Docket: 1814-CR James Richard Standingwater Appellant - v. -, 2013 SKCA 78

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 78 Date: 2013-07-17 Between: Docket: 1814-CR James Richard Standingwater Appellant - and - Her Majesty the Queen Respondent Coram: Jackson, Ottenbreit & Caldwell JJ.A. Counsel: Donald J. Mullord, Q.C. and Lori Johnstone-Clarke for the appellant W. Dean Sinclair for the respondent Appeal: From: 2010 SKQB 33

Heard: November 1, 2012 Disposition: Dismissed Written Reasons: July 17, 2013 By: The Honourable Mr. Justice Caldwell In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Ottenbreit Caldwell J.A. Introduction [1] James Richard Standingwater appeals from a decision declaring him a dangerous offender and sentencing him to anindeterminate period of imprisonment. [2] Mr. Standingwater has been convicted of approximately 70 criminal offences, many of which were violent or weapons-relatedoffences committed against the same person: the woman who has been his common law spouse.

He committed the predicate offence – avicious and prolonged assault upon his by then former spouse – while under a bail condition that he have no contact with the victim. Byway of rough description, in the predicate offence Mr. Standingwater broke into the home of his former spouse, inflicted serious personalinjuries upon her, by punching and kicking her, following which he choked her into unconsciousness. He then took her, while she wasunconscious, to his parents’ residence where he kept her confined and without medical treatment until she was freed by police uponexecution of a Feeney warrant [R. v.

Feeney, (SCC), [1997] 2 S.C.R. 13] a week after the assault. [3] Following his conviction, after a much-delayed trial on the predicate offence of assault causing bodily harm (s. 267(

b) of theCriminal Code), the judge granted the Crown’s application to have Mr. Standingwater declared a dangerous offender and she sentencedhim to an indeterminate period of imprisonment (sentencing decision: 2010 SKQB 33). Mr. Standingwater appeals from that decision onseveral grounds, but chiefly that the trial judge erred in law in her consideration of the assessment evidence before the court and that thesentence of imprisonment for an indeterminate term is unreasonable. [4] Having considered the order appealed from and Mr. Standingwater’s submissions thereon, I would dismiss the appeal.Mr.

Standingwater’s designation as a dangerous offender and the sentence imposed in this case are thoroughly supported by the facts, asthe trial judge found them, and his sentence is a reasonable one. Background [5] The trial judge chronicled Mr. Standingwater’s record of committing serious personal injury offences in her written reasons (see:R. v. Standingwater, 2010 SKQB 33, 351 Sask. R. 96, at para. 30). I need not recount Mr.

Standingwater’s entire and lengthy history ofcriminal violence but, as background to these reasons, it is important to understand the nature of his violence and to know that he hasacted violently towards others throughout his life. [6] His now former common law spouse has been a focus of his violence throughout their relationship and after. The serious personalinjury offences he has committed against her led to ten of his convictions.

His violent behaviour towards his now former spouse hasescalated in severity and frequency over time and the assaults have often occurred in front of their children or other family members. Theserious personal injury offences Mr. Standingwater has committed with respect to his former spouse include numerous assaultssimpliciter, assaults causing bodily harm, assault with a weapon (i.e., a firearm), unlawful confinement, unlawfully pointing a firearm,and uttering threats.

His record shows several convictions for attempting to obstruct justice by threatening his former spouse in anultimately unsuccessful effort to persuade her to lie to the police and the court about his assaults on her. The trial judge found that whenhis attempts at obstruction eventually failed, he counseled an inmate at Pine Grove Correctional Centre to arrange for female members ofthe Indian Posse to assault his former spouse if she were to find herself back in custody (she had earlier been incarcerated there forrefusing to testify against him).

Finally, he has breached every no contact order made against him with respect to his former spouse. [7] His violence has not been directed only toward his former spouse. At age 13 he sexually assaulted a younger male cousin andlater garroted a smaller classmate with fishing line. He assaulted a physically disabled cousin. In his early 20s, he assaulted his sister,who was six months pregnant, inter alia by kneeing her in the abdomen, but he also used a firearm to threaten her, her then unborn childand her other children with death.

More recently, he assaulted a fellow prisoner (who was shackled and otherwise unable to use his handsto defend himself) with whom, not coincidentally, Mr. Standingwater’s former spouse had allegedly had a relationship. [8] As is evident, Mr. Standingwater preys upon the weak or weakened and, generally, he perpetrates his acts of violence onmembers of his family. [9] Mr. Standingwater has made a few attempts to address his violent behaviour and addictions.

Under a domestic violence optionprogram of the Provincial Court of Saskatchewan he entered therapy at the Battlefords Mental Health Centre and was, apparently, doingwell until group sessions were discontinued (1989). He completed a substance abuse program at the St. Louis Alcoholism RehabilitationCentre, but remained sober for only six months thereafter (1997). He entered but did not complete an Alternatives to Violence Program

(1997). While incarcerated in the Saskatchewan Penitentiary, he successfully completed the Cognitive Living Skills program (2001) and completed, albeit with difficulties, an OSAPP substance abuse program (2002); and, although recommended for the ABC high-intensity violent offender treatment program (2001) he did not pursue that program and, in lieu, attempted unsuccessfully to take a different program entitled “In Search of Your Warrior” (which was then a pilot-project and unavailable to him).

Some of the details of his attempts to address his criminal behaviour and addictions are set out in the trial judge’s decision. [ 10 ] On the basis of this documented history as well as their tests of and interviews with Mr. Standingwater, Dr. Roger Holden and Dr. Stephen Wormith completed assessments of him, the former pursuant to s. 752.1(1) of the Criminal Code and the latter at the behest of Mr. Standingwater. To paraphrase, their respective reports to the court and testimony were as follows: (

a) Dr. Holden (paras. 89-97): Mr. Standingwater is a high risk to re-offend in a violent manner. He has a chronic alcohol addiction and is a violent person, especially when he is intoxicated. He does not express remorse for his wrongdoings, is facilitated in his wrongdoings by his parents and family, does not accept culpability for his offences, minimizes his criminal behaviour and, as a result, has a poor prognosis for treatment. Mr. Standingwater is highly-intelligent but has an antisocial personality disorder.

He is indifferent to rules, adjusts poorly in the community, conducts criminal activity, and has psychopathic tendencies and, as a result, Dr. Holden was less than optimistic about a positive treatment outcome. Mr. Standingwater requires high-intensity, violence-related programming and intensive substance abuse treatment. He requires a significant attitudinal change to stop drinking. While not impossible, it is highly unlikely he will quit drinking. The trial judge summarized Dr. Holden’s assessment of Mr. Standingwater as follows: 94 Dr.

Holden concluded that Standingwater is treatable because he is intelligent, young and wants to get out of jail. However, his prognosis for Standingwater is guarded. Standingwater’s ability to benefit from treatment is unknown. Dr. Holden cannot estimate a time frame for eventual control in the community of Standingwater’s risk to re-offend. 95 All that being said, Dr. Holden concluded that the court ought to find Standingwater a long-term offender. … 97 Dr. Holden stated that he has “guarded hope” for Standingwater.

If Standingwater addresses his impulsiveness and alcoholism, and learns more appropriate behaviour, Dr. Holden’s hope is guarded but good. If Standingwater drinks alcohol again, the prognosis is poor to non-existent. (

b) Dr. Wormith (paras. 98-107): Mr. Standingwater is a high risk to reoffend generally and violently. He requires intensive programming to deal with his substance abuse and his domestic violence. He has an antisocial personality disorder, is intelligent and has the potential to learn. A full scope of treatment has not been provided to Mr. Standingwater in the past, but a fixed sentence would provide a time frame for Corrections Services Canada to provide the programming Mr. Standingwater requires. The dangerous offender application is a sufficient motivation for Mr.

Standingwater to take responsibility for his behaviour and to reduce his risk to the public. His risk can be reduced if he takes treatment, but this presumes that he will participate in programming, will exhibit positive and appropriate behaviour while incarcerated, will not drop out of the programs, and that he will internalize the programming. In this respect, Mr. Standingwater’s history of decreasing involvement in programming offered to him while incarcerated is “of concern”. The trial judge summarized Dr. Wormith’s assessment as follows: 106 All that being said, Dr.

Wormith concluded that a long-term offender designation is appropriate. However, Standingwater may not be able to return to his home community for supervision because it is too easy for him to return to his former lifestyle. 107 Dr. Wormith could not provide an opinion on the length of time it will take for Standingwater to benefit from programming such that his risk to re-offend may be controlled in the community. He stated that it all depends on Standingwater’s rate of progress. It is Dr.

Wormith’s hope that Standingwater takes advantage of the opportunity to reduce that risk. [ 11 ] The trial judge qualified a third expert witness, Deborah Farden, to provide expert evidence as to intimate partner violence, including the treatability of intimate partner offenders and the availability of treatment options in the community. While the admission of her testimony and its use by the trial judge are challenged by Mr. Standingwater in this appeal, a review of her evidence here is not necessary. Analysis [ 12 ] The trial judge declared Mr.

Standingwater a dangerous offender under s. 753(1) of the Criminal Code and sentenced him to an indeterminate period of imprisonment pursuant to s. 753(4) , but, properly, only after she considered and rejected the possibility that he might satisfy the requirements of a long-term offender under s. 753.1 . The trial judge rejected that possibility because she was not satisfied “a reasonable possibility of eventual control of [the risk that Mr. Standingwater will reoffend] in the community” existed on the evidence before her (s. 753.1(1)(c)). Having considered Mr.

Standingwater’s extensive record of criminal violence and high risk of violently reoffending, the trial judge particularly pointed to the inability of Drs. Holden and Wormith to estimate how long it would take Mr. Standingwater to benefit from treatment, the “non-existent support system” in his home community, his long history of non- compliance with court orders, the complete ineffectiveness of past treatment and programming aimed at his rehabilitation, and his continued threats against his former spouse as material factors in her determination.

She found, in these circumstances, a determinate sentence followed by a long-term supervision order was not appropriate as the possibility that Mr. Standingwater’s risk to reoffend could be eventually controlled in the community was “so remote that the requirements of s. 753.1(1) (

c) of the Criminal Code are not satisfied.” [ 13 ] Mr. Standingwater alleges error on the part of the trial judge in her rejection of the long-term offender designation as being

appropriate in the circumstances. He asserts that the trial judge erred in law when she rejected the possibility that he is a long-termoffender because she: (

a) erroneously rejected Dr. Wormith’s opinion evidence; (

b) erroneously permitted Ms Farden to give expertevidence in a subject outside her qualification as an expert; (

c) erroneously accepted and relied on evidence tendered by Ms Farden whenthere was no proper foundation for that evidence; and (

d) failed to apply the principles set forth in R. v. Gladue, (SCC),[1999] 1 S.C.R. 688, at para. 93. Moreover, Mr. Standingwater generally submits that his sentence to an indeterminate period ofimprisonment is unreasonable. I address his submissions in that order. Dr. Wormith’s Assessment [14] Mr. Standingwater engaged Dr. Wormith, a forensic psychologist, to offer his assessment as to whether Mr. Standingwater shouldbe declared a dangerous offender or long-term offender. Dr. Wormith assessed Mr.

Standingwater as having a high risk of violentlyreoffending, but not as a person befitting a dangerous offender designation. As to the latter conclusion on the ultimate issue before thecourt, Dr. Wormith noted that statistically the dangerous offender designation has been reserved solely for the worst offenders who had ahigh likelihood of offending in a serious manner (i.e., 2.8% of all federal offenders). He assessed the qualitative nature of the predicateoffence in this case as being of lesser quality than the offences committed by the most serious of federal offenders. Consistent with theseobservations, Dr.

Wormith recommended the court declare Mr. Standingwater a long-term offender and sentence him accordingly. Hedid not provide any particular assessment as to the appropriate period of imprisonment or appropriate duration of long-term supervisionof Mr. Standingwater in the community. The trial judge rejected Dr. Wormith’s assessment that a long-term offender designation was theappropriate designation for Mr. Standingwater because it was premised on a misapprehension of the facts and the law; and, she was rightto do so. [15] A review of Dr.

Wormith’s assessment report and his testimony indicates that his appreciation of Mr. Standingwater’s personalcircumstances and history of violent criminal behaviour was imperfect and largely predicated on Mr. Standingwater’s version of events.This resulted in several material errors in the facts relevant to Dr. Wormith’s assessment, not the least of which was his misapprehensionthat, as an adult offender, Mr. Standingwater had only violently victimized his former spouse. He was apparently under a mistaken beliefthat the assaults Mr.

Standingwater had committed on his pregnant sister and the shackled inmate had been perpetrated upon Mr.Standingwater’s former spouse. Dr. Wormith also inappropriately described Mr. Standingwater’s family as supportive which completelyignored the facilitating roles both of his parents and his son had played in the assault and unlawful confinement of his former spouseduring the predicate offence. Perhaps because he was under a mistaken belief that Mr. Standingwater’s former spouse had been thevictim of all assaults, Dr. Wormith opined that the gravity of Mr.

Standingwater’s assaults on his former spouse were “fairly consistent”and without escalation after 2001, which overlooked the fact that the later spousal assaults were more prolonged and more vicious thanthe earlier spousal assaults. Moreover, Dr. Wormith was entirely unaware of certain facts which he admitted, after they were put to himin cross-examination by the Crown, caused him to have “concerns” with respect to his overall assessment of Mr. Standingwater. [16] In

summary, the cogency of Dr. Wormith’s assessment was undermined by his misapprehensions as to the nature and severity ofMr. Standingwater’s violent behaviour and the circumstances under which the violence had occurred. Indeed, the circumstances whichformed the basis for Dr. Wormith’s assessment were, in no small part, not those which were before the court. Moreover, the overallcoherence of Dr. Wormith’s assessment was called into question by a critical misapprehension as to the law which Dr. Wormithacknowledged in cross-examination. [17] In his testimony and assessment report, Dr.

Wormith referred to his understanding that the dangerous offender designation hasbeen reserved for those offenders who present the most extreme risk of reoffending (i.e., to his understanding, only 0.63% of offendershad been admitted to Corrections Services Canada institutions as dangerous offenders under a new warrant of committal in 2007/2008and only 2.8% of the entire 2008 federal inmate population had been designated as dangerous offenders); whereas Mr.

Standingwater hadscored “basically in the top 15%” of federal inmates on tests used to determine his likelihood of recidivating and recidivating violently.This led Dr. Wormith to conclude as follows: “[c]onsequently, based on risk alone, Mr. Standingwater may not merit [a dangerousoffender] designation.” [18] In addition, Dr.

Wormith had concluded that the nature and severity of the predicate offence was “relatively less serious that [sic]those committed by most dangerous offenders” and that “although it, like any incident of domestic violence, could have turned out muchworse, it does not appear to have had the ‘brutality’ as described in s. 753(1)(a)(iii) of the Code, to merit a dangerous offenderdesignation.” [19] Unfortunately, analyses of this nature do not address the legal requirements set out in

Part XXIV of the Criminal Code and Dr.Wormith so much as acknowledged that in his testimony. According to the Criminal Code, a dangerous offender is an offender whostands convicted of a “serious personal injury offence” of the kind described in s. 752 and who: (i) “constitutes a threat to the life, safetyor physical or mental well-being of other persons” (s. 753(1)(a)); or (ii) “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”(s. 753(1)(b)). With respect to the first of these

definitions, the Criminal Code provides three standalone measures by which a court is todetermine, on the basis of the evidence adduced, whether an offender is a dangerous offender. They are: (

a) a pattern of repetitive behaviour by the offender, of which the predicate offence forms a part, showing a failure to restrain his orher 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 (s. 753(1)(a)(i)); (

b) a pattern of persistent aggressive behaviour by the offender, of which the predicate offence forms a part, showing a substantialdegree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or herbehaviour (s. 753(1)(a)(ii)); or (

c) any behaviour by the offender, associated with the predicate offence, that is of such a brutal nature as to compel the conclusionthat the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint. [20] The Supreme Court of Canada has determined that these alternative measures meet the “highest standard of rationality and

proportionality that society could reasonably expect of Parliament” in that they carefully define a “very small group of offenders whosepersonal characteristics and particular circumstances militate strenuously in favour of preventive incarceration” (R. v. Lyons, (SCC), [1987] 2 S.C.R. 309, at p. 339). [21] In a limited respect Dr. Wormith’s understanding was correct: the dangerous offender designation is reserved for the very smallgroup of the worst offenders.

However, the Criminal Code neither sets forth a specific percentage of risk which is intolerable nor does itstate that only a certain percentage of all offenders may be considered dangerous offenders. Moreover, other than under s. 753(1)(a)(iii),the measures set forth in the Criminal Code for determining whether an offender is a dangerous offender do not mandate any qualitativecomparison of the brutality of a predicate offence with the brutality of like offences committed by those offenders who have beendesignated dangerous offenders.

A predicate offence does not have to meet a defined level of brutality before a dangerous offenderdesignation is warranted; rather, any offender may be designated a dangerous offender if the evidence establishes, to the satisfaction ofthe court, that any of the three alternative measures set forth in s. 753(1)(

a) has been met. [22] Returning then to Dr. Wormith’s assessment, Dr. Wormith admitted under cross-examination that the criteria he used to assesswhether an offender is a dangerous offender is not that which is set out in the Criminal Code. He further acknowledged that the evidencein this case established that the measures set forth under ss. 753(1)(a)(

i) and (ii) of the Criminal Code had been met. Nevertheless, itremains that Dr. Wormith’s assessment that a long-term offender designation was more appropriate in Mr. Standingwater’scircumstances than a dangerous offender designation was predicated, in no small part, on his own idea of what circumstances merited adangerous offender designation. [23] In simple terms then, Dr. Wormith’s ideas about the circumstances meriting a dangerous offender designation and hismisapprehensions about Mr. Standingwater’s criminal history and the nature of Mr.

Standingwater’s offences all served to discredit Dr.Wormith’s assessment that a long-term offender designation was more suitable than a dangerous offender designation in this case. Whilea trial judge is not bound to accept any assessment (R. v. Badger, 2012 SKCA 119, 405 Sask. R. 97 at para. 94), it is evident the trialjudge here properly considered and weighed Dr. Wormith’s assessment having regard for its foundation, for the evidence bearing uponthe subject and for the underlay of general principles at work in a

Part XXIV proceeding and, after doing so, found more than a sufficientbasis to disregard Dr. Wormith’s conclusion that a long-term offender designation was appropriate. I find her conclusion in this regardentirely supported by the evidence which was before her. As such, this ground of appeal is dismissed. Ms Farden’s Evidence [24] Mr. Standingwater properly objects to the trial court’s receipt of much of the evidence tendered by the Crown through Ms Farden.Here, Mr.

Standingwater submits that Ms Farden gave expert evidence in a subject outside her qualification as an expert and that the trialjudge accepted and relied on that evidence when there was no proper foundation for it. While I find merit in these submissions, I amnevertheless of the opinion that no substantial wrong or miscarriage of justice occurred as a result. Let me explain. [25] Ms Farden has significant experience with spousal assault victims and in treating their abusers. Academically, she holds a Mastersof Education with a specialization in counselling psychology.

From her work and education, she knows about the dynamics of spousalviolence and is familiar with the leading research in that field. On that basis, she was qualified by consent as a Crown expert witness togive opinion evidence on: (

i) the treatability of intimate partner offenders; and (ii) the availability of treatment options in the community.As the Crown and defence counsel had apparently agreed to those qualifications in advance of the sentencing hearing, the qualificationsdo not result from the careful assessment and cautious delineation in court of the scope of the proposed expert evidence (see: Vigoren v. Nystuen, 2006 SKCA 47, 266 D.L.R. (4th) 634 and R. v. Abbey, 2009 ONCA 624, 246 C.C.C. (3d) 301among others).

Importantly, theCrown did not seek to have Ms Farden qualified, by consent or otherwise, to provide an assessment of the risk that Mr. Standingwaterwould reoffend or as to the nature of that risk. [26] Nevertheless, in her testimony in chief, Ms Farden stated she had recently attended a workshop about a “danger assessment scale”for spousal violence where approximately 20 “lethality indicators” had been identified. She said the most important lethality indicatorsare stalking, an unemployed male, prior spousal violence, a history of avoiding arrest, and children in the home who do not belong to theoffender.

Ms Farden testified that if these factors are present there is a high risk for lethality. She later added that substance addictionelevates this risk, that the vast majority of “femicides” occur during or within six weeks of separation, and that one of the mostsignificant lethality indicators is an overt threat of death. [27] When summarising Ms Farden’s evidence, the trial judge said: [86] Farden does not know [Mr. Standingwater] and did not comment on him personally. However, I find that the evidence before thecourt points to a high lethality risk of femicide in [Mr.

Standingwater’s] situation with [his former spouse]. He continues to stalk [hisformer spouse] by letter, attempting to put her freedom in jeopardy for his personal gain. The numerous obstruction convictions in thiscase result from [Mr. Standingwater’s] attempt to dissuade [his former spouse] from testifying against him. The serious spousal violenceof 2000 was followed by a second serious spousal violence perpetrated against [his former spouse] again not long after [Mr.Standingwater’s] release from incarceration. … [88] Neither Dr. Holden nor Dr. Wormith see themselves as experts in intimate partner violence.

Farden’s testimony was helpful forthe court to appreciate [Mr. Standingwater’s] level of risk to harm [his former spouse]. [28] Later in her reasons, when considering the appropriateness of a long-term offender designation under s. 753.1(1)(c), trial judgeconcluded as follows:

[122] The expert testimony of Deborah Farden must be considered. The factors outlined by Farden provide a high lethality risk forfemicide in [Mr. Standingwater’s] present situation. [His former spouse’s] safety cannot be ignored. As shown by the transcript of mydecision on conviction dated September 17, 2008, [Mr.

Standingwater] has made threats against [his former spouse] after she testifiedagainst him in 2005: [51] Interestingly, letters seized by Robert Legue as a result of the Saskatoon Correctional Centre routine inspection of cells shows adifferent side of the accused after [his former spouse] did testify against him in Provincial Court. The letter (Exhibit P-12) dated June 13,2005, written by the accused states: “I can’t believe that I let my ex con me into her trap, that fucking sneaky bitch. Hey, is there any (IP) girls in there? If my ex goes back inthere I will find a way to have her tuned up ...” [52] Mr.

Legue, the corrections supervisor, explained that “IP” refers to Indian Posse. Because the contents of the letter seemed to bethreats against [Mr. Standingwater’s former spouse], he notified the Crown about it. [123] [Mr. Standingwater’s] long history of non-compliance with court orders, including his recent contact with [his former spouse] toattempt to obstruct justice, provides no assurance that he can be controlled in the community. A determinate sentence followed by a longterm supervision is not appropriate. The possibility that [Mr.

Standingwater’s] risk to re-offend can be eventually controlled in thecommunity is so remote that the requirements of s. 753.1(1)(

c) of the Criminal Code are not satisfied. [29] These passages set out the most troubling aspect of the trial judge’s reasons. As is evident, the trial judge received Ms Farden’sevidence and examined the facts before her. She concluded that many of the factors enumerated by Ms Farden were present in this case.This led her to find a “high lethality risk” in the circumstances.

And, in my respectful opinion, this finding results from an error in law. [30] While laterally related to the treatability of intimate partner offenders, the testimony summarized above treads heavily into riskassessment and, in that it does, it falls wholly outside the boundaries of Ms Farden’s qualified expertise. For that reason, the evidence was not admissible (Parker v. Saskatchewan Hospital Assn., 2001 SKCA 60, 203 D.L.R. (4th) 657).

In my respectful view, in hergatekeeper role, the trial judge should not have accepted Ms Farden’s comments in this respect into evidence, notwithstanding that Mr.Standingwater did not object to it (see: Vigoren v. Nystuen, R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, and R. v. Mohan, (SCC), [1994] 2 S.C.R. 9). [31] Furthermore, having received it, the trial judge should have given Ms Farden’s evidence little or no weight. The trial judge had nofoundation upon which to assess efficacy of the “danger assessment scale” for spousal violence or the usefulness of the “lethalityindicators”.

While Ms Farden testified she had recently attended a workshop on the subject, the Crown offered no evidence as to whetherthe danger assessment scale for spousal violence could be or had been tested or had been subjected to peer review and publication, towhat degree it had been accepted by those in the field, or as to its known or potential error rate, etc. (see: R. v. J.-L.J., and R. v.

Mohan).In such circumstances, the helpfulness of such “expert” evidence cannot be assessed and, therefore, it should be accorded little or noweight. [32] Yet even though the trial judge said Ms Farden’s evidence was “helpful” and began her conclusion that Mr. Standingwater is adangerous offender with reference to that evidence, it is difficult to actually assess what weight she put on it in the course of her overalldetermination that there was no reasonable possibility of controlling the risk posed by Mr. Standingwater.

By her own words, sheconfined the “helpfulness” of the evidence to the determination of the “level of risk to harm” to Mr. Standingwater’s former spouse –which indicates she considered the evidence under s. 753.1(1)(b). The trial judge appears to make her determination under s. 753.1(1)(c),at least in paragraph 123, solely on the basis of Mr. Standingwater’s “long history of non-compliance with court orders”, which was notidentified as a “lethality indicator” by Ms Farden. [33] If, as she said, she confined Ms Farden’s evidence to the nature of the risk posed by Mr.

Standingwater, she could not have given itmuch weight. While the trial judge rejected the long-term offender recommendation made by both of the experts who were qualified toassess the nature and quality of the risk posed by Mr. Standingwater, she did not reject their assessment of that risk.

More particularly,she did not reject their respective conclusions that its nature was a high risk to reoffend and its quality was such that he was likely tocause serious psychological harm, physical injury or death to another person when he did reoffend; moreover, there was simply no expertevidence before the trial judge to counter those assessments. Additionally, Mr.

Standingwater’s criminal record alone establishes apattern of repetitive behaviour which shows a likelihood of causing death or injury to other persons, or inflicting severe psychologicaldamage on other persons, through failure in the future to restrain his behaviour. [34] As to possibility of control of the risk in the community, the trial judge noted that Dr. Holden could not estimate “if or when” thiswould occur (at para. 116). She summarised Dr. Holden’s assessment as a “guarded hope” for progress, which, as she correctly noted,“falls far short of the test imposed” under s. 753.1(1)(c) (see: R. v.

Haug, 2008 SKCA 23, at paras. 87-91; and R. v. Goforth, 2005 SKCA12, 193 C.C.C. (3d) 354 at para. 54). As to Dr. Wormith’s assessment, the trial judge noted Dr. Wormith had not addressed the period oftime required for Mr. Standingwater to benefit from treatment. She found that Dr. Wormith’s opinion too was based on “hope” – a hopethat Mr. Standingwater would take advantage of programming available while incarcerated (at para. 121). [35] At this juncture, it is well to recall what Richards J.A. (as he then was), writing for this Court in Goforth, said about thedetermination to be made under s. 753.1(1)(c):

[54] …Section 753.1(1)(

c) of the Code requires that, in order to warrant a long-term offender designation rather than a dangerousoffender designation, there must be a reasonable possibility of eventual control in the community of the risk of reoffending posed by theoffender. The authorities indicate that a “reasonable possibility”, of necessity, must involve something more than hope or emptyconjecture. In and of itself, 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 of the risk of reoffending.

In other words, a dangerous offender designation isnot contingent on a finding that the offender has absolutely no prospect of successful treatment while incarcerated. ... [65] The real question is whether it is reasonable to conclude Mr. Goforth will make that progress within the period of timecomprehended by an appropriate determinate sentence. In my respectful view, the learned trial judge did not come to grips with this rootissue. Rather, he proceeded on the basis that, in the absence of proof further programming would not succeed, the dangerous offenderapplication should be rejected.

This was a misinterpretation of s. 753.1(1)(

c) of the Code and an error of law. [36] So, yes, Ms Farden’s testimony was potentially very prejudicial to Mr. Standingwater’s position; however, in the particularcircumstances of this matter, the error of admitting her testimony into evidence and the trial judge’s limited reliance on it did not result ina substantial wrong or miscarriage of justice. I say this because Ms Farden’s testimony introduced evidence of some general indicia ofrisk which was consistent with, but certainly far less cogent than, the specific, individualised evidence of the nature and quality of therisk actually posed by Mr.

Standingwater already before the court (e.g., the expert evidence properly tendered by the Crown and byMr. Standingwater through the assessments and testimony of Drs. Holden and Wormith). Moreover, given the requirement under s.753.1(1)(c), as expressed in Goforth, the prejudicial effect of Ms Farden’s evidence was eliminated by the absence of any expertevidence: (

i) to counter the conclusions that the nature of the risk posed by Mr. Standingwater was such that he was at high risk toreoffend and that the quality of his risk was such that he would cause serious psychological harm, physical injury or death to anotherperson when he did so, and (ii) that this high risk to reoffend violently (regardless of its degree of probability and the quality of theprospective jeopardy) could be controlled in the community. In short, Ms Farden’s evidence could not have elevated the nature andquality of the risk posed by Mr.

Standingwater such that it prejudicially affected the trial judge’s determination under s. 753.1(1)(c). Inmy opinion, notwithstanding the obvious errors here, there was simply no reliable evidence before the trial judge upon which she couldhave reasonably concluded that Mr. Standingwater did not pose an unacceptable risk if released in the community or that he would makesufficient progress toward addressing his risk in treatment within the period of time comprehended by an appropriate determinatesentence.

As such, I conclude there is no reasonable possibility the trial judge would have reached a different conclusion had the errorsnot occurred. [37] The question then is whether an error of this nature calls for appellate intervention regardless of its consequences (see: R. v.Daniels, 2011 SKCA 67, 271 C.C.C. (3d) 339, at para. 45)? Put another way, the question then becomes whether this Court may dismissthis appeal where, notwithstanding it is of the opinion that the appeal might be decided in favour of Mr.

Standingwater on the ground ofa wrong decision on a question of law, it is of the opinion that no substantial wrong or miscarriage of justice has occurred? This askswhether the Court’s curative powers under s. 686(1)(b)(iii) are applicable in an appeal from a proceeding under

Part XXIV of theCriminal Code. And, in my view, there is ample support for the proposition that Canadian appellate courts have the power to cure errorsof law made on a proceeding under

Part XXIV so long as the error did not lead to a substantial wrong or miscarriage of justice. [38] To begin, the Court in R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, noted in obiter that it was a “reasonable assumption …that Parliament would not have intended that any error of law in the course of a dangerous offender application would necessitate a newhearing” (at para. 49).

The Court qualified this by saying: “But if a court of appeal has the power to dismiss an appeal against adeclaration that an offender is dangerous on the basis that the error of law has resulted in no substantial wrong or miscarriage of justice,that power may be exercised in only the rarest of circumstances.” To which it likened circumstances where there was no reasonablepossibility that the verdict would have been any different had the error of law not been made (see: R. v. Bevan, (SCC),[1993] 2 S.C.R. 599 at p. 617). This seems to accept that s. 759(3)(

b) of the Criminal Code provides the appellate courts with adiscretion analogous to that provided by s. 686(1)(b)(iii). Albeit obiter, as it was pronounced by the Supreme Court of Canada, it ishighly persuasive. [39] In R. v. McKenzie (1960), (SK CA), 31 W.W.R. 337, our Court grappled with the issue of whether an appellatecourt’s powers under what is now s. 686(1)(b)(iii) are incorporated into what is now

Part XXIV by reason of s. 759(7); however, there isno need to address this further as there now appears to be a general consensus that s. 759(3) allows an appellate court the power todismiss an appeal notwithstanding a legal error (see: R. v. Mitchell, 2002 BCCA 48, 161 C.C.C. (3d) 508, aff’d 2003 SCC 49; see also:R. v. Sipos, 2008 ONCA 325, 235 O.A.C. 277; R. v. Sipos, 2012 ONCA 751, 298 O.A.C. 233; R. v. Pike, 2010 BCCA 401, 260 C.C.C.(3d) 68.) In R. v.

Mitchell, the court concluded that a curative power was “implicit in the court’s power to dismiss an appeal under s.759(3)(b)” (at para. 60). [40] The Court found support for its conclusion in the judicial treatment of the sentencing appeal provision under s. 687, which grants asimilar bare power to dismiss an appeal as found in s. 759(3)(b), yet has not been interpreted to bar appellate courts from curing errors oflaw (at para. 61).

Moreover, the Court also stated that “it would defy common sense to presume Parliament intended to preclude the courtof appeal from dismissing an appeal where a sentencing judge makes a trivial or immaterial error in the course of dangerous or long-termoffender proceedings” and that it is therefore “more reasonable to conclude that Parliament was aware of the authorities which providethat dangerous offender appeals are in the nature of sentencing proceedings, and that the court has the power to dismiss sentence appealswhich are without merit, even in the face of error” (at para. 64), which brings the matter full circle with Johnson (see: Johnson at para.49). [41] Therefore, although I find that the trial judge erred in law by admitting and relying in part upon Ms Farden’s evidence, I woulddismiss this ground of appeal because the error caused no substantial wrong or miscarriage of justice.

The Gladue Principles

[42] Mr. Standingwater is Aboriginal and was raised on Thunderchild First Nation. He contends the trial judge erred by disregardingthe sentencing principles under s. 718.2(

e) of the Criminal Code, as were identified in R. v. Gladue, (SCC), [1999] 1S.C.R. 688, at para. 93, and as have now been clarified by R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433. [43]

Section 718.2(

e) reads as follows: 718.2 Other Sentencing Principles – A court that imposes a sentence shall also take into consideration the following principles: … (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders,with particular attention to the circumstances of aboriginal offenders. [44] The Supreme Court of Canada made it clear in R. v. Ipeelee (at para. 59) that s. 718.2(e) “is a remedial provision designed toameliorate the serious problem of overrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges tohave recourse to a restorative approach to sentencing”. Furthermore, the Court said that s. 718.2(e) “calls upon judges to use a differentmethod of analysis in determining a fit sentence for Aboriginal offenders”. In sum, the

section “directs sentencing judges to payparticular attention to the circumstances of Aboriginal offenders because those circumstances are unique and different from those of non-Aboriginal offenders”. [45] The Court also corrected an erroneous

interpretation of its earlier R. v. Gladue decision with respect to the application of s. 718.2(e)to sentencing decisions involving serious or violent offences. In this respect, LeBel J., for the majority (Rothstein J. dissenting in part),said: 84 The second and perhaps most significant issue in the post-Gladue jurisprudence is the irregular and uncertain application of theGladue principles to sentencing decisions for serious or violent offences.

As Professor Roach has indicated, “appellate courts haveattended disproportionately to just a few paragraphs in these two Supreme Court judgments - paragraphs that discuss the relevance ofGladue in serious cases and compare the sentencing of Aboriginal and non-Aboriginal offenders” (K. Roach, “One Step Forward, TwoSteps Back: Gladue at Ten and in the Courts of Appeal” (2009), 54 Crim. L.Q. 470, at p. 472).

The passage in Gladue that has receivedthis unwarranted emphasis is the observation that “[g]enerally, the more violent and serious the offence the more likely it is as a practicalreality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking intoaccount their different concepts of sentencing” (para. 79; see also Wells [2000 SCC 10], at paras. 42-44).

Numerous courts haveerroneously interpreted this generalization as an indication that the Gladue principles do not apply to serious offences (see, e.g., R. v.Carrière (2002), (ON CA), 164 C.C.C. (3d) 569 (Ont.

C.A.)). 85 Whatever criticisms may be directed at the decision of this Court for any ambiguity in this respect, the judgment ultimately makesit clear that sentencing judges have a duty to apply s. 718.2(e): “There is no discretion as to whether to consider the unique situation ofthe aboriginal offender; the only discretion concerns the determination of a just and appropriate sentence” (Gladue, at para. 82).Similarly, in Wells, Iacobucci J. reiterated, at para. 50, that …[t]he generalization drawn in Gladue to the effect that the more violent and serious the offence, the more likely as a practical matterfor similar terms of imprisonment to be imposed on aboriginal and non-aboriginal offenders, was not meant to be a principle of universalapplication.

In each case, the sentencing judge must look to the circumstances of the aboriginal offender. This element of duty has not completely escaped the attention of Canadian appellate courts (see, e.g., R. v. Kakekagamick (2006), (ON CA), 214 O.A.C. 127; R. v. Jensen (2005), (ON CA), 196 O.A.C. 119; R. v. Abraham, 2000ABCA 159, 261 A.R. 192). … 87 The sentencing judge has a statutory duty, imposed by s. 718.2(

e) of the Criminal Code, to consider the unique circumstances ofAboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation. Asthese reasons have explained, such a failure would also result in a sentence that was not fit and was not consistent with the fundamentalprinciple of proportionality.

Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender,including breach of an LTSO, and a failure to do so constitutes an error justifying appellate intervention. [46] With that clarification, I turn to consider Mr. Standingwater’s submission that the trial judge erred in law by disregarding theGladue principles as they apply to him. [47] At his sentencing, Mr. Standingwater invited the court to emphasize the principle of restraint, as located under s. 718.2(

e) of theCriminal Code. On this basis and that of the Gladue principles, Mr. Standingwater submitted to the trial judge that an appropriatesentence in the circumstances would be time served followed by an order committing him “to the care of his people”. [48] In her reasons, the trial judge acknowledged that s. 718.2(

e) applies in an application under

Part XXIV of the Criminal Code. Morespecifically, by reference to Dawson J.’s reasons in R. v. Stonechild, 2008 SKQB 98, 312 Sask. R. 86, the trial judge correctlyacknowledged that an offender’s Aboriginal heritage is a relevant factor under s. 753.1(1)(

c) when a sentencing judge considers whetherthere is a reasonable possibility of eventually controlling the risk posed by the offender in the community. While it is true the trial judgealso quoted a passage from R. v. Stonechild in which Dawson J. had correctly paraphrased the often erroneously interpretedgeneralisation from R. v. Gladue, the trial judge most certainly did not ignore the Gladue principles in her consideration under s. 753.1(1)(c). In summarising her understanding of the applicability of the Gladue principles in a

Part XXIV proceeding, the trial judge wrote:

18 In other words, Johnson , supra , has clarified that, while the Gladue factors as stated in s. 718.2 (

e) of the Criminal Code must be considered by the sentencing judge, they must be considered in the context of exercising the court’s discretion in considering a long-term offender designation in the situation where the Crown has proved that the criteria for dangerous offender are present. If a long-term offender status is considered, the Gladue factors are relevant in framing the appropriate sentence.

Lemaigre , supra , outlines the considerations that must be addressed to assist the sentencing judge in framing an order that canvasses all available sanctions other than imprisonment, including rehabilitation services within the offender’s own community. 19 It follows that if [Mr. Standingwater] is found to be neither a dangerous offender nor a long-term offender,

Part XXIV of the Criminal Code does not apply. The sentencing principles articulated in

Part XXIII govern the sentences to be imposed for [Mr. Standingwater’s] convictions, including those set out in s. 718.2 (e). [ 49 ] It is of passing note that the Court handed down its reasons in R. v. Ipeelee over two years after the trial judge’s decision in this case. Regardless, in my opinion, the trial judge correctly summarised the law. By the clear language of ss. 753.1(1)(

b) and (c), the substantial risk an offender poses to the community and the possibility of eventual control of that risk in the community are the foremost considerations when determining whether to designate an offender a long-term offender, as opposed to a dangerous offender. The paramount sentencing objective in this determination is obviously the protection of society. As such, in the context of

Part XXIV proceedings, the judicial discretion to determine an appropriate sentence is far more limited than it is in a sentencing under

Part XXIII of the Criminal Code . Nevertheless, the Gladue factors remain relevant and the sentencing principle advanced under s. 718.2 (

e) of the Criminal Code must be addressed; but, the sentencing court must do so within the context of the paramount sentencing objective under

Part XXIV, that being, again, the protection of society. It remains a fact, however, that under

Part XXIV proceedings there is often simply little alternative to imprisonment. [ 50 ] To be clear, this is not to say the Gladue factors are irrelevant or to have no practical influence in the determination of whether an offender is a dangerous versus long-term offender or in the determination of an appropriate sentence; rather, the Gladue factors must be considered in a positive way. [ 51 ] For example, under s. 753.1(1)(c), the sentencing court must have reference to Gladue factors where they serve to establish the existence and availability of alternative Aboriginal-focused means aimed at addressing the environmental, psychological or other circumstances which aggravate the risk of reoffending posed by the Aboriginal offender in question.

If such means exist, are available and are suitable in the circumstances, then they go to enhance the cogency of the possibility of eventual control of the risk that the Aboriginal offender will reoffend in the community. As such, the existence or non-existence of such means is relevant to any assessment conducted under s. 752.1(1) and the sentencing court must be expected to factor the availability, nature, suitability and efficacy of such means into its determination under s. 753.1(1)(c) (see: R. v. Lemaigre , 2004 SKCA 125 , 189 C.C.C. (3d) 492 at paras. 39 and 40 ; see R. v.

Ewenin , 2013 SKCA 50 ). [ 52 ] Furthermore, although protection of the public is the paramount objective under

Part XXIV, rehabilitation is certainly a relevant, albeit secondary, sentencing objective under s. 753.1(3)(b). As such, where a Gladue factor serves to strengthen the reasonable possibility of control of the Aboriginal offender in the community, in the sense that it positively addresses the rehabilitation and reintegration of the offender into society, a sentencing court must take it into account when making the determination required of the court under s. 753.1(3).

This follows logically and unavoidably from an application of the Gladue factors in the designation of an Aboriginal offender as a long-term offender, as opposed to a dangerous offender, under s. 753.1(1). [ 53 ] In sum, while a sentencing court may have no alternative but to separate an Aboriginal long-term offender from society for a significant period of time, when determining the appropriate periods of imprisonment and subsequent long-term supervision in the community under s. 753.1(3), the sentencing court must take into account the Aboriginal status of the long-term offender for the purpose of determining the appropriate institutional and community-based programs intended to rehabilitate the offender so that the substantial risk of reoffending posed by the offender might be controlled in the community. [ 54 ] In this case, the evidence was that there were few, if any, available Aboriginal-focused or even non-Aboriginal-focused means in Mr.

Standingwater’s community aimed at addressing the environmental, psychological and other circumstances which aggravate the nature and quality of Mr. Standingwater’s risk of reoffending upon which to base a consideration of the Gladue principles in the determination required of the trial judge under s. 753.1(1)(c). [ 55 ] The trial judge noted the testimony of Alan Vermeulen, a community parole officer for Corrections Services Canada, who had supervised offenders on release on the Thunderchild First Nation.

He said a community parole officer visits offenders on a weekly basis on the Thunderchild First Nation and usually consults with the local Native Alcohol Drug Abuse Program (NADAP) worker and an offender’s employer to confirm the offender’s progress. However, he testified that 24- hour supervision was not possible on the Thunderchild First Nation and that an NADAP worker is the only resource available to an offender, other than weekly Alcoholics Anonymous meetings in Turtleford. [ 56 ] The Chief of Thunderchild First Nation testified and tendered a letter into evidence stating that if released from custody, Mr.

Standingwater would be welcome to reside on the Thunderchild First Nation as he is not viewed as an imminent threat to the public or to himself. The letter also stated that the Chief and council would assist Mr. Standingwater both generally and financially to ensure that he is able to undergo any necessary treatment and that he complies with any other court imposed conditions. The Chief also tendered a copy of a band council resolution from the Poundmaker Cree Nation in which that First Nation resolved to assist the court by facilitating a no- contact clause as it relates to Mr.

Standingwater’s former spouse, who is a member of Poundmaker Cree Nation. The band council resolution stated that “should [Mr. Standingwater] be released from custody that it is clearly understood that he is not to enter Poundmaker Cree Nation for any reason for the duration of the Court order”. [ 57 ] However, the Chief of Thunderchild First Nation also testified that Mr. Standingwater has never contacted him and he does not know him personally. While the Chief testified that he has instructed the justice worker to prepare a plan for Mr. Standingwater’s return

to the community and that the NADAP worker will prepare a substance abuse program for him, none of that had been completed at the time of the sentencing hearing, even though the sentencing hearing took place over a year after Mr. Standingwater’s conviction and over five years after the predicate offence. The Chief saw Mr.

Standingwater’s parents as a positive influence as they practice traditional cultural ways and are respected in the community. [ 58 ] The trial judge also had regard for the evidence of Maxine Thunderchild, who had been the interim justice co-ordinator for Thunderchild First Nation for three months. She too tendered a letter, which confirmed Mr. Standingwater would have full-time employment as a lumber piler upon his return to Thunderchild First Nation. She testified Mr. Standingwater had contacted her a week or so prior to the sentencing hearing, but she could provide no details as to any case plan for Mr.

Standingwater. She testified as to the availability of other resources on the First Nation, including a life skills program offered twice a week, and Alcoholics Anonymous weekly meetings in Turtleford. She admitted there were no programs to deal with violent behaviour. However, she offered to make herself available anytime Mr. Standingwater felt he had a problem. [ 59 ] The trial judge summarised this evidence immediately before she ruled on the issue of whether Mr. Standingwater was to be designated a dangerous offender or long-term offender.

She wrote: [113] The Thunderchild First Nation wants to provide support for [Mr. Standingwater]. However, on all the evidence, its support system is at present non-existent . Assurances by the band council that conditions will be complied with and band council resolutions to prevent [Mr. Standingwater] from contacting [his former spouse] are positive steps. However, I must conclude that they will no more sanction [Mr. Standingwater’s] than any previous or current court orders have done. . . . 123 [Mr.

Standingwater’s] long history of non-compliance with court orders, including his recent contact with [his former spouse] to attempt to obstruct justice, provides no assurance that he can be controlled in the community. A determinate sentence followed by a long term supervision is not appropriate. The possibility that [Mr. Standingwater] risk to re-offend can be eventually controlled in the community is so remote that the requirements of s. 753.1(1) (

c) of the Criminal Code are not satisfied. 124 Thus, because the Crown has proved the essential elements of s. 753 of the Criminal Code beyond a reasonable doubt, [Mr. Standingwater] is designated a dangerous offender. Because no lesser measure under s.753(4) will adequately protect the public, [Mr. Standingwater] is sentenced to imprisonment in a penitentiary for an indeterminate period on the conviction pursuant to s. 267 (

b) of the Criminal Code . [ 60 ] As such, I am of the opinion that the trial judge exercised her discretion under s. 753.1(1) (

c) to decline to declare Mr. Standingwater a long-term offender having had full regard to all relevant considerations, including the Gladue factors present in this case. In my view, the trial judge made no error in principle in this regard [1] which would warrant appellate intervention. Unreasonable Sentence [ 61 ] With reference to the majority reasons in R. v. Daniels , Mr. Standingwater submits that he is not similar to those offenders who have received indeterminate sentences and that he more closely resembles those offenders who have been designated as long-term offenders.

He favourably compares his offending to that of the offenders in R. v. Daniels and R. v. Lemaigre and says that he is not an offender who obviously merits an indeterminate sentence. Mr. Standingwater says a review of his history of violence together with the recommendations of Dr. Wormith as to treatment leads to the conclusion that his risk can be significantly reduced by taking treatment programs. He says even if he were to relapse the nature of his future offending would not be so serious as to justify an indeterminate sentence. [ 62 ] Mr.

Standingwater has not challenged the trial judge’s finding that he satisfies the defining criteria for a dangerous offender set out in ss. 753(1) (a)(

i) and (ii) of the Criminal Code . Drs. Holden and Wormith both accepted that the circumstances of this case meet the criteria set forth in those sections. Mr. Standingwater’s criminal record itself establishes a pattern of repetitive behaviour showing a failure to restrain his behaviour and, importantly, 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 behaviour. In short, Mr. Standingwater meets the definition of a dangerous offender. [ 63 ] In practical terms, therefore, Mr.

Standingwater has raised two distinct arguments to show that his indeterminate sentence is unreasonable. First, he is not like those offenders who have previously been designated as dangerous offenders and therefore should have been declared a long-term offender. Second, the trial judge did not adequately address the effectiveness of a s. 753.1 long-term supervision order in his circumstances.

He supports this latter submission with a general comment that a long-term supervision order in which rigid controls could be placed upon him and then gradually reduced would provide a transition from prison life that could contribute to a reduction of the risk he poses in the community. Accordingly, he says, an indeterminate sentence is unreasonable in his circumstances. [ 64 ] As an alternative to an indeterminate sentence, a long-term supervision order is available where an offender has been declared a long-term offender under s. 753.1(1) of the Criminal Code . As to Mr. Standingwater’s argument based on R. v.

Daniels and a comparison of his circumstances with those of other offenders who have been designated as dangerous offenders or long-term offenders, I note the majority reasons in R. v. Daniels set out the court’s task under s. 753.1(1) (

c) in these terms: 19 The sentencing judge’s task under s. 753.1(1)(

c) is to consider the particular offender before the court. The determination of whether a long-term offender designation is merited is so fact-specific as to render direct case-by-case comparison of little value. Prior case law helps to serve as a check on one’s result to the extent that it confirms whether an offender is safely within the realm of those persons who should receive an indeterminate sentence, but beyond that great care must be taken. In each case, the focus must remain on the offender’s own record and personal characteristics and on the availability of treatment and rehabilitation programs for the offender.

[ 65 ] I have a different view of the overall circumstances than Mr. Standingwater. Mr.

Standingwater’s violent offending (particularly with respect to his former spouse), the high risk that he will violently reoffend (particularly with respect to his former spouse), his chronic alcohol addiction, his antisocial personality disorder and psychopathic tendencies, his impulsiveness, his lack of remorse and failure to accept moral culpability for his past offences, his poor prognosis for treatment, and his evident recidivist nature, are such that he is, in my opinion, safely within the realm of those offenders who should receive an indeterminate sentence. I would, therefore, move the focus to Mr.

Standingwater’s second argument under this final ground of appeal, which more properly addresses his record and personal characteristics and speaks to the availability of treatment and rehabilitation programs for him. [ 66 ] The second argument invites the Court to conduct a general review of the trial judge’s determination under s. 753.1(1). As such, most, if not all, of the specific footings based on Mr. Standingwater’s record and personal characteristics and on the availability of treatment and rehabilitation programs have been addressed earlier in these reasons.

I will not revisit the earlier analyses, but I would bring forward certain of the conclusions drawn there. [ 67 ] Mr. Standingwater’s general submission here is that a general review of his history of violence together with the recommendations of Dr. Wormith as to treatment leads to the conclusion that his risk can be significantly reduced by taking treatment programs. However, this submission is wholly undermined by the fact the trial judge properly rejected Dr. Wormith’s assessment in part because it had been based on a misapprehension as to the underlying facts. Moreover, Dr.

Wormith’s assessment of the prospect of treatment lowering the risk posed by Mr. Standingwater was based on a number of presumptions and, given Mr. Standingwater’s failure to do so in the past, a “hope” he would take advantage of opportunities for treatment. However, when confronted with the facts that Mr. Standingwater had lied to him in the assessment interviews, had continued to contact his former spouse, had attempted to obstruct justice a month before the sentencing hearing, and had committed institutional infractions, Dr. Wormith expressed “questions” about the “genuineness” of Mr.

Standingwater’s motivation to pursue treatment and “concerns” about his overall assessment of Mr. Standingwater and, in particular, concerns about the prospects for Mr. Standingwater’s treatment. In fact, having learned of the continued contact Mr. Standingwater had with his former spouse, Dr. Wormith testified that “I would have suggested that with time, even on remand, …, that [the risk he posed] might be considered to decrease a bit but the fact that this contact has been re-engaged sort of wipes that out.” [ 68 ] On the basis of Dr.

Wormith’s testimony and assessment, the trial judge cannot be said to have failed to adequately address the effectiveness of a s. 753.1 long-term supervision order in Mr. Standingwater’s circumstances. As can be seen from her reasons, the trial judge was clearly alive to the issue in question, but she was not satisfied that there was a reasonable possibility of eventual control of the risk posed by Mr. Standingwater if he were to be released into the community. Given the evidence before her, I find no merit in the general submission that the trial judge’s finding in this regard was unreasonable.

Conclusion [ 69 ] Notwithstanding my conclusion that the trial judge committed errors with respect to her acceptance of and reliance upon Ms Farden’s testimony, I am of the opinion that no substantial wrong or miscarriage of justice has occurred as a result. As she was required to do, the trial judge squarely addressed the issue of whether the circumstances before her, including the considerations arising under s. 718.2 (

e) and R. v. Gladue , were such that there was a reasonable possibility Mr.

Standingwater would deal with all of the issues underlying the nature and quality of his risk of reoffending ( e.g. , his chronic alcohol addiction, his impulsiveness, his failure to accept responsibility and culpability for his past wrongdoings, his poor participation in and seeming inability to benefit from treatment aimed at addressing his antisocial and psychopathic tendencies, his substance abuse, his spousal abuse, his need for a significant change in attitude, and his overall inappropriate behaviour) within a period of time comprehended by a determinate sentence and long-term supervision order.

In this respect, it is significant that neither Dr. Holden nor Dr. Wormith could opine as to the length of time it might take for Mr. Standingwater to benefit from programming, even if he were inclined to do so, such that his risk to reoffend might be reasonably controlled in the community. As

Part XXIV enabled her to do, the trial judge accepted the common sense reality manifest on the evidence before her that Mr. Standingwater’s present condition is such that he is not inhibited by normal standards of behavioural restraint so that future violent acts can quite confidently be expected of him. [ 70 ] On the whole of it, I find no fault with the trial judge’s overall conclusion that the evidence here does not warrant a finding that there is a reasonable possibility of eventually controlling Mr.

Standingwater’s risk to reoffend if he were in the community, within the meaning of s. 753.1(1) (c). [ 71 ] For all of these reasons, I would dismiss the appeal. DATED at the City of Regina, in the Province of Saskatchewan, this 17 th day of July, A.D. 2013. “Caldwell J.A.” _____________________ Caldwell J.A.

I concur. “Jackson J.A.” Jackson J.A. I concur. “Ottenbreit J.A.” Ottenbreit J.A.