Docket: CACR1978 Dwight Dayton Dillon Appellant - v. -, 2014 SKCA 83

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 83 Date: 2014-08-26 Between: Docket: CACR1978 Dwight Dayton Dillon Appellant - and - Her Majesty the Queen Respondent Restriction on Publication: An order has been made in this case prohibiting publication of any information that could disclose the identity of the complainant pursuant to s. 486.4(1) of the Criminal Code . Coram: Lane, Herauf and Whitmore JJ.A. Counsel: Cameron Schmunk for the appellant W. Dean Sinclair for the respondent Appeal: From: 2011 SKPC 35 Heard: June 27, 2014 Disposition: Appeal dismissed Written Reasons: August 26, 2014

By: The Honourable Mr. Justice Whitmore In Concurrence: The Honourable Mr. Justice Lane The Honourable Mr. Justice Herauf Whitmore J.A. I. Introduction [1] The appellant, Dwight Dayton Dillon, appeals a decision of the Provincial Court of Saskatchewan wherein he was designated asa dangerous offender pursuant to

Part XXIV of the Criminal Code, R.S.C., 1985, c. C-46 and sentenced to an indeterminate sentence. II. Background [2] The appellant is a 41-year-old male of aboriginal descent. Details of his background and upbringing, as presented in ProvincialCourt, are contradictory but it appears that he was raised by his mother in Saskatoon until she died when he was between 7 and 10 yearsold. He was then raised by his maternal grandparents at Makwa Sahgaiehcan First Nation and Onion Lake First Nation. [3] Both his parents appear to have been alcoholic but his grandparents were non-drinkers.

He claims to have had a good home lifewith his grandparents but at various times he alleged that he was sexually abused by his step-father, his biological father and a stranger.At other times he has denied suffering any sexual abuse. There were behavioural issues at school. He was expelled for missing schooland fighting. He claims to have completed his grade eight, but reports indicate it was a modified program and is equivalent toapproximately grade four. He suffers from some mental disorder, perhaps Fetal Alcohol Spectrum Disorder (FAS). He is definitelycognitively impaired, but it is uncertain to what degree.

Dr. Holden, a forensic psychologist called by the Crown, administered a test thatplaced the appellant at an approximate IQ of 82, in the dull normal range, while Dr. Nicholaichuk, a forensic psychologist called by theappellant, describes him as moderately mentally retarded with an IQ of approximately 50. Mr. Dillon has an alcohol abuse problem oflong standing. A. Criminal Record [4] Evidence of the appellant’s criminal record as presented in Provincial Court is also contradictory.

While his record indicates thathe was 15 when he committed his first offence, the trial judge found that his criminal activity commenced when he was seven or eightyears of age. His criminal record before the Provincial Court revealed 26 criminal offences, but the Crown submits he has been convictedof 34 criminal offences, including the predicate offence. The Crown filed copies of court documents proving all of the appellant’sconvictions in Provincial Court. [5] The appellant has a history of committing violent acts and acts of a sexual nature. His record includes the following: 1.

Break and enter and committing sexual assault, 3 April 1990. 2. Break and enter and committing sexual assault, 19 July 1997. 3. Mischief, 25 April 1998. This offence involved entering the victim’s house and masturbating while staring at the victim. 4. Assault, 10 November 2005. This offence occurred as a result of a domestic dispute. The appellant assaulted his spouse. B. The Predicate Offence [6] The predicate offence was a sexual assault. The victim was known to the appellant.

The victim, her boyfriend, and the appellantall worked together as cleaning staff at the H[…] in L[…] and had been drinking together the night of the assault. The victim and herboyfriend were driven to their house by the appellant so they could change their clothes. The victim came back out and got into the vanat which point the appellant drove the van away before the victim’s boyfriend came out of the house. She asked him to stop, and helaughed. She was taken to an unknown house in Onion Lake where she passed out and the sexual assault occurred.

She awokeapproximately four times during the night to find herself being sexually assaulted both anally and vaginally by the appellant. During theassault, when the victim tried to escape, the appellant grabbed her and twisted her toes. He also bit a chunk of skin out of her back,pulled out some of her hair, and bruised her arms and legs. III. The Decision Below [7] The trial judge considered the appellant’s history of criminal behaviour, the circumstances of the predicate offence, andpsychological reports prepared by both Dr. Holden and Dr. Nicholaichuk.

He considered the testimony of one of the appellant’s pastparole officers, an addictions worker who had worked with the appellant, and some of the appellant’s family members. The trial judgedetermined that the criteria for declaring the appellant a dangerous offender had been met. The predicate offence was a violent personalinjury offence and the appellant constituted a threat to the life, safety, or physical or mental well-being of others. He considered whetherthe long-term offender provisions were applicable, that is whether there was a reasonable possibility of eventual control of the risk in thecommunity.

At para. 101, the trial judge determined that there was “no reasonable likelihood of eventual control in the community” (R.v. Dillon, 2011 SKPC 35 ), and declared the appellant to be a dangerous offender. He was sentenced to an indeterminate periodof incarceration pursuant to s. 753(4)(

a) of the Criminal Code. IV. Jurisdiction and Standard of Review [8] Section 759(1) of the Criminal Code, provides that an offender who is found to be a dangerous offender may appeal to the Court

of Appeal from a decision on any ground of law or fact or mixed law and fact. [9] Section 759(3) provides that the Court of Appeal may allow the appeal and either set aside the dangerous offender designation ororder a new hearing, or dismiss the appeal. [10] The standard of review on a dangerous offender designation is reasonableness. In R. v. Currie, (SCC), [1997] 2S.C.R. 260 at para. 33, the Court said the following: 33 In this respect, the role of an appellate court is to determine if the dangerous offender designation was reasonable. This standardof reasonableness 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 ofs. 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]. 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. See also R. v. Badger, 2012 SKCA 119, 405 Sask. R. 97 at para. 52 and R. v. Natomagan, 2012 SKCA 46, 393 Sask.

R. 130, at paras. 47and 48. [11] The predicate offence occurred prior to July 1, 2008. Therefore, the provisions of the Criminal Code that were in force prior toJuly 1, 2008 are applicable. See para. 2 of the trial judge’s decision (2011 SKPC 35). [12] Section 753(1) of the Criminal Code sets out the criteria for when a dangerous offender designation may be made. Prior to theamendments in 2008 (Tackling Violent Crime Act: Order Fixing May 1, 2008 and July 2, 2008 as the Dates of the Coming into Force ofCertain Sections of the Act, S.I./2008-34, C.

Gaz. 2008.II.584), s. 753(1) provided that the court may find the offender to be a dangerousoffender where the court is satisfied that the criteria in paragraphs (

a) or (

b) are met: 753.

(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), findthe 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 thedefinition of that expression in

section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being ofother 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 severepsychological 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 apart, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to otherpersons 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 natureas 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. [13] Pursuant to s. 753(4), “[i]f the court finds an offender to be a dangerous offender, it shall impose a sentence of detention in apenitentiary for an indeterminate period.” [14]

Section 753.1(1) of the Criminal Code establishes the criteria for finding an offender to be a long-term offender: 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 hasbeen convicted; (

b) there is a substantial risk that the offender will reoffend; and (

c) there is a reasonable possibility of eventual control of the risk in the community. [15] Subsection 753.1(3) sets out the applicable sentence for a long-term offender:

(3) Subject to subsections (3.1), (4) and (5), if the court finds an offender to be a long-term offender, it shall (

a) impose a sentence for the offence for which the offender has been convicted, which sentence must be a minimum punishment ofimprisonment for a term of two years; and (

b) order the offender to be supervised in the community, for a period not exceeding ten years, in accordance with

section 753.2 andthe Corrections and Conditional Release Act. [16] In R. v.

Johnson, 2003 SCC 46 at para. 44, [2003] 2 S.C.R. 357 [Johnson], the Supreme Court of Canada held that “a sentencingjudge should declare the offender dangerous and impose an indeterminate period of detention if, and only if, an indeterminate sentence isthe least restrictive means by which to reduce the public threat posed by the offender to an acceptable level.” A sentencing judge shouldconsider whether “the public threat can be reduced to an acceptable level through either a determinate period of detention or adeterminate period of detention followed by a long-term supervision order” (Johnson at para. 32).

If there is a reasonable possibility ofeventual control of the offender by declaring the offender to be a long-term offender and sentencing him or her to a determinate period ofdetention followed by a long-term supervision order, then “a sentencing judge cannot properly declare an offender dangerous andsentence him or her to an indeterminate period of detention” (Johnson at para. 32).

A sentencing judge must consider whether a long-term offender designation is applicable, because if an offender “satisfies the long-term offender criteria and there is a reasonablepossibility that the harm could be reduced to an acceptable level under the long-term offender provisions,” then the proper sentence is “adeterminate period of detention followed by a long-term supervision order” (Johnson at para. 45). See also R. v. Ewenin, 2013 SKCA 50at para. 14, 414 Sask. R. 171, and R. v. J.L.A.G., 2004 SKCA 126 at paras. 41-42, 189 C.C.C. (3d) 512. V.

Issues [17] The appellant raises the following grounds of appeal: 1. The trial judge erred by imposing an incorrect standard in law in that he required evidence of reasonable probability that therisk of the appellant re-offending could be controlled in the community rather than a reasonable possibility of same. 2. The trial judge erred by failing to apply and give sufficient consideration to the Gladue (R. v. Gladue, (SCC), [1999] 1 S.C.R. 688) principles. 3. The trial judge erred by failing to give adequate consideration and weight to all the evidence before him in relation to: (

a) the evidence of Dr. Holden (

b) the evidence of Dr. Nicholaichuck (

c) the appellant’s past treatment and programming (

d) the evidence of the appellant’s level of intellectual functioning and his prospects of benefitting from treatment. 4. The trial judge erred by failing to adequately consider the effectiveness of a long-term supervision order. 5. The dangerous offender designation was not reasonable . VI. Analysis 1.

The trial judge erred by imposing an incorrect standard in law in that he required evidence of reasonable probability that therisk of the appellant re-offending could be controlled in the community rather than a reasonable possibility of same. [18] At paragraph 78, the trial judge correctly stated the test for considering a long-term offender designation: [78] After these prerequisites have been established by the Crown, the Criminal Code directs that the Court, before imposing adangerous offender designation, consider whether the long-term offender provisions are applicable.

For the long-term offenderprovisions to be applicable, the Court must, on all of the evidence, find a reasonable possibility of eventual control of the risk in thecommunity. [19] However, at paragraph 98 the trial judge articulated the test as “a reasonable probability” that the appellant’s risk to re-offendcould be controlled in the future.

The trial judge also used the term “reasonable probability” with reference to the appellant’s risk of re-offending at paragraphs 101, 102, and 103. [20] A “reasonable probability” is clearly a higher standard than a “reasonable possibility.” The trial judge, however, at paragraph102, cited R. v. Goforth, 2007 SKCA 144, 302 Sask. R. 265 where Richards J.A. (as he then was) stated the following: [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. [21] The trial judge used the term “reasonable possibility” in reference to the test nine times in his judgment. [22] In F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at para. 54, the Supreme Court stated the following:

Whether the correct standard was expressly stated or not, the presumption of correct application will apply unless it can be demonstratedby the analysis conducted that the incorrect standard was applied. However, in determining whether the correct standard has indeed beenapplied, an appellate court must take care not to substitute its own view of the facts for that of the trial judge. [23] The trial judge expressly stated the correct test in instructing himself at paragraph 102 in citing the Goforth decision.

As he statedthe correct test, I view the references to “reasonable probability” as a slip of the pen rather than an articulation of an incorrect standard.This slip of the pen does not pervade or taint the judgment. I am not satisfied that the appellant has established that the trial judge appliedthe wrong test. [24] Further, the trial judge accepted Dr. Holden’s evidence that there was no reasonable possibility of eventual control of theappellant’s risk to reoffend. Therefore, even if the mis-statement of the trial judge were to amount to an error in law, the decision wouldhave been the same.

As this Court stated in R. v. Standingwater, 2013 SKCA 78 at paras. 38-41, [2013] 10 W.W.R. 277: 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 a discretionanalogous to that provided by s. 686(1)(b)(iii). Albeit obiter, as it was pronounced by the Supreme Court of Canada, it is highlypersuasive. 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 grantsa similar bare power to dismiss an appeal as found in s. 759(3)(b), yet has not been interpreted to bar appellate courts from curing errorsof law (at para. 61).

Moreover, the Court also stated that “it would defy common sense to presume Parliament intended to preclude thecourt of appeal from dismissing an appeal where a sentencing judge makes a trivial or immaterial error in the course of dangerous orlong-term offender proceedings” and that it is therefore “more reasonable to conclude that Parliament was aware of the authorities whichprovide that dangerous offender appeals are in the nature of sentencing proceedings, and that the court has the power to dismiss sentenceappeals which are without merit, even in the face of error” (at para. 64), which brings the matter full circle with Johnson (see: Johnson atpara. 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. 2.

The trial judge erred by failing to apply and give sufficient consideration to the Gladue principles. [25] The trial judge referred to Gladue principles at para. 86 of his judgment: [86] Mr. Dillon was born to a severely alcoholic mother who died of her alcohol abuse when he was a young child. All indications arethat Mr. Dillon suffers from Fetal Alcohol Syndrome (FAS). As a child he was exposed to domestic violence while his parents weredrinking.

He has reported that as a child he witnessed intoxicated men sexually assaulting women who were passed out from alcohol.This background does put the Gladue considerations into play. [26] The trial judge was clearly alert to the issue. In R. v. Montgrand, 2014 SKCA 31, 433 Sask. R. 248, this Court dismissed theappellant’s appeal of his designation as a dangerous offender, and said the following in response to the appellant’s claim that the trialjudge overlooked or failed to take into account the Gladue factors: 14 Put simply, I find no error in the sentencing judge’s handling of this very serious matter.

In my assessment, the sentencing judgeidentified the applicable law, correctly interpreted it and properly applied it to the facts before him. More particularly, the written reasonsof the sentencing judge clearly indicate he was aware of the principles which underpin the Supreme Court of Canada’s directions in R. v.Gladue, (SCC), [1999] 1 S.C.R. 688 (and now in R. v. Ipeelee, 2012 SCC 13 , 2012 SCC 13, [2012] 1 S.C.R.433) and that he was alive to the specific Gladue factors which were put at issue by the facts of this case.

However, in the unfortunatecircumstances of this case, the Gladue factors present simply had no effect in the designation of Mr. Montgrand as a dangerous offenderor in his sentence. I will explain. … 16 The principles espoused in R. v. Gladue and R. v. Ipeelee are relevant in a

Part XXIV proceeding (see: R. v. Standingwater, 2013SKCA 78, [2013] 10 W.W.R. 277, at paras. 49-53, R. v. Lemaigre, 2004 SKCA 125, 189 C.C.C. (3d) 492 at paras. 39 and 40; and R. v.Ewenin, 2013 SKCA 50, [2013] 11 W.W.R. 245); but, the nature of the determination called for under s. 753.1(1)(

c) of the CriminalCode remains unaffected by the directions of the Court in R. v. Gladue and in R. v. Ipeelee. This means a sentencing judge must still

assess the risk posed by the offender in the community to determine whether, on the evidence, there is a reasonable possibility that thatrisk might be controlled in the community. It is in the assessment of the prospects of controlling the risk of reoffending in the communitythat Gladue factors will fall to be considered by the sentencing judge.

At that point, the sentencing judge must take into account theAboriginal status of the offender for the purpose of determining whether institutional and community-based programs intended torehabilitate the offender can be reasonably expected to mitigate the substantial risk of reoffending posed by the offender such that itmight be controlled in the community.

In this context, Gladue considerations are undoubtedly relevant if they serve to improve theprospects of successfully managing the risk posed by an Aboriginal offender in the community. … 18 Here, there was just no prospect of eventually controlling the risk of reoffending in the community posed by Mr. Montgrand. [27] In R. v. Standingwater, supra, this Court said at para. 42 and 49: [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 SCC 13, [2012] 1 S.C.R. 433. … [49] The paramount sentencing objective in this determination is obviously the protection of society. As such, in the context of PartXXIV proceedings, the judicial discretion to determine an appropriate sentence is far more limited than it is in a sentencing under PartXXIII of the Criminal Code. Nevertheless, the Gladue factors remain relevant and the sentencing principle advanced under s. 718.2(

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

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

Part XXIV proceedings there is oftensimply little alternative to imprisonment. [28] The trial judge described and discussed at length the appellant’s background and upbringing, including the factors that would giverise to consideration of the principles in Gladue. As in Montgrand, because the trial judge found there was no reasonable possibility ofreducing the risk of the appellant re-offending, any further consideration of the Gladue factors would not have given rise to a differentresult. 3.

The trial judge erred by failing to give adequate consideration and weight to all the evidence before him in relation to: a. the evidence of Dr. Holden b. the evidence of Dr. Nicholaichuck c. the appellant’s past treatment and programming d. the evidence of the appellant’s level of intellectual functioning and his prospects of benefitting from treatment. a. The Evidence of Dr. Holden [29] The appellant submits that, as Dr. Holden was not familiar with the programming the appellant has participated in nor whatprograms were available, his evidence should not be relied upon and cites R. v.

Moosomin, 2008 SKCA 169, [2009] 1 W.W.R. 608, forthis proposition. [30] In Moosomin, the trial judge rejected Dr. Holden’s opinion that the accused’s risk could not be managed in the community mainlybecause Dr. Holden could not indicate what programs the accused had taken or how well he had done in the programs he had taken.Moosomin does not stand for the general proposition that an expert must be fully familiar with programming in order for his or hertestimony to be relied upon.

Ultimately, this Court simply held that the trial judge in Moosomin did not err in not relying on the expertopinion for this reason: “a judge is not obliged to adopt the opinions of expert witnesses if he or she can arrive at the necessaryconclusions without doing so ….” (Moosomin, para. 52). [31] The trial judge is entitled to accept or reject as much of Dr. Holden’s evidence as he reasonably sees fit. He did not act improperlyby accepting much of Dr. Holden’s evidence. [32] The appellant’s claim that Dr.

Holden was unfamiliar with current treatment programs and was therefore not in a position toevaluate the appellant is simply not correct. Admitting he was advised a certain program at the Regional Psychiatric Centre would bedelivered differently is not relevant to Dr. Holden’s ability to assess the risk of the appellant reoffending. Dr. Holden is not required toknow how an institution’s operational plans function in order to assess whether the appellant will benefit by participating in the program.Dr. Holden was qualified as an expert and is knowledgeable about cognitive behaviour treatment.

Evidence was presented as to theprograms the appellant had taken and how well he had done in those programs. The trial judge considered that evidence. b. The Evidence of Dr. Nicholaichuck [33] The appellant argues that the trial judge read the evidence of Dr. Nicholaichuk too narrowly and thus rejected Dr. Nicholaichuk’sevidence as a result of this error. [34] The trial judge did not reject the evidence of Dr. Nicholaichuk in its entirety. Rather, he expressed concerns with certain aspects of

the report. In particular, he compared Dr. Nicholaichuk’s assessment of the appellant’s family’s support with the testimony of theappellant’s family at the dangerous offender hearing. He noted the appellant’s family was unaware of his criminal activities andquestioned how they would therefore be able to support him in his rehabilitation. It was open to the trial judge to make this assessment. [35] Dr. Nicholaichuk said that the appellant was not a sexually disordered offender because he did not plan the crimes whileDr.

Holden diagnosed that the appellant as a sexually disordered offender who has a history of voyeurism and exhibitionism. It was opento the trial judge to find the appellant to be a sexually disordered offender. There is ample evidence to support this finding. [36] The appellant further submits the trial judge disagreed with Dr. Nicholaichuk’s characterization of the behaviour of the appellantas imitating behaviours that he had witnessed while growing up.

The trial judge said that the appellant’s behaviour has been distinctlydifferent than what he is alleged to have observed, namely men having sex with passed-out women, because the victims of his assaultwere awake during the assaults. [37] As this Court stated in Moosomin, the trial judge was not required to rely on expert testimony when he or she could arrive at thenecessary conclusions without so doing. The trial judge did not reject Dr. Nicholaichuk’s evidence in full so it cannot be said that anarrow reading of the expert’s report led him to reject the evidence. The trial judge noted his concerns with Dr.

Nicholaichuk’s report. Inlight of Dr. Nicholaichuk’s alternate theories about the appellant’s sexual behaviours, the trial judge was entitled to rejectDr. Nicholaichuk’s evidence and accept the evidence of Dr. Holden. c. The Appellant’s Past Treatment and Programming [38] The appellant submits the trial judge did not put enough emphasis on the evidence that he did well in programming while he was atthe Regional Psychiatric Centre. In fact, the trial judge went through the appellant’s many negative responses to programming andacknowledged his positive response to programming at the Regional Psychiatric Centre.

The trial judge then noted that: 81 Mr. Dillon managed to go three years and ten months from his release in August of 2003 until the predicate offence of June 2007.During this period he had more minor offences that did not result in a jail sentence. It is of great concern that prior to the predicateoffence he served a long penitentiary sentence where he received both counselling and programming in the areas of substance abuse,anger management and sexual offending. The Wellspring program, in particular, was a lengthy and intense program designed for peoplewith a lower intellect.

Some of his programming has been the best the prison system has to offer. [39] I do not understand this to mean that the trial judge ignored the appellant’s successes in the program. Rather, the trial judge wasmaking note of the fact that the appellant did well in the Wellspring Program and that despite this he still reoffended. Indeed, the trialjudge further noted at para. 83 of the decision that he believed the appellant’s efforts at the Regional Psychiatric Centre were sincere andthat he wanted to change.

The trial judge went on to say at para. 84: 84 The programming he received at the RPC may well have benefitted D.D.(1). He was assessed as a low-risk to re-offend sexuallywhen he was discharged from the RPC. This may well have been a correct assessment. It wore off quite soon. Even at the halfway househe was caught with pornographic magazines and he was reported to have been watching pornographic movies at an adult video storelocated near the halfway house. He was also reported to be making sexually inappropriate remarks to female staff members.

Just sevenmonths after his release from the system he was charged with impaired driving. His readings were in the aggravating range. [40] The trial judge understood the appellant did well in treatment, but the effects wore off. This is a reasonable finding supported bythe evidence. d. The Evidence of the Appellant’s Level of Intellectual Functioning and His Prospects of Benefitting from Treatment [41] The appellant refers to R. v.

Keepness, 2013 SKQB 441 as an authority for the proposition that while cognitive and learningdeficits create therapeutic challenges, past failures should not lead to “therapeutic nihilism.” [42] This was an opinion expressed in Keepness but it was not the opinion of the trial judge. It was rather the opinion expressed byDr. Shabehram Lohrasbe, the expert psychiatrist in the case. Despite the offender’s low cognitive abilities in that case, Dr. Lohrasbe wasof the opinion that obtaining the right treatment for the offender would likely have a far greater impact than past therapeutic efforts.

Hedid not consider the offender to be untreatable. [43] Dr. Nicholaichuk thought the appellant’s low level of intellectual functioning, coupled with his alcohol abuse, would result in theappellant being almost incapable of planning, anticipating, and judging the consequences of his behaviour. Dr. Holden on the other handthought the appellant’s lack of success in programing was due to an unwillingness to participate and put the things he learned intopractice. Both experts expressed the view that the appellant’s prospects for treatability were grim. Dr.

Holden specifically stated “I do notbelieve there is a reasonable possibility of the eventual control of the appellant’s behaviour in the community” (Forensic AssessmentReport, p. 43) [44] The appellant does suffer from low intellectual functioning, but it does not appear that the trial judge put too much emphasis onthis one factor in considering his overall treatability. At para 100, the trial judge stated the following: [100] On pages 42 and 43 of his report, Dr. Holden explains the conclusions he comes to, to support his view that Mr. Dillon isprobably untreatable at this time.

The criteria he uses to come to this opinion include the following: his unwillingness or inability to putinto place what he learned in all his programming; his view of himself as a non-violent man; his minimization of his culpability;attributing his behaviour to alcohol; his low level of intelligence; and his high score on the psychopathy checklist. I accept Dr. Holden’sopinion that Mr. Dillon is probably untreatable at this time. [45] The trial judge expressly considered a number of factors, and did not over-emphasize any one factor. 4.

The trial judge erred by failing to adequately consider the effectiveness of a long-term supervision order.

[46] The appellant submits the trial judge erred in considering the effectiveness of a long-term supervision order in Loon Lake only,rather than considering a full range of the powers of the parole board to make arrangements in other communities for the appellant. [47] The trial judge cited the proper test at para. 102 of his judgment, and referred to R. v.

Goforth: a “reasonable possibility of eventualcontrol in the community of the risk of re-offending posed by the offender” (Goforth, para. 54). [48] The trial judge then stated at para. 103 “I cannot see that this hearing established, in any way, the requisite ‘reasonable probabilityof eventual control of the risk in the community.’ Accordingly, there is no basis to consider a long-term offender designation.” [49] In considering whether there was a reasonable possibility of eventual control of the appellant in the community of Loon Lake, thetrial judge was responding to the appellant’s proposal that the risk of his re-offending could be managed in his home community of LoonLake.

Thus, it was entirely appropriate for the trial judge to consider that there was no evidence of sexual offender programs available inthe Loon Lake area. [50] The trial judge was presented with no proposals for treatment elsewhere than Loon Lake. Dr.

Nicholaichuk may be seen to havetestified that a long-term supervision order would not necessarily involve the appellant’s immediate return to Loon Lake as it wouldlikely involve “a supervised halfway house placement” and then a “transfer to a person’s home community.” However, there was noevidence of a plan for the appellant involving living in a community other than Loon Lake. [51] Dr.

Nicholaichuk also testified that: a community based program in Winnipeg, which incorporates a halfway house, you know, like residential care as well as communityintegration, and it’s designed specifically for FASD-affected adults from the federal criminal justice system who have been (inaudible)involved (inaudible) convicted of sexual crimes…It’s a community – it’s a privately run organization, and it’s a community residence,and the (inaudible) they specifically admit FASD patients for – on community release. (Transcript vol.

IV at p. 1100). [52] However, he did not refer to the program in any further detail or provide any particulars of this program. [53] In order to make a decision as to whether a dangerous offender or a long-term offender sentence is appropriate, the trial judge must“give full consideration to both the carceral and the community supervision aspects of a long-term offender sentence [emphasis in theoriginal]” (Ewenin at para. 20). [54] In addition, for the trial judge to determine whether a dangerous offender or a long-term offender sentence is appropriate, theremust be evidence of the programs that are offered in prison, which could be used to treat the accused, and evidence of the programs andcontrols that are available in the community, which could control the risk that the accused would present to the community whenreleased.

Furthermore, where the offender is an Aboriginal person, evidence regarding programs and services that are available toAboriginal offenders must be led. See Lemaigre at paras. 52–53; and Ewenin at para. 28. [55] The evidence before the Court must establish a reasonable possibility of the control of risk before a long-term offenderdesignation is appropriate. The Court in R. v. Otto, 2006 SKCA 52, 279 Sask. R. 182, referred to the case of R. v.

M.(N.J.) (2005), (ON CA), 201 C.C.C. (3d) 541 of the Ontario Court of Appeal where that Court said: 49 I agree with the submission made by the appellant that the evidence in this case amounted to no more than a hope that therespondent would either be amenable to treatment or that, if amenable, he would be treatable within a definite period of time. [56] This Court in Otto then stated: 21 Nothing in the evidence in this case shows a realistic mode of treatment for the respondent which would permit him to becontrolled in the community.

The evidence of the psychologist is flawed and the judge’s analysis ignores this flaw and the otherevidence before him. This evidence is all to the contrary and does not show any realistic prognosis for actual treatment which therespondent might receive. [57] In this case, the trial judge did not err in law by failing to determine whether there were any other treatment programs that couldreduce the risk of the appellant in the community. The trial judge recognized his obligation to consider programs in the community inwhich the appellant intended to reside, namely, Loon Lake.

He then assessed the evidence relating to family support and programsavailable in the Loon Lake community, including evidence relating to “culturally sensitive addictions programming.” However, the trialjudge found that in this case the appellant was untreatable and that there was no hope of controlling the risk posed by him in thecommunity. [58] The trial judge considered Dr. Holden’s report where he concluded that “Mr. Dillon is probably untreatable at this time”(Forensic Assessment Report, p. 56). The reference in para. 100 of the judgment to Dr.

Holden’s report that the appellant is “probablyuntreatable at this time” is confusing as Dr. Holden concluded that he did not think there is a reasonable possibility of eventual control ofthe risk of the appellant in the community. Thus, it is quite clear that the trial judge did consider the effectiveness of a long-termsupervision order and rejected it. 5. The dangerous offender designation was not reasonable. [59] In my view, the appellant met the criteria for a dangerous offender designation. [60] The trial judge considered the expert testimony of both Dr. Holden and Dr. Nicholaichuk.

He did not accept part ofDr. Nicholaichuk’s evidence and accepted much of Dr. Holden’s evidence, which he was entitled to do. Based on this evidence, the trialjudge concluded that there was no reasonable possibility of eventual control of the risk. There is ample evidence for the trial judge’s

conclusion, and the conclusion is reasonable. In fact, based upon the evidence before him, it is the only conclusion that was available to the trial judge. VII. Conclusion [ 61 ] The appeal is dismissed. DATED at the City of Regina, in the Province of Saskatchewan, this 26th day of August, 2014 . “Whitmore J.A.” Whitmore J.A. I concur “Lane J.A.” Lane J.A. I concur “Herauf J.A.” Herauf J.A.