Docket: 1811-CR Her Majesty the Queen Appellant - v. -, 2012 SKCA 46

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 46 Date: 20120420 Between: Docket: 1811-CR Her Majesty the Queen Appellant - and - Ashton Dennis Natomagan Respondent Coram: Jackson, Smith & Herauf JJ.A. Counsel: Anthony Gerein for the Crown Terra Lennox-Zepp for the Respondent Appeal:

From: 2010 SKPC 7 Heard: September 7, 2011 Disposition: Appeal dismissed Written Reasons: April 20, 2012 By: The Honourable Madam Justice Jackson In Concurrence: The Honourable Madam Justice Smith The Honourable Mr. Justice Herauf Jackson J.A. I. Introduction [ 1 ] The Crown appeals from the decision of Harradence P.C.J. denying the Crown’s application to declare Ashton Dennis Natomagan a dangerous offender. Harradence P.C.J. declared Mr.

Natomagan a long-term offender, and sentenced him to eight years and imposed an eight-year supervision order. [ 2 ] To declare an offender a long-term offender, a sentencing judge must be satisfied that there is a reasonable possibility of eventual control of the risk of the offender’s re-offence in the community (see: s. 753.1(1) (

c) of the Criminal Code [1] ). The Crown challenges Harradence P.C.J.’s determination to that effect in the within appeal. [ 3 ] The Crown raises specific errors of law and also attacks the reasonableness of the sentencing judge’s conclusion regarding control of risk in the community. The Crown submits that s. 753.1(1)(

c) of the Code establishes a “legal standard” within the meaning of R. v. Biniaris , 2000 SCC 15 , [2000] 1 S.C.R. 381 at para. 23 and R. v. Araujo , 2000 SCC 65 , [2000] 2 S.C.R. 992 at paras. 17-18 , which gives rise to a right of appeal under s. 759(2) of the Criminal Code . [2] Further, the Crown submits that the determination by Harradence P.C.J. that Mr. Natomagan’s risk is reasonably capable of eventual control in the community is unreasonable and unsupported by the evidence, and that its right of appeal extends to such matters. [ 4 ] I conclude that the appeal should be dismissed. Harradence P.C.J. did not commit any errors of law and, assuming without deciding that s. 753.1(1)(

c) establishes a “legal standard” and that the Attorney General’s right of appeal extends to questions of reasonableness and sufficiency of the evidence, there is, nonetheless, no basis to intervene in the within appeal. II. Overview of the Dangerous Offender Hearing [ 5 ] This overview of the facts and proceedings comes from the reasons of Harradence P.C.J. (see: 2010 SKPC 7 , 349 Sask.R. 161). [ 6 ] Harradence P.C.J. described the predicate offence leading to the dangerous offender application in these terms.

On April 12, 2008, C.D., a young-looking 16 year old, was walking in a park in the centre of Prince Albert when she was the “victim of a violent, unprovoked sexual attack” perpetrated by Mr. Natomagan (see: para. 12), who was at that time 27 years old. Mr. Natomagan was originally charged with aggravated sexual assault contrary to s. 273 of the Code . On September 17, 2008, the Crown accepted a guilty plea to sexual assault causing bodily harm to C.D. contrary to s. 272(1)(

c) of the Code . When his guilty plea was accepted, these facts, describing the predicate offence, were read into the record: So it was an elbow strike to her throat. He immediately started punching her in the face as he pushed her up against a fence. He then covered D.'s mouth and said, "Shut the fuck up and don't say anything". At that time D. said that she had a hard time breathing. Mr. Natomagan then pulled down her pants and panties and pushed her to the ground. Once on the ground Natomagan touched her vagina area with his fingers, but did not penetrate her.

After that the male got off her and ran towards 28th Street and then west down the alley. Writer asked Miss D. if the male had had sexual intercourse with her and she denied it at that point in time. What she did say is that from her statement, "I provoked him to keep hitting me, rather than raping me, until the cops came around the corner. Then he ditched". (See: para. 11) Immediately after Mr. Natomagan pled guilty, the Crown applied for an order compelling Mr. Natomagan to submit to an assessment for the purpose of determining whether a dangerous offender application should be made.

[ 7 ] On December 10, 2008, the Court appointed Dr. Mansfield Mela, a forensic psychiatrist, as the Court’s expert to conduct the assessment. On February 25, 2009, Dr. Mela filed his report. On April 14, 2009, the Crown applied for an order declaring Mr. Natomagan a dangerous offender. [ 8 ] At the dangerous offender hearing, the Crown filed a series of reports prepared by Correctional Service Canada. Harradence P.C.J. described the contents and quoted excerpts from the following: (

i) a 2003 community assessment, describing Mr. Natomagan’s difficult home background; (ii) a 2003 “Criminal Profile Report,” commenting on the offender’s offence cycle; (iii) a 2003 psychological intake assessment wherein Mr. Natomagan is described as demonstrating “good precursors to successful treatment and change in behaviour” (see: para. 18); (iv) a 2004 psychological report, concluding he should be releasable prior to warrant expiry provided that he participates in counselling, particularly sexual offender treatment; (

v) a 2005 National Parole Board report ordering Mr. Natomagan detained to warrant expiry because of the absence of an adequate release plan; and (vi) a 2006 report by the Chief Psychologist at the Saskatchewan Penitentiary who recognized the gains made by Mr. Natomagan. [ 9 ] With respect to Mr. Natomagan’s past history of offending, Harradence P.C.J. noted that the offender had amassed a significant criminal record, which includes break and enters, escapes and convictions for failure to obey Court orders, but only one prior offence involving violence.

That offence, committed in Pinehouse in 2003, was a particularly violent sexual assault against an 11-year-old female child involving both vaginal and anal sexual intercourse on a victim rendered unconscious by him. Mr. Natomagan pled guilty to sexual assault, causing bodily harm, contrary to s. 272(1) (

c) of the Criminal Code . Harradence P.C.J. pointed out that, given the egregious facts presented by the case, Robinson P.C.J. sentenced Mr. Natomagan to four years with no eligibility for full parole until at least half of the sentence had been served. Mr. Natomagan was held to warrant expiry, which was January 13, 2007. [ 10 ] Harradence P.C.J. noted that this offender was sentenced again by Robinson P.C.J. on March 19, 2007, in Pinehouse, in relation to an attempted break and enter, which had occurred in Saskatoon.

The home was occupied by an elderly woman who was terrified at the offender's attempt to gain access. Judge Robinson sentenced him to 15 months incarceration. He was released on January 18, 2008, and committed the predicate offence in April of that same year. [ 11 ] With respect to the personal circumstances of Mr. Natomagan, Harradence P.C.J. referred extensively to the various reports that had been filed with him. Mr. Natomagan was born on November 21, 1981 and grew up in Pinehouse in Northern Saskatchewan. He is First Nations Cree.

He endured a troubled childhood, involving sexual and other abuse inflicted upon him and long periods of personal neglect, stemming from his parents’ serious alcohol addiction. [ 12 ] Harradence P.C.J. heard from two witnesses: Dr. Mela, and Mr. Mark Neal, a supervisor with the parole office of the Correctional Service Canada in Prince Albert, who had been called by the Crown to explain the services available in the community to supervise a long term offender. Mr. Natomagan called no witnesses and did not testify. [ 13 ] Harradence P.C.J. summarized the evidence of Dr. Mela: (

i) the offender presents as a complex case because his record, while serious, does not demonstrate a lengthy history of violent offences; (ii) the offender is reasonably intelligent, has obtained his Grade 12 equivalent through the GED program while incarcerated, has a relatively strong vocabulary and has completed all offered programming; (iii) the offender exhibits narcissistic personality traits; (iv) the offender is likely a pedophile, but a formal diagnosis would require an admission on the offender’s part, which had not been forthcoming; (

v) the offender has a severe substance addiction, which will be difficult to treat because it began at such an early age; (vi) the offender believes he was sexually abused as a child, which must be addressed as those who have been abused as children are more likely to cause further victimization; and (vii) as a youth, the offender suffered from a conduct disorder, and as an adult, he can be diagnosed with an anti-social personality disorder, which is demonstrated by his repeated failure to conform with the law, his aggression, his poor impulse control, his lying and his recklessness. [ 14 ] Dr.

Mela conducted a series of tests to assess the offender’s risk to reoffend: 1) Static 99 — a Canadian risk assessment tool which identified 14,000 sexual offenders and followed them for 15 years. This tool was designed to measure risk over the long term. Dr. Mela interpreted the score of this offender to predict, in his group, 39% of individuals would re-offend within five years. Dr.

Mela agreed that considered across the whole group the offender was in the 88th percentile . 2) Sexual Offender Risk Appraisal Guide (SORAG) — is a tool which is used to measure risk to re-offend in offenders with a confirmed mental disorder. Dr. Mela used this test in relation to this offender as he was suspected at the beginning of the assessment to have schizophrenia. Dr. Mela was not able to confirm this diagnosis.

According to the SORAG this accused falls into the group of offenders when released 58% will commit a further offence within seven years, and 80% will offend within ten years . 3) PCL-R is an assessment of personality and not strictly a risk assessment instrument. However, Dr. Mela testified that research has

shown that it is probably the most predictive of recidivism both violent and sexual. There are two factors to this instrument. Factor 1 measures affect and in this offender's score on Factor 1 he was relatively low, according to Dr. Mela at the 55th percentile. However, Factor 2 measures general criminal propensity and is very closely related to the diagnosis of anti-social personality disorder. Dr.

Mela stated that on Factor 2 this offender scored in the 100th percentile, meaning that it was not possible for any offender to score worse on Factor 2 . [2010 SKPC 7 at para. 35; emphasis added.] [ 15 ] Harradence P.C.J. noted these specific aspects of Dr. Mela’s opinion, regarding Mr. Natomagan’s risk: (

i) the offender is at a high- risk to reoffend, particularly in a sexual manner; (ii) the fact that the offender has completed treatment and then re-offended could be seen as a risk elevation; (iii) this offender was capable of understanding the treatment, was capable of learning from it, but had failed to internalize it; (iv) the pedophilic tendencies he observed could be treated through the use of medications but that treatment may be complicated because, at this stage, this offender does not admit to sexual fantasies, and any treatment of this type would need to be closely monitored and supervised; (

v) the anti-social personality disorder and the narcissistic personality traits can be treated but the treatment would need to be specialized, involving a specialized therapist, and would need to be one year at a minimum; (vi) the offender’s alcohol and drug abuse would require high intensity treatment within the institution, followed by intense close supervision in the community, which had not previously been attempted; (vii) critical to the success of the offender would be supervision within the community with every second day contact; and (viii) given the offender's present outstanding, unresolved issues, community supervision would be very challenging and probably unlikely to succeed. [ 16 ] Harradence P.C.J. summarized his assessment of Dr.

Mela’s testimony in this manner: [44] As indicated Dr. Mela used both clinical judgment and empirical research assessment instruments in assessing the risk of this individual. He summarized his testimony into three factors: 1) Offender's personality - the offender's anti-social personality with traits of narcissism and traits of pedophilia could be a significant impediment to therapy . In this regard the offender's age may be a factor. Dr.

Mela testified that as individuals reach the age of 35 to 40 their criminal tendencies tend to plateau and often after 40 years of age their fantasies usually diminish. 2) Treatment effectiveness - simply put, Dr. Mela was of the opinion that if this offender received long-term intense therapy there was a possibility of change for him . 3) Community supervision - as indicated Dr. Mela was of the opinion that this will be very challenging, probably unlikely to succeed given the offender's past failures . [45] In cross-examination Dr. Mela stated that this accused should not be released now.

However he indicated if the proposed treatment plan were to incorporate his recommendations it is possible that in the future the risk could be reasonable that the public could be protected . [Emphasis added.] [ 17 ] With respect to the evidence of Mr.

Neal, Harradence P.C.J. noted that: (i) “the high intensity sexual offender program and the high intensity alcohol program are now offered at the Saskatchewan Penitentiary” (see: para. 48) (ii) “it is possible to have them report up to five times per week in an urban setting, however in a rural setting, reporting can be more challenging” (see para. 51). (iii) “supervision of long-term offenders [is] challenging but did say that a warrant of suspension was possible for a suspected breach of a condition” (see para. 52). [ 18 ] After having recounted the evidence as outlined above, Harradence P.C.J. instructed himself on the law.

He cited the governing legislation: 753.

(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), 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 behaviouralrestraint; or (

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

b) of thedefinition of that expression in

section 752 and the offender, by his or her conduct in any sexual matter including that involved in thecommission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and alikelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses. ….. 753.1(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), findan 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 beenconvicted; (

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. [19] After citing the controlling legislative provisions, Harradence P.C.J. reviewed numerous decisions from this Court, the Court ofQueen’s Bench and the Provincial Court, and listed them in an appendix to his reasons.

From these decisions, he extracted theseprinciples (at para. 9): • The Crown has the onus of proof beyond a reasonable doubt to establish that the offender fulfils the criteria in s. 753: R. v.Ewenin, 2009 SKQB 207, para. 23. • The principles of sentencing contained in the Criminal Code, ss. 718, 718.1 and 718.2 including any Gladue [(SCC), [1999] 1 S.C.R. 688] factors flowing from s. 718.2(

e) must be considered by the Court: R. v. Nome, 2009 SKQB 149, para. 7; R.v. Badger, supra [2009 SKQB 418], para. 10; R. v. Stonechild, 2008 SKQB 98, para. 10. • If the Court is satisfied that the criteria in s. 753 relating to a designation of dangerous offender has been proven by the Crown,the Court shall, prior to imposing a dangerous offender designation, and an indeterminate sentence, consider whether the long-termoffender provisions in s. 753.1 are applicable: R. v. Ewenin, supra, para. 9; and R. v.

Johnson, [2003] 2 S.C.R. 357, 2003 SCC 46. • When considering whether there is a reasonable possibility of eventual control of the risk in the community the Court mustrecognize that this is a prediction of future behaviour. It is the Court that must be satisfied and neither the defence nor the Crown bear anonus of proof in the traditional sense: R. v.

Moosomin, 2008 SKCA 169. • When considering the possibility of eventual control in the community the Court must not equate this with hope or emptyconjecture and must recognize the mere possibility that the offender might benefit from treatment is not sufficient to warrant a conclusionthat there is a reasonable possibility of eventual control: R. v. Goforth, 2007 CarswellSask 719, 2007 SKCA 144, paras. 53 & 54; R. v.Badger, supra, para. 23; R. v. Ewenin, supra, para. 18; R. v. Redwood, 2009 SKCA 113, para. 25; and R. v.

Otto, 2006 SKCA 52, para.20. • The overriding concern in an application to designate an offender as a dangerous offender is the protection of the public: R. v.Ewenin, supra, para. 22. [20] Applying the above principles to the evidence before him, Harradence P.C.J. was not satisfied beyond a reasonable doubt that Mr.Natomagan’s behaviour fell into any of the categories outlined in s. 753(1)(

a) so as to be declared a dangerous offender pursuant to thatclause. [21] Harradence P.C.J. was, however, satisfied that the Crown had proven beyond a reasonable doubt that Mr. Natomagan’s behaviourdemonstrated “a failure to control his sexual impulses and a likelihood of causing injury, pain or other evil to other persons throughfailure in the future to control his sexual impulses” such that he met the necessary criteria to be declared a dangerous offender pursuant tos. 753(1)(b). [22] Following the procedure established by R. v.

Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, Harradence P.C.J. then turned toconsider whether the requirements of s. 753.1(1) permit Mr. Natomagan to be declared a long term offender rather than a dangerousoffender. Referring to the criteria in s. 753.1(1), he found: (

i) the offence merited a sentence of two years or more (see: s. 753.1(1)(a)); and (ii) there is a substantial risk that the offender will re-offend (see: s. 753.1(1)(b)). The only real issue was whether he was “satisfiedthat there is a reasonable possibility of eventual control of the risk in the community” so as to meet the requirements of s. 753.1(1)(c)(see: para. 69). [23] In answering this question, Harradence P.C.J. again reviewed and assessed the evidence of Dr. Mela and Mr. Neal (paras. 74-78).

In the result, Harradence P.C.J. declined to designate Mr. Natomagan a dangerous offender, but found, instead, that he is a long-term offender pursuant to s. 753.1. [ 24 ] Harradence P.C.J. then imposed an eight-year sentence for the predicate offence, giving 35 months credit for 20 months in remand, and a eight-year long-term supervision order upon his release from incarceration. He also imposed a firearm prohibition of 10 years, a DNA order and a 20-year sex offender registry order. [3] With that, the Crown appealed the decision to declare Mr. Natomagan a long term offender rather than a dangerous offender. III. Jurisdiction and the Issues [ 25 ]

Section 759 of the Criminal Code establishes this Court’s jurisdiction and the offender’s and the Crown’s rights of appeal with respect to a determination under

Part XXIV, declaring or declining to declare an offender a dangerous or long-term offender. According to s. 759(2), “the Attorney General may appeal to the court of appeal from a decision made under this Part on any ground of law ” (emphasis added). [ 26 ] The Crown submits that Harradence P.C.J. misstated the standard for declaring an offender a long-term offender and, further, that there is no evidence to support the conclusion that Mr. Natomagan can be declared a long-term offender. Further, the Crown submits that even if the sentencing judge did not commit these specific errors of law, s. 753.1(1)(

c) establishes a legal standard and the sentencing judge misapplied that standard. Finally, the Crown submits that the decision not to impose an indeterminate sentence is unreasonable and unsupported by the evidence, and that its right of appeal extends to such matters. [ 27 ] The Crown’s submissions give rise to the following issues: 1. Did the sentencing judge err in law: (

i) by misstating the standard created by s. 753.1(1)(c); or (ii) by reaching his conclusion in the face of no evidence? 2. Does s. 753.1(1)(

c) establish a “legal standard” within the meaning of Biniaris and Araujo ? 3. Does the Attorney General’s right of appeal extend to a claim that a determination under s. 753.1(1)(

c) is unreasonable or unsupported by the evidence, and if so, was that standard met in the within appeal? IV. Analysis 1. Did the sentencing judge err in law: (

i) by misstating or misinterpreting the standard created by s. 753.1(1)(c); or (ii) by reaching his conclusion in the face of no evidence? [ 28 ] The Crown has stated these as separate questions, but they can be considered together in the within appeal.

While the Crown takes issue with two passages of the sentencing judge’s reasons, the overarching question is whether Harradence P.C.J. applied a less stringent standard as evidenced by his conclusion, notwithstanding the words he used, i.e. , did he, by virtue of the result, arrive at a decision where the only evidence was hope of conversion. [ 29 ] The Crown takes issue with the sentencing judge’s treatment of his obligation under s. 753.1(1)(c), pointing mainly to the following passages from his reasons: [75] It is significant to me that the legislation uses the phrases “reasonable possibility” and “eventual control”.

This indicates a standard less than probable and denotes, as I have indicated, an assessment of future occurrences and behaviour . As was indicated by Dr. Mela during cross-examination it is acknowledged that this offender should not be released now, nor should this be the test employed by the Court. … [78] My conclusion is that Dr. Mela's evidence paints a negative picture of this offender's current status and his future prognosis. However, I am also of the view that Dr.

Mela recognized the ability of this offender and the reasonable possibility of eventual control if the offender is committed and if the intensity of the programming and supervision is available and enforced. Dr. Mela, quite appropriately, was not prepared to predict how many years it would take to achieve, nor does s. 753.1 quantify the amount of time required for eventual control.

However, it is my view, based on the evidence presented, that there is a reasonable possibility of eventual control , however a significant period of incarceration combined with a significant period of supervision is required . [Emphasis added.] [ 30 ] The allegedly offending words are “[t]his indicates a standard less than probable” (para. 75) and the sentencing judge’s references

to Dr. Mela’s opinion being qualified by “if the offender is committed and if the intensity of the programming and supervision isavailable and enforced” (para. 78). The Crown asserts two errors of law stemming from these passages: first, the sentencing judgeengaged in an inappropriate exercise of defining s. 753.1(1)(

c) thereby lessening the stringency of the test; and second, he fell into thetrap of acting on a mere possibility or hope of treatment. Both of these would be errors of law if Harradence P.C.J. had made them, butin my view he did not. [31] Clearly, it would have been preferable for the sentencing judge not to engage in a parsing of s. 753.1(1)(c). By trying to define s.753.1(1)(c), a sentencing judge runs the risk of falling into error by misstating or minimizing the obligation under the provision. It is thephrase in s. 753.1(1)(

c) and no other that must be applied. [32] The Crown also correctly notes that the jurisprudence pertaining to s. 753.1(1)(

c) demands more than a theoretical possibility ofcontrol of risk in the community. In R. v. Goforth, 2007 SKCA 144, 302 Sask.R. 265, Richards J.A. for the Court wrote: [54] The line of analysis employed by Dr. Holden and the trial judge runs counter to a substantial body of appellate level case law.Sections 753.1(1)(

c) of the Code requires that, in order to warrant a long-term offender designation rather than a dangerous offenderdesignation, there must be a reasonable possibility of eventual control in the community of the risk of reoffending posed by the offender.The authorities indicate that a "reasonable possibility", of necessity, must involve something more than hope or empty conjecture. In andof itself, the mere possibility that the offender might benefit from treatment is not sufficient to warrant a conclusion that there is areasonable possibility of eventual control of the risk of reoffending.

In other words, a dangerous offender designation is not contingenton a finding that the offender has absolutely no prospect of successful treatment while incarcerated. See also: R. v. Otto, 2006 SKCA 52, 279 Sask.R. 182 at para. 20; R. v. Dagenais, 2003 ABCA 376, [2004] 6 W.W.R. 75 at paras. 77-78;R. v. McCallum (2005), (ON CA), 201 C.C.C. (3d) 541 (Ont. C.A.) at para. 47; R. v. J.S.M., 2003 BCCA 66, 173C.C.C. (3d) 75 at para. 27; R. v. Haug, 2008 SKCA 23, 229 C.C.C. (3d) 132 at para. 86; and R. v.

Redwood, 2009 SKCA 113, 337Sask.R. 148 at para. 25. [33] After carefully reading the sentencing judge’s reasons, I cannot say that he applied the wrong test—in the sense that he failed toinstruct himself properly. To the contrary, the sentencing judge clearly instructed himself properly on the law, noting at para. 9 of hisdecision the correct principles of law and referring to considerable authority for these propositions: • When considering whether there is a reasonable possibility of eventual control of the risk in the community the Court mustrecognize that this is a prediction of future behaviour.

It is the Court that must be satisfied and neither the defence nor the Crown bear anonus of proof in the traditional sense. • When considering the possibility of eventual control in the community the Court must not equate this with hope or emptyconjecture and must recognize the mere possibility that the offender might benefit from treatment is not sufficient to warrant a conclusionthat there is a reasonable possibility of eventual control. At paras. 70-71, the sentencing judge returned to these propositions, quoting the passage from Goforth reproduced above.

Further, hiscomments at para. 75 must be read in context. [34] Harradence P.C.J. referred no less than nine times in six separate paragraphs to his obligation to be satisfied that “there is areasonable possibility of eventual control within the community.” For example, he stated: [73] Using the Saskatchewan Court of Appeal decisions as a framework it is incumbent on me to review the evidence to determinewhether I am satisfied that the evidence establishes or fails to establish that there is a reasonable possibility that this offender's risk caneventually be controlled in the community. [Emphasis added.] Throughout the trial and during the submissions of counsel, he demonstrated that he knew full well that his obligation was not to base hisconclusion on mere hope or conjecture. [35] He engaged in extensive discussions with Crown counsel at the sentencing hearing on the very point of hope not being sufficient: THE COURT: I'm going to try to stay away from the word "hope” because I–but I want to confirm a few things. . . .

MR. SCOTT: The Goforth case, it's our Court of Appeal. It's recent, and what I'm looking for is the analysis through it, and it'sparagraphs 52 through 58, I believe, and then further 66 and 65. And the reason that this case is here is I think it's direction for thoseindividuals that frankly people are hesitant to declare a dangerous offender and for lack of a better term, on a hope and a prayer think thathe is somehow going to, within a definite period of incarceration, be able to deal with those problems.

THE COURT: The cases I've looked at, and they're not exhaustive, but it's clear to me that I should refrain from using the term or theconcept "hope"–

MR. SCOTT: Hope, yes. THE COURT: – at all. MR. SCOTT: That's – THE COURT: That is very – I agree. It's very difficult to define hope – MR. SCOTT: Mmhmm. THE COURT: – and it's a very difficult standard to use, and it's frowned upon. I don't intend on – MR. SCOTT: No, and I think you made that clear when you spoke to the doctor the other day that you wouldn't be using the term"hope" in your discussion with him. THE COURT: Or the Crown having to prove its intractable, sort of, you know. I don't think hope is a proper use of my discretion. MR. SCOTT: No.

I do think though that the – how the Court of Appeal sets up how you are to analyze the issue has some benefit in this– out of this case. [Transcript, p. 364, lines 9-10; p. 450, line 12 to p. 451 line 18; emphasis added.] [36] The fundamental question remains, however, whether the sentencing judge applied a less stringent test than s. 753.1(1)(

c) demands—notwithstanding the words that he used. The resolution of that question in this case depends on whether the sentencing judge reachedhis conclusion in the face of no evidence, which is the Crown’s second question of law. [37] The Crown asserts that there is no basis in the evidence for the sentencing judge’s conclusion that Mr. Natomagan’s risk to thecommunity would be reasonably controlled. The evidence supports, according to the Crown, only the “possibility of change” rather thanthe “plausibility of it”. [38] From R. v.

J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197 at para. 25, and the authorities cited therein, it is clear that making a decisionin the absence of evidence is an error of law. It is also clear that a determination under s. 753.1(1)(

c) requires positive evidence that theoffender will be able to effect whatever changes in his or her life as are necessary to reduce his or her risk to a manageable level: R. v.Higginbottom (2001), (ON CA), 156 C.C.C. (3d) 178 (Ont. C.A.) at para. 26; R. v. J.S.M., supra at paras. 31 and 38;Otto, supra at para. 19; McCallum, supra at para. 42; R. v. Watetch, 2009 SKCA 52, 331 Sask.R. 11 at para. 8; Goforth, supra at para.65; and R. v. Moosomin, 2008 SKCA 169, 239 C.C.C. (3d) 362 at para. 56.

A sentencing judge, proposing to declare an offender a long-term offender, must have evidence as to meaningful treatment and change. [39] In R. v. Lemaigre, 2004 SKCA 125, [2005] 7 W.W.R. 52, Cameron J.A., speaking for the Court, described the necessary approachand the type of evidence required to sustain a finding under s. 753.1(1)(c): [50] I want to emphasize that what was called for was this: an assessment of the prospects of eventually reducing the risk to anacceptable level—not altogether eliminating it, but thus reducing it—should Mr.

Lemaigre be sentenced to several years in prison, beexposed to the treatment programs offered in prison, and then be released into the community under supervision and on a set ofconditions aimed at reducing the risk to an acceptable level. In the circumstances of the case, it is this which was not adequatelyexplored. [51] The circumstances of the case presented a borderline situation. That being so, specific consideration should have been given tothe rehabilitation programs offered in the Prince Albert penitentiary, especially those aimed at assisting offenders overcome problemssuch as those experienced by Mr.

Lemaigre. What programs are available? How are they structured and administered, and how effectiveare they? Are there programs geared specifically to aboriginal offenders and, if so, what are they and how do they rate? How might theavailable programs benefit this man, should he be incarcerated for four or five or six years? In short, what were the prospects ofeventually reducing the risk to an acceptable level by means, among others, of a lengthy period of incarceration with its attendantdeterrent and rehabilitative effects, especially on a 52 year-old offender such as Mr.

Lemaigre. [52] Likewise, specific consideration should have been given to the rehabilitation programs or services offered in La Loche and area.Does the Meadow Lake Tribal Council have an Aboriginal Justice Committee and, if so, how active and effective is it? Such Committeesoften wield significant influence in controlling anti-social behaviours within their reach. The Meadow Lake Tribal Council apparentlyoffers some programs, including a Dene psychotherapy program. What are they, how do they function, and how do they rate?

Inaddition, there appears to be an alcohol treatment facility in La Loche, one established relatively recently and apparently offeringtreatment in the Chipeweyan language, Mr. Lemaigre's first language. How has this initiative been received in the community, and what,specifically, does this facility offer? In sum, what are the prospects of eventually controlling the risk and reducing it to an acceptablelevel in the community by means such as these? [Italics in original; underlining mine.] Mr. Lemaigre had been declared a dangerous offender.

The Court set aside the decision and remitted it to the sentencing judge forfurther evidence.

[ 40 ] The Crown’s allegation of “no evidence,” regarding control of risk in the community, must be considered in the context of the whole of the case. Mr. Natomagan has committed two violent sexual offences, one against a mere child in 2003, and the predicate offence in 2008 against a 16 year old, who looked younger than her stated age. Because of the nature of his victims, Dr. Mela opined that it is possible he is a pedophile. Those facts cause real concern. On the other hand, as the Court stated about Mr. Lemaigre, the circumstances of this case present the Court with a borderline situation.

The offences with which Mr. Natomagan was charged and to which the Crown accepted guilty pleas were sexual assaults causing bodily harm—not aggravated sexual assaults. Further, his record discloses no other violent offences of any other sort. [4] Mr. Natomagan is also intelligent, teachable and treatable. He has demonstrated he can benefit from programming and he is remorseful. He denies being a pedophile and the Court’s expert could not determine, without the offender’s admission, whether he was one. He is a member of a First Nation and he identifies with his aboriginal heritage.

It is in the light of all these factors that the Crown’s argument of “no evidence” must be considered. [ 41 ] It is clear from a review of his reasons that Harradence P.C.J. did not minimize Dr. Mela’s or indeed his own concerns. He listed all possible negative aspects of Mr. Natomagan’s situation, but there were also positives. Dr.

Mela offered the following positive comments: • The offender demonstrated positive behaviour in the institution: “no distressing periods” and he “fitted in comfortably” (Transcript, pp. 94 and 288) • The offender understood the impact of his first sexual assault on the victim and his own family (Transcript, p. 143) • The offender has “great concern about being labelled a sex offender in the institutions” (Transcript, p. 166) • There have been no incidents in prison (Transcript, p. 288) • The offender is emotionally disturbed by what he had done (Transcript, p. 292) • The offender demonstrated remorse for his behaviour (Transcript, p. 293) • The offender now has a three-month-old son, which is a factor in giving him motivation to change (Transcript, p. 307) • The offender “did show the ability to be able to take what is in the program” and “he did very well in the [sex offender] program” (Transcript, p. 193) • The offender responded well to treatment after his earlier sexual assault, though he re-offended (Transcript, p. 311) and he demonstrated the ability to form therapist-patient relationships during that treatment (Transcript, pp. 312-13), which was described as being “an advantage in the ability that he demonstrated during the therapy” (Transcript, p. 312) • The offender is reasonably intelligent (Transcript, p. 364), has the cognitive ability to succeed (Transcript, p. 366), and does not suffer from any significant gross cognitive problems (Transcript, p. 331) • The offender should be a “candidate for treatment” (Transcript, p. 367) • The offender is “frank and open ... and he seemed genuinely ready to seek out treatment” (Dr.

Mela’s report, p. 40 and stressed by Mr. Natomagan’s counsel during closing submissions (Transcript, p. 489). [ 42 ] Dr. Mela also spoke generally about two matters that may have contributed to Mr. Natomagan’s difficulties: (

i) he has not received appropriate alcohol treatment (Transcript, p. 107); and (ii) when he went through the sex offender treatment, he was diagnosed as suffering from schizophrenia, which was a mistake (Transcript, pp. 267-68). Dr. Mela stated that “if all those conditions [that he had outlined] are satisfied in addition to the recommendations that I made for the treatment, specific issue of looking at his childhood, I think that there would be significance [ sic ] decreased [ sic ] in the risk that he will pose when released into the community” (Transcript, p. 340). [ 43 ] In cross-examination, Dr. Mela discussed what he called “three essential factors”: (

i) the “advantage in the ability that he demonstrated during therapy to form some form of relationship” balanced by “challenges he had with his therapist”; (ii) “treatment potential”; and (iii) “ability to conform with the requirements of supervision” (Transcript, pp. 312-13). He concluded by saying “[t]he biggest challenge really, in my view, has to do with his ability to conform with the requirements of supervision, which would increase that chance of the motivation that you're talking about” (Transcript, p. 313). This last point was made by Dr. Mela repeatedly—but he also demonstrated that he had no knowledge of two matters: (

i) whether necessary programming would be available within the institution (Transcript, pp. 192, 197, 268 and 271); and (ii) whether there would be systems to supervise, support and control Mr. Natomagan (Transcript, pp. 315, 317 and 319). [ 44 ] Mr. Neal, a parole officer from Correctional Service Canada, provided the pieces of information regarding supervision in the community that were missing from Dr. Mela’s knowledge. Mr. Neal testified at length about what was available to assist a person who is declared a long-term offender.

He advised the Court that sex offender programming is now available in the penitentiary and that it is possible to maintain contact with a person declared to be a long-term offender up to five times per week within the community setting (Transcript, p. 401)—the two factors that Dr. Mela stated he knew nothing about.

[45] Harradence P.C.J. questioned Crown counsel, regarding how counsel viewed what was available in the community, as presented byMr. Neal. To his considerable credit, Crown counsel responded in this way: “... [T]he point in calling him is to show the resources that are available. And I would say that that is a significant resource to him, andin some instances I would suggest that possibly that would be the determining factor before the court, and you would be satisfied thatthat type of supervision would be sufficient in some cases.” (Transcript, p. 455). Obviously, Crown counsel was of the view that Mr.

Natomagan’s problems were so fundamental that they could not be supervised in thecommunity even with this much supervision, but Harradence P.C.J. viewed the matter differently. [46] As I have indicated, Dr. Mela expressed a cautious opinion, but that opinion was supported by positive comments, and Dr. Mela’scaution was fuelled by his concern about resources in the community. Harradence P.C.J. was also concerned about controls within thecommunity for an additional reason. He opined that an opportunity had been missed when Mr.

Natomagan committed his first sexualassault offence and he was held to warrant expiry, contrary to the recommendations of the prison officials. The testimony of Mr. Neal,coupled with Dr. Mela’s previous assessment of degree of risk and Mr. Natomagan’s capacity to learn and change, was the evidencerelied upon by the sentencing judge to support his ultimate conclusion under s. 753.1(1)(c). In short, there is evidence to supportHarradence P.C.J.’s conclusion as to a reasonable possibility of eventual control of Mr. Natomagan’s risk in the community. 2. Does s. 753.1(1)(

c) establish a “legal standard” within the meaning of Biniaris and Araujo? 3. Does the Attorney General’s right of appeal extend to a claim that a determination under s. 753.1(1)(

c) is unreasonable orunsupported by the evidence, and if so, was that standard met in the within appeal? [47] The Crown asserts that s. 753.1(1)(

c) of the Code establishes a legal standard within the meaning of Biniaris and Araujo, [5] whichaccording to the Crown expands the scope of appellate review. However, if an offender appeals a dangerous offender designation, thestandard of review is reasonableness, assuming that the sentencing judge has made no error with respect to the statement of theapplicable legal test (see: R. v. Currie, (SCC), [1997] 2 S.C.R. 260). In Currie, an appeal brought by an offender, theSupreme Court of Canada held that “a finding of dangerousness” under the old s. 753(

b) of the Code is a “finding of fact, frequentlybased upon the competing credibility of experts, and as long as it is reasonable, it is a finding which should not be lightly overturned” (atpara. 17; see also para. 44). The test for dangerousness in Currie was whether the offender’s conduct “demonstrated a failure to controlhis sexual impulses and presented an existing likelihood of causing injury, pain or other evil to other members of society” (at para. 11)according to s. 753(

b) of the Code. [48] While Currie predates the 1997 amendments adding the long-term offender provisions to the Code, both the test to determinedangerousness under s. 753(

b) and the test under s. 753.1(1)(

c) require the sentencing judge to make a judgment about the futurebehaviour of the offender. In both situations, the sentencing judge weighs the whole of the evidence, made up of many discrete parts, inorder to assess what will happen when the offender is released into the community. As the Court stated in Currie in relation to s. 753(b),the determination under s. 753.1(1)(

c) is the fact to be found. Indeed, this Court has used the standard of review of reasonableness toassess offender appeals subsequent to the 1997 amendments (see, for example, R. v. Sakebow, 2004 SKCA 127, [2005] 5 W.W.R. 82 atpara. 4; and R. v. Starblanket, 2006 SKCA 78, 285 Sask. R. 35 at para. 3.) Thus, assuming that s. 753.1(1)(

c) of the Code establishes alegal standard within the meaning of Biniaris, the Crown can ask for no greater standard of review against which to measure thesentencing judge’s determination of eventual control of risk within the community than on the basis of reasonableness. In short, afinding that s. 753.1(1)(

c) establishes a legal standard does not increase the scope of appellate review. [49] The Crown also submits that the Attorney General has a right of appeal under s. 759(2) of the Code on the ground that thesentencing judge’s finding under s. 753.1(1)(

c) of a reasonable possibility of eventual control of the risk posed by the offender in thecommunity was unreasonable or was not supported by the evidence. Without deciding the issue, it is questionable whether the Crownhas a right of appeal that allows it to contest the reasonableness or the sufficiency of the evidence supporting a determination unders. 753.1(1)(c). See: R. v. Young (1998), (NL CA), 159 Nfld. & P.E.I.R. 136 (Nfld. C.A.) at para. 42 and R. v.Bouillon, 2006 Q.J. No. 6287 at para. 43. [50] The clear language of s. 759 of the Criminal Code is a difficult hurdle for the Crown to overcome.

On a Crown appeal from thedismissal of a dangerous offender application, the jurisdiction of an appellate court is fixed by s. 759(2) of the Criminal Code: 759(2) The Attorney General may appeal to the court of appeal from a decision made under this Part, on any ground of law. [Emphasisadded.] This is to be contrasted with the more expansive right of appeal granted to someone declared to be a dangerous offender pursuant to s.759(1).

[51] Whereas the Crown is limited to appealing on a question of law under s. 759(2), an offender who is found to be a dangerousoffender may appeal on any ground of fact or mixed law and fact as well as on a ground of law. Subsection 759(1) of the Code provideson this latter point: 759(1) An offender who is found to be a dangerous offender or a long-term offender may appeal to the court of appeal from a decisionmade under this Part on any ground of law or fact or mixed law and fact. [Emphasis added.] Thus, the Code provides asymmetrical rights of appeal as between an offender and the Attorney-General.

These asymmetrical rights ofappeal parallel the expansive right of appeal given to a convicted person by s. 675[6] and the limited right of appeal given to the Crownappealing from an acquittal under s. 676.[7] In Biniaris, the Supreme Court of Canada maintained the distinction between ss. 675 and676, holding that a convicted person has a right of appeal based on the reasonableness of the verdict or the sufficiency of the evidence,but the Crown does not have a right of appeal on those bases. [52] An

interpretation of ss. 759(1) and (2) that permits the Crown to appeal “unreasonable” findings made under s. 753.1(1)(

c) rendersboth parties’ rights of appeal essentially identical, despite the language of s. 759 and the similar language in ss. 675-76 and the Court’sconclusion in Biniaris. Any analytical difficulty presented by a lack of a “presumption of innocence” when making a determinationunder s. 753.1(1)(c), as opposed to when someone is acquitted, is likely overborne by what appears to be Parliament’s unambiguousintent to establish asymmetrical rights of appeal for offenders and the Attorney General. If the Attorney General has a right of appeal onthe footing that the sentencing judge’s determination under s. 753.1(1)(

c) is “unreasonable” absent any other error of law, the effectwould be to obliterate the distinction between the two distinct rights of appeal apparently intended by Parliament and would not maintainthe parallel with respect to appeals from verdicts. [53] However, the scope of the Crown’s right of appeal and this Court’s jurisdiction to entertain that appeal need not be answered withrespect to Mr. Natomagan as I am satisfied that the judge’s determination under s. 753.1(1)(

c) is reasonable and is supported by theevidence. [54] The Supreme Court of Canada in Currie describes the reasonableness standard of review: [33] In this respect, the role of an appellate court is to determine if the dangerous offender designation was reasonable. This standard ofreasonableness is similar to the traditional standard employed by appellate courts in their review of verdicts under s. 686(1)(a)(

i) of theCriminal Code. Reasonableness is the appropriate standard of review in this case because, as much as dangerous offender status is a partof the post-conviction process, the application of general standards of sentence review is not warranted given the broad language of s.759. Section 759(1) provides: 759.

(1) A person who is sentenced to detention in a penitentiary for an indeterminate period under this Part may appeal to the court ofappeal against that sentence on any ground of law or fact or mixed law and fact. [Emphasis added by S.C.C.] Given this provision, I do not find the "manifestly wrong" or "demonstrably unfit" general sentencing standards developed and applied incases such as R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227, R. v. M. (C.A.), (SCC), [1996] 1 S.C.R.500, or R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948, to be applicable to this situation.

However, it is equally true thats. 759 cannot be interpreted as calling for the equivalent of a trial de novo on the dangerous offender application. Some deference to thefindings of a trial judge is warranted. After all, credibility should be assessed and findings of fact should be made by the trier of fact. Thetrier of fact is present when the testimony is being given and has the contemporaneous ability to assess each witness. [Emphasis added.] While an appeal court must weigh the evidence, a de novo hearing is not warranted.

Some deference to the findings of the sentencingjudge is warranted. [55] In the within appeal, Crown counsel invites the Court to take a fresh look at the evidence and to review the various transcripts andCorrectional Service Canada reports in a far more detailed manner than had been demanded of the sentencing judge. In my view, Crowncounsel asks this Court to conduct a de novo hearing and substitute our view entirely for that of the sentencing judge. [56] This Court must also be mindful of what the Supreme Court stated in R. v. Lyons, (SCC), [1987] 2 S.C.R. 309.

InLyons, the Supreme Court conceived of the dangerous offender legislation as applying narrowly to offenders who are “highly” dangerous(at p. 347): ... [T]he legislation narrowly defines a class of offenders with respect to whom it may properly be invoked, and prescribes quitespecifically the conditions under which an offender may be designated as dangerous.... [T]hese criteria ... are anything but arbitrary inrelation to the objectives sought to be attained; they are clearly designed to segregate a small group of highly dangerous criminals posingthreats to the physical or mental well-being of their victims. [Emphasis added.] [57] Similarly, Cameron J.A., speaking for this Court in Lemaigre, indicated that sentencing judges must “bear in mind that Parliamentintended the sentence reserved for dangerous offenders to apply only to that very small group of offenders whose personal characteristics

and particular circumstances militate strenuously in favour of indefinite preventive detention” (see: para. 15, emphasis added). [ 58 ] Mr. Natomagan’s offending is serious, but not as serious as the many other offenders declared to be dangerous in this jurisdiction and elsewhere (compare, for example, this case with R. v. C.B.H. , 2004 SKCA 39 , 249 Sask.R. 131, affirming 2003 SKQB 305 and R. v. Haug , supra ). More importantly, as the review of the evidence conducted for the purposes of determining whether there was some evidence to support the sentencing judge’s conclusion indicated, there was evidence directed to: (

i) the nature of Mr. Natomagan’s offending; (ii) his personal attributes; (iii) programming within the institution and in the community; (iv) supports and controls within the community; and (

v) the likelihood of success of controlling risk. Mr. Natomagan has the intelligence and the willingness to undergo treatment. He is also remorseful. While Crown counsel asked us to interpret Mr. Natomagan’s failure to testify against him, he was fully cooperative with Dr. Mela, expressed repeatedly his remorse and he pled guilty—a significant expression of remorse in and of itself. [8] For this Court to hold, in these circumstances, that the sentencing judge’s determination under s. 753.1(1)(

c) is unreasonable or unsupported by the evidence would be difficult indeed. [ 59 ] Based on his interventions during the trial and his reasons, it is reasonable to conclude that Harradence P.C.J. was focussed on the requirements of s. 753.1(1)(

c) as discussed in Lemaigre : (

i) the precise nature of the risk involved; (ii) what was available within the institution; (iii) what resources could be provided in the community; and (iv) whether Mr. Natomagan would respond to the treatment, the programming and the supervision. In the context of this case, with this offender and his offending record, the ultimate conclusion of Harradence P.C.J. as to the eventual controllability of Mr. Natomagan’s risk in the community is reasonable and supported by the evidence. V. Conclusion [ 60 ] The appeal is dismissed.

DATED at the City of Regina, in the Province of Saskatchewan, this 20 th day of April, A.D. 2012. __ “Jackson J.A.” _______________________ Jackson J.A. __ “Jackson J.A. for” ____________________ Smith J.A. __ “Herauf J.A.” _______________________ Herauf J.A.