R v Piapot, 2017 SKCA 69

Court of Appeal for Saskatchewan Docket: CACR2780 Citation: R v Piapot , 2017 SKCA 69 Date: 2017-08-30 Between: Justin Lee Piapot Appellant And Her Majesty the Queen Respondent Before: Ottenbreit, Caldwell and Whitmore JJ.A. Disposition: Conviction appeal dismissed Sentence appeal allowed Written reasons by: The Honourable Mr. Justice Ottenbreit In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr.

Justice Whitmore On Appeal From: Provincial Court, Regina (conviction) 2016 SKPC 38 , Regina (sentence) Appeal Heard: January 10, 2017 Counsel: Carson Demmans for the Appellant Andrew Davis for the Respondent Ottenbreit J.A. I. Introduction [ 1 ] Justin Lee Piapot appeals against the following convictions and sentences for the following Criminal Code offences after trial in the Provincial Court: (

a) s. 267(a) – assault by threatening to use a motor vehicle as a weapon, 36 months incarceration; (

b) s. 249.1(1) – operating a motor vehicle and failing to stop the vehicle when pursued by a police officer, 22 months incarceration consecutive to the s. 267(

a) offence (time served); and (c) s. 249(1)(a) – dangerous driving, 22 months incarceration consecutive to the s. 267(

a) offence (time served). [ 2 ] Mr. Piapot also appeals his designation as a long-term offender (LTO) ( 2016 SKPC 38 ). Mr. Piapot’s total sentence was 36 months followed by a seven year long-term supervision order (LTSO). Mr. Piapot was also made subject to a lifetime firearms prohibition, a DNA order and a two-year driving prohibition. [ 3 ] For the reasons hereinafter set forth, the conviction appeal is dismissed. The sentence appeal is allowed and the matter is remitted to the trial court for a new hearing as to whether Mr. Piapot should be designated an LTO. II. Facts and Background A.

The Offences [ 4 ] On March 11, 2014, Ms. Ireland-Staite was driving her car accompanied by Ms. Whitequill and Ms. Whitequill’s infant son who was sick. They were attempting to find some cough medicine and milk for the infant. While driving on Elphinstone Street towards Dewdney Avenue in Regina they saw at an intersection a red Dodge Caravan. The intersection was well lit and it was bright enough so they could see and recognize Mr. Piapot as the driver of that vehicle. Mr. Piapot then turned his vehicle around and pulled in behind them. [ 5 ] Ms. Ireland-Staite kept driving but as she drove Mr.

Piapot drove faster, prompting her to increase her speed as well. Ms. Ireland-Staite became scared and drove around north central Regina trying to lose Mr. Piapot. However, he continued to follow. This chase continued for some time. Their speeds reached 80–110 km/hour. Mr. Piapot’s vehicle stayed right behind Ms. Ireland-Staite’s vehicle, coming as close as six inches. At one point, when she drove near Elphinstone Street, Mr. Piapot pulled up beside them and she was able to see him up close. Ms. Ireland-Staite rolled the window in her car down so Ms.

Whitequill could tell him to “stop going fast” as they had a baby in the back. [ 6 ] Ms. Whitequill testified that Mr. Piapot drove at them on purpose when he was chasing them and came right for them, missing their car by inches. The chase ended when Ms. Ireland-Staite and Ms. Whitequill drove past some police officers parked nearby in the hopes of attracting their attention. As she came close to the officers, she swerved up onto a snowbank. Mr. Piapot narrowly missed

Ms. Ireland-Staite’s car again as he came beside them. He looked at them and drove off. [7] One of those nearby police officers was Cst. Keshane. He observed Mr. Piapot’s vehicle driving dangerously close behindMs. Ireland-Staite’s vehicle, approximately two to three feet away from her car. Cst. Keshane identified the driver of the red DodgeCaravan as a native male with dark hair wearing dark clothing. He pulled in behind the van and activated his lights to pull it over.

Ratherthan stop, the van accelerated quickly reaching speeds of around 100 km/hour, drove through a stop sign then accelerated again, drovethrough a red light and nearly struck a pedestrian. The pursuit by Cst. Keshane was discontinued due to public safety concerns. [8] Mr. Piapot, when arrested, denied being present at these events or having any knowledge of what occurred on March 11. Hesaid he was with his sister, Terri-Lyn Piapot, and several other people when the events of March 11 occurred.

He said he went over to hisgrandfather’s house in the evening of March 10 and stayed there with his sister until the next morning. Terri-Lyn Piapot testified the twoof them were together on the March 10 and they went together to their grandfather’s house at about 10:00 a.m. staying there all day andall night. However, in a statement given earlier to the police, she indicated that she was at her grandfather’s house when Justin showedup at about 10:00 a.m. on the morning of the 11th. She admitted to some confusion about the dates and said her memory was better attrial than when she gave the statement. B.

Long-Term Offender Application [9] The Crown applied for a long-term offender designation pursuant to s. 753.1 of the Criminal Code. The parties agreed thatDr. Todd Tomita, a psychiatric expert, was qualified to give opinions with respect to Mr. Piapot’s treatability, risk and risk-management. [10] Dr. Tomita concluded that Mr. Piapot presented a high risk to reoffend violently and exhibited moderate psychopathicfeatures. He determined that Mr. Piapot fell into the highest of nine risk categories. Dr. Tomita considered Mr.

Piapot’s treatment needsand the possibility of eventually controlling his risk in the community. He considered it likely that Mr. Piapot would engage in treatment,although it was difficult to predict how effective it would be. He testified that without an adequate lengthy sentence to allow forinstitutional programming, Mr. Piapot might well pose an unmanageable risk of violence while on parole. However, after questioning bythe trial judge, Dr. Tomita clarified that the restrictions of parole conditions were likely adequate to keep Mr.

Piapot from committing aviolent offence while on parole though he would likely commit other offences. He concluded that with proper treatment there was areasonable possibility that his risk could be managed on parole and, assuming a reasonable response to parole conditions, there was areasonable possibility that he could replicate that success going forward. [11] Mr. Piapot argued against the long-term offender designation. He admitted that the sentencing range was between 18 and 30months but submitted the predicate offence did not merit a sentence of at least two years.

He argued that a provincial sentence followedby a lengthy period of probation would be appropriate and in the alternative, if designated a long-term offender, he should be sentencedto 30 months followed by a five-year long-term supervision order. III. Decision of the Trial Judge A. Conviction [12] In addition to the matters appealed, the trial judge also had before him at trial a charge under s. 267(

a) of the Criminal Code,being an assault with a weapon, namely, a knife, on February 21, 2014, on Ms. Ireland-Staite. Although this matter was not appealed byMr. Piapot, certain findings of the trial judge with respect to that charge are relevant to Mr. Piapot’s argument on this appeal, as I willexplain. With respect to that assault, Ms. Ireland-Staite testified that Mr. Piapot had pulled out a pocket knife and held it in a threateningmanner toward her. Mr. Piapot admitted to assaulting Ms.

Ireland-Staite but denied having a knife. [13] The trial judge, after reviewing all of the evidence on the February assault charge and the March charges, set out theprinciples enunciated by the Supreme Court in R v W.(D.), (SCC), [1991] 1 SCR 742. He observed that the key issuewas credibility on both the February and March matters. The trial judge concluded that Mr. Piapot’s testimony regarding the Februarymatter was not credible but he was apprehensive about accepting Ms. Ireland-Staite’s testimony on the issue of a weapon withoutcorroboration.

Two other witnesses were unable to corroborate her testimony in this respect and therefore he convicted Mr. Piapot of onlycommon assault. He found that Mr. Piapot’s testimony respecting the events of March 11 was also not credible. As part of his findingsabout the credibility of Mr. Piapot’s testimony in relation to the February 21 charge, the trial judge gave specific reasons for disbelievingMr. Piapot with respect to the March 11 events. [14] He determined that Mr.

Piapot’s alibi testimony that he could not have driven the van on March 11 because he was at hisgrandfather’s house was inconsistent with his sister’s testimony and statement given to the police about his presence there on March 10and 11. He noted that the statement given by his sister to the police about Mr. Piapot’s whereabouts on March 11 was in sharp contrastto her testimony supporting his alibi and that she claimed to remember the incident better at trial than she did when the policeinterviewed her. He also noted her demeanour at trial was confused and argumentative.

He found that she exaggerated her testimony. Hedetermined that Mr. Piapot’s sister was not credible. [15] The trial judge also noted that Mr. Piapot did not call other witnesses to corroborate his alibi even though, according toMs. Piapot’s testimony, other people were present at the relevant times. [16] The trial judge observed that Mr. Piapot’s testimony regarding the March 11 incident was diametrically opposed to that ofboth Ms. Ireland-Staite and Ms. Whitequill who both identified him as the driver of the red van. The trial judge found the events relatedby Ms. Ireland-Staite and Ms.

Whitequill to be both believable and credible and concluded that Mr. Piapot had operated the van. Hebased this on Ms. Ireland-Staite’s testimony that she knew Mr. Piapot well because they were previously in a relationship, that she couldsee it was Mr. Piapot because he passed right by her and then came up right behind her vehicle and at one point drove beside her and she

was able to roll down her window to tell him to stop his actions. Moreover, Ms. Whitequill’s testimony corroborated Ms. Ireland- Staite’s. She saw Mr. Piapot up close and made eye contact with him. He noted identity was also corroborated to some extent by Cst. Keshane’s description of the driver and the incident itself. [ 17 ] The trial judge found Mr. Piapot guilty of dangerous driving and failing to stop for the police. He also found that, in driving as he did, Mr. Piapot was threatening or attempting to apply force to the occupants of Ms.

Ireland-Staite’s vehicle by using the vehicle he was driving as a weapon, that Mr. Piapot had the ability to effect his purpose, and that it was reasonable for the complainants to believe this. The trial judge concluded that Mr. Piapot had used the van as a weapon and had intentionally swerved into Ms. Ireland-Staite’s vehicle but just missed it. He convicted him of assault with a weapon. B. Long-Term Offender Designation and Sentence [ 18 ] The trial judge, in applying the requirements of s. 753.1, asked first whether it would be appropriate to impose a sentence of two years or more for the predicate offence.

He noted that Mr. Piapot’s actions with respect to his driving had put the complainants and the public in significant danger. He also observed that it was the second time in 18 days that Mr. Piapot assaulted Ms. Ireland-Staite. He noted Mr. Piapot showed no remorse for his behaviour. The trial judge then reviewed Gladue factors noting Mr. Piapot’s horrific upbringing. Mr. Piapot’s record was substantial. He had 32 prior convictions beginning at age 12 including property crimes as well as driving and administrative offences. He also had a significant record for violence.

Considering all this, he found that a sentence of more than two years was appropriate for the predicate offence. [ 19 ] The trial judge concluded: [30] What I take from Dr. Tomita’s report and viva voce evidence therefore is that Mr. Piapot, without the proper programming that he can only obtain in a correctional facility, will definitely reoffend to some degree while out of custody and under parole supervision. Once Mr. Piapot is off of probation he is likely to violently reoffend unless he has had the benefit of institutional programming. As the test under

section 753.1(1)(

b) is whether or not there is a substantial risk that the offender will reoffend (not necessarily violently reoffend), I am convinced beyond a reasonable doubt that if released without treatment, Mr. Piapot is at substantial risk to reoffend and very likely with violence at some point.

(3) Is there a reasonable possibility of eventual control of the risk in the community? [31] In his expert report Dr. Tomita writes that Mr. Piapot has not yet had an opportunity to engage in treatment that was appropriate to address his level and type of needs. Mr. Piapot needs high intensity treatment to address his Antisocial Personality Disorder as well as his alcohol and substance addictions (at para 31). [32] Dr. Tomita is of the further opinion that although Mr. Piapot’s response to high intensity treatment is untested, such treatment could increase the likelihood that Mr.

Piapot will be able to adhere to the conditions of community legal supervision without absconding. If he receives a federal sentence of sufficient duration to complete the high intensity treatment programs he needs, then there is a reasonable possibility of eventual control of Mr. Piapot’s risk in the community on parole supervision (at para 37). Further, supposing that he has a reasonable response to parole supervision, then one can expect that he will be able to replicate in the community his ability to conform to rules without reoffending.

He can then continue treatment in the community, build social supports for maintaining recovery from addictions and make further plans to increase community stability (at para 39). [33] Dr. Tomita concludes his assessment in stating that one must concede the possibility that Mr. Piapot’s risk will outlast even a long-term period of parole supervision; but balanced against the possibility of a risk-reducing treatment effect and a reasonably good level of treatability it would be premature to conclude the only method of containing his risk is incarceration (at para 40).

There remains a reasonable possibility of eventual control of Mr. Piapot’s risk in the community (at para 212). [34] Based on Dr. Tomita’s expert evidence and as conceded by the Crown and Defence, I am satisfied that there is a reasonable possibility of eventual control of Mr. Piapot’s risk in the community.

(4) Conclusion [35] I am satisfied therefore that the appropriate sentence for the predicate offence (assault with a weapon) is a prison term of two years or more and that there is a substantial risk that Mr. Piapot will reoffend. However, there is as well the reasonable possibility of eventual control of the risk in the community. I therefore find Mr. Piapot to be a long-term offender pursuant to

section 753.1(1) of the Criminal Code . [ 20 ] Accordingly, the trial judge fixed the sentence at 36 months for the assault with a weapon offence and the length of community supervision at seven years. He imposed a sentence of 22 months each (time served) in relation to the dangerous driving and fail to stop offences plus a two-year driving prohibition. [ 21 ] The parties agreed that Mr. Piapot’s remand credit should be applied to the sentences for the remaining offences, which are not the subject of the appeal. This left Mr. Piapot with three years to serve followed by a seven-year LTSO. IV. Issues [ 22 ] Mr.

Piapot raises a number of issues. However, I need only address the following ones given the reasons that follow: (

a) Did the trial judge err in relying on the disbelieved alibi of Mr. Piapot in assessing his credibility? (

b) Did the trial judge err in accepting the testimony of the two complainants as credible?

(

c) Did the trial judge err in holding that Mr. Piapot’s use of a vehicle during the chase was an assault with a weapon? (

d) Did the trial judge misapprehend the evidence with respect to identity? (

e) Did the trial judge’s finding that the complainants were credible witnesses make the verdict unreasonable? (

f) Did the trial judge use the wrong test in assessing the future risk of Mr. Piapot by holding it was sufficient if there was asubstantial risk that he should reoffend by committing any type of offence, including non-violent ones? V. Analysis A. Conviction Appeal 1. Did the trial judge err in relying on the disbelieved alibi of Mr. Piapot in assessing hiscredibility? [23] Mr. Piapot argues, citing R v Witter (1996), (ON CA), 105 CCC (3d) 44 (Ont CA) [Witter], that the trialjudge made a finding of lack of credibility against him because he disbelieved his alibi.

He submits that is in error because a disbelievedalibi is of no evidentiary value.

He also submits that the trial judge’s emphasis on the fact that not all of the potential witnesses withrespect to the alibi were called to testify was in error and that the trial judge should not have speculated on the reason why the witnesseswere not called. [24] Witter held that where the Crown has argued that consciousness of guilt of the accused could be inferred by a jury from adisbelieved alibi, an alibi which is merely rejected because it is disbelieved has no evidentiary value in the absence of other evidence thatthe alibi was concocted.

However, it is difficult to see how this case applies here. [25] The trial judge rejected Mr. Piapot’s alibi because, on the whole, he found Mr. Piapot not credible. The judge was right topoint out significant differences between the testimony of Mr. Piapot and Ms. Piapot in respect of whether they were together on thenight of March 10. He noted substantial differences between Ms. Piapot’s in-court testimony and her police statement, where she told thepolice that Mr. Piapot was not with her when the offence was committed. In reviewing this evidence, it was open to the judge todetermine that Mr. Piapot and Ms.

Piapot were neither forthright nor reliable and to conclude that he was not able to accept their evidenceestablishing an alibi. The alibi disbelieved by the trial judge was properly an element in his assessment of Mr. Piapot’s credibility as awhole. [26] The trial judge also made no error in noting the failure to call other alibi witnesses. Mr. Piapot himself raised the point thatuncalled evidence would corroborate his alibi. It is a fair conclusion that the trial judge determined that the alibi evidence of Mr. Piapotand Ms. Piapot, without further corroboration, was weak.

The trial judge was entitled to determine that the absence of such evidenceaffected Mr. Piapot’s credibility on his alibi defence. In short, I do not read the trial judge’s comments as indicating he inferred thatMr. Piapot was more likely to be guilty because of his failure to call certain evidence. He was simply not satisfied without furthersupporting evidence that the alibi defence was credible. 2. Did the trial judge err in accepting the testimony of the two complainants as credible? [27] Mr. Piapot argues that the trial judge erred by accepting the testimony of Ms. Ireland-Staite and Ms.

Whitequill when he hadalready found them not credible with respect to the February assault. [28] Credibility is a question of fact for the trial judge. A court of appeal will review a trial judge’s decision for error but defer toany credibility assessment absent a demonstration of palpable and overriding error (R v Gagnon, 2006 SCC 17, [2006] 1 SCR 621; R vClarke, 2016 SKCA 80 at paras 31–32, 480 Sask R 277). [29] Mr. Piapot submits that, with respect to the February incident, the trial judge in acquitting Mr. Piapot of the more seriouscharge of assault with a weapon made a finding that Ms. Ireland-Staite and Ms.

Whitequill were not credible witnesses in general andthat he therefore should not have believed their testimony regarding the March incident. Mr. Piapot misunderstands the trial judge’sconclusion. The trial judge had a reasonable doubt on all the evidence about whether Mr. Piapot had a knife. This took into account thetestimony of Ms. Ireland-Staite that he had one, evidence of Ms. Ireland-Staite’s and Ms. Whitequill’s consumption of alcohol onFebruary 21 and the lack of corroborating testimony from Ms.

Whitequill and a third party witness respecting the presence of a knife. [30] Any issue the trial judge had about Ms. Ireland-Staite’s and Ms. Whitequill’s reliability and credibility regarding February 21due to alcohol consumption was not a factor in considering their reliability and credibility with respect to the March offences. The trialjudge indicated that Ms. Ireland-Staite was forthright. Any slight hesitation by the trial judge about accepting her testimony concerningthe events of March 11 and identification of Mr. Piapot as the driver was resolved by corroboration from Cst.

Keshane who, afterimmediate pursuit of the van after Ms. Ireland-Staite pulled up to his vehicle, was able to confirm that the driver of the van was a nativemale. I see no palpable and overriding error in the trial judge’s finding that Ms. Ireland-Staite and Ms. Whitequill were crediblewitnesses. 3. Did the trial judge err in holding that Mr. Piapot’s use of a vehicle during the chase was anassault with a weapon? [31] Mr. Piapot argues that the vehicle involved in the chase was not being used as a weapon. This does not appear to have been anissue before the trial judge.

The matter proceeded on the issues of identity and intention of the driver. Mr. Piapot cites in support of his

argument the case of R v Butler, 2015 NSSC 183, 361 NSR (2d) 357 [Butler], where an accused struck the victim’s car twice with hisvehicle. He was convicted of dangerous driving but was acquitted of assault with a weapon. In that case, the trial judge found theaccused, by striking the vehicle, did not intend to apply force to the driver or threaten to use force on the driver. Mr. Piapot submits thaton this basis, even where an accused’s vehicle strikes the victim’s vehicle it is not being used as a weapon. A fortiori, since his vehicledid not strike the complainant’s vehicle it was not being used as a weapon.

However, the Butler case is of limited application becausewhether a vehicle is being used as a weapon is determined on a case-by-case basis. [32]

Section 2 of the Criminal Code defines weapon as any thing used, designed to be used or intended to be used to cause injuryor death to any person or to threaten or intimidate any person. Accordingly, any thing will be a weapon for the purposes of s. 267(

a) if itis used to apply force or threaten to apply force to another person. A weapon can include a vehicle. In R v George (2000), (ON CA), 145 CCC (3d) 405 (Ont CA), the Court upheld a conviction for assault with a weapon for an accused who had swervedinto and hit a police officer with his vehicle. The issue in that case was whether the swerving was intended to threaten the officer.

Thetest of whether an object is intended to be used as a weapon is subjective (R v Roberts (1990), (NS CA), 60 CCC (3d)509 (NSCA)). [33] The trial judge in this case appropriately cited R v Dawydiuk, 2010 BCCA 162 at paras 29–32, 253 CCC (3d) 493, assummarizing the law in the area with regard to the issue of intention to use a vehicle to commit an assault. [34] The fact that Mr. Piapot did not actually strike the vehicle occupied by Ms. Ireland-Staite and Ms. Whitequill matters not. Theissue, when looking at the facts as a whole, is whether he actually used the vehicle or intended to use it as a weapon.

The evidence wasclear that the accused chased the complainants causing them to flee, swerved into the complainants’ car and only narrowly missed it. Thetrial judge made a finding that Mr. Piapot’s vehicle came within six inches of the complainants’ vehicle. Cst. Keshane confirmed thatMr. Piapot’s vehicle came very close to the complainants’ vehicle. The trial judge found, as he was entitled to do, that Mr. Piapotthreatened to apply force to the complainants in a situation where he had the ability to effect his purpose. It may be inferred that the trialjudge found Mr.

Piapot had the requisite intention to use the vehicle as a weapon. I see no error in this respect. 4. Did the trial judge misapprehend the evidence with respect to identity? [35] Mr. Piapot argues that the trial judge ignored the evidence that Ms. Ireland-Staite and Ms. Whitequill’s view of the driver ofthe van was obstructed. Mr. Piapot makes this argument based primarily on the testimony of Ms. Whitequill who said that the driver ofthe van had a hood and a hat on his head, and also on the basis that Ms. Ireland-Staite was unable to testify as to what the driver waswearing.

He argues that their view was obstructed in the dark and, as a result, the reliability of their evidence was in doubt andinsufficient to prove identity beyond a reasonable doubt. [36] The testimony of Ms. Whitequill that the driver of the vehicle was wearing a hat and a hood does not compel the conclusionthat her view was obstructed. Neither testified their view was obstructed. Mr. Piapot’s argument ignores the other cogent evidence fromMs. Ireland-Staite and Ms. Whitequill that buttresses the reliability of the identification of Mr. Piapot. Ms. Ireland-Staite was capable ofrecognizing Mr.

Piapot because of their past relationship. Both women testified that they had seen Mr. Piapot up close at the intersectionas he passed right by them before coming up behind them. Ms. Ireland-Staite said that the light when she saw Mr. Piapot was good. Bothwitnesses testified that Mr. Piapot had pulled alongside them again and, when they saw him up close, had made eye contact with him.Ms. Ireland-Staite testified that she had seen him up close at the end of the chase as well. Cst.

Keshane was also able to provide a cursoryconfirmatory description of the driver notwithstanding the brief time he had to make the observations. His view did not appear to beobstructed either. All this together was strong evidence of identity. [37] I cannot say that the trial judge misapprehended the evidence with respect to identity. 5. Did the trial judge’s finding that the complainants were credible witnesses make the verdictunreasonable? [38] Mr. Piapot reiterates his argument that the trial judge should not have found Ms. Ireland-Staite and Ms.

Whitequill credibleregarding the March incident in light of his approach to their credibility regarding the February incident but now argues that thecredibility finding makes the verdict unreasonable. [39] With respect to whether the verdict was unreasonable in light of the trial judge’s credibility findings, the governing law wassummarized by this Court in R v R.D.A., 2015 SKCA 100, 465 Sask R 313: [2] Where an accused has alleged an unreasonable verdict, an appellate court may only interfere to set aside the verdict if theappellate court is of the opinion the judge could not reasonably have concluded the accused was guilty beyond a reasonable doubt.

Putanother way, when asked to set aside a verdict, the appellate court looks to see whether on the whole of the evidence the verdict is onethat the judge, acting judicially, could reasonably have rendered: R v Yebes, (SCC), [1987] 2 SCR 168 at para 25, and Rv Biniaris, 2000 SCC 15 at para 36, [2000] 1 SCR 381.

To do this, the appellate court must re-examine and to some extent re-weigh andconsider the effect of the evidence, but it must not merely substitute its view for that of the trial judge. [40] In R v R.P., 2012 SCC 22 at para 10, [2012] 1 SCR 746, the Supreme Court noted that deference must be shown by theappellate court to a trial court’s assessment of credibility. Justice Deschamps, for the majority, reiterated the applicable principle, saying: [10] Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact.

A court ofappeal that reviews a trial court’s assessments of credibility in order to determine, for example, whether the verdict is reasonable cannotinterfere with those assessments unless it is established that they “cannot be supported on any reasonable view of the evidence” (R. v.Burke, (SCC), [1996] 1 S.C.R. 474, at para. 7). [41] I am not satisfied, given my previous comments regarding credibility, that the trial judge’s assessment of credibility made theverdict unreasonable in the sense that it cannot be supported on any reasonable view of the evidence.

B. Sentence Appeal 1. Did the trial judge use the wrong test in assessing the future risk of Mr. Piapot by holding it wassufficient if there was a substantial risk that he should reoffend by committing any type of offence, includingnon-violent ones? [42] Mr. Piapot argues the trial judge erred in his

interpretation of s. 753.1 in that he assessed the risk of committing non-violent,non-sexual offences rather than the risk of reoffending violently or sexually as mandated by the section. He submits this is reflected bythe following paragraph: [30] What I take from Dr. Tomita’s report and viva voce evidence therefore is that Mr. Piapot, without the proper programming thathe can only obtain in a correctional facility, will definitely reoffend to some degree while out of custody and under parole supervision.Once Mr. Piapot is off of probation he is likely to violently reoffend unless he has had the benefit of institutional programming. As thetest under

section 753.1(1)(

b) is whether or not there is a substantial risk that the offender will reoffend (not necessarily violentlyreoffend), I am convinced beyond a reasonable doubt that if released without treatment, Mr. Piapot is at substantial risk to reoffend andvery likely with violence at some point. (Underline emphasis added, italics emphasis in original) [43] Mr. Piapot argues that s. 753.1 targets offenders who have a high likelihood of committing further violent or sexual crimes butwho would not likely be found to be a dangerous offender. [44] The germane provisions of s. 753.1 read as follows: 753.1

(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), findan offender to be a long-term offender if it is satisfied that … (

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.

(2) The court shall be satisfied that there is a substantial risk that the offender will reoffend if (

a) the offender has been convicted of [certain specified offences] or has engaged in serious conduct of a sexual nature in thecommission of another offence of which the offender has been convicted; and (

b) the offender (

i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows alikelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons, or (ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted,has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offence. [45]

Section 753.1(1)(

b) does not include the term “violently”. The issue is whether – as argued by Mr. Piapot – the provisionproperly interpreted nevertheless imports a requirement of a finding of a substantial risk that the offender will reoffend violently. I turntherefore to an examination of the meaning of this provision in light of the modern principle of

interpretation, i.e., the words of an Actare to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of theAct and the intention of Parliament (Re Rizzo & Rizzo Shoes Ltd., (SCC), [1998] 1 SCR 27 at para 21 [Rizzo]). [46] I start with the legislative history of s. 753.1. Legislative history is a legitimate source of assistance in statutory

interpretationcases (Rizzo at para 31; R v St-Onge Lamoureux, 2012 SCC 57 at para 33, [2012] 3 SCR 187). Its use is explained in Ruth Sullivan,Sullivan on the Construction of Statutes, 6th ed (Markham, Ont: LexisNexis, 2014) at para 23.83: External context and purpose. Legislative history continues to be relied on as evidence of the external context in which legislation wasmade and as direct evidence of purpose.

When introducing a bill to the legislature, it is customary for the Minister sponsoring the bill toexplain why, in the view of the government, new legislation was needed and what the government hopes to accomplish by enacting thebill. This is the type of legislative history most often relied on by courts, and this is the use to which it is most often put, in ordinaryinterpretation cases as well as challenges to constitutional validity.

This use reflects the often repeated pronouncement of the courts, thatlegislative history is admissible to show both the background and the purpose of legislation. (Footnote omitted) Legislative history is also relied on as evidence of specific legislative intent (Canada 3000 Inc., Re, 2006 SCC 24 at paras 57–59, [2006]1 SCR 865). Accordingly, I turn to the genesis of the LTO legislation, various reports and papers germane to the LTO provisions, andHansard. [47]

Section 753.1 began as part of Bill C-55 and was enacted by

An Act to Amend the Criminal Code (high risk offenders), theCorrections and Conditional Release Act, the Criminal Records Act, the Prisons and Reformatories Act and the Department of theSolicitor General Act, SC 1997, c 17, s 4. This Act came into force on August 1, 1997, on Proclamation. The Act dealt with bothdangerous offenders and long-term offenders. The

summary to Bill C-55 indicates “[t]his enactment amends the Criminal Code, the

Corrections and Conditional Release Act and the Criminal Records Act in respect of offenders who present a high risk of violently reoffending ” (emphasis added). [ 48 ] Between the time of the first reading of Bill C-55 to the coming into force of the Act , the wording of s. 753.1(1) (

b) remained unchanged: “there is a substantial risk that the offender will reoffend”. Subsequent to the Act coming into force, the original wording of s. 753.1(1) (

b) has remained the same. Later amendments to s. 753.1 have mostly added to the list of enumerated sexual offences in s. 753.1(2)(a). No subsequent amendments have dealt with the issue of whether the risk set forth in s. 753.1(1) (

b) is one of violent reoffending. [ 49 ] The Act was the product of a number of years of study and examination regarding the issue of high risk offenders. Several documents were prepared for the benefit of the executive branch of government on this issue. The first was the Long Term Supervision Discussion Paper , Canada, Ministry of the Solicitor General, Policy Branch (30 September 1994) [Discussion Paper], which was prepared for the use of the Federal/Provincial/Territorial Task Force on High-Risk Violent Offenders.

Although the focus of the Discussion Paper is long-term supervision orders (LTSOs), LTSOs ultimately became a component of the LTO regime. The Discussion Paper makes several references to risk and violence. [ 50 ] The introduction

section of the Discussion Paper reads (at 2): The Task Force…was asked to make recommendations to the Federal/Provincial Committee of Deputy Ministers Responsible for Criminal Justice as to the legislative and policy changes that would improve public protection from high risk violent offenders .

One of the areas of focus was to include a review of the possible use of Long Term Probation/Supervision (LTP/LTS) as a new sentencing option. … there were clear indications [from the Minutes of Task Force meetings and conference calls] that the scheme should be limited in its application to certain categories of offenders , possibly as an alternative to indeterminate incarceration at the front end, or as an alternative to what would otherwise have been a longer period spent in prison.

Similarly, it was evident from reviewing the Minutes that the Task Force wished to prevent indiscriminate use of the scheme by restricting its application to a defined target population . … (Emphasis added) [ 51 ] Under “Defining the Problem”, the Discussion Paper states (at 3–4): It is widely believed that the maximum of three years’ probation is not enough for some offenders who are thought to pose a serious long term risk to the public . … … Increased flexibility in sentencing would, at the time of original sentencing, give the court an option (LTP/LTS) other than indefinite sentences available under the Dangerous Offender provisions of the Criminal Code , for offenders at significant and protracted risk for violence but whose risk is thought to be controllable in the community . (Emphasis added) [ 52 ] Under “Objectives”, the Discussion Paper states (at 4): The primary objective of the LTP/LTS sentencing option is to enhance the safety of the public by targeting those offenders for whom this approach is thought, based on the best scientific and clinical expertise available, to be the most effective approach in helping to reduce violent criminal acts and to foster and help maintain prosocial behaviour. … The scheme is not to have a net-widening effect.

A clear definition of the target population would prevent indiscriminate use of LTP/LTS for offenders for whom a less intrusive sentence (in terms of impact on personal liberty) under existing schemes would have been adequate and appropriate. (Emphasis added) [ 53 ] Under “Target Population”, the Discussion Paper reads (at 10-11): The LTP/LTS scheme is based on the assumption that there are identifiable classes of offenders who although they pose a considerable risk to the community , are thought to be able to be adequately managed in the community… Selection criteria would have to be carefully defined to ensure that the imposition of this sentence would be restricted to appropriate cases such as those where a well established offence cycle with observable cues is present, and therefore a long term relapse prevention approach might be indicated.

For example, consideration could be given to targeting offenders who perpetrate violent acts of a “medium” level of seriousness (this would have to be defined) in comparison to acts of “high” levels of seriousness. ... Selection criteria to give meaningful guidance to the court are essential if indiscriminate use of this sanction is to be avoided. However, although it is relatively easy to conceive of individual cases it is quite another matter to try to identify eligible offenders by category of offence and on a case-by-case basis by means of specialized assessments.

State-of-the-art limitations exist in both clinical and scientific prediction of future violent behavior . … (Emphasis added) [ 54 ] Under “Treatment Issues”, the Discussion Paper states (at 11):

It is reasonable to expect that the majority of offenders who would fit the intended target description would be sex offenders and offenders with a diagnosis of psychopathic personality disorder . In general both categories present persistent risk and hence might be suited to long term monitoring and relapse prevention efforts. (Emphasis added) [ 55 ] Under “Information Requirements”, the Discussion Paper states “[t]he courts would also be required to become versant with the issues of predictability of violent behaviour ” (at 14, emphasis added).

Under “Supervision”, the Discussion Paper states “[a]s indicated earlier, the knowledge base is limited in terms of what are known to be effective interventions for persistent violent offenders such as sex offenders ” (at 15, emphasis added). [ 56 ] The Discussion Paper outlines two potential LTP/LTS (Long-Term Probation/Long-Term Supervision) models (at 18–22).

Model A considered an extension to the dangerous offender provisions of the Criminal Code (at 19): This scheme might encourage judges to make a Dangerous Offender declaration in difficult cases where the appropriateness of an indeterminate sentence is not manifestly evident, yet the circumstances of the case are sufficiently perturbing that exceptional measures seem warranted. … Net widening would not be a problem because the target group could be identified as a sub set of offenders already declared DOs. [ 57 ] Model B considered the exclusion of individuals declared dangerous offenders, but targeting of a similar group unlikely to meet dangerous offender criteria (at 20): This model would be aimed at violent offenders receiving either a federal or provincial custodial sentence who are considered to be strong potential future candidates for DO applications , but who for some reason(

s) do not, at the time of the offence, appear to meet the criteria for DO designation. ... Three criteria would need to be met:

a) conviction of a serious personal injury offence with the exclusion of

summary conviction offences;

b) deemed by the sentencing judge, after taking into account evidence including expert clinical evidence, that the individual is likely to cause future serious physical injury to others ; and

c) assessed as being in need of and amendable to treatment to reduce risk. (Emphasis added) [ 58 ] The Federal/Provincial/Territorial Task Force on High-Risk Violent Offenders ultimately produced Strategies for Managing High-Risk Offenders , (January 1995) [Task Force Report], which lists the Discussion Paper as one of the documents considered (Annex 3).

The Discussion Paper was therefore one component that informed the Task Force Report presented to federal, provincial, and territorial justice ministers in January 1995. [ 59 ] Portions of the Task Force Report speak to the type of risk being considered in relation to any legislative changes. The Task Force Report reads (at 4): In developing its report the Task Force identified its “target” as comprised of three groups of persons. The first includes those with a risk of violence on account of a treatable mental disorder.

The second group contains those who present a risk of violence because of an untreatable mental disorder. The final group presents a risk of violence that may be separate from or in addition to the risk posed as a result of a mental disorder.

In developing options to deal with the highest risk offenders , the Task Force has recognized that targeted interventions may be possible at every stage of the criminal justice process: a. at the “front end” (prior to, or at the prosecution/sentencing stage) [later in the Report, this is the stage where the LTO recommendations fit], b. during incarceration and c. towards the end of sentence. (Emphasis added) [ 60 ] Under “Changes to Dangerous Offender Provisions”, the Task Force Report notes (at 14): The Task Force is also concerned that the offenders currently liable for prosecution under the Dangerous Offender provisions of the Criminal Code do not represent the full range of offenders about whom we should be concerned.

The sections that follow are intended to present the case for better assessment of high risk offenders, and for the provision of an alternate mechanism to address those offenders who represent a considerable risk to the community but who may not be subject to the current Dangerous Offender regime . (Emphasis added) [ 61 ] Under “Long Term Supervision”, the Task Force Report reads (at 17–21): In respect of high risk offenders, the Task Force was impressed with arguments to the effect that special attention needs to be paid to

some categories of offenders, notably pedophiles, who may not be susceptible to indeterminate incarceration as dangerous offenders but who are, nonetheless, capable of great harm to numerous victims as a result of their chronic behaviour.

Interest has been expressed in the creation of a long term supervision scheme which would be limited in its application to certain categories of offenders , as an alternative to indeterminate incarceration. … “Long term supervision” (LTS) should have as its objective the enhanced safety of the public through targeting those offenders who could be effectively controlled in the community, based on the best scientific and clinical expertise available.

Such control may be the most effective approach in helping to reduce violent criminal acts , fostering and maintaining pro-social behavior, and reducing the adverse impact of incarceration. … A sentencing option providing for long term supervision would be aimed at cases where an established offence cycle with observable cues is present, and where a long term relapse prevention approach may be indicated. The success of an LTS scheme based on the relapse prevention model rests on several key factors. a. The measure should be focused on particular classes of offender.

The inclination to make long-term supervision widely available should be resisted as costly, unwarranted in most cases, and as contributing to “net widening” . The target group, and thus the expectations of the scheme, should be well defined; b. The criteria should selectively target those offenders who have a high likelihood of committing further violent or sexual crimes but who would not likely be found to be a Dangerous Offender ; c.

There should be a mechanism for varying or lifting LTS orders, given that while LTS may have been appropriate at the time of sentencing, once a custodial sentence has been served there may be a need for modification of the order based on intervening events; d. There should be a speedy and flexible mechanism for enforcing the orders which does not result in lengthy re-incarceration in the absence of the commission of a new crime.

As stated above, the order should not become a mechanism for long term incarceration in the absence of re-offending. … The Task Force recommends that the court, may order, upon application of either party, an assessment of an offender convicted of a serious personal injury offence to participate in an assessment at a provincially identified centre to determine the risk of violent re- offending and the likelihood of successful management of that risk in the community .

The assessment report should be used by Crowns in determining whether to bring an application for either a Dangerous Offender or Long Term Offender designation. (Emphasis added) [ 62 ] Based on the foregoing, the Discussion Paper and the Task Force Report suggest the initial intent of the LTO recommendations was to target a defined group of violent or sexual offenders who were at risk to violently reoffend.

The concepts discussed in these two reports can be linked to Bill C-55. [ 63 ] Bill C-55 was referred to the Standing Committee on Justice and Legal Affairs and was discussed at various meetings of the Committee (35th Parl, 2nd Sess, Meeting No 88, 91-102, 105 (03 December 1996 – 04 March 1997)).

The following portions of the Committee hearings refer to both the risk of reoffending and the link to the Task Force Report: Tuesday, December 3, 1996 (Meeting No 88), the Honourable Allan Rock (Minister of Justice and Attorney General of Canada) With this bill, the government has proposed new measures applicable to high risk offenders. These measures are designed to strengthen the correctional service and sentencing system for individuals where there’s a high risk that they may become repeat violent offenders .

This bill is the result of at least three years of study by a task force on high risk violent offenders and continuous discussions between the provincial and federal ministers responsible for justice . … … The creation of the long-term offender category is intended to provide another mechanism for dealing with this risk. The creation of the category was a recommendation of the federal-provincial-territorial task force that spent almost three years reviewing this area of the law.

In essence, the long-term offender mechanism would fill a gap by providing a sentencing option for those who do not fall within the dangerous offender category but are still at a high risk to reoffend, much higher than the general prison population . … The new risk assessment procedure that is in Bill C-55 will serve for both the dangerous offender and long-term offender applications and will help enormously in determining the kind and the level of risk posed by these criminals. (Emphasis added) [ 64 ] The Task Force Report was also a consideration in the House of Commons Debates as reflected in the following excerpts from Hansard of the comments of Mr.

Michel Bellehumeur (Berthier—Montcalm, BQ) at 5064: In January 1995, the federal-provincial-territorial task force on high risk violent offenders set up by the Conservatives and maintained by the Liberals released its report outlining a strategy for managing high risk offenders. The report contained a series of recommendations.

Among other things, the task force recommended that dangerous offender provisions and civil incarceration procedures be used more often in the case of dangerous offenders suffering from mental illness who had almost completed their sentences. (Emphasis added) [ 65 ] The following excerpts of statements made by various members of Parliament on debate on Bill C-55 are taken from the House of Commons Debates , 35th Parl, 2nd Sess (03 October 1996): (

a) Mr. Gordon Kirkby, Parliamentary Secretary to Minister of Justice and Attorney General of Canada, Lib.) at 5037–40 … The high risk offender bill responds to a problem that Canadians have told us is their priority concern in the criminal justice area, namely the threat they perceive from sex offenders and other violent offenders .

In effect, Bill C-55 lays out a new sentencing regime for the worst categories of offenders . … … Whether talking about crime prevention, policing, sentencing or parole, Canadians expect governments to devise well crafted well focused laws that really home in on the categories or sub-categories of offenders who commit serious crimes of personal violence. … To bring this full circle, let me reiterate that this bill, by improving sentencing options in regard to sex offenders and other high risk offender s, is consistent with our approach to the most serious kinds of crimes. … (Emphasis added) (

b) Mr. Pat O’Brien (London—Middlesex, Lib.) at 5048–9 … We have some alarming trends that need to be dealt with and the purpose of Bill C-55 is to do just that. It is to address the reality of high risk offenders and to deal with those people effectively . … In my view, we need to ask where the dangerous trends are in our society vis-à-vis violent crime and address those . I believe Bill C-55 will do that very effectively. … [Bill C-55] creates a new long term offender designation that targets sex offenders … . Unfortunately, repeat violent offenders will pose a risk to public safety now and in the years to come.

Some of them will pose a risk for the remainder of their lives. This legislation seeks to deal specifically with the threat to public safety . … … Although there has not been a massive increase in violent crime in Canada, a number of individuals who are repeat violent offenders, pose a serious threat to public safety .

The initiatives to which I have just referred [including the long term offender designation] very effectively deal with those people . … I am very pleased to be a member of a government which is going to proceed, through this and other pieces of legislation, to deal more effectively with repeat violent offenders, including sexual offenders . … The fact of the matter is that the public will see more effective measures to deal with high risk offenders. What do I mean exactly by a high risk offender?

It is someone who has been convicted of a serious violent crime and who has been found to have a strong likelihood of reoffending, but who cannot be shown to meet the narrow definition of the dangerous offender which would result in indefinite incarceration . The bill increases the options of the government in dealing with violent offenders . … (Emphasis added) (

c) Mr. Jesse Flis (Parkdale—High Park, Lib.) at 5068 It is my strong belief that these government amendments will extend controls over persons convicted of sex crimes and other violent offences and will give us the measure to monitor their activities. In the event that they recommit, these amendments will put them where they belong, in jail . Through this legislation there can be an effective combining of policing, prosecution, sentencing, custody, supervision and rehabilitation strategies that will control high risk groups within our society and keep our streets and neighborhoods safe for our children and the general public. (Emphasis added)

(

d) Mr. Maurizio Bevilacqua (York North, Lib.) at 5077 The following three initiatives will toughen the sentencing and correctional regime for those who pose a high risk of committing another violent crime: a new long term offender designation that targets sex offenders and adds a period of long term supervision of up to 10 years following release from prison … . … … Under the proposed changes a new sentencing category, to be called long term offenders, will be added to the Criminal Code .

It will target sex offenders who are less violent and brutal than those designated as dangerous offenders but are found to pose a considerable risk of reoffending . (Emphasis added) [ 66 ] While some of the comments made during debate focused on the part of the LTO provisions dealing with sex offenders, some common themes relevant to the issue of the nature of the risk under s. 753.1(1) (

b) emerge: (

a) The LTO provisions were designed to target a certain class of offender – namely, violent offenders and a subset thereof of sex offenders; and (

b) The LTO regime and the dangerous offender regime are complementary systems. [ 67 ] Based on excerpts of discussions in committee and the debates in Parliament, I conclude the risk of reoffending contemplated under the proposed legislation was a substantial risk of reoffending violently . [ 68 ] I now turn to the scheme of the

Part XXIV provisions containing s. 753.1(1)(b). This was explained by this Court in R v Weasel , 2003 SKCA 131 , [2004] 7 WWR 59. Cameron J.A. stated: [23] What Parliament had in mind, then, in enacting

section 753.1 , is to be determined in the context of the whole of the enactment in which the

section appears, namely

Part XXIV of the Criminal Code , including the scheme of the enactment and its purpose. The tendency is to do otherwise—to take an isolated view of the language of the section, treating the

section as though it stood alone in providing for the sentencing of long-term offenders. This is not true of the approach taken by the British Columbia Court of Appeal in R. v. McLeod . The Court went beyond the

section itself and considered its scope in the broader context of the provisions dealing with both dangerous offenders and long-term offenders. In our judgment this is essential, for the long-term offender provisions are woven into

Part XXIV and form part of an integrated whole larger than the

section itself. [24]

Section 753.1 forms part of an integrated sentencing scheme established by

Part XXIV and entitled DANGEROUS OFFENDERS AND LONG-TERM OFFENDERS. The purpose of

Part XXIV lies in enhancing the effectiveness of conventional sentencing in relation to the two classes of offender for which it makes provision. To that end, it allows for preventive detention or control beyond the reach of conventional sentencing. For Dangerous Offenders, it allows for an indeterminate period of detention (section 753). For Long-term Offenders, it allows for a fixed period of detention of at least two years, followed by a fixed period of control by means of community supervision of up to ten years (

section 753.1 ). [25] These are offenders who, to begin with, have been convicted of “a serious personal injury offence” or “an offence referred to in paragraph 753.1(2)(a)” and who, after that, are found to be a threat of one nature or another to the safety or well-being of others by reason of their historical behaviour and risk of re-offending. [26] The term “serious personal injury offence” is defined in

section 752 to mean: (

a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving (

i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person, and for which the offender may be sentenced to imprisonment of ten years or more, or (

b) an offence or attempt to commit an offence mentioned in

section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault). [27] The phrase “an offence referred to in paragraph 753.1(2)(a)” embraces an offence under

section 151 (sexual interference), 152 (invitation to sexual touching), and 153 (sexual exploitation); one under subsection 173(2) (exposure); and one under

section 271 (sexual assault), 272 (sexual assault with a weapon), and 273 (aggravated sexual assault). [28] These, then, are the two classes of offender and offence with which the scheme is concerned. [ 69 ] The LTO provisions of

Part XXIV are integrated with the dangerous offender provisions of that part, which explicitly deal with behavior that can only be described as violent. It would therefore be surprising if the special sentencing regime of

Part XXIV were intended to be used for a class of offenders that did not have a risk to offend violently. Moreover, the entry point to the

Part XXIV scheme for an accused to be designated either a dangerous offender or an LTO requires, pursuant to s. 752.01, that the accused has been convicted of a serious personal injury offence as defined by s. 752. Such offences, apart from sexual offences, involve the use or attempted use of violence against another person, conduct endangering or likely to endanger the life or safety of another person, or inflicting or are likely to inflict severe psychological damage upon another person. When a conviction for a crime that, broadly speaking, is violent initiates the LTO designation process it would be incongruous if the future substantial risk the designation is intended to

address were not a risk of violence. In short, looking at the scheme of the LTO provisions in

Part XXIV as a whole points to an

interpretation of s. 753.1(1)(

b) that requires the risk to reoffend be a violent one. [ 70 ] There is a dearth of jurisprudence directly discussing the issue of whether a substantial risk to reoffend must be violent. This is understandable considering that appellate cases affirming long-term offender designations generally seem to involve offenders whose risk of violent reoffending is substantial. In that context, any lacunae in the jurisprudence regarding the nature of the risk lend credence to the view that the risk to reoffend must be violent. [ 71 ] In R v K.R.S. , 2004 SKCA 127 , [2005] 5 WWR 82, this Court, after emphasizing that s. 753.1(2) does not provide an exhaustive definition of when the s. 753.1(1) (

b) risk of reoffending criteria will be made out, stated: [51] A “substantial risk that the offender will reoffend” can be established based on the Court’s assessment of all the evidence pertaining to that issue. Some of the characteristics of Mr. [K.R.S.] identified in the latest psychological assessment include: long history of abusing substances, lack of insight into offending, lack of prosocial vision of himself, tendency to respond impulsively, negative/antisocial belief system, lack of empathy, inability to see long-term consequences.

On this point, the Court can also examine Mr. [K.R.S.]’s pattern of offending in a general sense, i.e. escalation of violence and long-term involvement with the criminal justice system. For cases illustrating this approach see: R. v. Kozovski , [ [2001] O.J. No. 103 (Sup. Ct.) (QL) at paras. 10 and 12-22] and R. v. Nordstrom , [(26 February 2003), Doc. 2434/01, 2530/02 (Ont.

S.C.J.)(Can LII) at paras. 31, 32, 35-36 and 48]. [ 72 ] Recently in R v Ryan , 2017 ONCA 334 , the Ontario Court of Appeal considered an appeal from a long-term offender designation where the appellant alleged the trial judge had wrongly articulated the test to identify substantial risk on the basis of s. 753.1(2)(b)(i), which was inapplicable, and thereby misapplied the substantial risk criteria.

The Court found the trial judge had erred but was “satisfied that the appellant met the requirement of presenting a substantial risk to reoffend, even if that requirement was viewed as ‘a high threshold’ involving a substantial risk of causing serious harm to individuals” (at para 10). The Court in that respect pointed to evidence that the appellant was at a moderately high risk to reoffend violently . [ 73 ] In Guindon c R , 2008 QCCA 1445 , 60 CR (6th) 184 [ Guindon ], the Quebec Court of Appeal addressed the issue of the nature of the risk under s. 753.1(1) (

b) directly. The appellant argued that he should not have been designated a long-term offender because the Crown had failed to demonstrate he was at a substantial risk to reoffend violently. The Court at paragraph 24 referred to this Court’s decision in R v E.E.D. , 2007 SKCA 99 , 304 Sask R 192, and held that a substantial risk of reoffending could be found through reference to all of the evidence and not only by reference to s. 753.1(2) (at para 25).

The Court found that not all kinds of substantial risk of reoffending could lead to a long-term offender designation (at para 26). [ 74 ] The Court emphasized the exceptional nature of the dangerous offender and long-term offender regime (at paras 27–28), noting that if the substantial risk criteria were not further marked or delineated, individuals with a general risk of recidivism could be designated without justification.

Therefore, in the Court’s view, the risk of reoffending must always be a risk of reoffending violently, except in the circumstances specified by s. 753.1(2) (at para 30), otherwise the designation would become the norm rather than the exception. [ 75 ] The Court relied on several elements of legislative history to support its conclusion (at paras 32–36), noting that its previous appellate decisions, while not addressing this question specifically, did support its view (to the extent that they dealt with offenders whose risk of reoffending was a risk of reoffending violently) (at paras 36–38). [ 76 ] The Court also noted, looking at the legislative genesis of the LTO provisions and the Task Force Report, that recidivism related to violent or sexual crimes was the concern of the legislators and not recidivism of every kind. [ 77 ] In short, the little jurisprudence that exists on this issue suggests the words “substantial risk to reoffend” under s. 753.1(1) (

b) properly interpreted require the risk to be a risk of violence. [ 78 ] In

summary, I conclude, based on the wording of the provision, the legislative history and the jurisprudence, that s. 753.1(1) (

b) properly interpreted requires that the risk of reoffending be a risk of violently reoffending. I return now to Mr. Piapot’s argument that the trial judge erred by not interpreting the provision as requiring violent reoffending. [ 79 ] The trial judge’s understanding of this issue can be gleaned not only from his decision but also from his discussions with the witnesses and counsel in the course of the long-term offender hearing. [ 80 ] Dr. Tomita authored Mr. Piapot’s assessment report. His testimony about his report left it unclear as to whether Mr.

Piapot’s risk of reoffending included a substantial risk of violent reoffending rather than a risk of reoffending more generally. The trial judge questioned Dr. Tomita regarding the risk of violence: THE COURT: I -- I just have one that just -- that just dovetails in terms of one of the last questions you asked. Dr. Tomita, the Crown asked you -- he says how will the offender do without treatment, but with legal supervision in the community, and I think your answer was you would expect the past would mirror the future, he will likely have difficulty with intervention, breaches, could possibly settle down.

Is that more or less your answer? THE WITNESS: Yes, Your Honour. And what I had -- and perhaps I misspoke. I intended to describe a pattern of suspensions and re-releases, and then hopefully a pattern of settling down if that occurred once -- perhaps more than once. THE COURT: I guess my question then is, is -- is he also likely to have difficulties -- or is he also likely to have – re-commit violent offences. You talked about breaches, but you -- you didn’t -- you stopped, sort of, short of saying he’s likely to violently re- offend if he’s without treatment but legally supervised.

Do you have an opinion on that? THE WITNESS: I -- I would rely, Your Honour, on his past pattern as well. It suggests that while he has absconded, he’s not

committed violent offences during those periods. THE COURT: So -- so not likely to commit a violent offence? THE WITNESS: Yes, that would be fair. I would say that. (T346, lines 30–41; T347, lines 1–16) THE COURT: Sir, I just have one question for you because you -- you had me a little confused. I’d just refer you to paragraph 37 of your report. Looks like maybe the last sentence. Let me know when you’re there. It starts with: If Mr.

Piapot receives a federal sentence that’s sufficient duration, that he can realistically be in the institution long enough to complete the high intensity treatment program -- programs that he requires in order to reduce his level of risk, and the possibility of reduction of his violence risk to a level that can be managed in the community on parole supervision seems feasible. Do you see that? THE WITNESS: Yes, I do.

THE COURT: And then I had asked you, and maybe -- maybe it was confusing the way I asked the question, but I said, “Well, if he -- if he goes without treatment, but he’s released under legal supervision, he’s likely or unlikely that he’ll commit a violent offence while on supervision, and I thought you said it’s not likely he will. So he hasn’t had any treatment, but he’s on supervision in the community. THE WITNESS: Yes, Your Honour, so perhaps if I -- I could expand. I think there are two possible scenarios -- at least two with Mr. Piapot.

The first is treatment benefit and more responsive to supervision, and one would forecast that to include less likely of breaching and being suspended. The other would be the worst case scenario; no treatment effect or he didn’t take the treatment -- THE COURT: Right. THE WITNESS: -- then he would be out, and his functioning would be much worse, meaning not complying, likely lapse into alcohol or drug use, and being suspended and re-released at certain points.

In that context, referring back to his past, he has not violently re-offended when that’s occurred, except if one expands that to include car theft and the high speed chase as a young offender. I think that the resources afforded by federal parole would likely be sufficient to prevent violent re-offending in that context, and suspend him back. His risk would be higher, though, in that scenario. THE COURT: Is that -- is that consistent with paragraph 37 -- what you say in paragraph 37? THE WITNESS: It’s not exactly consistent because it seems to suggest without, it’s not feasible, and -- THE COURT: Right.

THE WITNESS: -- but my response is saying that -- THE COURT: Right. THE WITNESS: -- it’s going to be more difficult, but it’s likely sufficient to contain his risk. So it is -- it is different. THE COURT: Which -- which -- it’s your opinion, I guess, which one -- which one is -- is -- which one are you relying upon? THE WITNESS: I -- I’m relying on what I’m telling the Court today, Your Honour. (T356, lines 40–41, T357, T358, lines 1–20) [ 81 ] In a discussion with Crown counsel, the trial judge stated: MR. WHITE: -- and that’s what we’re dealing with here, in many -- in a very real way, is his potential.

THE COURT: So while we’re on the issue of re-offend, though, because -- and both -- both Briefs, sort of, talked about the, you know, the possibility of violently reoffending. And, like, when I read 753.1(

b) it says there is a substantial risk that the offender will reoffend. No discussion about violently reoffending. And -- and I wonder a little bit about the purpose of a long-term supervision order, but -- but maybe it is to -- to capture just perpetual offenders, because it -- nowhere does it talk about we’re -- we’re trying to eliminate the risk of violently reoffending. And there’s some -- let me go on to that. (T522, lines 19–29, emphasis added) [ 82 ] The discussions of the trial judge with counsel make clear that the trial judge was not convinced that s. 753.1(1)(

b) required that the risk be one to reoffend violently. He appears to have believed that the LTO and LTSO provisions might apply to persons who could be defined as perpetual offenders. The provision is not designed to catch perpetual offenders in the general sense as alluded to by the trial judge. It is, as explained in Guindon , a provision that has a narrow target group. The discussions of the trial judge with the witness and with counsel lend credence to Mr. Piapot’s assertion that the trial judge failed to properly interpret s. 753.1(1) (b).

Paragraph 30 of his decision reflects that. [ 83 ] It is my view that, given the foregoing, the trial judge’s comments regarding the risk to reoffend were grounded on a view that

any risk to reoffend would satisfy the requirements of s. 753.1(1) (b). This was a legal error and affected the designation of Mr. Piapot as an LTO. The designation must therefore be set aside. 2. Remedy [ 84 ] Having concluded that the LTO designation must be set aside, this leaves the matter of remedy. [ 85 ] Section 759(3) reads as follows: 759

(3) The court of appeal may (

a) allow the appeal and (

i) find that an offender is or is not a dangerous offender or a long-term offender or impose a sentence that may be imposed or an order that may be made by the trial court under this Part, or (ii) order a new hearing, with any directions that the court considers appropriate; or (

b) dismiss the appeal. [ 86 ] Given some uncertainty with respect to the report and testimony of Dr. Tomita, this Court is not in a position to exercise its powers under s. 759(3)(a)(i). This is a proper case for a new hearing to be ordered (see also R v Moise , 2015 SKCA 39 , 457 Sask R 190). VI. conclusion [ 87 ] The conviction appeal is dismissed. However, the sentence appeal is allowed. The designation of LTO and sentence must be set aside. The matter will be remitted to the trial court under s. 759(3)(a)(ii) for a new hearing to determine whether Mr. Piapot, in light of s. 753.1(1) (

b) properly interpreted, should be designated an LTO and for the purposes of determining an appropriate sentence on the predicate offence. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Ottenbreit J.A.” for Whitmore J.A.