Docket: 1796-CR Andy Harold Peekeekoot Appellant - v. -, 2014 SKCA 97

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 97 Date: 2014-09-23 Between: Docket: 1796-CR Andy Harold Peekeekoot Appellant - and - Her Majesty the Queen Respondent CORRECTED JUDGMENT : The text of the original judgment has been changed as per the corrigendum released September 29, 2014. (A copy of the corrigendum is appended to the judgment.) Coram: Richards C.J.S., Herauf and Ryan-Froslie JJ.A. Counsel: Bob Hrycan for the appellant Anthony Gerein for the respondent Jonathan Rudin for the intervenor Aboriginal Legal Services of Toronto Inc. Appeal: From: Provincial Court Heard: May 30, 2014

Disposition: Appeal dismissed Written Reasons: September 23, 2014 By: The Honourable Chief Justice Richards In Concurrence: The Honourable Mr. Justice Herauf The Honourable Madam Justice Ryan-Froslie Richards C.J.S. I. Introduction [1] The appellant, Andy Peekeekoot, is a 34-year-old Cree man. He grew up in very difficult circumstances and became involvedwith the criminal justice system at a young age. He has a record which includes over 40 offences, half of them involving violence. He hasspent the large majority of his adult life behind bars. [2] In 2005, Mr.

Peekeekoot attacked two individuals with a knife and was subsequently convicted of assault with a weapon. Thisled the Crown to commence proceedings pursuant to

Part XXIV of the Criminal Code. As a result, the sentencing judge had to firstdetermine whether Mr. Peekeekoot satisfied the definition of a dangerous offender as provided by s. 753 of the Code. Then, if thatdefinition was satisfied, the judge had to consider whether Mr. Peekeekoot should nonetheless be designated a long-term offender on thebasis that a determinate sentence and supervision order offered a reasonable possibility of controlling his risk in the community. [3] After hearing from a battery of expert and lay witnesses, the judge found that Mr.

Peekeekoot fit the criteria for designation as adangerous offender. He also concluded there was no reasonable possibility of managing Mr. Peekeekoot’s risk in the community.Accordingly, the judge found Mr. Peekeekoot to be a dangerous offender and sentenced him to an indeterminate period of incarceration. [4] Mr. Peekeekoot appeals. He acknowledges that he meets the definition of a dangerous offender, but contends the sentencingjudge made mistakes in considering whether his risk could be managed in the community.

First, he submits the judge erred by failing totake account of his First Nations heritage and experience as required by R. v. Gladue, (SCC), [1999] 1 S.C.R. 688.Second, Mr. Peekeekoot says the judge placed an improper emphasis on the question of whether he was motivated to take the stepsnecessary to control his criminal behaviour. [5] I conclude, for the reasons set out below, that Mr. Peekeekoot’s appeal must be dismissed. It is not clear that the sentencingjudge failed to consider the so-called Gladue factors.

However, even if he did, there was no substantial wrong or miscarriage of justice.There is less room for Gladue considerations to affect the outcome of a dangerous offender proceeding than is the case in conventionalsentencing situations. In this case, the judge’s oversight, if there was one, had no effect on the bottom-line question of whether there wasa reasonable possibility of the eventual control of Mr.

Peekeekoot’s risk in the community. [6] I also conclude that the sentencing judge did not act unreasonably, or arrive at an unreasonable conclusion, by emphasizing Mr.Peekeekoot’s lack of motivation to deal with his offending behaviour and its underlying causes. The experts agreed that motivation wasthe key to Mr. Peekeekoot being able to benefit from programming and control his criminality. In light of the evidence presented to him,the sentencing judge made no error in finding that Mr. Peekeekoot was not motivated to change and that, as a consequence, the prospectsfor managing his risk in the community were dim.

II. Factual and Other Background A. Personal Circumstances [7] Mr. Peekeekoot was born on September 18, 1979 in Shellbrook. His father lived on the Ahtahkakoop Reserve near Sandy Lake,Saskatchewan. It appears that he, the father, had an extensive criminal history and abused alcohol and drugs. Mr. Peekeekoot’s motheralso abused alcohol and drugs. At the age of two, he was placed in foster care because of physical and emotional neglect. [8] Mr. Peekeekoot became a permanent ward of the Department of Social Services in Alberta.

He was returned to Sandy Lake tolive with his grandmother but was subjected to mental and physical maltreatment at the hands of his father and an uncle. [9] By about the age of 10, Mr. Peekeekoot was using alcohol and drugs. He entered a foster home at Montreal Lake where, he says,he was physically and sexually abused. [10] Mr. Peekeekoot reports having moved through several foster home placements. There was some contact with his mother, but Mr.Peekeekoot recalls being assaulted and abused by both her and her male friends. His mother once attempted to stab him. [11] Mr.

Peekeekoot was convicted for theft in 1991 – his first criminal offence. By 1992, he was a resident at Ranch Ehrlo, aprovincial youth facility. His involvement with the criminal justice system has been ongoing since that time.

[ 12 ] There is some uncertainty about Mr. Peekeekoot’s formal academic achievements. He says that he only completed grade six or seven, although some records suggest that he might have successfully completed upgrading courses to a high school level. [ 13 ] The record indicates that Mr. Peekeekoot has never been married. He estimates having been involved in between 60 and 70 intimate relationships, none of which lasted longer than six months. [ 14 ] Mr. Peekeekoot has effectively no work experience. He recalls having been employed only once – a roofing job that lasted for a very short period of time in 2005. B. Offending History [ 15 ] The sentencing judge included a helpful

summary of Mr. Peekeekoot’s offending history in his reasons for decision. That history began in 1991 and includes convictions for assault (11), assault causing bodily harm (three), assault with a weapon (three), aggravated assault (two), robbery (one), carrying a concealed weapon (two), and uttering threats (one). It also features convictions for theft, break and enter, possession of stolen property, driving “over .08”, and possession of morphine and methamphetamine. Many of these offences took place while Mr. Peekeekoot was already in custody. [ 16 ] The most serious of Mr. Peekeekoot’s convictions are: (

a) a conviction for aggravated assault in 1999 which arose from a situation where Mr. Peekeekoot stabbed an individual, apparently because the victim asked two girls if they wanted a ride, (

b) a conviction for aggravated assault in 2002 arising from a circumstance where, outside a bar, Mr. Peekeekoot punched and stomped the victim and caused a serious brain injury from which the victim did not fully recover, (

c) a conviction for assault in 2003 for attempting to slash a correctional worker with a razor. I also note that, at the time of the dangerous offender proceedings, Mr. Peekeekoot faced a pending charge of aggravated assault. It related to an incident (which arose after the dangerous offender proceedings had been commenced) wherein Mr. Peekeekoot had kicked and stomped another inmate’s head. C. The Predicate Offences [ 17 ] The offences which triggered the dangerous offender proceeding giving rise to this appeal occurred on August 5, 2005.

Ryan Heisler and Adam Kirchner were in a bar at Shell Lake, Saskatchewan at about 7:00 p.m. Mr. Heisler had just won several hundreds of dollars in credits at a VLT machine. [ 18 ] Mr. Peekeekoot and two other men entered the bar and approached Mr. Heisler. One of the men asked Mr. Heisler what he was smiling at and the other punched him. A brawl ensued and, during it, Mr. Heisler and Mr. Kirchner prevailed. The two men who had attacked Mr. Heisler got up and prepared to leave the bar. They shook hands with Mr. Kirchner. [ 19 ] At this point, Mr.

Peekeekoot said “That’s not good enough for me.” He produced a knife some eight inches in length (total) and began to advance on Messrs. Heisler and Kirchner. He punched Mr. Kirchner in the face, breaking his nose, and then pursued Mr. Heisler around the room. Mr. Heisler had to barricade himself behind a door to prevent Mr. Peekeekoot from getting at him with the knife. Mr. Kirchner managed to escape to safety outside of the bar. [ 20 ] The police were called. Mr. Kirchner and one of the other attackers were still in the parking lot of the bar. Mr. Peekeekoot tried to hide in a parked car, but was discovered.

The knife was found inside the vehicle. [ 21 ] Mr. Peekeekoot was convicted of two counts of assault with a weapon. III. The Legislative Scheme [ 22 ] The statutory provisions which underpin this appeal are found in

Part XXIV of the Criminal Code as it read at the time of the offences against Messrs. Heisler and Kirchner. For ease of exposition, I will use the present tense in describing its features and operation. [ 23 ]

Section 753 provides that a court may find an individual to be a dangerous offender if it is satisfied he or she has been convicted of a serious personal injury offence and that he or she constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing specified kinds of behaviour. The relevant parts of s. 753 read as follows: 753.

(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find the offender to be a dangerous offender if it is satisfied (

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

a) of the definition of that expression in

section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (

i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or

(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behaviourial restraint; or ...

(4) If the court finds an offender to be a dangerous offender, it shall impose a sentence of detention in a penitentiary for an indeterminate period. ...

(5) If the court does not find an offender to be a dangerous offender, (

a) the court may treat the application as an application to find the offender to be a long-term offender,

section 753.1 applies to the application and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or (

b) the court may impose sentence for the offence for which the offender has been convicted. [ 24 ]

Section 753.1 of the Code says a court may find an offender to be a long-term offender if it is satisfied that it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted, there is a substantial risk that the offender will reoffend, and there is a reasonable possibility of eventual control of the risk in the community. The aspects of s. 753.1 bearing on this appeal are reproduced below: 753.1(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that (

a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted; (

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

c) there is a reasonable possibility of eventual control of the risk in the community. ...

(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 of imprisonment 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 and the Corrections and Conditional Release Act. [ 25 ] In R. v. Johnson , 2003 SCC 46 , [2003] 2 S.C.R. 357, the Supreme Court stressed that, on a dangerous offender application, the trial judge must consider the long-term offender provisions of the Code . Specifically, an offender must not be designated a dangerous offender if a determinate sentence followed by a period of supervision in the community will adequately protect the public.

Iacobucci and Arbour JJ. wrote as follows: 44 As we have discussed, a sentencing judge should declare the offender dangerous and impose an indeterminate period of detention if, and only if, an indeterminate sentence is the least restrictive means by which to reduce the public threat posed by the offender to an acceptable level. The introduction of the long-term offender provisions expands the range of sentencing options available to a sentencing judge who is satisfied that the dangerous offender criteria have been met.

Under the current regime, a sentencing judge is no longer faced with the stark choice between an indeterminate sentence and a determinate sentence. Rather, a sentencing judge may consider the additional possibility that a determinate sentence followed by a period of supervision in the community might adequately protect the public.

The result is that some offenders who may have been declared dangerous under the former provisions could benefit from the long-term offender designation available under the current provisions. 45 It thus follows that the Court of Appeal was correct to conclude that the sentencing judges were required to consider the applicability of the long-term offender provisions.

If the respondent satisfies the long-term offender criteria and there is a reasonable possibility that the harm could be reduced to an acceptable level under the long-term offender provisions, the proper sentence, under the current regime, is not an indeterminate period of detention, but, rather, a determinate period of detention followed by a long-term supervision order. If this is the case, s. 11 (

i) of the Charter dictates that the respondent is entitled to be sentenced to a period of determinate detention followed by a long-term supervision order. IV. The

Part XXIV Hearing [ 26 ] I will not attempt to review all of the evidence presented at the dangerous offender hearing. It is summarized in the sentencing judge’s decision. For present purposes, I propose to flag only a few of the key aspects of the testimony. [ 27 ] Dr. Roger Holden assessed Mr. Peekeekoot pursuant to

Part XXIV. He concluded that Mr. Peekeekoot was a very high risk to offend violently in the future. In this regard, and in the context of applying a clinical assessment tool known as HCR-20, he made several findings, pointing to a high, or extremely high, chance of reoffending. These findings related to Mr.

Peekeekoot’s history of violence, unstable personal relationships, substance abuse problems, early-life maladjustment, prior supervision failures, negative attitudes, impulsivity, unresponsiveness to treatment, exposure to destabilizers including drugs and alcohol, lack of personal supports, and non- compliance with remedial attempts. Dr. Holden also found that Mr. Peekeekoot has a chronic and untreated substance abuse problem and

that nothing suggested Mr. Peekeekoot was prepared to come to grips with these issues. [ 28 ] Dr. Holden also concluded Mr. Peekeekoot had many traits indicative of a psychopathic personality and that he was therefore likely to be “egocentric, callous, ‘cold-blooded’, predatory, impulsive, irresponsible, dominant, deceptive, manipulative, and lacking in empathy, guilt, or genuine remorse for socially deviant or criminal acts.” He was not prepared to formally label Mr. Peekeekoot as a “psychopath”, but Dr. Holden did note that the prognosis of psychopathic individuals in treatment is usually very poor. While Dr.

Holden found that Mr. Peekeekoot was not suffering from an identifiable mental illness, he nonetheless concluded that he qualified for a diagnosis of both substance abuse disorder and antisocial personality disorder. [ 29 ] Overall, Dr. Holden found that Mr. Peekeekoot appears to have very ingrained characterological problems which manifest as an antisocial personality disorder with psychopathic traits. He concluded “one might opine, at this point [Mr.

Peekeekoot] is untreatable using the techniques presently available to the Correctional Service of Canada.” [ 30 ] Jay Knudsen is a team leader at the Saskatoon Correctional Centre. He testified that Mr. Peekeekoot had been transferred to the federal prison system on three separate occasions because the provincial service was unable to handle him. In over 20 years of work experience, Mr. Knudsen had never known an inmate to be subject to two such transfers, let alone three of them. He characterized Mr.

Peekeekoot as one of the four or five most problematic inmates he had ever dealt with. [ 31 ] Tracy Bedard works as an intake assessment parole officer with the Correctional Service of Canada. She assesses the security level of new inmates and their programming needs. She has done more than 300 such intakes and testified that Mr. Peekeekoot had accumulated the highest number of so-called “incident reports” she had ever seen. Between May 1, 2001 and September 8, 2002, there were 81 such reports. Forty-one involved threatening behaviour, attempts to intimidate, and verbal abuse or physical assaults against staff.

There were seven reports of threatening, intimidating or physically assaulting other offenders and nine concerning attempts to incite others to misbehave. Ms. Bedard’s characterization of Mr. Peekeekoot’s in-custody behaviour was echoed by Allen Stubbs, the Acting Deputy Director of Operations at the Prince Albert Correctional Centre. He had worked in the corrections field for 27 years and said he could not recall an inmate with a more severe disciplinary history. [ 32 ] Dr. Natalie Polvi is a psychologist employed at the Regional Psychiatric Centre in Saskatoon.

She is involved with the Aggressive Behaviour Control Program at the Centre. Dr. Polvi testified that Mr. Peekeekoot had been in the ABC program for treatment on two occasions. On the first, in 2000, he was discharged due to negative behaviour on and off the unit and suspected involvement in the assault of another patient. Mr. Peekeekoot entered the program a second time in 2003. He was involuntarily discharged after putting forth very little effort and displaying verbally aggressive behaviour on several occasions.

His experience in the program, according to the final report, had made no impact on his risk level. [ 33 ] Dr. Stephen Wormith is a Saskatoon psychologist called by Mr. Peekeekoot. Dr. Wormith had interviewed Mr. Peekeekoot and administered a number of tests. Like Dr. Holden, he concluded that Mr. Peekeekoot was a very high risk to reoffend generally and a high risk to reoffend violently. He based this opinion on five important risk factors: (

a) an extensive criminal history of violent and non-violent offences, (

b) an apparent inability to control anger when confronted by authority figures, (

c) friends and associates who were entrenched in a criminal subculture, (

d) drug and alcohol abuse, and (

e) lack of connectedness with pro-social customs. [ 34 ] Dr. Wormith diagnosed Mr. Peekeekoot as being drug and alcohol dependent and as having an antisocial or personality disorder. In Dr. Wormith’s view, Mr. Peekeekoot’s score on the PCL-R test (Psychopathy Checklist-Revised) placed him just above the cut-off point for what is referred to as the high psychopathic group. On the VRAG, another risk assessment tool, Mr. Peekeekoot scored in the 98 th percentile. Dr. Wormith noted that Mr. Peekeekoot’s violent offending in the community showed signs of escalating. [ 35 ] On the more positive side of the ledger, Dr. Wormith noted (

a) there is plenty of evidence that appropriate treatment reduces recidivism rates, even with respect to high risk offenders, (

b) Mr. Peekeekoot’s intellectual functioning is at the high end of the average range and this should be considered a strength, and (

c) while having difficulty complying with parole conditions associated with provincial sentences, Mr. Peekeekoot has never had the benefit of being released on a gradual, structured reintegration program and has never been under federal post-release supervision. [ 36 ] Dr. Wormith believed that Mr. Peekeekoot could eventually be released into the community but, at the same time, acknowledged that previous releases had ended in failure and that there was no clear evidence to suggest Mr.

Peekeekoot would benefit sufficiently from correctional treatment and post-community supervision to remain crime-free on his release. He observed that custodial treatment and an integrated supervision plan in the community have the potential of lowering the likelihood of recidivism of high-risk offenders like Mr. Peekeekoot to some degree but indicated that, in individual cases, it is difficult to determine how much such treatment might lower the relevant risk. V. The Sentencing Decision [ 37 ] The sentencing judge prepared a 34-page written decision. He began by reviewing the predicate offences, Mr.

Peekeekoot’s offending history and his personal background. The judge then set out summaries of the evidence of the various witnesses who had testified, the governing provisions of the Criminal Code and some of the key case law relating to the proceedings. [ 38 ] Against that background, the sentencing judge had little difficulty concluding Mr. Peekeekoot met the definition of a dangerous offender as set out in s. 752 of the Criminal Code . (Mr. Peekeekoot does not suggest the judge made any error on this front.) The judge observed that, in light of Mr. Peekeekoot’s history and the testimony of both Drs.

Holden and Wormith, it was a near certainty that Mr. Peekeekoot’s violent behaviour would continue. [ 39 ] This led the judge to consider whether Mr. Peekeekoot should be designated a long-term offender, i.e. whether, as per s. 753.1 of

the Code, there was “a reasonable possibility of eventual control of the risk in the community.” On this front, he observed that Mr.Peekeekoot is “a very troubled and volatile man” whose serious behavioural problems are compounded by an addiction to alcohol andillicit drug use. The sentencing judge then went on to reference the expert testimony concerning the essential place of programming insuccessful risk management. He also noted both the lack of evidence that Mr. Peekeekoot was motivated to effect long-term change inhis criminal behaviour and Mr.

Peekeekoot’s long history of failing to restrain himself or seek meaningful change. In the end, the judgeconcluded there was “little or no realistic prospect” that Mr. Peekeekoot would ever alter his behaviour. As a result, he held that therewas no reasonable possibility of eventual control of Mr. Peekeekoot’s risk in the community and found him to be a dangerous offender. VI. Analysis [40] A person who has been found to be a dangerous offender may appeal to this Court on any ground of law or fact or mixed fact andlaw. See: Criminal Code, s. 759(1). The Supreme Court of Canada’s decision in R. v.

Currie, (SCC), [1997] 2 S.C.R.260 indicates that an appeal court may set aside a dangerous offender designation if (

a) the sentencing judge made a legal error or (

b) thedesignation was not reasonable. [41] As indicated, Mr. Peekeekoot submits the sentencing judge made two main errors. First, he contends the judge did not properlyconsider Gladue factors in making the dangerous offender designation. Second, Mr. Peekeekoot says the judge placed too muchemphasis on his lack of motivation to deal with his problems. As well, Mr. Peekeekoot seeks leave to introduce fresh evidenceconcerning his activities and achievements since sentencing. [42] I will deal with the fresh evidence application first and then turn to Mr. Peekeekoot’s two substantive arguments. A.

The Fresh Evidence Application [43] Mr. Peekeekoot seeks leave to introduce a series of diplomas, some 23 in total, relating to the programming he completed betweenMay of 2010 and September of 2013 while in custody. [44] The diplomas relate to (

a) a number of adult education programs including classes such as English, financial management, GEDpreparation, and keyboarding, (

b) four apparently aboriginal-focused programs including a substance abuse program, a program called“Honouring Your Wounds” and one called “In Search of Your Warrior”, (

c) some parenting programs, and (

d) a number of workplacesafety programs. [45] This evidence is put forward to bolster the contention that the dangerous offender designation was not reasonable, particularly tothe extent it was based on an assessment of Mr. Peekeekoot’s motivation. Mr. Peekeekoot contends the evidence bears on his“treatability” in that it shows he is capable of successfully completing programming. He stresses that, within months of the dangerousoffender designation, he had finished some courses. [46] The principles governing the possible introduction of this evidence are not in dispute.

They were recently restated as follows in R.v. Sipos, 2014 SCC 47: [29] The Court established in R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487, that while the sources and types of new evidence aremore flexible in relation to sentence appeals, the well-known “Palmer” test governs admissibility of fresh evidence. That test, as is wellknown, sets out four criteria concerned with due diligence, relevance, credibility and impact on the result: Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759, at p. 775.

Generally, fresh evidence should not be received if it could have been obtained at trialby exercising due diligence, although this criterion is not strictly applied in criminal matters when it would be contrary to the interests ofjustice to do so. The evidence must be relevant in the sense that it relates to a potentially decisive issue and reasonably worthy of belief.Finally, the evidence, if accepted, must reasonably be expected to have affected the result when considered along with the trial evidence.As Charron J. explained in R. v.

Angelillo, 2006 SCC 55, [2006] 2 S.C.R. 728, at para. 15: In accordance with the last three of the Palmer criteria, an appellate court can therefore admit evidence only if it is relevant andcredible and if it could reasonably be expected to have affected the result had it been adduced at trial together with the other evidence. [Emphasis in original] [47] I have little difficulty concluding that the fresh evidence in issue here satisfies the first three parts of this test: it was not availableat the time of the hearing, it relates to a potentially decisive issue, and it is reasonably worthy of belief.

However, the fourth part of thetest, the question of whether the evidence can affect the result of this case, is a different matter. [48] In this regard, the most fundamental problem with Mr. Peekeekoot’s argument is not hard to discern. It fails to appreciate that the“reasonableness” question before this Court is not whether, given his current prospects and situation, a dangerous offender designation isappropriate. Rather, the question is whether the decision made by the sentencing judge was reasonable at the time it was made. As notedin R. v.

Sipos, at para. 43, appellate courts are frequently presented with evidence about an offender’s rehabilitation efforts aftersentencing but they generally take “a very cautious approach to intervening solely on the basis of evidence of this nature.” So it should behere. [49] In any event, the evidence presented by Mr. Peekeekoot is not especially compelling. We know effectively nothing about thecontent or subject matter of the various programs in issue beyond what is revealed by their titles. With only a few exceptions, we do not

know how many hours or days of study or participation were demanded for completion of each program. We do not know what it means to “complete” a course – was it enough that Mr. Peekeekoot was present or did he have to demonstrate a level of achievement or performance to secure each diploma? Finally, it is apparent that very few of the 22 programs in question (one was taken twice) involve subject matter which bears directly on the prospect of controlling Mr. Peekeekoot’s risk in the community. In large part, we are left to speculate about the relationship between Mr.

Peekeekoot’s completion of the programs in question and the key issue of whether his risk can be controlled. [ 50 ] In the end, I am not persuaded that the fact Mr. Peekeekoot has completed these programs can cast any meaningful doubt on the sentencing judge’s conclusion that an indeterminate sentence was appropriate. The judge did not say Mr. Peekeekoot was not capable of completing programming. He said that Mr. Peekeekoot was not motivated to address his offending behaviour and, as a consequence, the prospects for managing his risk were dim. [ 51 ] Thus, given the nature of the evidence Mr.

Peekeekoot seeks to introduce, I do not see how it could affect the question of whether, in 2010, the sentencing judge acted reasonably in finding him to be a dangerous offender. As a result, I would not admit the evidence and would dismiss Mr. Peekeekoot’s application accordingly. [ 52 ] By way of conclusion on this point, I note that Mr. Peekeekoot’s attitude may well have changed in the four-and-a-half years since the sentencing decision. If so, he should be commended for making progress toward his possible release.

But, on the basis of the material before the Court, the fact of the completion of these courses does not indicate the sentencing judge acted unreasonably in assessing the case presented before him. In other words, the progress reflected in Mr. Peekeekoot’s programming achievements is not evidence which suggests the sentencing judge acted improperly. Rather, it is something for the Correctional authorities and the Parole Board to take into account in the course of administering Mr. Peekeekoot’s indeterminate sentence and considering his possible release from custody. B.

Failure to Consider Gladue Factors [ 53 ] Mr. Peekeekoot submits that the sentencing judge failed to address what are commonly referred to as Gladue factors in the course of his decision. In his view, this error means the dangerous offender designation must be set aside. [ 54 ] It may be helpful to consider Mr. Peekeekoot’s arguments in relation to Gladue by first outlining the relevant legal principles. I will then consider how those principles operate with respect to Mr. Peekeekoot’s main submission. Finally, I will briefly consider some Gladue -related concerns that were raised on Mr.

Peekeekoot’s behalf during the course of oral argument. 1. The Governing Law [ 55 ] Mr. Peekeekoot’s argument is ultimately rooted in s. 718.2 (

e) of the Criminal Code . It reads as follows: 718.2 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. [ 56 ] R. v. Gladue , supra and R. v. Ipeelee , 2012 SCC 13 , [2012] 1 S.C.R. 433 have established that the reference to “aboriginal offenders” in s. 718.2 (

e) is aimed at the amelioration of the circumstances of such offenders. Caldwell J.A. summarized this point in R. v. Standingwater , 2013 SKCA 78 , [2013] 10 W.W.R. 277: [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 to ameliorate the serious problem of overrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing”. Furthermore, the Court said that s. 718.2 (e) “calls upon judges to use a different method of analysis in determining a fit sentence for Aboriginal offenders”. In sum, the

section “directs sentencing judges to pay particular attention to the circumstances of Aboriginal offenders because those circumstances are unique and different from those of non- Aboriginal offenders”. [ 57 ] A sentencing judge has no discretion on the question of whether the unique situation of an aboriginal offender should be taken into account in crafting a sentence. This must be considered. The only discretion a judge has is in relation to the determination of the particular details of a just and appropriate sentence. See: R. v. Gladue at para. 82 .

Gladue factors do not drive any particular sentencing result but they must be incorporated into the decision-making process. [ 58 ] Further, and speaking somewhat more specifically, a proper application of s. 718.2 (

e) involves more than just the recitation of a catalogue of Gladue factors. A sentencing judge must also take those factors into account as prescribed in R. v. Gladue and R. v. Ipeelee . That is, the judge must (

a) consider the unique circumstances of the aboriginal offender which may have played a

part in bringing him or her before the courts and which, as a result, may have diminished the offender’s moral culpability, and (

b) examine the types of sentencing procedures and sanctions which may be appropriate because of the offender’s aboriginal heritage and related circumstances. See: R. v. Ipeelee at paras. 72-74 . As the Supreme Court said in R. v. Ipeelee , at para. 75 , “sentencing judges are required to pay particular attention to the circumstances of Aboriginal offenders in order to endeavour to achieve a truly fit and proper sentence in any particular case.”

[ 59 ] There is no doubt that s. 718.2 (

e) applies to sentencing decisions made under

Part XXIV of the Code in relation to designations of both dangerous and long-term offender status. See: R. v. Johnson , 2003 SCC 46 , [2003] 2 S.C.R. 357. In combination with s. 718.2 (d), s. 718.2 (

e) obliges a judge to consider the possibility that a less restrictive sanction will attain the necessary sentencing objectives. However, that said, Gladue considerations may have little impact in the context of a

Part XXIV proceeding. This point is best understood by considering each of the two stages of an inquiry into whether an individual should be found to be a dangerous offender. [ 60 ] First, Gladue factors self-evidently can have no impact on the first order question under

Part XXIV of the Code , i.e. on the question of whether an individual falls within the definition of a dangerous offender set out in s. 753(1)(a). As indicated earlier, in relevant

part it says this: 753.

(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find the offender to be a dangerous offender if it is satisfied (

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

a) of the definition of that expression in

section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (

i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behaviourial restraint; or [ 61 ] These are objective considerations which the actions of the offender, aboriginal or non-aboriginal, will either satisfy or not.

By way of brief illustration with reference to s. 753(1)(a)(ii), an offender’s history will show the requisite pattern of persistent aggressive behaviour referred to in that provision or it will fail to do so. There is no middle ground and no opportunity to characterize the offender’s position one way or the other depending on his or her moral culpability for the criminal activity in question. As a result, there is simply no room to give effect to s. 718.2 (

e) at the initial stage of the analysis of a dangerous or long-term offender problem. Gladue factors are not relevant to the question of whether an individual meets the criteria necessary to be found to be a dangerous offender. [ 62 ] The situation is different at the second stage of the inquiry. In other words, it is different when considering whether an offender should be found to be a long-term offender, as opposed to a dangerous offender. There, within the context of the overriding sentencing objective of

Part XXIV – protection of the public – and depending of course on the facts of the particular case, there may be room for Gladue considerations to influence the outcome of the proceedings. This was explained in R. v. Standingwater , supra .

In that case, Caldwell J.A. wrote as follows: [51] … 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. See also: R. v. Montgrand , 2014 SKCA 31 , 433 Sask. R. 248 at paras. 15-17 . 2. Application of Principles to this Appeal [ 63 ] With those principles in mind, let me now turn to the particulars of this appeal. In that regard, it is true that the sentencing judge made no direct reference to the notion of “ Gladue factors” or to s. 718.2 (

e) of the Criminal Code in the course of his decision. However, notwithstanding his failure to expressly mention R. v. Gladue , it is not entirely clear to me that the judge did not take account of the relevant Gladue considerations in the course of making his decision. [ 64 ] I say this because the sentencing judge was certainly aware of, and alive to, Mr. Peekeekoot’s First Nations identity and to the difficult circumstances of his life and childhood. All of this was covered in some detail in the reports prepared by Drs.

Holden and Wormith and the judge summarized the salient facts in his decision. [ 65 ] In addition, the sentencing judge heard evidence about the aboriginal-specific programming available to Mr. Peekeekoot. This included evidence from the Saskatchewan Penitentiary Program Manager, Lee Anne Skene, about programs for substance abuse and violence and about the “In Search of Your Warrior” program which had been in place for a number of years at the time of the hearing. Tim Yont, a Community Parole Officer with the Correctional Service of Canada, also testified about the services and programming available on Mr.

Peekeekoot’s First Nation. There is no reason to think that the judge did not take all of this into account when making his decision. [ 66 ] Moreover, the sentencing judge clearly understood the impact of Mr. Peekeekoot’s upbringing and the disadvantages he had faced during the course of his life. He said this at para. 52 of his decision: An analysis of the reports filed in this matter, and particularly the pre-sentence and early psychological reports, reveals a very troubled and volatile man.

His experiences of neglect, violence and abuse since childhood have produced a man with serious behavioural traits (many of which are violent) compounded with apparent feelings of loss, anger, resentment and suspicion. The complexity of Mr. Peekeekoot’s psychological make-up is compounded by an acquired addiction to alcohol and a history of illicit drug use, the exposure to which enhance his violent predilections. [ 67 ] Thus, although he did not mention Gladue itself, the sentencing judge’s decision might nonetheless be read as involving an appreciation of Mr.

Peekeekoot’s aboriginal heritage, the disadvantages it has involved and how all of this factored into the question of whether his risk might be managed in the community. As well, it seems apparent that the judge took into account the aboriginal-specific programming and resources relevant to the management of Mr. Peekeekoot’s risk. If all of this does summarize how the sentencing judge proceeded, then Mr. Peekeekoot’s argument must fail.

Section 718.2(

e) of the Code requires that, as a matter of substantive decision- making, an offender’s aboriginal status and related circumstances be considered when determining an appropriate sentence. It does not mandate or demand an express reference to R. v. Gladue itself. See, for example: R. v. C. (O.E.) , 2013 MBCA 60 , 294 Man. R. (2d) 122 at para. 27 . [ 68 ] However, even if Mr. Peekeekoot is correct that the sentencing judge failed to consider Gladue factors, or to adequately consider them, the analysis of this line of argument does not end there. As discussed in R. v. Standingwater at paras. 37-39 , a court of appeal has the authority to dismiss an appeal from a decision made under

Part XXIV of the Criminal Code notwithstanding an error made by the sentencing judge. Accordingly, it is also necessary to ask whether the sentencing judge’s Gladue -related oversight (assuming there was one) had any impact on his determination that Mr. Peekeekoot should be found to be a dangerous offender. Put another way, it must be determined whether this Court should dismiss Mr. Peekeekoot’s appeal, notwithstanding the judge’s mistake, because no substantial wrong or miscarriage of justice resulted from that mistake. [ 69 ] And, in my view, Mr. Peekeekoot’s argument falls short on this point.

On the record before the Court, it is not apparent how Gladue considerations could possibly have operated to take Mr. Peekeekoot’s risk in the community from being unmanageable to being manageable. This is not a conventional sentencing proceeding where, for example, a court might impose a somewhat less severe custodial sentence based on a conclusion that Gladue considerations mean an offender should be seen as having a diminished moral culpability for his actions. Here, the only question before the judge was this one: Is there a reasonable possibility of eventually controlling Mr.

Peekeekoot’s risk in the community? As indicated, I do not see how the answer to that question could have changed if, given the evidence before him, the sentencing judge had made express reference to R. v. Gladue in making his decision as to how Mr. Peekeekoot’s risk might be managed. [ 70 ] In any event, the judge’s central concern was that Mr. Peekeekoot had no interest in changing his criminal behaviour and was not motivated to do so. Given this conclusion, it is not apparent how a more purposeful consideration of, for example, the aboriginal-specific programming available to Mr.

Peekeekoot might have led to a different conclusion about whether his risk was manageable. If Mr. Peekeekoot was not motivated to change, he would not change. Accordingly, although the curative features of the Code should obviously be engaged only very carefully, this is a case where they can be safely invoked if necessary. [ 71 ] Thus, even if it is assumed that the sentencing judge failed to consider Gladue factors in the course of his decision-making, that failure could not have affected his bottom-line decision given the facts of this case.

Any such oversight did not lead to a substantial wrong or miscarriage of justice. As a result, I conclude that this wing of Mr. Peekeekoot’s appeal must fail. 3. Other Gladue -related Points [ 72 ] In the course of oral argument, submissions were made on Mr. Peekeekoot’s behalf in relation to R. v. Gladue which raised

additional concerns that were neither especially clearly delineated nor advanced as being free-standing errors of law. Nonetheless, they deserve some comment. [ 73 ] Mr. Peekeekoot’s concerns revolve around the fact that, on October 26, 2009, the sentencing judge refused to allow him a further adjournment of the dangerous offender proceedings. As a result of this, Mr. Peekeekoot was not represented by counsel in the late stages of the hearing. There seems to be some suggestion that all of this denied him an opportunity to present additional Gladue -type evidence.

In order to understand this set of concerns, it is necessary to begin by outlining the history of the dangerous offender proceeding. It is somewhat involved. [ 74 ] The story begins on March 15, 2006 when Mr. Peekeekoot appeared in Provincial Court on the charges involving Mr. Heisler and Mr. Kirchner. At that time, he dismissed his Legal Aid counsel. On April 19, 2006, an order was made for court-appointed counsel. Mr. Peekeekoot then appeared with Mr. Kevin Hill as his lawyer. Mr. Hill acted for him at the trial of the aggravated assault charges.

After the trial, the sentencing judge was advised of the Crown’s intention to bring dangerous offender proceedings. Mr. Peekeekoot appeared in Provincial Court on August 31, 2007 without a lawyer. He had retained Mr. Scott Hopley, but Mr. Hopley had withdrawn. Mr. Peekeekoot advised that he was continuing to seek court-appointed counsel. [ 75 ] On or about September 4, 2007, Mr. Jeff Deagle was appointed as counsel for Mr. Peekeekoot. There were a series of adjournments to allow time for Mr. Peekeekoot’s assessments. On September 24, 2008, Mr. Peekeekoot appeared before the sentencing judge and Mr.

Deagle withdrew, having been dismissed by Mr. Peekeekoot. [ 76 ] Mr. Tim Rickard then came on the file to represent Mr. Peekeekoot. The dangerous offender proceedings commenced on June 11, 2009. Mr. Rickard acted for Mr. Peekeekoot throughout the course of the Crown’s case and, as might be expected, cross-examined each of the Crown’s witnesses. He also called Dr. Wormith to give evidence on behalf of Mr. Peekeekoot and led him through his testimony. (Mr. Peekeekoot does not suggest that Mr.

Rickard failed to represent him capably in doing all of this.) The hearing was then adjourned to July 20, 2009. [ 77 ] On July 13, 2009, the judge convened a conference call to deal with an issue which had been raised by Mr. Rickard. More specifically, Mr. Rickard sought leave to withdraw from the file because, to use his words, “… the last three conversations that we’ve had, it’s become abundantly clear that Mr. Peekeekoot does not have faith in my abilities to represent him…”. [ 78 ] The judge then expressed a concern about allowing a lengthy adjournment to accommodate Mr.

Peekeekoot in finding and instructing new counsel and suggested that “at some point we may have to confront the possibility of proceeding without [Mr. Peekeekoot] having counsel.” When Mr. Peekeekoot responded that he needed counsel, the judge reminded him that he had been unable to work with at least three lawyers of record and questioned whether Mr. Peekeekoot could maintain a relationship with any counsel. The judge then asked Mr. Rickard whether, if he did not permit Mr. Peekeekoot an opportunity to instruct new counsel, there was any possibility of Mr. Rickard continuing. Mr.

Rickard responded in the negative. At that point, the judge rather reluctantly accepted Mr. Rickard’s withdrawal from the file. [ 79 ] At this juncture, the judge said he was “not going to permit Mr. Peekeekoot much more time to instruct counsel in his defence”, pointing out that Mr. Peekeekoot had had counsel to that point in the proceedings and that the only issues still outstanding were whether Mr. Peekeekoot himself would testify and whether “supplementary witnesses are going to be called.” He observed that Mr. Peekeekoot had presumably already received advice on these matters from Mr. Rickard. [ 80 ] Mr.

Peekeekoot advised that he was going to try to call witnesses but indicated, as well, that he did not have their names or the dates on which they would be available. The judge then asked the prosecutor if she could assist Mr. Peekeekoot by subpoenaing the individuals Mr. Peekeekoot wanted to call as witnesses. The prosecutor agreed and the judge then asked Mr. Peekeekoot again if he knew the names of his witnesses. Mr. Peekeekoot replied by saying “Well, I’m not prepared to share that this morning.” [ 81 ] The judge impressed on Mr.

Peekeekoot the importance of moving with haste and adjourned the proceedings to a conference call in a week’s time – July 20, 2009. He told Mr. Peekeekoot that, on July 20, he needed to know who his witnesses were and whether he himself, i.e. , Mr. Peekeekoot, would testify. The judge also directed the Crown to provide its disclosure materials to Mr. Peekeekoot and undertook to immediately order a transcript of the proceedings to that date. He suggested that, on July 20, the proceedings would likely be adjourned into mid-September. [ 82 ] As arranged, a conference call was convened on July 20, 2009.

The judge began by reminding Mr. Peekeekoot that the order for court-appointed counsel was still in place and that it was Mr. Peekeekoot’s choice as to whether he wished to instruct counsel on the strength of the order. He also offered, if Mr. Peekeekoot preferred, to require Court Services’ officials to find him counsel. [ 83 ] The judge then asked Mr. Peekeekoot if he planned to call witnesses and Mr. Peekeekoot said that was his intention. However, he refused to identify the witnesses and, without naming the individual in question, said he had been in touch with a different lawyer. The judge then advised Mr.

Peekeekoot that, if he intended to testify or call evidence, this would happen on September 16 and 17, 2009. When Mr. Peekeekoot asked if a later date would be possible, the judge extended the adjournment to October 26. Mr. Peekeekoot then expressed concern about whether new counsel might be available on that date and the judge advised him that, while the date was not “chiselled in stone”, it would take a very unusual circumstance to warrant an adjournment beyond that date. He said the onus was on Mr. Peekeekoot to find another lawyer.

The judge also re-confirmed the prosecutor’s availability to serve subpoenas for Mr. Peekeekoot. He sorted out the details of how that might happen and again counselled Mr. Peekeekoot to contact Court Services for assistance if he was not able to find a lawyer on his own. [ 84 ] Court reconvened, as arranged, on October 26, 2009 in Prince Albert. Mr. Peekeekoot began by indicating that a “speaker” who was to be there was not present.

He appeared not to know this person’s name but the judge adjourned the proceedings in order to allow him to make necessary telephone calls. [ 85 ] During the course of the adjournment, a Mr. Ahenakew appeared in court. He is a court and justice worker at the Ahtahkakoop First Nation and explained that he was there at Mr. Peekeekoot’s request to testify about opportunities on the Reserve. The judge then

ordered a further adjournment to allow Mr. Peekeekoot to complete phone calls and to meet with Mr. Ahenakew. The judge said that,when they reconvened, he would hear Mr. Ahenakew’s evidence. [86] After the adjournment, the judge asked if Mr. Ahenakew was going to testify. Mr. Peekeekoot replied that there were too manyissues and that he had neither the means nor the education to deal with them. He said that he needed legal representation and effectivelyrefused to go any further without it. [87] Mr.

Peekeekoot also said that he had made efforts to retain counsel and that there were lawyers who were prepared to work withhim but not if Court Services was prepared to allow only 50 hours for that purpose. He said he needed more time to either contact alawyer or, as I understand it, to attempt to arrange for Court Services to allow a lawyer more than 50 hours of time to complete hisrepresentation. [88] The judge explained that he was not able to set aside Court Services’ parameters of this sort but reiterated that he had previouslysaid he was prepared to direct Court Services to find Mr. Peekeekoot a lawyer.

He said that, if Mr. Peekeekoot was requesting anadjournment, he was not inclined to grant it. He underlined the nature of his dual responsibilities of ensuring a fair hearing while alsoensuring that the case moved along. He expressed concern that the proceedings had been ongoing for over two years. He also offered tohear evidence either that day or the next and gave Mr. Peekeekoot one further opportunity to think about what he wanted to do. Thejudge then said he would give Mr. Peekeekoot another chance to meet with Mr.

Ahenakew but would not be giving him a furtheropportunity to retain a lawyer. [89] After an adjournment, Mr. Peekeekoot said he would not testify without a lawyer. He also indicated, for the first time, that anumber of possible witnesses were travelling to North Battleford because that is where he thought the hearing was going to take place.The judge offered the view that any such misapprehension on Mr. Peekeekoot’s part was not reasonable because all of the relevantdiscussion had been about the hearing taking place in Prince Albert.

Nonetheless, he asked whether there was any point in waiting untilthe next day in case there were misdirected witnesses. Mr. Peekeekoot said only that he needed an adjournment and counsel. [90] The judge replied by indicating that he was obliged to conclude Mr. Peekeekoot would not be calling evidence. As a result, he saidhe was going to adjourn the proceedings for argument. The judge pointed out to Mr. Peekeekoot that this gave him another opportunity toretain counsel and observed that, on his understanding, hourly designations like the 50-hour cap to which Mr.

Peekeekoot had referredwere always negotiable. [91] As things ultimately turned out, Mr. Peekeekoot did not retain counsel to present argument on his behalf. The record revealsnothing about what happened in this regard. [92] As is apparent, the sentencing judge faced a difficult situation. He himself clearly recognized that he had to be alert to both Mr.Peekeekoot’s entitlement to a fair hearing and, at the same time, to take account of the interests of the public in bringing the proceedingsto a conclusion. The judge had the opportunity to see Mr.

Peekeekoot over an extended period of time and was in a much better positionthan this Court to gauge his bona fides and to weigh whether an adjournment would ultimately have effectively advanced the hearingprocess. I am reluctant to second-guess his assessment of all of this. My reluctance is reinforced by several considerations. [93] First, this was a discretionary-type decision and such decisions generally attract a deferential standard of review which permitsappellate intervention only if there is misdirection or injustice. See, for example: Elsom v. Elsom, (SCC), [1989] 1S.C.R. 1367; R. v.

Regan, 2002 SCC 12, [2002] 1 S.C.R. 297 at paras. 117-118. There is, as one might expect, no unqualified right to anadjournment in a dangerous offender proceeding. See, for example: R. v. Snow, 2000 BCCA 113, 137 B.C.A.C. 109; R. v. Antonius,2003 BCCA 142, 182 B.C.A.C. 172. [94] Second, this is not a situation where an offender had been effectively abandoned by counsel. Mr. Rickard was Mr. Peekeekoot’sthird lawyer in connection with the dangerous offender proceeding. Although Mr. Rickard withdrew, it is clear enough that, like theprevious two lawyers, he exited the scene because of actions taken by Mr.

Peekeekoot himself. We have no information about why Mr.Rickard felt obliged to conclude that Mr. Peekeekoot had lost confidence in him. Mr. Peekeekoot does not suggest that Mr. Rickard’srepresentation was ineffective. [95] Third, Mr. Peekeekoot had been represented by counsel – Mr. Rickard – through the whole of the Crown’s case and throughoutthe examination-in-chief and cross-examination of Dr. Wormith, no doubt Mr. Peekeekoot’s most important witness. Given the point inthe proceedings at which Mr. Rickard withdrew, it seems almost certain that Mr.

Peekeekoot would have also received the benefit of Mr.Rickard’s advice about whether he should testify and about what additional witnesses, if any, should be called on his behalf. [96] Fourth, the sentencing judge had taken a number of steps to assist Mr. Peekeekoot to retain another lawyer. He reminded Mr.Peekeekoot that the order for court-appointed counsel was still in place. He offered to direct Court Services to find Mr. Peekeekoot alawyer if Mr. Peekeekoot had trouble finding one himself. Mr.

Peekeekoot appears to have made some efforts on his own to find alawyer but never accepted the judge’s offer of assistance. [97] Fifth, without absolutely closing the door to a further adjournment, the sentencing judge clearly advised Mr. Peekeekoot that therewas a need to act quickly in relation to retaining another lawyer. As a result, this is not a situation where an offender was taken bysurprise by a judge’s refusal to grant an adjournment. [98] Sixth, the most challenging part of the case—the cross-examination of the Crown’s witnesses and the introduction ofDr. Wormith’s evidence—had already taken place.

In relative terms, it would have been fairly easy for Mr. Peekeekoot himself to havetaken the stand and/or for him to have had family or community members provide additional information about the situation on thereserve. At least one of those witnesses, Mr. Ahenakew, was in the courtroom and ready to testify. The judge was prepared to adjourn theproceedings to give other witnesses—those said to have mistakenly gone to North Battleford—a chance to give their evidence. [99] Seventh, Mr. Peekeekoot had been in many courtrooms prior to the dangerous offender hearing.

As the transcript demonstrates, hehad experience with legal proceedings. He was assessed by Dr. Holden as being in the “bright normal ranges of mental development.”

Thus, although certainly not a trained lawyer, Mr. Peekeekoot had some capacity to represent himself. [ 100 ] Eighth, Gladue -type information had been brought forward to the court. Drs. Holden and Wormith had reviewed Mr. Peekeekoot’s upbringing and childhood in considerable detail. Evidence had been presented about the programming, and aboriginal programming in particular, that was available to Mr. Peekeekoot both in prison and on his home reserve. [ 101 ] Finally, and relatedly, Mr.

Peekeekoot has not identified in any concrete way how the judge’s refusal to grant a further adjournment affected his defence to the dangerous offender proceedings. Most significantly on this front, he has not provided this Court with any particulars of the Gladue -type evidence which a lawyer and/or a further adjournment might have brought before the sentencing judge. He does not say, for example, that the sentencing judge’s decision precluded him from presenting some specific piece of evidence about programming or supports that might have had some impact on his risk in the community.

He does not suggest he had another expert who would have testified. He does not say he would have called evidence about family or social networks that might help him to control his criminal behaviour. All we know is that Mr. Ahenakew told the sentencing judge that he was in court to talk about “opportunities” on the reserve. In short, we are left to speculate that the judge’s decision to refuse a further adjournment had the effect of denying Mr. Peekeekoot the opportunity to introduce evidence that would have had some material impact on the question of whether his risk could be managed in the community.

It seems to me that this asks too much of this Court. [ 102 ] Mr. Peekeekoot and the Intervenor, Aboriginal Legal Services of Toronto Inc., also suggest that the sentencing judge erred by failing to appoint an amicus to assist in the development of the Gladue side of the proceedings. In my view, this is not a line of argument that can lead to an order allowing this appeal.

The appointment of amicus curiae lies within the discretion of trial judges (in this case within the discretion of the sentencing judge) and such judges are best positioned to determine whether an unrepresented litigant has the ability to represent himself or herself. This reality attracts a deferential standard of review. Moreover, as the Supreme Court has recently indicated in Ontario v.

Criminal Lawyers’ Association of Ontario , 2013 SCC 43 , [2013] 3 S.C.R. 3, amici should not be appointed on a routine basis and, before an appointment can be appropriate, the assistance of the amicus must be “essential to the judge discharging her judicial functions in the case at hand.” As explained above, that has not been demonstrated to have been the situation here. [ 103 ] Thus, in the end, I am not persuaded that the sentencing judge abused his discretion in proceeding as he did. Nor am I persuaded that, by refusing the request for a further adjournment, Mr. Peekeekoot was improperly denied a fair hearing.

C. Undue Emphasis on Motivation [ 104 ] Mr. Peekeekoot’s final argument is that the sentencing judge acted unreasonably, or reached an unreasonable conclusion, by emphasizing what he determined to be a lack of motivation on Mr. Peekeekoot’s part to change a long-standing pattern of criminal behaviour. This submission, as I understand it, is that the judge should have inquired more deeply into why Mr. Peekeekoot was not motivated and should have placed more importance on those few instances in the past when there had been positive comment about Mr.

Peekeekoot’s approach to programming. [ 105 ] In dealing with this proposition, it is important to remember, at the outset, that this Court is not empowered to re-weigh the evidence presented to the sentencing judge or to otherwise simply substitute its views for his. The real question on this wing of the appeal is not whether an argument can be constructed to the effect that the sentencing judge could have approached the question of motivation in a different way. It is whether the judge’s decision to find Mr.

Peekeekoot to be a dangerous offender was unreasonable. [ 106 ] Turning then to the question of motivation in general, it was clearly open to the sentencing judge to place considerable emphasis on this point. The experts who testified at the hearing agreed that Mr. Peekeekoot’s motivation to change his behaviour, and his commitment to such change, were very much central to the possibility of managing his risk. Dr. Wormith, called by Mr. Peekeekoot himself, said this: Q And what about [Mr. Peekeekoot’s] participation, himself? A That will be absolutely vital to any kind of success.

It -- it’s almost trite to say that, you know, the best kinds of interventions, you know, are -- are -- can fall flat, and without the cooperation, and not just cooperation, but the effort of the client, him or herself, to really be genuine, and sincere about making efforts to change what, in Mr. Peekeekoot’s circumstances are undeniably a very substantial change, in -- in terms of lifestyle. Dr. Wormith also acknowledged that Mr. Peekeekoot’s motivation was an absolutely central question.

He described it in these terms: Q Now, you started that sentence with, “if he were to participate.” That -- that’s the million dollar question, isn’t it? A That’s right. [ 107 ] Dr. Holden’s assessment of this situation was to the same effect. When asked when Mr. Peekeekoot might be ready for release, he replied “It depends entirely upon himself” and went on to say that Mr.

Peekeekoot would have to “enthusiastically and conscientiously involve himself in programs that would try to address [his assaultive behaviour]” if he wanted to succeed. [ 108 ] The evidence also suggests it was reasonable for the sentencing judge to find that, as a matter of fact, Mr. Peekeekoot was not interested in change. Dr. Holden testified that “[t]here was little in my interviews with Mr. Peekeekoot that suggested that he was motivated for change.” He testified that, at one point, Mr. Peekeekoot had said he did not want programming or was resistant to it. Dr. Wormith recalled Mr.

Peekeekoot acknowledging a drug and alcohol problem but as having made no comment about whether he was

interested in dealing with those problems. [ 109 ] Moreover, Mr. Peekeekoot’s institutional history also suggested anything but an interest in the successful completion of programming. For example, Tracy Bedard, an intake officer with the Correctional Service of Canada, described Mr. Peekeekoot’s experience during the three periods of time he had spent at the Saskatchewan Penitentiary on exchange agreements after provincial facilities had found him to be unmanageable. During the first such period, which began in 1998, Mr.

Peekeekoot did not complete a program because he was disrespectful, disruptive and had poor attendance. This was in contrast to most offenders who were described by Ms. Bedard as being “really motivated.” On his second stint at the Penitentiary, during 1999-2000, Mr. Peekeekoot was placed in the ABC program, a high intensity session for violent offenders, at the Regional Psychiatric Centre. However, he was discharged due to his negative behaviour and suspicion that he had been involved in assaulting another RPC patient. Ms. Bedard prepared a report describing Mr.

Peekeekoot at the time as showing “little motivation” and displaying “no significant desire to change his behaviour.” On his third stay at the Penitentiary, Mr. Peekeekoot even refused to participate in the intake process. Among other things, that process establishes programming goals. Ms. Bedard said most inmates want to participate in the process and that Mr. Peekeekoot was one of only about five inmates who, in her years of experience, had declined to be involved. Mr.

Peekeekoot was again admitted to the ABC program but was discharged from it in November of 2003. [ 110 ] Admittedly, all of this is somewhat dated. However, it is representative of the fact that, but for a few exceptional situations discussed below, Mr. Peekeekoot had not demonstrated an interest in changing his behaviour.

While his history on this front was not determinative of the state of his motivation at the time of the dangerous offender hearing, or in the future, the sentencing judge was certainly entitled to take it into account. [ 111 ] There is a further issue in relation to the ABC program which, as something of an aside, it may be appropriate to address at this point. Mr. Peekeekoot suggests, as I understand it, that the sentencing judge placed too much significance on his failures to complete that program. In connection with this point, he refers to Dr.

Polvi’s testimony that some offenders do not complete the program on the first try and he seems to suggest that at least a significant part of his second failure to complete the program was due to the fact of an upcoming scheduled release. I am reluctant to be drawn into a reassessment of individual pieces of evidence on this sort of detailed basis. Nonetheless, I do note that, while Dr. Polvi did say some offenders have come back to the ABC program multiple times, this is a different point than whether Mr. Peekeekoot was, or is, motivated to address his criminal behaviour. As well, Dr.

Polvi’s comments did not speak to whether the individuals to whom she referred had come back to the program because they had been unmotivated on previous occasions or whether they had come back because they had been motivated but required further treatment. I also note that, with respect to this second involvement with the program, Mr. Peekeekoot was returned to the Penitentiary on November 21, 2003 some one-and-a-half months in advance of his release date. The “Final Program Performance Report” indicates that Mr.

Peekeekoot did not commit to changing his behaviour through use of the techniques taught in the program and that his “ambivalence” and failure to complete assignments was “directly reflected in his instrumental use of aggression within interpersonal interactions with staff and peers.” The Report does observe that Mr. Peekeekoot’s attitude was due, in part, to his “short time” to release. This, however, is nothing more than a partial explanation for his lack of motivation. The fact remains that he was not motivated.

I see nothing in the sentencing judge’s treatment of the evidence concerning the ABC program that would warrant this Court taking issue with his bottom-line conclusions. [ 112 ] Mr. Peekeekoot attempts to analogise his situation to the one considered in R. v. Badger , 2012 SKCA 119 , 405 Sask. R. 97, a case where this Court overturned a dangerous offender designation on the basis that the sentencing judge had erred in his assessment of the question of whether Mr. Badger was motivated to reform himself. In my view, this is not an apt comparison.

Every case of this kind must be decided on its own facts and the facts in R. v. Badger are very different than those in issue here. Mr. Badger was 43 years old. He had a solid work history. He had acquired his grade 12 diploma. He did not have a pattern of institutional violence like that of Mr. Peekeekoot and, indeed, had become a model prisoner and something of a mentor to other inmates. He took the stand and testified to his commitment and motivation to curb criminal behaviour.

While there was some doubt about the sincerity of his motivation, this Court observed that “motivation is motivation.” Thus, as is obvious, Mr. Peekeekoot and Mr. Badger were in very different situations at the time of their respective dangerous offender hearings. [ 113 ] In

summary, given the evidence before him, it was not inappropriate for the sentencing judge to both place considerable emphasis on Mr. Peekeekoot’s motivation and to find that he was not in fact motivated to deal with his problem areas. [ 114 ] However, Mr. Peekeekoot goes on to submit that the sentencing judge should have delved into the question of why he was not motivated and suggests, in this regard, that he could not engage in programming which was not specifically directed at aboriginal offenders. This, he says, was the source of his problem. [ 115 ] I have two difficulties with this line of argument.

The first is that there is no evidentiary basis for it. In his testimony-in-chief, Dr. Holden did not identify the “non-aboriginal” character of programming as a factor in Mr. Peekeekoot’s lack of motivation, nor was he asked about this issue in cross-examination by Mr. Peekeekoot’s counsel. His written report is also silent on this point. Perhaps more significantly, Mr. Peekeekoot’s own expert, Dr. Wormith, made no connection between the nature of programming that had been open to Mr. Peekeekoot and his motivation. In short, the notion that Mr.

Peekeekoot’s lack of motivation flowed from the nature of the programming available to him appears to be something which has arisen only on appeal and something which is grounded only on counsel’s submissions. [ 116 ] Further, Mr. Peekeekoot’s argument in relation to why he was not motivated does not take full account of all of the facts. In this regard, I note that the ABC program, from which Mr. Peekeekoot was twice rejected, had aboriginal staff. According to Dr. Polvi, there was an elder, an elder’s helper, and an aboriginal program officer, all of whom were available to work with Mr.

Peekeekoot to create a “working alliance” or a “therapy alliance.” This does not seem to have made any difference to his commitment to that program. Additionally, there is nothing in the record to suggest that the anger management program Mr. Peekeekoot actually did complete in 1999 was in any way specially geared to aboriginal offenders. [ 117 ] As a result, I am not persuaded that the sentencing judge erred or was led to make an unreasonable decision because he did not proceed on the basis that Mr. Peekeekoot was somehow incapable of becoming meaningfully involved in non-aboriginal programming.

On the basis of the record before the Court, it seems just as likely that any present interest in programming on Mr. Peekeekoot’s part

stems, not from the fact he has recently taken some courses tailored for aboriginal offenders, but from the fact he is now serving an indefinite term of imprisonment. An indefinite term means that, in order to be released, Mr. Peekeekoot must commit himself to programming in a way that he was not required to do when he was serving determinate sentences. [ 118 ] Mr. Peekeekoot and the Intervenor also suggest that the sentencing judge erred by failing to requisition a “ Gladue report” in this case. In my view, that submission is misplaced.

Special reports dealing only with Gladue concerns are rarely prepared in this jurisdiction. But, I see no problem with that at the level of general principle. This is because the evidentiary aspect of the sentencing challenge presented by s. 718.2(

e) of the Code is about ensuring that information relevant to, and necessary for, a Gladue analysis is placed before the judge. Whether this is done by way of an appropriately comprehensive pre-sentence report, a formal “ Gladue report”, oral testimony, or a combination of such methods is beside the point. The real question is whether the necessary information has been made available to the sentencing judge. [ 119 ] In this case, the fact is that, by virtue of the various reports filed (especially those of Drs. Holden and Wormith), the judge had considerable detail about Mr.

Peekeekoot’s childhood, upbringing and life-story more generally. In light of the testimony of Ms. Skene and Mr. Yont, in particular, the judge also had the benefit of information about programming available both on Mr. Peekeekoot’s reserve and in the penitentiary system. Thus, although the information relevant to a s. 718.2(e)-type analysis was not collected in one document and labelled as a “ Gladue report”, it had been presented to the sentencing judge. That, at the end of the day, is what counts. There is no legal imperative that “ Gladue reports”, described as such, be prepared in every case.

On this same front, I note as well that neither Mr. Peekeekoot nor the Intervenor identified specifically what information, or kinds of information, would have been in a “ Gladue report” that were not already before the sentencing judge. (The Intervenor did suggest that no “information on [Mr. Peekeekoot’s] personal and background circumstances” and no “information on programming that might be available in [Mr. Peekeekoot’s] home community or anywhere else” was presented to the sentencing judge.

However, as explained above, the Intervenor is mistaken on this point.) [ 120 ] The only possible exception in this regard relates to a suggestion, made somewhat in passing, that the evidence presented to the sentencing judge should have included a description, not only of the programming and services available on Mr. Peekeekoot’s home reserve, Ahtahkakoop, but in other centres as well, including Prince Albert.

In general terms, it seems right that a judge considering the prospects for managing an offender’s risk in the community might typically profit from information about, not just the offender’s home community, but also—if it presents better prospects—some other community where the offender might reasonably be expected to live on his or her release from prison. That said, I am not convinced that this notion is a basis for overturning the dangerous offender designation in this case. Mr. Peekeekoot indicated to Dr. Holden that he proposed to live on his home reserve when released.

Not surprisingly, this was the basis on which the hearing proceeded and it explains why the prosecutor called evidence with respect to the nature and level of programming available on that reserve. Mr. Peekeekoot was represented by counsel through all of this and he did not cross-examine the Crown’s witnesses about Mr. Peekeekoot’s possible prospects in Prince Albert or

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