R v Bird, 2015 SKCA 134

Restriction on Publication An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published. Court of Appeal for Saskatchewan Docket: CACR2419 Citation: R v Bird , 2015 SKCA 134 Date: 2015-12-08 Between: Her Majesty the Queen Appellant And Donald Glen Bird Respondent Before: Ottenbreit, Herauf and Whitmore JJ.A. Disposition: Leave to appeal granted, indeterminate sentence imposed, firearms prohibition ordered Written reasons by: The Honourable Mr. Justice Whitmore In concurrence: The Honourable Mr.

Justice Ottenbreit The Honourable Mr. Justice Herauf On Appeal From: 2014 SKQB 75 , Saskatoon Appeal Heard: 24 June 2015 Counsel: W. Dean Sinclair, Q.C. for the Appellant Bruce Campbell for the Respondent Whitmore J.A. [ 1 ] The respondent, Donald Bird, pled guilty to a charge of sexual assault contrary to s. 271 of the Criminal Code , RSC 1985, c C-46. Upon his conviction, the Crown applied to have Mr. Bird designated as a dangerous offender pursuant to the provisions of

Part XXIV of the Criminal Code and sought an indeterminate sentence. After the hearing, the sentencing judge declared Mr. Bird to be a dangerous offender and determined that a determinate sentence of incarceration followed by a long-term supervision order would adequately protect the public and therefore an indeterminate sentence was not required under s. 753(4.1) of the Criminal Code (see R v Bird , 2014 SKQB 75 , 440 Sask R 131 [ Sentencing Judgment ]).

The sentencing judge imposed a sentence of imprisonment of five years and a long-term supervision order of three years. [ 2 ] The Crown appeals the sentence imposed upon Mr. Bird, arguing that the sentencing judge erred in imposing a determinate sentence and a long-term supervision order, and submits an indeterminate sentence should have been imposed. The Crown also seeks an order pursuant to s. 109 of the Criminal Code prohibiting Mr.

Bird from possession of a firearm or other item as described in s. 109 . [ 3 ] For the reasons that follow, I would grant leave to the Crown to appeal the sentence and would allow the sentence appeal. I. Background [ 4 ] The circumstances surrounding the predicate offence are set out at para. 9 of the Sentencing Judgment : [ 9 ] It should be noted that the parties filed an agreed statement of facts with respect to the circumstances of the offence. The 14-year-old victim and his seven-year old brother were at their grandmothers. Mr.

Bird was a friend of their grandmother and had advised her he would be coming over that evening to visit. The grandmother went to bed before Mr. Bird arrived. The victim and his brother were sleeping in the livingroom. Shortly after 2:30 a.m., the victim, who had fallen asleep in a chair in the livingroom, woke up to find Mr. Bird with his hand over the top of the victim’s fastened jeans on what the victim called his genitals. The victim said Mr. Bird tried to play with or grab his penis through the victim’s pants. The victim pushed Mr.

Bird away and immediately went to his grandmother’s room to wake her and advise her what had happened. The victim and Mr. Bird were unknown to each other before the assault. The victim’s mother confronted Mr. Bird later that morning. After an initial denial, Mr. Bird admitted the assault occurred. [ 5 ] In the Sentencing Judgment , the sentencing judge set out Mr. Bird’s previous history of sexual offences. Included with Mr.

Bird’s criminal history were comments made by the sentencing judge that provide some information from the psychological reports prepared in relation to those offences: [11] It becomes important at this stage to review Mr. Bird’s criminal record involving sexual matters. It should be noted that Mr. Bird’s criminal record is composed only of matters of a sexual nature. Mr. Bird was born on July 13, 1982.

a) First offence: Mr. Bird pled guilty in December of 1999 to a sexual assault occurring between October 29, 1997 and February 17, 1998. Mr. Bird was 15 years old at the ti me. It occurred at a student residence in Prince Albert that Mr. Bird and the younger victim attended. Other students were present during the assault. The victim asserts that the assault was Mr. Bird fondling the victim’s penis through the victim’s underwear. Mr. Bird was sentenced to two-years closed custody and one-year probation.

A psychological report prepared for the purpose of assisting in sentencing in January of 2000 identified that Mr. Bird was effeminate in his actions and voice and had at times dressed as a woman and wore makeup. He admitted to cross-dressing in private and experiencing sexual fantasies where he played the role of a woman. The report suggested: It is quite likely that Donald has a gender identity disorder which likely has been present since childhood. In any event, this is going to be a life-long condition for Donald and counselling and support are essential to assist him in adjusting.

Social acceptance for individuals with this disorder is rare and support groups exist only in large urban areas. [p. 2] This early-identified effeminate behavior remains and is likely more exaggerated now.

b) Second offence: Mr. Bird was in custody at a youth facility attending sex offender treatment for his first offence in 2000. During the course of treatment, he disclosed additional sexual offences. That disclosure netted him a charge of sexual assault that occurred between January 1, 1998 and December 31, 1999. On May 3, 2001, he entered a guilty plea to this charge. He was sentenced to one-year closed custody, consecutive to his first offence.

c) His third conviction also came to the attention of the authorities while attending programming. On June 15, 2001, Mr. Bird entered a plea of guilty to sexual assault occurring between September 1, 1995 and January 30, 1996. He was sentenced to one-year closed custody concurrent. Information regarding the details of the second and third offences for sexual assault were not available from the record. Given the sentence imposed, it is likely that these sexual assaults were less serious than his initial conviction.

d) His fourth conviction for sexual assault occurred on June 21, 2001, arising out of an incident when he was still at the North Battleford Youth Centre on July 17, 2000. Mr. Bird had just turned 18. The circumstances of this assault also involved Mr. Bird grabbing the victim in the genital area. It occurred during a “sweat” at the Youth Centre. Mr. Bird received a one-year conditional sentence. Prior to sentencing on this charge, a psychological report was prepared by Dr. Brown, Chief Psychologist at the Saskatchewan Hospital in North Battleford. In describing Mr. Bird’s background in the report, Dr.

Brown stated: Social Services became involved with the accused in November of 1996 when he was attending the Student Residence. He had been there for two years and was constantly teased, picked on, and beaten up by his peers, due to his effeminate characteristics and stated homosexual interests. He was placed in several foster homes but ran away. They found him back at home at Montreal Lake and, so, he was discharged from foster care and allowed to remain with his mother. [p. 1–2] ... … Second, it is my opinion that his gender identity disorder is ego-dystonic with respect to homosexuality.

In my opinion, his effeminate behaviour and his approach to males stems from an early seeded behavioural problem. I am inclined to speculate that in his chaotic household which included alcoholism and changing partners in the family, Mr. Bird gained some attention at a young age for anything sexual. Beginning as a way to get attention this behaviour became more habitual to the point we see it at today. [p. 2] ... He told me that he sexually touches the boys for the power, that is, it gives him power over them.

However, it is my opinion that it is his way of injecting himself into the environment in a way that he will have some attention, control and impact. Again, this appears to be behavioural rather than sexually motivated. Further, it is my opinion that these are not impulsive acts outside of his control. Instead, they appear as behavior habits that originated for non-sexual purposes but have developed into offensive sexual behaviours. … He is able to inhibit his urges for periods of time but then lapses into his habitual behavior.

In my opinion, he is a high risk of inappropriate sexual behavior and will continue to be so until some of these issues are resolved. [p. 3]

e) The fifth offence was sexual interference under s. 151 of the Criminal Code . Mr. Bird entered a plea of guilty to this charge on August 18, 2006. The incidents involved occurred between May 1, 2002 and May 10, 2005 when Mr. Bird was in his early 20’s. The victim was 11 years old when the first assault occurred and it did not end until he was 14. This is by far the most serious sexual assault committed by Mr. Bird and he received a sentence of three years. Mr. Bird had already spent 307 days on remand. A psychological assessment authored by Dr.

Nicholaichuk dated July 11, 2006 was filed as part of the sentencing process in this charge. Part of Dr. Nicholaichuk’s comments confirm what Dr. Brown had said and that clearly Mr. Bird’s situation had not improved over the previous five years. His assessment stated: Previous assessments identified Mr. Bird as being at high risk to commit additional sexual offences. This was also the conclusion of my assessment of him. Actuarially, he is at low risk for non-sexual crimes but at high risk to commit new sexual offences against children under his care. Although Mr.

Bird has apparently molested a number of children, I am inclined to agree that he is not a pedophile for the following reasons. He is not predatory in that he does not deliberately seek out attractive children for the purposed [ sic ] of using them sexually. Rather, he has taken advantage of related children already under his control. This pattern is exemplified by the current offence. If he can be believed, his sexual preference may actually lay with adult males. His behaviour at PACC suggests this may be the case. The source of risk in this case stems from Mr. Bird’s somewhat compulsive sexual behaviour.

Although, as Dr. Brown suggested, his sexual acting out may have begun as a mechanism to get attention and perhaps achieve an identity, it has now progressed to the point where it has become habitual. His claim to have a large number of sexual partners and to be sexually compulsive may well be factitious. However, it remains that when he has unsupervised access to his relative’s children he does take sexual advantage of them. In this sense, his offence pattern is more typical of an incest offender rather than a paedophile, but it is ominous that he has offended so repeatedly and offended after treatment. Mr.

Bird also has difficulty understanding the seriousness of his offences and the effects of them upon his victim(s). He also needs to develop an understanding of the process by which he comes to commit these assaults as well a plan to manage in the future. The issue of his sexuality will also have to be addressed. If he is gay, he will require assistance to adjusting to the orientation. Mr. Bird will have to develop supports in the community who will help him manage his sexual behaviour. To date, his

relatives have not been of much use in this regard. Finally, if he is to form a more successful adjustment to the community, he will have to acquire employment skills. Currently, he has few if any means of supporting himself. Ann [sic] additional benefit of employment in his case might be that through work, he can develop a more positive social support system. Recommendations : Placing Mr. Bird in the Federal correctional might be problematic as he is fairly immature and possesses exaggerated effeminate characteristics.

The combination of these attributes may well make him a target for physical and sexual assault at the hands of other inmates. However, the Federal system does have inpatient and outpatient treatment resources for individuals such as Mr. Bird. The Provincial correctional system does not provide these resources to the same extent. Through the Federal system, Mr. Bird could receive inpatient sex offender treatment which could then be continued in the community under supervision. I believe an intervention of this magnitude would be required to manage him safely in the community.

Fortunately, he is motivated to seek treatment and has no major learning impairments which would limit his ability to benefit from it. In addition, Mr. Bird was ordered under s. 161 of the Criminal Code not to attend a public park or public swimming area where persons under the age of 14 years are present or can reasonably be expected to be present, and not seek, obtain or continue any employment, whether or not the employment is remunerated or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 14 years.

That order was for a period of 10 years commencing August 17, 2006.

f) The predicate offence: Mr. Bird was held to his warrant expiry date on September 14, 2009. Shortly thereafter, he entered into a one- year s. 810.1 recognizance. The terms of that recognizance were quite onerous and were intended to impose a strict structure on his behaviour. Mr. Bird satisfied the conditions of the s. 810 order. He did not however continue to be compliant with the s. 161 order made in 2006. As a result, the first count in the indictment was laid and a guilty plea entered. That charge stemmed from Mr.

Bird on two occasions in February or March of 2011 babysitting his friend’s 11-year-old and four-year-old grandsons for half an hour each time. II. The Decision Of The Sentencing Judge [ 6 ] The sentencing judge conducted an analysis of whether Mr. Bird should be found a dangerous offender pursuant to s. 753(1) (

b) of the Criminal Code , which is as follows: 753(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied … (

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

b) of the definition of that expression in

section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses. [ 7 ] The sentencing judge referred to R v Warawa, 2011 ABCA 294 , 278 CCC (3d) 409 [ Warawa ], which considered the 2008 amendments to

Part XXIV of the Criminal Code : [6]

Part XXIV of the Criminal Code , which includes the dangerous and long-term offender regimes, has undergone significant amendments over the years.

The latest series of amendments in 2008 (in force at the time the appellant committed the predicate offences) has made the dangerous offender designation and an indeterminate sentence more easily available, as there is an increase in the pool of predicate offences, a mandatory designation of dangerous offender once the criteria are satisfied and a presumptive indeterminate sentence. … [9] The wording in section 753(1) has changed from “may” to “shall”, making the finding that an offender is dangerous mandatory once the statutory criteria are made out.

Prior to the 2008 Amendments, sentencing judges retained discretion to decline to declare as dangerous an offender who met the statutory criteria. [10] With the 2008 Amendments, the discretion has shifted to the sentencing stage. Whereas previously an indeterminate sentence was mandatory when an offender was declared dangerous, now the court sentencing a dangerous offender has discretion to impose an indeterminate sentence or a fixed sentence, with or without a long-term supervision order (section 753(4)).

However, that discretion is limited by the newly added section 753(4.1) which creates a presumption that an indeterminate sentence shall be imposed unless the court is “satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure ... will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.” Thus, the discretion is removed from a sentencing judge to designate an offender as a long-term offender in the event the statutory criteria are met. [ 8 ] The sentencing judge found the following:

i) Mr. Bird was convicted of a serious personal injury offence, namely, sexual assault, as provided for in s. 752 (

b) of the Criminal Code ; ii) Mr. Bird, by his conduct, has shown a failure to control his sexual impulses (in fact, the sentencing judge observed at para. 12 of his decision that Mr. Bird acknowledged that the Crown had proven this criterion); and iii) there is a likelihood that Mr. Bird will cause injury, pain or other evil to other persons through a failure to control his sexual impulses. [ 9 ] The sentencing judge thus found that the Crown had proven the necessary requirements to establish that Mr. Bird must be declared a dangerous offender and so declared him.

[10] The sentencing judge then turned to consider an appropriate sentence for Mr. Bird. As the sentencing judge noted, theappropriate sentence for a dangerous offender is governed by ss. 753(4) and 753(4.1) of the Criminal Code: Sentence for a dangerous offender 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 – which must be a minimum punishment ofimprisonment for a term of two years – and order that the offender be subject to long-term supervision for a period that does not exceed10 years; or (

c) impose a sentence for the offence for which the offender has been convicted. Sentence of indeterminate detention

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidenceadduced 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. [11] The sentencing judge correctly observed that an indeterminate sentence is the presumptive sentence and referred to para. 40 ofWarawa for the conclusion that the principles of sentencing found in s. 718 of the Criminal Code still apply: [40] The 2008 Amendments create a high degree of rigidity in sentencing. Parliament has clearly placed the protection of the publicahead of any other sentencing principle and has greatly circumscribed judicial discretion.

However, in my view, the surrounding contextof the statements by Parliament of the fundamental principles of sentencing found in sections 718, 718.1 and 718.2 may be relevant evenat the stage of determining whether to impose an indeterminate sentence. The circumstances of an aboriginal offender were considered inassessing whether a lesser measure would adequately protect the public in R. v.

Kudlak, 2011 NWTSC 29 at para 106, [2011] NWTJ No37. [12] Again, relying on Warawa, the sentencing judge acknowledged the following: “the discretion that once existed in determiningwhether a person was a dangerous or long-term offender has now been shifted to the stage of imposing a sentence after finding thatsomeone is a dangerous offender” (Sentencing Judgment, para. 24). [13] He then turned to consider the application of ss. 718.1 and 718.2 of the Criminal Code to Mr.

Bird: [25] The presumption in s. 753(4.1) speaks to adequately protecting the public against a commission of murder or a serious personalinjury offence. A serious personal injury offence is defined in the legislation and includes sexual assault. In Mr. Bird’s situation, thepredicate offence was a minor sexual touching. The evidence from Dr. Baillie is that the nature of his reoffence is likely to be the same.Dr. Baillie further testified that it is unlikely there will be an escalation in the nature of Mr. Bird’s offending and Mr.

Bird is not the typeof person who grooms his victims, but rather is an opportunistic offender. At some stage in the process, it is important to look at what thepublic has to be protected from, in coming to a determination of the nature of the sentence to be imposed upon Mr. Bird. In R. v. Daniels,2011 SKCA 67 , 271 C.C.C. (3d) 339, our Court of Appeal had to say the following: 20 ...

Based on his past history, risk of re-offence is great, but it was necessary to determine what type of offence it is that he is at risk ofcommitting, in an effort to determine if this is a level of risk that society is willing to tolerate. It stands to reason that if the risk of harmposed to the public is less in Mr.

Daniels’s case than in some other offenders’ cases, the steps required to protect the public from this riskwill be less drastic. [26] In coming to determine the question of adequate public protection, it should be obvious that the public needs more protection fromsomeone who would be previously referred to as a serial rapist than someone who is likely to fondle a pubescent or pre-pubescent malein the future. This approach is consistent in s. 718.1 that the sentence must be proportionate to the gravity of the offence.

The concept ofrehabilitation of the offender as a factor is also improved when it is necessary to rehabilitate the offender from committing less seriousoffences. [27] It is useful to speak for a moment about what the effect of an indeterminate sentence and the designation as a dangerous offenderhas upon an individual. In the unreported decision of R. v. Keewatin (17 April, 2009), Saskatoon (Sask. Q.B.), the offender had beenconvicted of two random violent sexual assaults on individuals unknown to him. He was only caught as a result of cross-referencing theDNA database.

He was truly an individual who jumped out of the bushes to have forced sexual intercourse with strangers. The Crowninitially sought a dangerous offender designation. During the course of the process, the parties put forward a joint submission thatMr. Keewatin should not be sentenced as a dangerous offender but instead should be sentenced to a term of imprisonment for life. TheCrown then led evidence for two days to establish that if Mr.

Keewatin had been labelled a dangerous offender with an indeterminatesentence, that his opportunity for treatment within the Correctional Service of Canada and his ability to be eventually released from jailwere considerably circumscribed when compared to a sentence of life imprisonment. Essentially the Crown established that a dangerousoffender designation with an indeterminate sentence was far more onerous on an individual than a sentence of life imprisonment. … [29] Mr. Gonzo indicated that there are 104 dangerous offenders in the Prairie region.

Of those, only six were placed in a minimumsecurity facility and only three had been placed in the public. It is clear that a designation of dangerous offender with an indeterminate

sentence is more onerous than a sentence of life in prison. As it applies to Mr. Bird’s case, such a designation as a result of touching thepenis of the victim over top of his clothing for a period of less than a minute violates s. 718.1. The sentence is totally disproportionate tothe gravity of the offence. An indeterminate sentence in these circumstances also runs contrary to s. 718.2(

b) and (d). (Emphasis added) [14] The sentencing judge then turned to the consideration of the Gladue factors: [30] I will examine Mr. Bird’s personal circumstances to identity the Gladue factors that are present. Mr. Bird is aboriginal. His motherand father did not live with each other. He has no biological siblings, but a variety of half siblings that he had little contact with. He wasraised not only by his mother who had an alcohol abuse problem, but by his maternal grandmother and maternal aunts. He knew hisfather but did not have a relationship with him given the limited time they had together. Mr.

Bird commenced school on the reserve atMontreal Lake, but was then placed in the student residence in Prince Albert. He was there for a year, then back to Montreal Lake for acouple of years and then back again to the student residence. The move stemmed from his mother’s abuse of alcohol and drugs. Mr. Birdreports that he was sexually abused as a child by other family members. He also maintains he was sexually assaulted while at theresidential school. As stated in Teresa Fehr’s Correctional Service of Canada psychological report date November of 2008, Mr.

Bird’supbringing was chaotic and characterized by poverty, unemployment and substance abuse. His personal history is indicative of so manyother aboriginal offenders in the correctional system. [15] The sentencing judge found that although Mr. Bird had completed the National High Intensity Sex Offender Program, he wasstill assessed as being at high risk to reoffend sexually. He concluded that a determinate period of incarceration, along with a supervisionorder, would adequately protect the public against Mr. Bird’s commission of a further offence, then sentenced Mr. Bird to a custodialsentence of five years.

After applying 1:1 credit for time spent on remand, he found that two years and one month remained of thatsentence. He further imposed a long-term supervision order of three years and imposed some ancillary orders that are not at issue on thisappeal. [16] In this sentence appeal, the Crown claims that the sentencing judge erred in not imposing an indeterminate sentence andsubmits that a firearms prohibition pursuant to s. 109 of the Criminal Code is mandatory and should have been imposed. III. Standard of Review [17] The Attorney General may appeal to the Court of Appeal from a determination made under

Part XXIV on any ground of law(s. 759(2)). When allowing an appeal, the Court of Appeal may find that the offender is or is not a dangerous offender and impose asentence or impose any order that may be made under

Part XXIV, or order a new hearing. [18] Absent an error in principle, failure to consider a relevant factor, or overemphasis of the appropriate factors, a court of appealshould only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit: R v M.(C.A.), (SCC),[1996] 1 SCR 500 at para 90 and also see R v Steele, 2014 SCC 61 at para 25, [2014] 3 SCR 138 [Steele]. IV. Issues [19] The following issues arise from the Crown’s submissions: (

a) Did the sentencing judge err by misapplying the sentencing principles in s. 718 to s. 718.2 of the Criminal Code? (

b) Did the sentencing judge err in his consideration of whether there was a reasonable expectation a lesser sentence than anindeterminate sentence would protect the public? (

c) Did the sentencing judge err in the application of Gladue factors? (

d) Did the sentencing judge err in considering evidence from another case? (

e) Did the sentencing judge make palpable and overriding errors of fact? (

f) Did the sentencing judge err in failing to impose an order prohibiting Mr. Bird from possession of a firearm or other itemsas described in s. 109(1) of the Criminal Code? V. Relevant Legislation [20] It is important to note the changes in the legislation relating to dangerous offenders as a result of the 2008 amendments to theCriminal Code.

The following chart compares the pre-2008 legislation with the legislation after the 2008 amendments came into forcewith respect to the procedures and requirements for finding an offender to be a dangerous offender under s. 753 of the Criminal Code: Pre-2008 Legislation Post-2008 LegislationApplication for finding that an offender is adangerous offender 753(1) The court may, on application made underthis Part following the filing of an assessment Application for finding that an offender is adangerous offender 753(1) On application made under this Part afteran assessment report is filed under subsection

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 behavioural restraint; or (

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

b) of the definition of that expression in

section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses. … If offender found to be dangerous offender

(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. … If offender not found to be dangerous offender

(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. … Application for finding that an offender is a long-term offender 753.1

(1) The court may, on application made under this Part following the filing of an 752.1(2), the court shall 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 behavioural restraint; or (

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

b) of the definition of that expression in

section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses. … Sentence for dangerous offender

(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 — which must be a minimum punishment of imprisonment for a term of two years — 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. Sentence of indeterminate detention

(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 Pre-2008 Legislation Post-2008 Legislation

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. … If offender found to be long-term offender

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

a) impose a sentence for the offence for which the offender has been convicted, which sentence must be a minimum punishment 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. … If offender not found to be long-term offender

(6) If the court does not find an offender to be a long-term offender, the court shall impose sentence for the offence for which the offender has been convicted. commission by the offender of murder or a serious personal injury offence. (Emphasis added) Pre-2008 Legislation Post-2008 Legislation VI. Analysis [ 21 ] The 2008 amendments have not received much judicial attention. In Steele , the Supreme Court provided a history of

Part XXIV: [31] In R. v. Johnson , 2003 SCC 46 , [2003] 2 S.C.R. 357, Iacobucci and Arbour JJ. considered the purpose of the long-term supervision provisions and the relationship between them and the dangerous offender provisions. At the time, the use of the word “may” indicated that, even if all the criteria were met, designation as either a long-term offender or a dangerous offender was discretionary.

The Court held that, in light of the discretionary nature of a finding that an offender was a dangerous offender and given the principles of sentencing in s. 718.2 of the Criminal Code , a judge was required to consider finding an offender to be a long-term offender – inquiring in particular into the possibility of eventual control of the risk posed by the offender in the community – before imposing the harsher punishment applicable to a dangerous offender (para. 28; Sipos , at para. 22).

Subsequent to the Court’s decision in Johnson , Parliament acted in 2008 to eliminate the judge’s discretion in the context of a dangerous offender application. The word “shall” now indicates that if a court is satisfied that the criteria in s. 753(1) have been met, it must find the offender to be a dangerous offender. In eliminating this discretion, however, Parliament built in a new flexibility regarding the consequences of such a finding.

Before 2008, a court that found an offender to be a dangerous offender was obliged to (“shall”) impose a sentence of detention for an indeterminate period ( Johnson , at para. 5 ). Today, a court that makes such a finding has the option of imposing an indeterminate sentence, a determinate sentence of two years or more combined with long-term supervision for up to 10 years, or a sentence for the offence for which the offender has been convicted: s. 753(4) .

It may impose one of the latter two sentences only if it is satisfied that the sentence will adequately protect the public: s. 753(4.1) . [ 22 ] Compared to the previous legislative scheme, the 2008 amendments leave little room for judicial discretion with respect to the designation of an offender as a dangerous offender. When the legislative criteria are met, the accused must be designated a dangerous offender.

The discretion now resides in the sentencing of a dangerous offender, where the offender presumptively faces an indeterminate sentence. [ 23 ] Here, the sentencing judge made a finding that there is a reasonable expectation that a lesser measure will adequately protect the public against the commission by the offender of murder or a serious personal injury offence, with the presumptive indeterminate sentence being rebutted.

If the presumption is rebutted, judges are able to exercise their discretion to impose a sentence for the offence for which the offender has been convicted, with or without a long-term supervision order ( s. 753 .(4)). The question in the matter before us then becomes whether the sentencing judge erred in finding that there is a reasonable expectation that a lesser measure than an indeterminate sentence would adequately protect the public against the commission by Mr. Bird of murder or a further serious personal injury offence. That question falls to be answered by dealing with the issues which follow. A.

Did the sentencing judge err by misapplying the sentencing principles in

s. 718 to s. 718.2 of the Criminal Code? [24] The Crown submits the principle of proportionality is already incorporated in

Part XXIV of the Criminal Code, and there isno need to consider the gravity of the offence as the sentencing judge did. Thus, according to the Crown, the sentencing judge erred infinding that an indeterminate sentence is disproportionate to the gravity of the offence and is contrary to s. 718.2(

b) and (

d) of theCriminal Code. [25] Sentencing under

Part XXIV is unique in that it imposes preventative detention. Thus, indeterminate detention and long-termsupervision advance the dominant purpose of the legislation, which is “to protect the public when a past conduct of the criminaldemonstrates a propensity for crimes of violence against the person, and there is real and present danger to life or limb” (R v Hatchwell, (SCC), [1976] 1 SCR 39 at 40). The Crown contends the courts must be careful in sentencing under

Part XXIV so asnot to undermine the primary consideration of public protection as established by Parliament. [26] The sentencing principles in ss. 718 to 718.2 of the Criminal Code only apply in proceedings under

Part XXIV to the extentthat judges are given discretion in sentencing decisions, during which the principles must be utilized (R v Osborne, 2014 MBCA 73 atpara 46, 281 Man R (2d) 16 [Osborne]).

Therefore, while the 2008 amendments removed a measure of discretion from judges, a limiteddiscretion remains with a judge who, having declared an accused to be a dangerous offender, turns to consider the penalty to be imposed.As discretion exists, the judge must consider sentencing principles in s. 718 to 718.2 (Osborne, para. 91). [27] Having said that, proportionality is already built into the ss. 753(1) and (4.1) sentencing scheme. Parliament has craftedprovisions in which it sets apart particular offenders as requiring special attention at sentencing.

These offenders are those who commit“serious personal injury offences” and thus, in some circumstances, are labelled as being a danger to the public. Dangerous offenders, inturn, are subjected to more onerous sentencing requirements in an effort to protect the public. The Supreme Court in R v Lyons, (SCC), [1987] 2 SCR 309 stated the following: It seems to me that having concluded that the legislative objectives embodied in

Part XXI [now

Part XXIV] are not only of substantialimportance to society’s well-being, but, at least in theory, sufficiently important to warrant limiting certain rights and freedoms, one mustequally conclude that the legislative classification of the target group of offenders meets the highest standard of rationality (and I use theword not as a term of art) and proportionality that society could reasonably expect of Parliament. (p. 339) [28] Further, in R v Currie, (SCC), [1997] 2 SCR 260, the Supreme Court stated “[t]he ‘serious personal injuryoffence’ requirement acts as a gatekeeper to ensure that the sentence is not disproportionate to the offence” (para. 31). [29] Courts in dangerous offender applications do not consider only the predicate offence, but rather the entire criminal history ofthe offender.

Judges are required by the legislation to determine whether the accused committed a serious personal injury offence unders. 753(1), whether it forms part of a pattern of violent or sexual behaviour causing harm, and whether long-term supervision anddeterminate imprisonment can be reasonably expected to protect the public from murder or another serious personal injury committed bythe accused.

It is not open, therefore, for judges to find that detention in a penitentiary for an indeterminate period is disproportionate tothe predicate offence. [30] Therefore, the sentencing judge erred in finding that an indeterminate sentence is disproportionate given that the predicateoffence consisted only of “touching the penis over the victim over top of his clothing for a period of less than a minute” (para. 29). It isnot correct to argue that Mr.

Bird’s entire criminal record consists of only sexual assaults at the less serious end of the scale in order tofind that an indeterminate sentence is disproportionate to the offence as the sentencing judge found. Parliament included these assaultswithin the offence of sexual assault in s. 271, and sexual assault is defined by Parliament as being a serious personal injury offence ins. 752.

Parliament has attached a high-level of importance to protecting the public from being victims of serious personal injury offencesand has determined that indeterminate sentences are presumptively required to prevent dangerous offenders from committing theseoffences. Judges cannot presume, therefore, that Parliament could not have intended this result. Moreover, and as I will explain, thesentencing judge was simply wrong in finding that Mr.

Bird’s criminal record consisted of “minor” sexual assaults. [31] The sentencing judge concludes, without any discussion, that “an indeterminate sentence in these circumstances also runscontrary to s. 718.2(

b) and (d)” (Sentencing Judgment, para. 29). However, as is the case with the proportionality principle, the restraintprinciple has been built into s. 753(4.1). I agree with the Alberta Court of Appeal’s explanation in Warawa at para. 41: [41] … But

section 753 already addresses restraint. It is restraint in the context of someone who has been found to be a dangerousoffender. An indeterminate sentence of imprisonment is mandated unless the court is satisfied that there is a reasonable expectation that alesser measure (determinate prison sentence plus long-term supervision) will adequately protect the public against the commission by theoffender of murder or a serious personal injury offence.

Thus, it was improper for the sentencing judge to make this finding as well. [32] The only proper reason for a sentencing judge not to impose an indeterminate sentence on a dangerous offender is if he or sheis satisfied that a lesser measure under s. 753(4)(

b) or s. 753(4)(

c) will adequately protect the public against the commission by theoffender of a serious personal injury offence. I now turn to whether the sentencing judge erred in imposing a determinate sentence. B. Did the sentencing judge err in his consideration of whether there is areasonable expectation a lesser sentence than an indeterminate sentence would

protect the public? [ 33 ] The Crown submits the sentencing judge erred by “substituting mere hope and conjecture for a reasonable expectation that a lesser sentence would adequately protect the public” (Crown Factum, p. 24), as there was no evidence capable of supporting the imposition of a determinate sentence. [ 34 ] The Crown further contends the sentencing judge failed to explain his selection of favourable evidence and his rejection of negative evidence in determining Mr. Bird’s sentence.

This is especially so, argues the Crown, because the favourable evidence had been undermined by subsequent events. [ 35 ] The Crown cites Osborne for the proposition that a “reasonable expectation” concerns a belief that something will happen, compared to a “reasonable possibility,” which speaks to a belief that something may happen. [ 36 ] This Court in R v Bunn , 2014 SKCA 112 , 446 Sask R 184 [ Bunn ] endorsed the Manitoba Court of Appeal’s analysis of the “reasonable expectation” standard in Osborne , which in turn refers to R v J.D.M. , 2011 SKPC 109 at para 114 , a decision of the Saskatchewan Provincial Court: [ 37 ] More recently, in R v Osborne , 2014 MBCA 73 at paras 72–73 , 206 Man R (2d) 276, MacInnes J.A. of the Manitoba Court of Appeal stated: 72 The case law does indicate a different and higher standard in “reasonable expectation” than in “reasonable possibility.” See R. v.

J.E.M. , 2011 BCSC 715 at paras. 53-54 (QL); R. v. Downs (C.J.), 2012 SKQB 198 at paras. 7–8 , 397 Sask. R. 83; and R. v. Cote (K.J.) , 2012 SKQB 508 at paras. 20-24 , 416 Sask. R. 1. 73 A most succinct expression of the difference between the phrases is found in R. v. J.T.M ., 2011 SKPC 109 , 379 Sask. R. 211, a decision of the Saskatchewan Provincial Court where, after briefly discussing the difference between the two phrases, Labach P.C.J. wrote (at para. 114): Both of these phrases really involve an assessment of the offender’s risk to the public.

They ask a judge to consider if the offender’s risk in the community can be lowered to an acceptable level by a lesser punishment. The only difference is under the old regime 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 onus for finding a reasonable expectation then is somewhat higher but the factors to consider under both tests would essentially be the same. I would substitute the word “standard” for the word “onus” in the above quotation, but otherwise adopt the statement. ( Bunn ) [37] The sentencing judge correctly identified that the standard to be applied is that of a “reasonable expectation”; however, he omitted “against the commission by the offender of murder or a serious personal injury offence.” This is a very important part of the standard contained in s. 753(4.1).

However, it is not clear whether it was omitted in error or simply in an effort to provide ease of reading. [ 38 ] In applying the standard, the sentencing judge weighed the factors for and against imposing an indeterminate sentence. He found that the following factors weigh in favour of an indeterminate sentence, indicating the public will not be adequately protected by a lesser sentence: (

a) Mr. Bird is at a “high-risk” to reoffend sexually; (

b) Inappropriate behaviors indicate an inability to internalize treatment or make appropriate lifestyle changes; (

c) Dr. Baillie’s report was not optimistic about Mr. Bird’s ability to manage his risk. Dr. Baillie opined the following: Presently, given that he sexually re-offended after completing a high-intensity treatment program and that he has not completed any additional treatment, his level of risk for sexual re-offence is unlikely to be manageable … so would need near-constant and ongoing external monitoring of his activities and contacts in order for his level of risk for sexual re-offences to be manageable in the community at this time.

If, in the future, he successfully completes and internalizes treatment addressing self-awareness, stress and emotional management … then Mr. Bird’s level of risk may become manageable (Italic emphasis in original, 2013 Assessment Report, p. 17) (

d) And Mr. Bird breached a 2006 order by having contact with children as a babysitter. (Extracted from the Sentencing Judgment , paras. 31–39) [ 39 ] The sentencing judge then found the following factors weighed in favour of a determinate sentence: (

a) Mr. Bird is involved with a Circle of Support and Accountability [COSA] Program that Dr. Baillie opined is shown to lower rates of recidivism; (

b) He has a high-level of executive functioning, allowing him to learn from treatment programs; (

c) His involvement with the high-intensity sex offender program reduced his risk of reoffending;

(

d) Under close direct supervision, Mr. Bird performed extremely well while subject to a 12-month s. 810 probation order (he did reoffend after this period); and (

e) Although he breached the s. 161 order imposed upon him in 2006, he did not commit a sexual assault at that time. (Extracted from paras. 35–39) [ 40 ] In looking at the relevant facts identified by the sentencing judge, I find it difficult to understand how he could have a reasonable expectation that a lesser measure than an indeterminate sentence would adequately protect the public against the commission by Mr. Bird of another sexual assault. Mr. Bird has been re-evaluated as a high-risk to reoffend sexually.

He is unable to internalize treatment, despite his intelligence, and he has already completed a high-intensity treatment program and is still in his early 30s. While he does have support in the community in the form of the COSA Program, it is noteworthy that he was taking advantage of COSA’s support when he committed his latest sexual assault and was indeed driven by a COSA worker to the house where he committed the predicate offence. [ 41 ] It is also difficult to reconcile the trial judge’s finding that the public will be adequately protected if Mr.

Bird is sentenced to a determinate sentence along with a long-term supervision order because “Mr. Bird does well with intense supervision” (para. 40). The concern of

Part XXIV is whether the offender does well while not being intensely supervised. [ 42 ] The following observation in R v Otto , 2006 SKCA 52 is applicable: “Any person who requires 24 hour a day supervision for the indefinite future cannot be said to be reasonably likely to be controlled in the community” (para. 22). [ 43 ] Evidence by the expert in this case reflected that Mr.

Bird would “need near-constant and ongoing external monitoring of his activities and contacts in order for his level of risk for sexual re-offence to be manageable in the community” (italic emphasis in original, 2013 Assessment Report, p. 17). Considering these factors, it was an error to conclude that Mr.

Bird can be expected to make the required progress within the time of the determinate sentence. [ 44 ] The sentencing judge clearly overemphasized the positive factors and underemphasized the negative ones in coming to his conclusion that a lesser sentence than an indeterminate sentence would adequately protect the public against the commission by Mr. Bird of another sexual assault. [ 45 ] In considering the severity of the serious personal injury offence in the context of an appropriate sentence for Mr. Bird, the sentencing judge should have considered Mr.

Bird’s prior offences. [ 46 ] As can be seen from the excerpts reproduced at para. 5 of these reasons, the prior offences were described rather generally by the sentencing judge in the Sentencing Judgment (see para. 11). [ 47 ] These rather general statements do not, in my mind, reflect the true severity and gravity of Mr. Bird’s offending behaviour. A more detailed account would provide a better assessment of the severity and gravity of Mr. Bird’s prior offences. [ 48 ] The first offence was simply described as a “sexual assault” (para. 11) by the sentencing judge. But Dr.

Baillie, the Court- appointed clinical psychologist who was qualified as an expert to provide opinion evidence in the area of the assessment and treatment of sexual offenders, including assessment of risk, potential treatment, and risk management in the community as it relates to sexual offenders, described Mr. Bird’s first offence and the circumstances surrounding it as follows in his report: Ms. Hunter’s psychological report of January 2000 describes the sexual offence as having involved Mr. Bird fondling the penis of another student [R.C.] at the Prince Albert Student Residence.

The offence was reported to have occurred between 1997 October 29 and 1998 February 17, when Mr. Bird was fifteen years old. Mr. Bird is described as having put his hand under [R.C.’s] pajamas but over [R.C.’s] underwear, doing so while [R.C.] slept. [R.C.] apparently awoke and immediately reported the incident to a staff member. Another resident [D.N.] reported that Mr. Bird had “tried to suck his [R.C.’s] penis.” Ms. Hunter stated that Mr. Bird told her that he had “‘pulled down his [R.C.’s] pants and sucked his dick.’” The other charge of Sexual Assault is also described in Ms.

Hunter’s report, with her comments indicating that Mr. Bird admitted that he had engaged in “consensual” anal intercourse with another student. That other student and [R.C.] are described by Ms. Hunter as “younger and smaller boys” with additional documentation indicating that [R.C.] was 12 years old at the time of the offending. When asked by me about the sexual offending with [R.C.], Mr. Bird responded, “The way I remember it is I got a bunch of other kids to hold him down and I pulled down his pants and I went up and down on his penis once and that was it.” Mr.

Bird clarified that he had used his mouth to go “up and down” [R.C.’s] penis. Ms. Hunter’s report describes Mr. Bird as having discontinued therapy when his counsellor allegedly asked him how he would react “‘if 5 guys held you down and did that to you,’” suggesting that a similar theme of involving other boys in restraining [R.C.] had been told to the counsellor. (Footnotes omitted, 2013 Assessment Report, p. 7) [ 49 ] In examination-in-chief at the sentencing hearing, Dr. Baillie said the following in relation to the first offence: Q And you mention that the first offence, Mr.

Bird told you that -- let me make sure I’m getting this right. At the -- sorry, at the bottom of page 7, you asked him about the sexual offending with [R.C.]. And Mr. Bird replied, “ The way I remember is I got a bunch of other kids to hold him down .” So Mr. Bird acknowledged to you that he had got other kids to help him commit the sexual assault ? A Yes . Q Is there anything significant about the fact that Mr. Bird is engaging other people to help him commit his offences? A It’s a circumstance that involves a use of force rather than psychological coercion as the way of obtaining sexual gratification and

incorporating others, it broadens the scope into a more planned and deliberate kind of action because of the need to recruit those others and to convince them why they should participate. (Emphasis added, Trial Transcript, p. 18) [ 50 ] Regarding the second offence, the sentencing judge, again, simply referred to this offence as a “sexual assault.” Dr. Baillie, on the other hand, described it as follows in his report: When given the two-year custodial sentence on 2000 January 25, Mr. Bird was referred for sexual offender treatment at the Paul Dojack Centre. While there, Mr.

Bird disclosed that [R.C.] had not been his first victim. A charge of Sexual Assault was laid with respect to [D.N.H.] (age unknown), relating to an incident or incidents said to have occurred between 1995 September 01 and 1996 January 30, when Mr. Bird would have been 13 years old. On conviction, Mr. Bird was given a one-year sentence, to be served concurrent to his then-existing two-year custodial sentence. Asked by me about that offence, Mr. Bird stated that he had offended against [D.N.H.] and “six or seven” other boys prior to the incident with [Mr. C.]. Asked what had happened with [D.N.H], Mr.

Bird replied, “We were the same age; we did the same things to each other. I don’t know why he went and said all that.” The particular act was mutual fellatio. Mr. Bird added that he had pleaded guilty “to get it over and done with.” Asked what he had done with the other boys, Mr. Bird responded, “Getting them to perform oral sex on me.” Mr. Bird denied ever having performed fellatio on any of these other boys. (2013 Assessment Report, p. 7–8) [ 51 ] The third offence was again referred to by the sentencing judge as a “sexual assault.” Dr.

Baillie’s report stated the following: This conviction relates to sexual offending against [R.O.] (age unknown), occurring between 1998 January 01 and 1999 December 31, at Montreal Lake. In that timeframe, Mr. Bird would have been 15–17 years old. On conviction, he was given a one-year sentence in closed custody, to be served consecutively to his existing term of incarceration. Asked by me about this conviction, Mr. Bird stated that [R.O.] had been approximately 11 years old and that Mr. Bird “got him to perform oral sex on me .” Asked how he “got him” to do so, Mr.

Bird clarified, “I told him he could have sex with my sister if he did it.” (Emphasis added, p. 8) [ 52 ] At the sentencing hearing, Dr. Baillie testified as follows in relation to Mr. Bird’s third offence: Q And in relation to the sexual assault that you have listed on page 8, May 3 rd , 2001, you note that Donald Bird told you that he told the victim -- got the victim to perform oral sex on him by saying that he could have sex with his sister if the victim did that. What is -- what is significant about Mr. Bird offering up his sister?

A In this circumstance we’re not talking about the use of force, we’re talking about an inducement or bribe, essentially, to have the individual comply with the request for sexual activity. (Trial Transcript, p. T19) [ 53 ] The fourth offence was described by the sentencing judge as follows:

d) His fourth conviction for sexual assault occurred on June 21, 2001, arising out of an incident when he was still at the North Battleford Youth Centre on July 17, 2000. Mr. Bird had just turned 18. The circumstances of this assault also involved Mr. Bird grabbing the victim in the genital area. It occurred during a “sweat” at the Youth Centre. Mr. Bird received a one-year conditional sentence. ( Sentencing Judgement , para. 11) [ 54 ] In his report, Dr. Baillie said the following with respect to the fourth offence: This conviction relates to sexual offending that occurred while Mr.

Bird was in custody in North Battleford. After two months in a sexual offenders treatment program, Mr. Bird was transferred from Paul Dojack Youth Centre to North Battleford in June 2000, after disclosing prior offences, including a historic sexual offence against one of the other residents at Paul Dojack. In July 2000, four days after his 18 th birthday, Mr. Bird touched the leg of another patient during a sweat ceremony, grabbed the other man’s hand, and then grabbed the man’s genitals. The victim was [A.B.] ….

As the sentencing transcript reflects, a Conditional Sentence Order with a one-year term was given so that Mr. Bird, now an adult, would not be removed from the Paul Dojack program. (A true custodial sentence would have resulted in Mr. Bird being transferred to the adult correctional system.) Asked by me about this offence, Mr. Bird described, “Just touching, in a sweat.” After being charged with this offence, Mr. Bird was referred for psychological and psychiatric assessments at North Battleford Forensic Services.

Noting that completing a psychophysiological assessment while criminal charges were pending was unusual, Dr. Brown described that there was sufficient basis for the assessment to proceed and that Mr. Bird “appeared quite interested in his assessment.” Dr. Brown went on to state that although Mr. Bird viewed himself as bisexual, Dr. Brown doubted the accuracy of this label as Mr. Bird “is not old enough to have made that level of commitment to an atypical sexual orientation”, adding, “Second, it is my opinion that his gender identity disorder is ego-dystonic with respect to homosexuality.” Dr.

Brown wrote of his speculation that Mr. Bird “gained some attention at a young age for anything sexual. Beginning as a way to get attention this behaviour became more habitual to the point we see it today.” Mr. Bird’s levels of sexual responding were found to be slightly below average, with Dr. Brown reiterating that Mr. Bird’s desire for “attention, control and impact” was “behavioural rather than sexually motivated.” Dr. Brown also stated that Mr. Bird’s behaviours were “not impulsive acts outside of his control .” Dr. Ramachandran commented that Mr.

Bird confirmed information from the Paul Dojack program that he had sexually abused “ten or eleven people approximately twenty times” and recommended academic

upgrading and participation in “a sex offender treatment program which is based on cognitive behavioural approaches.” (Emphasis added, footnotes omitted, 2013 Assessment Report, p. 8–9) It is of note that the sentencing judge, in the Sentencing Judgment , quoted part of Dr. Baillie’s report that referred to this offence, but omitted the portion where Mr. Bird admitted to having sexually abused “ten or eleven people approximately twenty times.” [ 55 ] At the sentencing hearing, Dr.

Baillie was referred to Exhibit P-6 (found in the offence binder) in relation to this offence, which contains a review of the disposition of this offence prepared by Sharon Ferguson. That document states the following: During these sessions Donald was forthcoming and honest and expressed a genuine desire to attend treatment to address his sex- offending issues. In the course of treatment Donald disclosed he committed additional sex offences that had not been reported to authorities. These offences had occurred approximately five years ago.

As a result, Donald had been moved to North Battleford Youth Centre, June 12, 2000, due to one of his victims was another resident within the program. At the time it was agreed that Donald could return to Dojack once the victim’s sentence is completed. … On July 17 th , 2000 Donald was taken to the holding unit for inappropriately touching another residence at the North Battleford Youth Centre. As a result, Donald was charged. (Quoted in Trial Transcript, p. T20) [ 56 ] The fifth offence was described as follows by the sentencing judge:

e) The fifth offence was sexual interference under s. 151 of the Criminal Code . Mr. Bird entered a plea of guilty to this charge on August 18, 2006. The incidents involved occurred between May 1, 2002 and May 10, 2005 when Mr. Bird was in his early 20’s. The victim was 11 years old when the first assault occurred and it did not end until he was 14. This is by far the most serious sexual assault committed by Mr. Bird and he received a sentence of three years. Mr. Bird had already spent 307 days on remand. … In addition, Mr.

Bird was ordered under s. 161 of the Criminal Code not to attend a public park or public swimming area where persons under the age of 14 years are present or can reasonably be expected to be present, and not seek, obtain or continue any employment, whether or not the employment is remunerated or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 14 years. That order was for a period of 10 years commencing August 17, 2006. ( Sentencing Judgement , para. 11) [ 57 ] Dr.

Baillie’s report states the following: This conviction relates to sexual offending that occurred between 2002 May 01 and 2005 May 10, against [M.B.] … when the victim was 11 to 15 years old. According to file documents, when the sexual activity was discovered … [M.B.] reported that Donald Bird had, over the years, engaged in multiple acts of anal intercourse and had had [M.B.] perform fellatio to the point of ejaculation. With credit for 308 days of pre-sentence custody, Mr. Bird was given a three-year sentence, which the Crown Prosecutor describes as being “really close to five years” equivalency.

Asked about this offence, Mr. Bird recounted, “That went on for a three-year process of fondling him and getting him to perform oral sex on me.” Asked if he engaged in anal intercourse of [M.B.], Mr. Bird replied, “It wasn’t me. They asked the question and he answered yes and I understand why he did it. I was in the same situation once.” Mr. Bird implied that someone else had had anal intercourse with [M.B.], but [M.B.] identified Mr. Bird as the perpetrator of that act only when asked a leading question. Asked about the timing of his sexual contact with [M.B.], Mr.

Bird initially suggested that it had occurred before he attended the treatment program at Paul Dojack. This is, obviously, not the case. Challenged that the contacts with [M.B.] occurred after treatment, when he would have known that what he was doing was wrong, Mr. Bird answered, only, “Yeah.” Pressed, he added, “I rationalized myself to do it. I bribed him” with money and ‘‘just told myself, ‘This will feel good.’ ‘It’s okay.’ ‘This will feel good.’ ‘You’re not hurting him (physically).’” Asked why he would risk putting others through the sexual abuse that he describes having experienced as a child, Mr.

Bird responded, “Really, I don’t know. I don’t know why I’d do that.” Pressed that while he may have believed he was not physically hurting anyone, he had to know the potential negative outcomes for victims of sexual offending, Mr. Bird commented, “I think while I was offending, I didn’t really put the perspective of ‘I’ve been offended against’ into what I was doing.” Asked if he was suggesting that he never made the connection between his own victimization and his victimizing others, Mr.

Bird replied, “I never even thought about ‘I was offended against.’ It wasn’t even in my head at the time.” In a pre-sentence psychological report prepared for defence counsel, Dr. Nicholaichuk acknowledged that Mr. Bird presented as being at high risk for engaging in future sexual offences, particularly sexual offences against children under his care. However, Dr. Nicholaichuk suggested that Mr. Bird was not predatory, but opportunistic, tending to take “advantage of related children already under his control.” Further, Dr. Nicholaichuk opined that Mr.

Bird’s offence pattern was more typical of an incest offender rather than a pedophilic offender, adding, “but it is ominous that he has offended so repeatedly and offended after treatment .” (Bold emphasis in original, footnotes omitted, italic emphasis added, 2013 Assessment Report, pp. 9–10) [ 58 ] In the sentencing hearing, Dr. Baillie then summarized his opinion in the following way:

Q Dr. Baillie, are you able to offer any opinion as to how long it might take Mr. Bird to complete sufficient treatment programming to the point that you’d be comfortable saying he could be safely managed in the community? A I’m not, in the sense that it’s not so much the treatment program as the individual eventually getting it. And so that may happen in a short period of time or it may take a while. So in terms of the length of time, I -- I’d just be speculating. (Trial Transcript, p. T54) [ 59 ] In

summary, of the five prior offences, four involved oral or anal intercourse and other incidences of forced intercourse were admitted to Dr. Baillie but did not result in charges. [ 60 ] At the conclusion of Dr. Baillie’s testimony, the following exchange took place between Dr. Baillie and the sentencing judge: THE COURT: Okay. Moving to a totally different subject for a moment or two. In looking at the nature of -- and you, in your report, talk about really your role here is to assess risk and determine treatment of that risk in the community. One of the questions I have though relates to the nature of the risk.

THE WITNESS [Dr. Baillie]: Mmhmm. THE COURT: Sexual assault comes from -- they’re all sexual assault under 271, but you can -- you can slap someone’s bum in a sexual way or you can kidnap them and sexually assault them for three days and the offence is still the same . THE WITNESS: Yes. THE COURT: So I mean, if we look at the notion of risk to reoffend, what’s the reoffence? Is it on the low end of the seriousness scale, the medium, is it on the high end? Can you give me -- can you identify what you would suspect to be the particular type of reoffence?

Because what we’re dealing with here on the predicate offence is a touching of the genitals . THE WITNESS: Mmhmm. THE COURT: And there was a previous one of touching of the genitals, I think as well. And so I’m -- and I’m really looking to see what - - is that what we’re talking about, reoffending, or are we talking about something different? THE WITNESS: No, it would -- the most likely type of reoffence would be similar to behaviours that have been engaged in in the past. So there is the touching of the genitals and there is the forced fellatio, for example.

I don’t expect that if the behaviour was to reoccur that it would show a dramatic escalation in behaviour because the patterns have been relatively consistent over time. And so the greatest risk would be for a repetition of the kinds of behaviours that we’ve seen in the past . THE COURT: Thank you. I just want to check my notes now to see if there’s anything further that I had that I was interested in. Okay.

And so then just -- I think that that pretty much has answered it, but in the notion of treatment, when you were talking about managing his risk to reoffend and the treatment necessary, you were relating that to the risk of a similar-fact type of behaviours in the past? THE WITNESS: Continuing to engage in similar sorts of behaviours, yes. THE COURT: Okay. Now, anything arising from that, counsel? MS. PANNELL [Crown counsel]: One comment. Ms. Pannell Re-examines the Witness Q If I could direct Dr. Baillie’s attention to the transcript located in tab 5 of the Offence Binder.

And page 2 of that is where the Crown prosecutor is reading in the facts. And line 11 starts with, “However, since that time they continued to have anal intercourse and fellatio quite a few times since that act.” If the offence in tab number 5 -- I’m sorry if you haven’t found it yet. A [Dr. Baillie] I have found it, yes.

Q And I know when you spoke with Donald Bird, that he denied the anal intercourse that it seems from the facts of the transcript that he had admitted to it back then, if that included the anal intercourse, would you predict that future acts of sexual assault could also include the anal intercourse? A They could, yes. (Italic emphasis added, Trial Transcript, pp. T88–89) [ 61 ] In spite of having this evidence before him, the sentencing judge said the following: [25] The presumption in s. 753(4.1) speaks to adequately protecting the public against a commission of murder or a serious personal injury offence.

A serious personal injury offence is defined in the legislation and includes sexual assault. In Mr. Bird’s situation, the predicate offence was a minor sexual touching. The evidence from Dr. Baillie is that the nature of his reoffence is likely to be the same. Dr. Baillie further testified that it is unlikely there will be an escalation in the nature of Mr. Bird’s offending and Mr. Bird is not the type of person who grooms his victims, but rather is an opportunistic offender .

At some stage in the process, it is important to look at what the public has to be protected from, in coming to a determination of the nature of the sentence to be imposed upon Mr. Bird. In R. v. Daniels , 2011 SKCA 67 , 271 C.C.C. (3d) 339, our Court of Appeal had to say the following: [20] … Based on his past history, risk of re-offence is great, but it was necessary to determine what type of offence it is that he is at risk of committing, in an effort to determine if this is a level of risk that society is willing to tolerate. It stands to reason that if the risk of

harm posed to the public is less in Mr. Daniels’s case than in some other offenders’ cases, the steps required to protect the public fromthis risk will be less drastic. (Emphasis added, Sentencing Judgment) [62] The sentencing judge’s statements in para. 25 are in error on several fronts. First, Dr. Baillie—as shown above—did not statethat the nature of Mr. Bird’s reoffending is likely to be more “minor sexual touching.” He explicitly said it was likely to be similar to hisprior convictions, which included forced oral and anal intercourse. Second, while Mr.

Baillie stated it was unlikely that there will be anescalation in the nature of Mr. Bird’s offences, this implies that Mr. Bird will reoffend only in a “minor” way—which is not Dr. Baillie’sevidence. Third, Dr. Baillie did not say that Mr. Bird did not groom his victims. Dr. Baillie testified that Mr.

Bird did groom some of thevictims he assaulted. [63] The sentencing judge went on to say that the public requires greater protection from “a serial rapist than someone who islikely to fondle a pubescent or pre-pubescent male in the future” (para. 26). [64] The sentencing judge then referred to evidence from an unreported decision that he was familiar with that established, to him,that an indeterminate sentence was “far more onerous on an individual than a sentence of life imprisonment” (para. 27). [65] All this led the sentencing judge to conclude that a determinate sentence was appropriate for Mr. Bird.

This is clearly an error.A careful review of the evidence shows that Mr. Bird’s offending is not “minor”—if indeed any sexual assault on a child can be found tobe minor. The judge misapprehended the nature and severity of Mr. Bird’s offending and the nature and severity of his likely reoffendingbehaviour. [66] Thus, if the sentencing judge said that the public needs more protection from a serial rapist than from a person who fondlesyoung boys, the public, in this case, requires a higher degree of protection from Mr. Bird than that contemplated by the sentencing judge.Mr.

Bird has been found to be at high risk to reoffend; he is not simply an opportunistic molester. The evidence was that Mr. Birdassaults young victims by design. He is a pedophile and will be a pedophile all his life. Dr. Baillie testified that Mr. Bird’s pedophilia canbe managed, but not cured. Dr. Baillie further testified that Mr. Bird’s risk of reoffending could not be managed at this time, and couldnot say when, or even if, Mr.

Bird’s risk can be manageable: “I don’t view his risk to the community as being manageable at this time, sounless there is some significant change to that, that would be my assessment on a go-forward basis” (Trial Transcript, p. T53). [67] Under these circumstances, it is abundantly clear that there is not a reasonable expectation that a lesser sentence than anindeterminate sentence will protect the public against the commission by Mr. Bird of murder or a serious personal injury offence. Thesentencing judge erred in imposing a determinate sentence and a long-term supervision order. C.

Did the sentencing judge err in the application of Gladue factors? [68] In Bunn, this Court confirmed that Gladue factors are to be considered in a proceeding under

Part XXIV of the CriminalCode: [26] The sentencing judge made no error in his use and assessment of the Gladue factors. There is a substantial body of jurisprudencefrom the court that requires consideration of Gladue factors in a proceeding under

Part XXIV of the Code. See: R v Standingwater, 2013SKCA 78 at para 51, [2013] 10 WWR 277; R v. Montgrand, 2014 SKCA 31 at paras 15-17, 433 Sask R 248, and R v Peekeekoot, 2014SKCA 97 at paras 55–62. [69] Bunn and the cases referred to in para. 26 all relate to

Part XXIV of the Criminal Code as it stood prior to the 2008amendments.

This Court’s comments in R v Standingwater, 2013 SKCA 78, 417 Sask R 158 remain an accurate description of therelevance of the Gladue factors in determining whether to impose a determinate sentence under the 2008 amendments notwithstandingthat the observations were made in relation to the prior legislation: [52] … As such, where a Gladue factor serves to strengthen the reasonable possibility of control of the Aboriginal offender in thecommunity, in the sense that it positively addresses the rehabilitation and reintegration of the offender into society, a sentencing courtmust take it into account when making the determination required of the court under s. 753.1(3). [70] The Crown submits that the trial judge used the Gladue factors to give an automatic discount to Mr.

Bird’s sentence inimposing a determinate sentence rather than an indeterminate sentence. [71] However, upon my reading of the Sentencing Judgment, there is no indication the sentencing judge erred in his treatment ofthe Gladue factors. He merely identified those factors and took judicial notice of the history of colonialism and the resultingdisadvantage that Aboriginal people suffer, as required by R v Gladue, (SCC), [1999] 1 SCR 688 and R v Ipeelee, 2012SCC 13, [2012] 1 SCR 433. [72] I would dismiss this ground of appeal. D.

Did the sentencing judge err in considering evidence from another case? [73] The Crown submits that the sentencing judge considered evidence from another unreported case that an indeterminatesentence is more onerous than a life sentence.

By referring to this case, says the Crown, the sentencing judge erred as he should not haveconsidered anything but evidence adduced at the hearing. [74] I referred earlier to the fact the sentencing judge at para. 27 of the Sentencing Judgment relied upon evidence from anunreported case for the proposition that a dangerous offender designation with an indeterminate sentence was far more onerous than a

sentence of life imprisonment. That reference was done in the course of the sentencing judge’s proportionality analysis, which was conducted in er

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