mr.

S.D.B.’s risk of re-offence to an acceptable level in the community through the imposition of a suitable long-term offender sentence. [ 40 ] In his report to the court upon completion of his assessment, Dr. Wormith reported that Mr. S.D.B., who was then 43 years of age, was of Saulteaux heritage and had grown up on the Cote Reserve, near the communities of Kamsack and B[…]. The latter was named after Mr. S.D.B.’s deceased father, who had a reputation as a hard-working farmer and logger, and as a distinguished aboriginal leader.

Among other things, his father had been a First Nations Chief and was the first person ever elected to the […]. [ 41 ] Mr. S.D.B., who is one of seven children (four boys and three girls), spent most of his formative years with his father, following upon the separation of his parents. Throughout his youth he worked alongside his father, of whom he was particularly proud (not so much as a parent as otherwise), and from whom he learned much about hard work and machines and equipment. But he had not gained much else in the way of education, having dropped out of school in the sixth grade.

Later, however, he managed to upgrade his formal education, achieving the equivalent of a grade 12. Dr. Wormith regarded this as a noteworthy accomplishment. [ 42 ] Throughout his youth, Mr. S.D.B. and his siblings were exposed to a lifestyle lacking in parental supervision and rife with excessive alcohol consumption and domestic violence. Dr. Wormith said this had taken its toll on the family. Mr.

S.D.B. had taken to drinking excessively, his three brothers had died at a relatively young age (one in an alcohol-related accident), and one of his sisters had fallen prey to alcohol, though in time she overcame this, earned a degree in social work, and went on to a productive career in that field. [ 43 ] In conducting his assessment of Mr. S.D.B., Dr. Wormith found him to be a cooperative and comparatively intelligent, educated, articulate, and agreeable man, possessed of considerable insight, though he tended to minimize some of his past criminal conduct. Dr.

Wormith also found him to be mechanically skilled and accustomed to hard work, though given to impulsive and sometimes violent behavior, especially when drinking. [ 44 ] In the opinion of Dr. Wormith, Mr. S.D.B. had a serious substance abuse problem and was probably alcohol dependent, if not drug dependent as well. In addition, he had an anti-social personality disorder. This was reflected in his criminal record, which included numerous property offences, even more numerous drinking and driving offences, a number of offences entailing the breach of court orders, and several assaults.

Most of the assaults, particularly those of note, were associated with drinking and domestic violence. Two of them, including the predicate offence, constituted sexual assaults. [ 45 ] The nature and extent of Mr. S.D.B.’s criminal record, together with his anti-social personality disorder and the likelihood he was alcohol dependent, led Dr. Wormith to assess him as constituting a high risk to reoffend, both generally and, to a lesser extent, specifically.

Thus he presented a high risk of again driving while impaired and prohibited from doing so for instance, and a high risk of again resorting to violence, especially domestic violence.

[46] Having thus assessed the risk and the basis for it, Dr. Wormith went on to assess the prospects of reducing it to a manageable levelover time and by resort to the treatment and other corrections programs available in prison and beyond.

He assessed the prospects asbeing sufficiently promising to suggest there was a reasonable possibility of eventual control of the risk in the community by means ofintensive treatment and corrections programming in prison, followed by a suitable period of supervision in the community under suchconditions as would provide for appropriate follow-up and control. [47] The trial judge disagreed. He agreed with Dr. Wormith that Mr. S.D.B. was capable of participating in and potentially benefitingfrom such intensive treatment and corrections programs, but he disagreed with Dr. Wormith’s assessment that Mr.

S.D.B. was motivatedto do so. [48] As the judge saw it, Mr. S.D.B.’s past performance in these respects belied the notion he was motivated to take advantage of theintensive treatment and rehabilitation programs offered in prison or, for that matter, the follow-up services available in the community.The man had participated in some such programs in the past, the judge observed, but had failed to take them seriously on occasion andhad failed, in any event, to profit from them.

Nor had he shown any real interest over the years in the programs and support servicesavailable to troubled residents of the Cote Reserve and other nearby Reserves, the judge noted, adding that this served to cast doubt uponthe man’s sincerity in saying he would like to take advantage in time of the resources available in these First Nations communities. [49] So, while agreeing that Mr. S.D.B. was capable of participating in and potentially profiting from intensive treatment and correctionsprograms while in prison, the judge disagreed with Dr.

Wormith’s assessment that the man was motivated to do so, adding that the man’ssincerity in relation to his professed willingness to participate in follow-up programs in the community was doubtful. Hence the judgerejected Dr. Wormith’s positive assessment of the prospects of the eventual control of the risk of re-offence in the community by meansof the imposition of a suitable long-term offender sentence. [50] In the light of all of this, and satisfied Mr.

S.D.B. qualified as a dangerous offender, the trial judge discarded the idea that Mr.S.D.B. be sentenced as a long-term offender and, instead, sentenced him as a dangerous offender to an indeterminate period ofimprisonment. [51] To be sure, this is but a brief account of the imposition of the sentence and what lay beneath, but it will serve to set the context forwhat follows, including the bases for Mr. S.D.B.’s appeal.[1] 2. The Bases for the Appeal [52] The appeal is founded on ss. 759(1) and (3) of the Criminal Code. As such it is subject to the standard of appellate review laiddown in R. v.

Currie, (SCC), [1997] 2 S.C.R. 260, meaning the trial judge’s findings merit some deference on appeal,for credibility should be assessed and findings of fact made by the trier of fact who has the advantage of seeing and hearing thewitnesses. [53] That said, the appeal was advanced on the grounds the trial judge erred in three distinct but related respects:

(1) He improperly discounted Dr. Wormith’s positive assessment of the prospects of eventually reducing Mr. S.D.B.’s risk of re-offence to an acceptable level in the community by means of the imposition of a suitable long-term offender sentence.

(2) He failed to fully appreciate or give adequate expression to the notion that the prospect of reducing the risk of re-offence to anacceptable level by means of the imposition of a suitable long-term offender sentence is a function of both a fixed term of imprisonmentof appropriate duration and quality and an appropriate period of long-term supervision in the community under suitable conditions.

(3) He imposed an unreasonable sentence in the circumstances. [54] In consequence, Mr. S.D.B. asked to have the sentence set aside and replaced with a long-term offender sentence. [55] In general, the errors the trial judge is said to have made fall to be addressed in the context of the underlay of principle bearing uponthe proper application of the dangerous offender and long-term offender provisions of the Criminal Code, which is to say the provisionsof s. 753 (dangerous offenders) and s. 753.1 (long-term offenders). 3.

The Underlay of Principle: Dangerous and Long-term Offenders [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. This concern is born of the manifestly repressive nature of thesentence reserved for dangerous offenders, namely a sentence of imprisonment for an indeterminate period.

This is an extraordinarysentence, inasmuch as it amounts to a form of indefinite preventive detention, and must therefore find justification in the extraordinary.Hence, it has been held that such a sentence “finds its justification in the protection of the public when the risk of re-offence andresulting harm to others is so acute and potentially unmanageable as to warrant such detention.” R. v.

Lemaigre, 2004 SKCA 125, 189C.C.C. (3d) 492 (para. 11). [57] That being so, the law recognizes that the sentence reserved for dangerous offenders is meant to apply only to that small group ofoffenders whose personal characteristics and particular circumstances militate strenuously in favour of indefinite preventive detention.The corollary of this is that the sentence reserved for long-term offenders is reserved for that much larger group of offenders whose riskof re-offence, while exceptional, appears open to eventual control in the community or, put another way, appears open to reduction to anacceptable level in the community through the imposition of a long-term offender sentence: R. v.

Lemaigre (paras. 11, 15, and 16). [58] The concern to segregate these offenders along these lines is the particular concern of s. 753.1(1)(c), in the sense that an offenderwho otherwise qualifies as a dangerous offender is nevertheless to be regarded as a long-term offender and sentenced as such if,according to s. 753.1(1)(c), “there is a reasonable possibility of eventual control of the risk in the community”: R. v. Johnson, 2003 SCC

46 , 2003 SCC 357, [2003] 2 S.C.R. 357. [59] Since s. 753.1(1)(

c) provides the working basis for segregating the truly dangerous offender from the long-term offender, great caremust be taken, when applying the subsection, to respect its terms. Subsection 753.1(1)(

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

A sentence, that is, consisting of both a fixed period of imprisonment ofsuitable duration in excess of two years and an appropriate period of long-term supervision in the community under appropriateconditions for up to ten years. [60] Just as the terms of s. 753.1(1)(

c) bear emphasis, so, too, do the nature and import of a long-term offender sentence, rememberingall the while that the subsection addresses the prospect of eventual control in the community of the risk of re-offence by means of theimposition of a long-term offender sentence.

Thus in Lemaigre’s case this Court was prompted to comment at some length on thefeatures of a long-term offender sentence, including the important role played by the conditions that attach, or may be attached, to a long-term supervision order pursuant to the Corrections and Conditional Release Act, S.C. 1992, c. 20. [61] The Court there said this of the matter: 39 The sentencing option available in relation to long-term offenders bears further comment. It has two parts to it: a period in prisonand a period of community supervision. Regard must be had for both.

Indeed, regard must be had for their combined effect whenconsidering the potential for reducing the threat of public harm to an acceptable level in the community. An appropriate period ofimprisonment can have deterrent and rehabilitative effects on the individual. So can an appropriate period of community supervision,which can also have a restraining effect.

Hence, both merit consideration, especially as they operate in tandem. 40 In considering the latter, regard must be had for the conditions that attach, or may be attached, to an order for communitysupervision, as provided for by the Corrections and Conditional Release Act.

Such conditions, the purpose of which is to enhance theefficacy of community supervision and hence to reduce the threat of public harm to an acceptable level, are not to be overlooked orundervalued. 41 To begin with, section 161(1) of the Corrections and Conditional Release Act Regulations (SOR/92-620) prescribes a host ofconditions which must accompany a community supervision order, including conditions that the offender: (

i) report to his or her parolesupervisor immediately on being released from prison, and thereafter as required; (ii) obey the law at the risk of having the releaserevoked; (iii) carry a release certificate and identity card; (iv) report to the police as instructed by the parole supervisor; (

v) report anychange of residence or material circumstance; (vi) not own any weapon; and so on. 42 In addition, the Parole Board is empowered by

section 134.1(2) of the Corrections and Conditional Release Act to prescribe suchconditions for the supervision of long-term offenders as it "considers reasonable and necessary in order to protect society and to facilitatethe successful reintegration into society of the offender." This serves to clothe the Parole Board with extensive power in relation toreducing the threat of public harm to an acceptable level during the period an offender is under community supervision.

There is noreason to suppose that the Board cannot require an offender, while under community supervision, to participate in such community basedprograms (treatment programs included), as in the opinion of the Board are relevant to the offender's history of offending. [62] Not only is the Parole Board empowered to take steps such as these, it is also empowered to enforce compliance with the conditionsthat attach, or may be attached, to a long-term supervision order.

For instance, s. 135.1 of the Corrections and Conditional Release Actclothes the Board with the power to suspend the operation of a long-term supervision order and authorize the apprehension andcommitment to custody of the offender. Furthermore, the Board is authorized to exercise this power in the face not only of a breach ofcondition but also of an apprehended breach. (See, for example, R. v.

Daniels, 2011 SKCA 67, 271 C.C.C. (3d) 339, per Richards J.A. atpara. 57). [63] These powers and others, including the power of the Board to attach suitable conditions to long-term community supervision, serveto equip the Board in appropriate cases with an effective set of tools to control the risk of re-offence in the community and foster itsfurther reduction. This is not to be glossed over when applying s. 753.1(1)(c). Nor is the fact that community supervision may extendover several years; up to ten years in fact.

And looming above is s. 753.3 of the Criminal Code, which renders it an indictable offence,punishable by imprisonment for up to ten years, to fail or refuse to comply with a long-term supervision order without reasonable excuse. [64] Nor should it be forgotten, when applying s. 753.1(1)(c), that the sentence reserved for long-term offenders, as opposed to thatreserved for dangerous offenders, is the lesser of the two. The significance of this lies in the fact the law mandates the imposition of theleast restrictive sanction that may be appropriate in the circumstances.

And it does so with the accompanying instruction to pay particularattention to the circumstances of aboriginal offenders lest they be incarcerated more frequently than other offenders, or for longerperiods, by reason of a failure to fully appreciate and give effect, where appropriate, to the peculiar circumstances of aboriginaloffenders: R. v. Gladue, (SCC), [1999] 1 S.C.R. 688; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433. [65] The essential point of the whole of the foregoing is that it is imperative when applying s. 753.1(1)(

c) to keep in mind this underlayof principle, including in particular the cast of the terms of the subsection, since these terms provide the working basis for segregatingthe truly dangerous offender from the long-term offender and, hence, for choosing between the sentence reserved for dangerousoffenders and that reserved for long-term offenders. [66] With that, we turn to the first ground of appeal and the question it raises. Did the trial judge improperly discount Dr. Wormith’s positive assessment of the prospect of reducing Mr. S.D.B.’s risk of re-offence toan acceptable level in the community through the imposition of a suitable long-term offender sentence?

[ 67 ] To put the question into perspective, it will be recalled that the trial judge, in applying s. 753.1(1) (

c) of the Criminal Code , concluded in effect that there was no reasonable possibility of eventual control in the community of Mr. S.D.B.’s risk of re-offence by means of a long-term offender sentence. Having come to this conclusion, he found Mr. S.D.B. to be dangerous offender, rather than a long-term offender, and sentenced him accordingly. The trial judge, it is said, came to this conclusion in error, for he improperly discounted Dr. Wormith’s positive assessment of the prospects of eventual control of the risk in the community through the imposition of a long-term offender sentence of the sort Dr.

Wormith had in mind. [ 68 ] It will also be recalled that the trial judge did not discount the whole of Dr. Wormith’s assessment, or even major portions of it. Rather he discounted only that portion pertaining to Dr. Wormith’s assessment of the prospects of the eventual control in the community of Mr. S.D.B.’s risk of re-offence through the imposition of a suitable long-term offender sentence. Hence, it is only this portion of the assessment that is in question.

For ease of reference in addressing the question we shall refer to this portion of the assessment as simply the assessment, meaning not the whole of the assessment, of course, but only this portion of it. [ 69 ] This, then, serves to put the question into perspective and to define the terms upon which we propose to address it. [ 70 ] That said, Mr. S.D.B. contended that the trial judge, in evaluating the assessment, failed to have proper regard for its foundation, for the whole of the evidence bearing upon the subject-matter of the assessment, and for the underlay of principle at work in cases such as these.

The Attorney General contended otherwise. [ 71 ] In the light of all of this, it is necessary to have a close look at the assessment, including the foundation for it and the basis upon which the judge discounted it. 1. The Assessment [ 72 ] In Dr. Wormith’s assessment, the prospect of the eventual control in the community of Mr.

S.D.B.’s risk of re-offence was within the realm of reasonable possibility on the assumption the man: • serve a fixed term of imprisonment of sufficient length to allow him to participate in and potentially profit from several intensive treatment and corrections programs aimed at addressing the factors underlying his risk of re-offence; and • be placed thereafter on long-term supervision in the community under appropriate conditions providing for suitable follow-up and control.

(1) The Foundation for the Assessment [ 73 ] The foundation consists of: (

a) the treatment and corrections programs Dr. Wormith had in mind, both in prison and beyond; and (

b) the potential utility of such programs in Mr. S.D.B.’s case. (

a) The Available Treatment and Corrections Programs [ 74 ] There was a good deal of evidence about what was available in these respects in the Saskatchewan Penitentiary, where Mr. S.D.B. was and is incarcerated. There was also quite a lot of evidence of the treatment and other programs available in the First Nations communities around Kamsack, including the Cote Reserve where Mr.

S.D.B. originated. [ 75 ] As for the Penitentiary, the Correctional Service of Canada there offers a multitude of high intensity, moderate intensity, and maintenance programs, many of which are tailored to the rehabilitation of offenders with a significant criminal history, aboriginal offenders in particular. These include intensive programs related to alcohol and drug dependency, domestic violence, sexual offending, anger management, cultural understanding and enrichment, and so on.

Typically, the intensive versions of such programs are conducted in succession, take from six to eight months to complete, and require attendance from Monday through Friday for five to six hours a day. Many of the high intensity programs are conducted with the assistance of a psychologist or a First Nations elder. [ 76 ] The Saskatchewan Penitentiary, it might be noted, is the only federal institution in the region to offer a High Intensity Sexual Offenders Program and a High Intensity Aboriginal Domestic Violence Program. These are specifically adapted to aboriginal offenders.

It might also be noted that the Penitentiary offers a High Intensity Substance Abuse Program, a program available to aboriginal males in their forties with a long history of substance abuse and sexual/family violence. All such high intensity programs, once completed, are followed up with a Relapse Prevention Plan. [ 77 ] The Penitentiary offers one other program that merits specific mention. Designed specifically for aboriginal offenders, it is called the “In Search of Your Warrior Program”.

This is a six month, high intensity program geared toward fostering understanding of, and instilling pride in, First Nations traditions, culture, and beliefs to the end of further discouraging resort to violence by offenders of aboriginal ancestry. [ 78 ] With that, we turn from what the Penitentiary offers to what is available in the community, particularly the First Nations communities in the Kamsack area, including the Cote, Keeseekoose, and Key Reserves. As noted earlier, there was quite a lot of evidence of this. As it happened, much of it came from two of Mr.

S.D.B.’s sisters, both of whom are heavily involved in the delivery of community services of the kind Dr. Wormith had in mind in assessing the prospects of reducing the risk of offence to a manageable level over time and by resort to the treatment and other corrections programs available in prison and beyond. [ 79 ] The one sister, who had overcome alcohol dependence and earned a degree in social work, heads up the clinical component of the Circle of Strength Counselling Program on the Keeseekoose Reserve.

This program employs six staff members and provides family counselling, crisis management, individual and group therapy, anger and life-skills management, recreational services, and the like. Her brother, she said, had reached out to her, asking for help, noting that of late he had shown signs of openness to help in overcoming his problems.

[ 80 ] She also said that she and the Band Council had marked out their expectations of her brother, including the expectation he would assume some of the leadership role his father had played, and some of the work his grandfather had done in connection with the Sundance Lodge on the Cote Reserve, a traditional ceremonial lodge in need of restoration.

She went on to express the belief that her brother, were he to take advantage of what was available to him on the Cote and Keeseekoose Reserves, could maintain an alcohol-free and crime-free lifestyle, saying he would have her support, and the support of those of his children and grandchildren who lived on the Cote Reserve. [ 81 ] The other sister, who is a drug and alcohol counsellor in the employ of the Saulteaux Healing and Wellness Centre located in Kamsack, outlined the services offered by the Centre to First Nations people from the nearby Cote, Keeseekoose, and Key Reserves.

These services are offered with the assistance of Elders and are aimed at fostering understanding of, and participation in, a wide array of Saulteaux cultural traditions. The Centre also offers a 20 day substance abuse and relapse prevention program. All of these services were available in relation to her brother, she said. [ 82 ] In addition, the Saulteaux Spiritual Healer on the Cote Reserve testified, saying he offered sweat lodge and other traditional healing experiences aimed at spiritual rebirth, clearness of thought, and strength of mind, adding that Mr. S.D.B. had also reached out to him. He had known Mr.

S.D.B. from youth, he said, noting that their fathers had grown up together. [ 83 ] These, then, were among the programs of treatment and follow-up Dr. Wormith had in mind in assessing the prospects of the eventual control in the community of Mr. S.D.B.’s risk of re-offence. (

b) The Potential Utility of Such Programs in this Case [ 84 ] What Dr. Wormith had to say of the matter is this. Treatment presented a challenge and, since Mr. S.D.B.’s experience with treatment was limited, particularly recently, assessing the prospects of success was difficult. Nevertheless, Mr.

S.D.B. “has the potential to participate in and benefit from an intensive long-term treatment program that addresses his criminogenic needs”, he stated, noting that the man is “quite motivated” in this regard. [ 85 ] He then went on to elaborate, commenting upon the current level of the man’s maturity, motivation, insight, and mode of thought, as well as his recent behavior in prison, where he had eschewed gang involvement and become a model prisoner, even a mentor of sorts to other inmates.

What he had to say of these matters is this: Although his last experience with an intensive, relatively long term treatment program met with mixed results, that program was at the RPC [Regional Psychiatric Centre] many years ago (1986) when he was still in his late adolescence/early adulthood and lacked the maturity which he now has to reap the benefit of treatment. Mr. S.D.B. is bright, articulate and not one to shy away from personal conversation, at least not now.

I believe he is also quite motivated to participate in such treatment and displays a reasonable degree of insight into the nature of his problems, in spite of the previously cited minimization that is reflected in his commentary. For example, he appreciates the impact that his rampant philandering has had on his relationships and indirectly on at least some of his offending. He also appreciates the extent of his drinking problem and realizes that he has to make some wholesale changes in this area if he is to remain problem free in the future.

I would also suggest that the reputation that he has developed during his more recent sentences and while on remand for his current sentence reflect an increasing maturity in Mr. S.D.B.’s disposition. In sum, it appears that Mr. S.D.B. is in the ‘contemplative’ stage of change (Prochaska & DiClemente, 1986) and is ready to become seriously involved in an active intervention program. [ 86 ] At that, Dr. Wormith expanded upon Mr. S.D.B.’s present attitude toward treatment and programming, saying this: Moreover, he is quite explicit about his intentions to pursue a variety of treatment initiatives.

This was apparent both in his verbal commentary and his objective written testing using the PAI [Personality Assessment Inventory]. Admittedly, his current legal status could have influenced him in making these statements. However, the genuine emotion and affect that Mr. S.D.B. expressed suggests that, even if …his current status influenced his presentation, he also has an underlying and sincere desire to change his lifestyle. [ 87 ] Having said this, Dr.

Wormith went on to comment on the potential effectiveness of treatment, and on the forms of intensive treatment and programming in prison he would recommend in this case: Research in corrections suggests that the best correctional treatment programs may reduce recidivism rates by as much as 50 percent of the existing ‘base’ rate, although reductions of 10 to 20 percent are much more common (Andrews & Bonta, 2003; McGuire, 2005). The kinds of programs that I would recommend for Mr.

S.D.B. include the following: intensive versions of a domestic violence program, a sex offender program, an alcohol and drug program and possibly an anger and emotions program depending on the content of the other programs. Typically the intensive (daily) versions of each of these programs require six months and would have to be offered in succession. In addition, I would highly recommend both vocational training and cultural programming for Mr. S.D.B..

The former would assist him to formalize some of his natural skill and self-acquired knowledge and to capitalize on his intellectual capacity and positive work ethic. The latter would foster stronger connections with his aboriginal heritage and the positive social activities and support that can emerge from these activities. [ 88 ] Dr. Wormith then turned to what might be done on Mr. S.D.B.’s eventual release from prison under long-term community supervision: I would also suggest that a phased release with close monitoring in the community, particularly in the early months following Mr.

S.D.B.’s release from custody, be entertained. Research has shown that custodial treatment and an integrated supervision plan in the community do have the potential of lowering the likelihood of recidivism of high risk offenders to some degree. In my view, a combination of institutional treatment coupled by a strong system of community support will be very important to Mr. S.D.B.’s long term success in the community. Given his chronic problem with domestic violence and with alcohol and substance abuse, I would suggest that long term supervision may

be favoured over the kind of supervision that occurs with a traditional statutory release and is sometimes (partially or completely) lost if an offender is detained beyond his statutory release date (up to his warrant expiry date). In my view, Mr. S.D.B. is the kind of offender who not only can benefit from a strong system of community support, including that which is provided by the justice and correctional systems, but will actually require such assistance in order to desist from crime in the community. [ 89 ] In this same vein, Dr.

Wormith later suggested that serious consideration be given to making a long–term supervision order, because Mr. S.D.B. “would be an appropriate candidate to benefit from the kinds of supervision and services that such a sanction can offer”. [ 90 ] On the whole, then, this is the foundation for Dr. Wormith’s positive assessment of the prospect of the eventual control in the community of Mr. S.D.B.’s risk of re-offence. That, then, brings us to why the trial judge did not accept the assessment. (

c) The Trial Judge’s Reasons for Not Accepting the Assessment [ 91 ] At bottom, the judge rejected Dr. Wormith’s positive assessment because he did not agree with two components of the foundation for it, namely Mr. S.D.B.’s motivation (as Dr. Wormith saw the matter), or his lack of motivation (as the judge saw it) to participate in and profit from the proposed forms of intervention in prison and beyond; and, Mr.

S.D.B.’s sincerity , or lack of it, in relation to his expressed desire to participate in the treatment and other programs available in the community. [ 92 ] In the interests of identifying the point of disagreement more precisely, we note that Dr. Wormith’s assessment of the matter was this: Despite Mr.

S.D.B.’s past failures to respond to rehabilitation programs, he is presently “quite motivated” to “participate in and profit from an intensive long-term treatment program that addresses his criminogenic needs”; is now “ready to become seriously involved in an active intervention program”; has shown “genuine emotion and affect” in this regard; and has “an underlying and sincere desire to change his lifestyle”, albeit this may have been attributable in part to the man’s current legal status as a potential dangerous offender. [ 93 ] Having regard for this, the judge’s reasons for rejecting the assessment are oriented toward explaining why he disagreed with Dr.

Wormith in these respects, or why, in other words, he disagreed with these components of the foundation for Dr. Wormith’s positive assessment of the prospects of reducing the risk of re-offence to an acceptable level in the community through the imposition of a long- term offender sentence of the sort Dr. Wormith had in mind. 2 . The Analysis of the Judge’s Reasons for Rejecting the Assessment [ 94 ] As a matter of principle, the judge was not bound to have accepted the assessment.

He was obliged to judicially consider and weigh it, having proper regard for its foundation, for the evidence bearing upon the subject, and for the underlay of general principle at work here. But he was not obliged to act on the assessment, or any portion of it.

Rather, he was free, on a proper consideration of it, to accept or reject it, in whole or in part, for it was he who had ultimately to decide if, having regard for all of the evidence touching upon the subject, there existed a “reasonable possibility of eventual control of the risk in the community” through the imposition of a long-term sentence as contemplated by s. 753.1(1) (c): R . v. Brass , 2011 SKCA 125 , 375 Sask.

R. 280. [ 95 ] In the light of this, the issue to which the first ground of appeal gives rise reduces to whether the trial judge properly evaluated the assessment in the circumstances of the case, including, of course, the whole of the evidence bearing upon the matter. [ 96 ] The judge opened by saying that, while he agreed with Dr. Wormith that Mr. S.D.B. was capable of participating in and potentially profiting from intensive long-term treatment, he disagreed with Dr. Wormith’s assessment that Mr. S.D.B. was motivated to do so.

There is nothing in the evidence, the judge observed, to demonstrate this, nothing, that is, aside from the man having said he would like to take advantage of the forms of intervention proposed by Dr. Wormith. But he had said much the same thing in the past, the judge noted, yet he had repeatedly failed in the past to respond to treatment and other corrections programs. He had simply reverted to his former ways. [ 97 ] These opening remarks, as they pertain to Mr.

S.D.B.’s motivation, are problematic in two respects. [ 98 ] First, it is not quite accurate to suggest there was nothing in the evidence to demonstrate that Mr. S.D.B. was so motivated; nothing, that is, save for his professed desire to take advantage of the proposed forms of intervention.

With respect, there was more to the evidence than this, including the evidence that the man had entered upon middle age, was showing signs of increased maturity and insight, was turning from a ‘legalistic’ to a ‘contemplative’ mode of thought, had become a model prisoner and something of a mentor to other inmates, and had begun to reach out to others for help with an apparent openness to help that he had not displayed in the past. This evidence, it might be noted, went un-contradicted and appears to have been accepted. [ 99 ] There was evidence, too, of a measure of objective confirmation that Mr.

S.D.B. was genuinely interested in self-reform at this stage in his life. Dr. Wormith spoke to this in the context of the positive results of the Personality Assessment Inventory test he had administered. He was quick to add, however, that the results may have been influenced by the man’s current legal status. Even so, motivation is motivation, and if it derives, even in significant part, from fear of being locked away as a dangerous offender it is not the less real for that. [ 100 ] Second, to put as much stock as the judge did in Mr.

S.D.B.’s past failures to respond to similar forms of intervention is difficult to justify in the circumstances of the case. In fairness to the judge, Mr. S.D.B. had certainly failed in the past to profit from similar forms of intervention, either by reason of disinterest, lackadaisical commitment, or weakness of resolve. And the judge was certainly entitled to have regard for this. Still, it was incumbent upon him to evaluate the significance of this in the context of the whole of the evidence bearing on the matter. [ 101 ] The whole included the factors mentioned above, namely Mr.

S.D.B.’s present age and current levels of maturity, insight, mode of thought, fear of being locked away indefinitely, and so on. Just as importantly, the whole also included evidence to the effect the treatment and other corrections programs presently proposed were qualitatively different from those Mr. S.D.B. had failed to respond to in the past. The latter consisted in the main of provincial programs that were less intense and sustained and specific than the federal

programs available in the Penitentiary. [ 102 ] This is especially so of the high intensity versions of the programs available in the Penitentiary to aboriginal offenders with a history of offence akin to that of Mr. S.D.B.’s. Dr. Wormith drew attention to this difference, respectfully suggesting it was of noteworthy significance. There was no suggestion to the contrary. [ 103 ] In addition, the whole of the evidence included the fact Mr. S.D.B. had in middle-age clearly arrived at a major cross-roads in his life, for he faced the prospect of being locked away indefinitely as a dangerous offender.

He had faced nothing of the kind in the past, nothing even remotely resembling this. Dr. Wormith thought this, too, was of noteworthy significance in relation to the man’s present motivation, as opposed to his past lack of motivation, to participate in and profit from the forms of intervention currently proposed. [ 104 ] What Dr. Wormith had in mind in this connection was the fact the sentences Mr. S.D.B. had received in the past were of comparatively short duration. Only once had he been sentenced to a term of imprisonment in excess of two years less a day.

That was in 1985, when, just short of his twentieth birthday, he was sentenced to a term of three years. Otherwise, his sentences, to the extent they consisted of imprisonment, were usually in the range of three to nine months. On the odd occasion they exceeded this range but were still under two years; mostly well under two years. And, with only one exception, these sentences were imposed while he was in his teens, twenties and thirties. The exception is a sentence of 45 days in custody he received in January of 2006 for being unlawfully at large. [ 105 ] As Dr. Wormith observed, Mr.

S.D.B.’s realization that he faced the prospect of serving a sentence of indefinite preventive detention may have accounted in part for the man’s present motivation to come to grips with the things in his life that lay beneath his criminal conduct, including his drinking, philandering, and propensity to resort to violence, especially domestic violence when drinking. But, as Dr. Wormith implied, motivation is motivation, no matter its stimulus. [ 106 ] Viewed in the light of all of this, we are of the respectful opinion that the trial judge, in evaluating Mr.

S.D.B.’s motivation or lack of it, put too much stock in the man’s past failures to take advantage of, or profit from, the treatment and other programs made available to him in the past. [ 107 ] With the greatest of respect, then, we are unable to accept the trial judge’s opening remarks as providing a reasonable basis for rejecting Dr. Wormith’s positive assessment of Mr. S.D.B.’s motivation.

To the extent these opening remarks may be seen to reflect findings of fact, we might add, we are unable to defer to them, for in our respectful opinion the whole of the evidence suggests otherwise, and quite clearly so. [ 108 ] Now, the judge had more to say of the matter than this, though in a sense it is all of a piece. But he did go on to say that he doubted Mr. S.D.B.’s sincerity in stating he would like to take advantage in the future of the support available to him in the community, which is to say the First Nations communities in the Kamsack area, including the Cote and Keeseekoose Reserves.

The judge explained the basis for his doubt, saying that, while Mr. S.D.B. was a member of the Saulteaux or Cote First Nation and had grown up on the Cote Reserve, he had not lived on the Reserve for several years. And, aside from his historical roots, there was nothing in his past to suggest he had any interest in the cultural and healing traditions of his Saulteaux heritage.

Nor anything to indicate he was seriously interested in living on the Reserve in the future. [ 109 ] The judge went on to say that he did not doubt the good intentions and sincerity of those persons (the two sisters included), who testified to the First Nation’s programs available to persons on the Cote, Keeseekoose, and Key Reserves. Rather, he doubted Mr.

S.D.B.’s sincerity in saying he would like to take advantage of these resources, noting that, while the man had children living on the Cote Reserve, there was nothing in the evidence to indicate that he had any friends on the Reserve, or that the Band Council, aside from providing him with a house, could do anything “to ensure that the other reserve members would not be put at risk by his offending behaviours.” [ 110 ] With respect, we are of the view there is no more in these added remarks than there is in the opening remarks to justify rejection of Dr. Wormith’s positive assessment of Mr.

S.D.B.’s motivation regarding the treatment and other programs available in prison or, for that matter, Mr. S.D.B.’s sincerity in relation to his willingness to participate in the follow-up programs available in the community. Indeed, this business of sincerity, and what the trial judge had to say of it, is troublesome for two reasons. [ 111 ] First, what the judge said of Mr.

S.D.B.’s sincerity rests upon a questionable appreciation of the relevance of sincerity in the context of assessing the prospects of satisfactorily dealing with the risk of re-offence through long-term community supervision following release from prison. The relevance of sincerity is one thing in the context of an expressed willingness to undertake a voluntary course of action. Its relevance is quite another in the context of a compulsory course of action externally prescribed and enforced, as is customary of long-term community supervision managed by the Parole Board.

Even to the extent sincerity is relevant in the latter context, it is clearly of much less import than in the former. All of which suggests the trial judge made too much of this business of sincerity. [ 112 ] Second, the judge’s remarks in this connection reflect what appears to have been an unwitting departure from the underlay of principle informing the application of the provisions of the Criminal Code regarding dangerous and long-term offenders. He said that the Band, aside from providing Mr.

S.D.B. with a house on the Cote Reserve, could do nothing “to ensure” that the community would not be at risk were he to settle there upon his eventual release from prison. Aside from the fact the law is not concerned with the elimination of the risk, but only of its reduction to an acceptable level in the community, it is not for the Band to manage the risk. It is for others to do so, particularly the Parole Board, which has the power, among others, to enforce compliance with the conditions that attach, or may be attached, to long-term supervision in the community.

The Band can provide support, of course, including support in the form of the First Nations’ treatment and other programs available to Band members. But that is about it. The rest is for others, especially the Parole Board. This seems to have been overlooked. [ 113 ] In sum, the judge’s rejection of Dr. Wormith’s positive assessment of the prospects of the eventual control in the community of Mr. S.D.B.’s risk of re-offending came to rest on the judge’s disagreement with two aspects of the foundation for the assessment, namely Mr.

S.D.B.’s motivation and sincerity in relation to the proposed forms of intervention.

[ 114 ] With the greatest of respect, we are of the view the judge’s evaluation of these aspects of the matter is materially flawed and cannot, therefore, sustain his conclusion that, notwithstanding Dr. Wormith’s assessment, there was no reasonable possibility of the eventual control of the risk in the community as contemplated by s. 753.1(1) (

c) of the Criminal Code . In other words, we are of the view that, in light of the whole of Dr. Wormith’s assessment and the whole of the evidence touching the matter, there was no reasonable ground for the judge to ultimately conclude that, on the basis of motivation and sincerity, Mr. S.D.B. should be found to be a dangerous offender, rather than a long-term offender. [ 115 ] Speaking more broadly, we are of the opinion Mr.

S.D.B. qualifies as a long-term offender, for in our judgment there is a reasonable possibility of eventually reducing his risk of re-offence to an acceptable level in the community by means of the imposition of a suitable long-term offender sentence. We say that having in mind the whole of the evidence and a number of related considerations, including (

i) the underlay of principle at work in the case; (ii) the whole of the assessment made by Dr. Wormith, including his assessment of the nature and quality of the risk of re-offence and the factors underlying the risk; (iii) the lack of any other such assessment, particularly to the contrary; (iv) the impressive quality of the treatment and other programs available to aboriginal offenders such as Mr. S.D.B., both in prison and in the community; and (

v) the powers enjoyed by the Parole Board in relation to long-term community supervision. [ 116 ] The trial judge, we might add, did not doubt the good intentions and sincerity of the two sisters heavily involved in the delivery of the First Nations programs material to the case. If one accepts their evidence, as the judge appears to have done, the treatment, follow-up, and other programs they referred to are highly relevant, extensive, and well funded. This speaks to an impressive level of commitment in these First Nations communities to caring for the troubled among them.

This ties in with the impressive level of commitment behind the multitude of high intensity and other programs available in the Saskatchewan Penitentiary, geared as they are in so many ways to the rehabilitation of aboriginal offenders, including the like of Mr. S.D.B.. In our judgment, this should reasonably have counted for more than it did in this case; more, that is, in the context of segregating the truly dangerous offender from the long-term offender for the purposes of sentencing. [ 117 ] For these reasons, then, we have decided to allow the appeal and set aside the sentence imposed upon Mr. S.D.B..

Our reasons for doing so pertain in particular to the first of the grounds of appeal, but it will be apparent that the reasons spill over into the other grounds. It is unnecessary, however, to specifically address the others. [ 118 ] While we have decided to set aside the sentence, we are in no position to replace it with a suitable long-term sentence, as Mr. S.D.B. asked us to do, for we do not know what has transpired since the original sentence was imposed.

Hence, we shall have to remit the case to the trial judge to impose a suitable long-term offender sentence having regard for the situation as it presently exists. There will be judgment accordingly. DATED at the City of Regina, in the Province of Saskatchewan, this 7th day of December, 2012. “Cameron J.A.” Cameron J.A. “Ottenbreit J.A.” Ottenbreit J.A. “Herauf J.A.” Herauf J.A.