R v Toutsaint, 2015 SKCA 117

Court of Appeal for Saskatchewan Docket: CACR2519 Citation: R v Toutsaint , 2015 SKCA 117 Date: 2015-11-17 Between: Her Majesty the Queen Appellant And Joey Toutsaint Respondent Before: Richards C.J.S., Caldwell and Whitmore JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Caldwell In concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Whitmore On Appeal From: 2014 SKPC 172 , J.C. of Saskatoon Heard: 29 October 2015 Counsel: W. Dean Sinclair, Q.C. for the Appellant Bruce K. Campbell for the Respondent Caldwell J.A. I.

Introduction [ 1 ] The Crown appeals against a determinate sentence of three years imprisonment and subsequent five-year long-term supervision order imposed on Joey John Toutsaint following his designation as a dangerous offender pursuant to ss. 753(1) ( a )(

i) and (ii) of the Criminal Code (see R v Toutsaint , 2014 SKPC 172 , 455 Sask R 117). The Crown says the sentencing judge committed errors of law and ignored the evidence in reaching his conclusion under s. 753(4.1) that there is a reasonable expectation a lesser measure than an indeterminate sentence will adequately protect the public against the commission by Mr. Toutsaint of murder or a serious personal injury offence [SPIO]. For the reasons that follow, I would allow the appeal and, pursuant to s. 759(3) (

a) of the Criminal Code , impose a sentence of detention in a penitentiary for an indeterminate period. II. Background [ 2 ] The predicate SPIO is robbery. Briefly, in July 2009, Mr. Toutsaint, then aged 22, robbed an individual of $20, threatening to gut him with a knife. When the police arrived, Mr. Toutsaint gave a false name, physically resisted his arrest and assaulted the arresting officer. By that time, Mr. Toutsaint had amassed a record of 57 criminal convictions.

He has since been convicted of 17 additional criminal offences. [ 3 ] Following his conviction on the predicate offence, the Crown applied for a dangerous offender designation under s. 753(1) of the Criminal Code . In the course of his reasons for decision on that application, the sentencing judge—who had not presided over the trial—comprehensively reviewed Mr. Toutsaint’s criminal history leading up to and including the predicate offence (at paras. 12–37) and his history of offending and other behaviour while incarcerated (at paras. 38–60).

There is no reason to revisit this information as the Crown accepts the sentencing judge’s recounting of it is accurate; however, the following synopsis of Mr. Toutsaint’s involvement with the criminal justice system is useful: (

a) Although not yet 30 years old, Mr. Toutsaint has nearly 30 convictions for violent, sexual, threatening or weapons-related offences on his record, eight of which arose after he committed the predicate offence. (

b) Mr. Toutsaint has spent most of his adult life in prison and the majority of that time has been spent in segregation, whether on a voluntary or involuntary basis; he consistently refuses to leave segregation, seemingly because he would then have to take programming. (

c) Mr. Toutsaint has never completed any programming geared toward his rehabilitation because he either refuses to participate or purposely sabotages his own participation; to paraphrase his probation officer, Mr. Toutsaint is not engaged to do anything to better himself; and his parole officer testified Mr. Toutsaint is unmotivated, has no interest in any programming that could reduce his risk factors and prefers segregation to any other proposal. (

d) Mr. Toutsaint is either stubbornly uncooperative or threateningly disruptive with his healthcare providers; he does not comply with treatment directions; and he has sold or given away medications prescribed to him. (

e) Mr. Toutsaint has denounced Aboriginal Elders as “pieces of shit and … liars” and refuses to avail himself of their assistance or advice.

(

f) He has little to no family support and no one has ever visited or called him in prison. (

g) More than once, Mr. Toutsaint’s fellow inmates have acted preventively to disarm him—for their own protection—when he has fashioned or acquired a shank while residing with the general prison population. (

h) Due to his intractable, violent behaviour, Correctional Services Canada has considered transferring Mr. Toutsaint to the special handling unit at Ste-Anne-des-Plaines Institution in Québec, which is reserved for the most unmanageable offenders in the federal corrections system. (

i) The National Parole Board has held Mr. Toutsaint to the warrant expiry date of more than one sentence. (

j) When he has been released from custody at warrant expiry, Mr. Toutsaint has been subjected to orders under s. 810.2 of the Criminal Code in the interests of public safety. (

k) Mr. Toutsaint’s criminal record evinces unrestrained contumacy; when released into the community, he violates or breaches his bail, probation or s. 810.2 orders, usually within weeks. [ 4 ] As to the nature and quality of his risk of reoffending, in the expert assessments of the psychologist and psychiatrist who testified before the sentencing judge, Mr. Toutsaint is and remains at high risk to reoffend violently. [ 5 ] Dr. Roger W. Holden, a clinical psychologist appointed by the court, interviewed Mr. Toutsaint in October of 2010 and 2013.

In his assessment (summarized at paras. 62–68 of the sentencing judge’s reasons), Mr. Toutsaint does not suffer from any major mental illness but likely suffers from fetal alcohol spectrum disorder; he has little or no insight into his violent behaviour; he either denies responsibility or blames his victims for his violence; his release plan is not feasible; he is highly impulsive, reactive and explosive; he is a high risk to reoffend violently and sexually; and he is entirely unresponsive to treatment. As the sentencing judge put it (at para. 67), Dr.

Holden concluded in 2010 that “unless treated successfully, Mr. Toutsaint will continue to re-offend violently”. [ 6 ] On the basis of his later 2013 interview, Dr. Holden reported Mr. Toutsaint had no interest in programming, treatment or in working with Elders and he said this was the chief obstacle to reducing Mr. Toutsaint’s risk. He was concerned Mr. Toutsaint had decided to eschew all family support upon release. He described Mr. Toutsaint as “highly dominant and overly aggressive” and said Mr. Toutsaint had little sympathy or patience for anyone who stands in his way. Dr. Holden concluded Mr.

Toutsaint’s violent and threatening conduct while incarcerated was “quite purposive”—it was about getting what he wanted. He assessed Mr. Toutsaint’s prognosis as poor and said Mr. Toutsaint’s exhibited preference for segregation prevented him from participating in any treatment. While Dr. Holden was not at all confident Mr. Toutsaint would participate in programming, he was confident that, until Mr. Toutsaint did so, he would remain a high-risk violent offender. Even if he were released, Dr. Holden opined Mr.

Toutsaint would have to be released into a highly-structured and supportive community program and would have to commit to sobriety and a crime-free lifestyle. [ 7 ] Mr. Toutsaint retained Dr. Mansfield Mela, a forensic psychiatrist, to assess him and prepare a report for the sentencing judge. In Dr. Mela’s opinion (summarized at paras. 71–72 of the sentencing judge’s reasons), Mr. Toutsaint is at high risk to reoffend violently and will likely reoffend unless he participates in programming. He thought Mr.

Toutsaint’s risk of reoffending might improve if he participated in and benefited from high-intensity anger management and violence prevention programming alongside continued access to anti-depressants, trauma therapy, drug therapy and substance abuse treatment. But, most notably, Dr. Mela reported that Mr. Toutsaint had told Dr. Mela that he would not participate in such programming. And, while Dr. Mela thought there had been some improvement in Mr. Toutsaint’s behaviour by October 2013, it is clear from Dr.

Mela’s testimony that he formed this opinion on the basis of the less- than-truthful information provided by Mr. Toutsaint. On the basis of these representations, Dr. Mela also largely misconstrued the nature of Mr. Toutsaint’s imprisonment from 2011 to 2013 at the Edmonton maximum security facility; not understanding Mr. Toutsaint had spent almost the entirety of his time in the Edmonton Institution in segregation. Dr. Mela was also unaware Mr. Toutsaint had threatened to kill the chairperson of the segregation review board and a corrections officer in July 2013. Additionally, while Dr.

Mela expressed some hope upon learning Mr. Toutsaint was taking anti-depressants, three weeks after Dr. Mela had interviewed him, Mr. Toutsaint sabotaged his own treatment by selling his medication to other inmates. [ 8 ] Even assuming Mr. Toutsaint were receptive to programming, received the programming he needs and benefited from it, Drs. Holden and Mela both observed the need for significant positive community support under an intensely-structured, gradual release into the community; whereas, the evidence before the sentencing judge was that Mr.

Toutsaint has almost no family support and there is no programming of the highly-intensive nature required to address Mr. Toutsaint’s risk available in his home community of Black Lake, Saskatchewan, and there was no evidence of such programming or any support system being available in Toronto, Ontario, where Mr. Toutsaint had alternatively proposed he be released. For this reason, the sentencing judge pointedly described Mr. Toutsaint’s ill- conceived release plans as “unrealistic”. [ 9 ] As the sentencing judge correctly concluded, the evidence adduced at Mr.

Toutsaint’s dangerous offender hearing had very clearly established that he meets the criteria set out under ss. 753(1) ( a )(

i) and (ii) for a dangerous offender designation. And, Mr. Toutsaint does not challenge this designation or the determinate sentence he received in consequence thereof. But, the Crown challenges the analysis, factual findings and legal conclusions of the sentencing judge as they relate to his decision to impose a determinate sentence on Mr. Toutsaint. I turn now to address the Crown’s allegations of error in this regard. III. analysis [ 10 ] The Crown alleges the sentencing judge committed several errors of law when he decided to impose a determinate sentence in the circumstances of this case.

In general terms, I find the Crown has established the sentencing judge did not follow the law and furthermore erred in law by either misapprehending or ignoring the evidence before him. I will explain my findings. [ 11 ] To begin,

Part XXIV of the Criminal Code , which contains the Dangerous Offenders and Long-term Offenders provisions,

restricts a court’s discretion when sentencing a dangerous offender in these terms: 753(4) If the court finds an offender to be a dangerous offender, it shall: (

a) impose a sentence of detention in a penitentiary for an indeterminate period; (

b) impose a sentence for the offence for which the offender has been convicted—and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or (

c) impose a sentence for the offence for which the offender has been convicted.

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph 4(

b) or (

c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. [ 12 ] Notably, Parliament enacted amendments to

Part XXIV in 2008 that removed a court’s discretion to designate an offender as a long-term offender—rather than as a dangerous offender—even though the offender had met the criteria for a dangerous offender designation. Herauf J.A. made this clear in his reasons in R v Bunn , 2014 SKCA 112 at paras 31–38 , 446 Sask R 184 (see also R v Steele , 2014 SCC 61 at para 31 , [2014] 3 SCR 138). And, since the predicate offence here occurred in 2009, the amended provisions of

Part XXIV set the bounds of the sentencing judge’s discretion in this case. [ 13 ] Nonetheless, having found Mr. Toutsaint met the criteria for a dangerous offender designation, the sentencing judge still sought to determine whether Mr. Toutsaint instead might meet the criteria for a long-term offender designation, invoking R v Casemore , 2011 SKCA 14 , 366 Sask R 149 and R v Johnson , 2003 SCC 46 , [2003] 2 SCR 357.

By doing so, the sentencing judge committed an error of law by relying on repealed provisions of the Criminal Code and case law setting out a process rendered nugatory by the 2008 amendments. [ 14 ] While he concedes the error, Mr. Toutsaint submits we should ignore it. He says what matters is the sentencing judge went on to properly analyse the matter on the basis of the current, applicable law. Setting aside—for the moment—the Crown’s allegations of error in respect of that analysis, I am hard pressed to ignore the sentencing judge’s finding under the analysis formerly called for by

Part XXIV— i.e. , that Mr. Toutsaint did not meet the criteria for a long-term offender designation. I say this because that finding was predicated on the sentencing judge’s conclusion that the evidence disclosed no reasonable possibility of eventual control of the substantial risk that Mr. Toutsaint will reoffend in the community (see s. 753.1(1)(

c) and R v Goforth , 2007 SKCA 144 , 302 Sask R 265). [ 15 ] To be clear as to what this means, the sentencing judge properly cited R v Goforth (at para. 54 ) for the proposition that a reasonable possibility of eventual control of the risk of reoffending in the community “must involve something more than hope or empty conjecture”. Furthermore, when he evaluated the relevant psychological evidence in the light of this explanation from R v Goforth , the sentencing judge said this: [106] With respect, Dr. Holden’s conclusion that Mr.

Toutsaint at the time of that examination met the criteria for Long-term Offender status was based on a misconstruction of the legal standard. The possibility of eventual risk control must be reasonable, and the standard of reasonableness in law invariably requires that a premise be objectively demonstrable through evidence. The possibility that the accused is treatable, pointed to by Dr. Holden in his reports of both 2010 and 2013, is not demonstrable on the facts he found: it is speculative. Dr. Holden believes that in order for the risk posed by Mr. Toutsaint to be managed, Mr.

Toutsaint would have to engage with programming while incarcerated, be released into a highly structured and supportive community program, and commit himself to sobriety and a crime free lifestyle. As Mr. Toutsaint has not taken any steps to demonstrate his commitment to fulfilling any of these conditions, the possibility of eventually controlling his risk cannot be objectively demonstrated. [107] Similarly, Dr. Mela expresses the “guarded hope” that the risk Mr.

Toutsaint poses could be controlled through intensive multi- pronged programming and a highly structured and supported gradual re-release into the community. Dr. Mela also offered the opinion that Mr. Toutsaint fit the criteria for Long-term Offender status. However, the cautious optimism expressed by Dr. Mela is contingent upon suitable programming being both available to and embraced by the accused. As noted, the past and present behaviour of Mr. Toutsaint makes this possibility highly speculative at best. Without a realistic plan for Mr. Toutsaint’s reintegration, and considering the extent to which Mr.

Toutsaint has resisted programming in the past, the designation of Long-Term Offender is not appropriate. ( R v Toutsaint ; Emphasis added) [ 16 ] Although by law these findings were not called for, they are nevertheless quite difficult to ignore because they are so entirely at odds with the sentencing judge’s later finding: [114] I am satisfied by the vast amount of evidence adduced during the hearing of this application that there is a “reasonable expectation” that a lesser measure [than an indeterminate sentence] will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. ( R v Toutsaint ; Emphasis added) [ 17 ] These two sets of findings are contradictory by reason of the nature of the legal standards upon which they are based.

That is to say, s. 753(4.1) sets out a narrower standard— i.e. , whether there is a reasonable expectation —than the standard set out under s. 753.1(1)( c )— i.e. , whether there is a reasonable possibility —of controlling the risk posed by a dangerous offender. See R v Bunn , at paras. 34–38 ; R v D.J.S. , 2015 BCCA 111 at para 30 ; R v Osborne , 2014 MBCA 73 at paras 72–73 , [2014] 10 WWR 262; and R v Ominayak , 2012 ABCA 337 , 539 AR 88 at paras 52–53 .

Labach P.C.J. (as he then was) helpfully explained the difference between or overlap of the two standards in R v J.M. , 2011 SKPC 109 , [2012] 1 WWR 527: [113] Under the previous legislative regime, an offender who qualified as a dangerous offender always met the first two qualifications to

be a long-term offender [i.e., ss. 753.1(1)(

a) and (b)]. (See: R v. Lemaigre, supra, at para. 14). The only real consideration as to whetheran offender was entitled to be sentenced to the lesser punishment afforded a long-term offender was whether there was a “reasonablepossibility of eventual control of the offender’s risk in the community” [i.e., s. 753.1(1)(c)]. Thus, there is some correlation between thisphrase and the test set forth in section 753(4.1). [114] Both of these phrases really involve an assessment of the offender’s risk to the public.

They ask a judge to consider if theoffender’s risk in the community can be lowered to an acceptable level by a lesser punishment. The only difference is under the oldregime the question was one of “reasonable possibility” whereas under the new amendments the test is one of “reasonable expectation”.The difference in wording, while subtle, is significant. A “reasonable possibility” connotes a belief that something may happen while a“reasonable expectation” speaks to a belief that something will happen.

The [standard] for finding a reasonable expectation then issomewhat higher but the factors to consider under both tests would essentially be the same. And, therefore, a finding by a court that the evidence does not satisfy the broader test under s. 753.1(1)(

c) necessarily precludessatisfaction of the narrower test under s. 753(4.1). In this way, the sentencing judge’s reasons contain a contradiction that cannot bereconciled by simply ignoring his finding under s. 753.1(1)(c); one of his findings must fall to appellate review as it must have beenborne of a reversible error of law. [18] In that regard, I conclude the sentencing judge’s finding under s. 753(4.1)—and the determinate sentence he imposed inconsequence thereof—must be set aside on the law and on the evidence before the Court.

I will first explain the legal significance of thecontradiction in the sentencing judge’s findings. I will then address the factual grounds that lead to the conclusion that there was noevidence before the sentencing judge upon which he could have concluded a lesser measure than a sentence of detention in a penitentiaryfor an indeterminate period could reasonably be expected to adequately protect the public from the commission by Mr. Toutsaint ofmurder or an SPIO. [19] I begin by observing the sentencing regime under

Part XXIV departs from the usual sentencing regime, which is found underPart XXIII, in many ways. One of which is that a sentence of imprisonment for an indeterminate period is presumed to be a fit sentencefor a dangerous offender. In R v Bunn (at para. 36), Herauf J.A. confirmed that an indeterminate sentence of imprisonment is the defaultsentence for a dangerous offender.

This is abundantly clear from the language of s. 753(4.1) of the Criminal Code, for it is only when acourt is satisfied by the evidence that some lesser measure can be reasonably expected to adequately protect the public that the court hasthe discretion to depart from the default sentence. [20] Therefore, once a court has designated an offender as a dangerous offender, the only question the court has to ask itself iswhether there is a reasonable expectation a lesser measure would adequately protect the public from the commission by that offender ofmurder or an SPIO.

Of course, if the court concludes a lesser measure is appropriate it has an obligation to explain why that is so. [21] Put into context, the sentencing judge incorrectly sought to determine whether an indeterminate sentence of imprisonment wasa fit sentence for Mr. Toutsaint, and this led him to ask the wrong questions. For example, he asked whether Mr. Toutsaint belonged in acategory with “the most dangerous violent offenders and sexual predators who have shown repeatedly a complete inability to controltheir impulses” (at para. 108). He asked whether the relative gravity of just three of the SPIOs Mr.

Toutsaint had committed outsideprison were “such as to justify an indeterminate sentence” (at para. 115). He asked whether any of the SPIOs Mr. Toutsaint hadcommitted had resulted in a serious personal injury (at para. 115)—thereby minimising Mr. Toutsaint’s offending history by improperlydistinguishing between a serious personal injury offence and an offence that results in a serious personal injury (see R v Steele). [22] In general terms, the sentencing judge’s inquiries all largely overlook the fact the principle of proportionality is already builtinto

Part XXIV of the Criminal Code by way of the prerequisite commission of an SPIO, which acts as “a gatekeeper to ensure that thesentence is not disproportionate to the offence” (see R v Currie, (SCC), [1997] 2 SCR 260 at para 31; see also R vLyons (SCC), [1987] 2 SCR 309 at 338, R v Steele at para. 35 and R v Goforth at para. 44), and the requirements of s.753(1) of the Criminal Code. In R v Steele, Wagner J. described

Part XXIV in these terms: [41] This statutory framework enables courts to properly sentence dangerous offenders who have committed SPIOs “without having towait for them to strike out in a particularly egregious way” (Currie, at para. 26). For our purposes, the jurisprudence confirms that thewords “use or attempted use of violence” must be read in their grammatical and ordinary sense, having regard to their statutory context.Neither the purpose of the SPIO requirement nor that of

Part XXIV warrants reading in a qualitative minimum level of violence. [23] As the foregoing description from R v Steele points out, the reason why the sentencing judge’s inquiries are misplaced isbecause they are inconsistent with the dominant purpose of

Part XXIV of the Criminal Code: [29] The primary rationale for both indeterminate detention and long-term supervision under

Part XXIV is public protection. Bothsentences advance the “dominant purpose” of preventive detention identified by Dickson J. in Hatchwell v. The Queen, (SCC), [1976] 1 S.C.R. 39, at p. 43, namely “to protect the public when the past conduct of the criminal demonstrates a propensity forcrimes of violence against the person, and there is a real and present danger to life or limb”. When the constitutionality of the dangerousoffender provisions came before this Court in R. v.

Lyons, (SCC), [1987] 2 S.C.R. 309, La Forest J., wrote at p. 329,“[Part XXIV] merely enables the court to accommodate its sentence to the common sense reality that the present condition of theoffender is such that he or she is not inhibited by normal standards of behavioural restraint so that future violent acts can quite confidentlybe expected of that person” (emphasis in original).

Lamer C.J. subsequently explained this rationale as follows in Currie, at para. 26:“Parliament has thus created a standard of preventive detention that measures an accused’s present condition according to past behaviourand patterns of conduct.” See also R. v.

Sipos, 2014 SCC 47 , [2014] 2 S.C.R. 423, at para. 19. (R v Steele) [24] Put simply, inquiry into the relative seriousness or gravity of the predicate offence or of any other SPIO committed by adangerous offender may lend to an assessment of the risk posed by an offender and whether it can be managed (see R v Daniels, 2011SKCA 67 at para 61, 271 CCC (3d) 339), but the focus of the inquiry called for by s. 753(4.1) is properly the nature and quality of theoffender’s propensity for committing violent crimes in the future, not the proportionality of the sentence to the relative severity of violent

crimes committed in the past. [ 25 ] On this basis, I find the sentencing judge committed clear errors of law in the exercise of his discretion under s. 753(4.1) by conducting an inquiry into factors irrelevant to the determination called for by that subsection. For this reason, I would set aside the sentencing judge’s determination under s. 753(4.1) that there is a reasonable expectation that a lesser measure than a sentence of detention in a penitentiary for an indeterminate period would adequately protect the public from the commission by Mr.

Toutsaint of murder or an SPIO. [ 26 ] This means I must conduct the analysis called for under s. 753(4.1) afresh. But, this does not mean all of the sentencing judge’s evidentiary findings must be set aside.

While the Crown can point to a number of problems with the findings of fact made by the sentencing judge, only one bears comment; because, it illustrates—from an evidentiary basis—the inevitable conclusion under s. 753(4.1) that the sentencing judge erred in imposing a determinate sentence in this case. [ 27 ] Recall that the sentencing judge began his reasons by determining a dangerous offender designation was appropriate for Mr. Toutsaint pursuant to ss. 753(1) ( a )(

i) and (ii) of the Criminal Code . This means he found beyond a reasonable doubt that Mr. Toutsaint constitutes a threat to the life, safety or physical or mental well-being of other persons. More particularly, a dangerous offender designation under s. 753(1)( a )(

i) results from a finding of “a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons”. [ 28 ] When it came to quantifying this threat or likelihood based on the evidence of the two experts who had assessed Mr. Toutsaint, the sentencing judge ostensibly found (albeit under the analysis formerly called for under

Part XXIV) that there was nothing more than a “speculative” proposition, a “guarded hope” or a “highly-speculative [possibility] at best” of eventually controlling the substantial risk of violently reoffending posed by Mr. Toutsaint in the community.

These findings are amply supported by the evidence. [ 29 ] However, when the sentencing judge turned to s. 753(4.1) and asked (erroneously) whether an indeterminate period of imprisonment was a fit sentence in the circumstances, he wholly recast the same expert evidence, saying “both experts agree that there is a reasonable amount of hope, given his age and antecedents” (at para. 115).

This characterisation is not supported by the evidence as neither of two expert’s reports or testimony—even in the most favourable light—may be taken to endorse that conclusion. [ 30 ] Finally, the sentencing judge plainly concluded there was no reasonable possibility of controlling the risk posed by Mr. Toutsaint “[w]ithout a realistic plan for Mr. Toutsaint’s reintegration” (at para. 107). He then later concluded Mr. Toutsaint’s release plan was “unrealistic at this time” (at para. 137). These conclusions are undoubtedly supported by the evidence. Both experts agreed Mr.

Toutsaint required highly-intensive programming to reduce his risk to a manageable level before release into the community under a highly-structured long-term supervision order. But, notwithstanding this, the sentencing judge ended his decision on these terms: [137] His release plan is unrealistic at this time. To be released in Toronto and to then find a job to support himself is not realistic given his lack of education and lack of community and family support.

Similarly a release plan to reside in Black Lake, his community of origin, would also seem to be unrealistic given that his family connections there are tenuous and the overall lack of the programming that he will need to survive. That programming would however be available in Prince Albert. [138] But simply because he has no family members left to help him transition does not seem to me to be an adequate reason to lock up this young aboriginal offender for the rest of his life.

Through no real fault of his own, his path in life was laid down many years ago with the death of his primary caregiver, his grandfather, and the subsequent and most tragic death of his mother. [139] He deserves another chance. This too was misplaced on the law. In R v Lyons at p. 329, La Forest J. held that preventive detention under

Part XXIV “represents a judgment that the relative importance of the objectives of rehabilitation, deterrence and retribution are greatly attenuated in the circumstances of the individual case, and that of prevention, correspondingly increased” ( see also R v Steele at para. 35 ). And, bluntly, there was just no evidence before the sentencing judge capable of supporting his finding that a lesser measure than indeterminate imprisonment could adequately protect the public from the very real risk to the life, safety and physical or mental well-being of other persons that Mr. Toutsaint poses.

IV. conclusion [ 31 ] For these reasons, I would allow the Crown’s appeal, set aside the three-year determinate sentence and five-year long-term supervision order and, pursuant to s. 759(3) (

a) of the Criminal Code , impose upon Mr. Toutsaint a sentence of detention in a penitentiary for an indeterminate period. As no appeal was taken from the ancillary, DNA and firearms orders, they remain in place. “Caldwell J.A.” Caldwell J.A. I concur. “Richards C.J.S.” Richards C.J.S. I concur. “Whitmore J.A.” Whitmore J.A.