R v Starblanket, 2019 SKCA 130

Court of Appeal for Saskatchewan Docket: CACR2915 Citation: R v Starblanket , 2019 SKCA 130 Date: 2019-12-02 Between: Marvin Cody Starblanket Appellant/Applicant And Her Majesty the Queen Respondent/Respondent Before: Jackson, Ottenbreit and Whitmore JJ.A. Disposition: Conviction appeal dismissed (orally); fresh evidence application dismissed; sentence appeal allowed Written reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr.

Justice Whitmore On Appeal From: 2017 SKPC 5 , Saskatoon Appeal Heard: September 6, 2018, with additional submissions filed October 5, 2018, November 5, 2018, August 14, 2019, and October 28, 2019 Counsel: Michael Nolin for the Appellant Erin Bartsch for the Respondent Jackson J.A. I. Introduction [ 1 ] Marvin Starblanket was charged and found guilty by a judge of the Provincial Court of Saskatchewan of one count of robbery contrary to s. 344(1) of the Criminal Code .

At a hearing held for that purpose, the sentencing judge declared him to be a dangerous offender and imposed an indeterminate sentence ( R v Starblanket , 2017 SKPC 5 [ Sentencing Decision ]). He appealed his conviction and sentence. [ 2 ] When this appeal was heard, the Court dismissed Mr. Starblanket’s appeal from conviction. It reserved its decision pertaining to his sentence appeal, pending receipt of submissions with respect to the effect of R v Boutilier , 2017 SCC 64 , [2017] 2 SCR 936 [ Boutilier ]. Mr.

Starblanket also applied to adduce fresh evidence challenging the impartiality of the Crown’s expert witness and demonstrating how Mr. Starblanket had been performing while serving his sentence in custody. [ 3 ] Following the release of this Court’s decisions in R v S.P.C. , 2018 SKCA 94 [ S.P.C. ], R v Piche , 2019 SKCA 54 [ Piche ], and R v Parfitt, 2019 SKCA 55 , 378 CCC (3d) 490 [ Parfitt ], the Court invited further submissions from the parties with respect to these questions: (

a) Did the sentencing judge err by stating “an indeterminate sentence is presumed to be a fit sentence” (at para 35)? (

b) If so, should the Court apply the curative proviso, i.e., is the Court in the position to conclude that “there is no reasonable possibility that the result would have been different had the error not been made” ( R v Sipos , 2014 SCC 47 at para 35 , [2014] 2 SCR 423 [ Sipos ])? (

c) If not, and the Court concludes that the dangerous offender designation is reasonable, does the Court have the authority to order a partial hearing on the question of sentence only? [ 4 ] The Court is now in receipt of those submissions. In

summary, and for the reasons that follow, I conclude that the law as clarified by the Supreme Court in Boutilier , which was released December 21, 2017, after the release of the Sentencing Decision , determines the outcome of this appeal and requires a new sentencing hearing. In arriving at this result, I have concluded that the fresh evidence should not be admitted as it does not meet the requirements for the admission of such evidence. As such, I would dismiss the fresh evidence application. II. Relevant Legislative Provisions [ 5 ] The relevant parts of the Criminal Code provide as follows:

Definitions 752 In this Part, …

serious personal injury offence means (

a) an indictable offence, other than high 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). … Application for remand for assessment 752.1

(1) On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(

a) might be found to be a dangerous offender under

section 753 or a long-term offender under

section 753.1, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under

section 753 or 753.1. … Application for finding that an offender is a danger offender 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 (

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 … … 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 commission by the offender of murder or a serious personal injury offence. … 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 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 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 re-offend; and (

c) there is a reasonable possibility of eventual control of the risk in the community. … Sentence for long-term offender

(3) 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 must be a minimum punishment of imprisonment for a term of two years; and (

b) order that the offender be subject to long-term supervision for a period that does not exceed 10 years. … Long-term supervision 753.2

(1) Subject to subsection (2), an offender who is subject to long-term supervision shall be supervised in the community in accordance with the Corrections and Conditional Release Act when the offender has finished serving (

a) the sentence for the offence for which the offender has been convicted; and (

b) all other sentences for offences for which the offender is convicted and for which sentence of a term of imprisonment is imposed on the offender, either before or after the conviction for the offence referred to in paragraph (a). … Breach of long-term supervision 753.3

(1) An offender who, without reasonable excuse, fails or refuses to comply with long-term supervision is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years. … New offence 753.4

(1) If an offender who is subject to long-term supervision commits one or more offences under this or any other Act and a court imposes a sentence of imprisonment for the offence or offences, the long-term supervision is interrupted until the offender has finished serving all the sentences, unless the court orders its termination. … Appeal – offender 759

(1) An offender who is found to be a dangerous offender or a long-term offender may appeal to the court of appeal from a decision made under this Part on any ground of law or fact or mixed law and fact. … Disposition of appeal

(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. …

Part XXI applies re appeals

(7) The provisions of

Part XXI with respect to procedure on appeals apply, with such modifications as the circumstances require, to appeals under this section. III. Background to the Sentence A. Mr. Starblanket’s personal history [ 6 ] Mr. Starblanket’s father was a member of the Ahtahkakoop First Nation and his mother is a member of the Mistawasis First Nation. Mr. Starblanket identifies as a member of his father’s First Nation. [ 7 ] Mr. Starblanket was born on September 21, 1982. As a child, he witnessed extensive domestic abuse.

His home was characterized by chronic substance abuse and violence on the part of adult caregivers, with much of the violence being directed toward his mother and perpetrated by her various partners. He was first placed in the care of the Department of Social Services at the age of five because of his mother’s inability to care for him. He was placed in a number of foster homes as a child – as many as 10 to 15 according to Dr. Todd Tomita, the expert engaged by the court for the purposes of the dangerous offender application. Mr.

Starblanket’s lifestyle has been such that he has either been the victim of violence or he has observed “many instances of violence”. [ 8 ] Mr. Starblanket told Dr. Tomita that he was sexually molested or abused on several occasions: between the ages of five and seven, on approximately five to ten occasions, by his grandfather, a residential school survivor; at the age of seven, by a female cousin; and later, by an older white male at a swimming pool. [ 9 ] At the age of 10 or 12, Mr. Starblanket was placed at the Regina Native Youth facility because his behaviour could not be managed in a regular foster home.

At the age of 14, he began to commit offences. He was convicted of his first offence when he was 16. At that time, he was diagnosed with conduct disorder and showed signs suggestive of an antisocial personality disorder. By the time he was 17, a severe substance abuse problem had been identified. Interventions by his mother and various child and youth services were unsuccessful in moderating either his aggression or his substance abuse. [ 10 ] Mr. Starblanket has been violent towards all of his female partners, and his relationships have all been short-lived with none lasting longer than a year. According to Dr.

Terry Nicholaichuk, Mr. Starblanket’s associates fall into two non-overlapping groups: one being his pro-social relationships with his mother, older sister, one friend, and perhaps employers (although all employment has been short-lived); and the other composed of people who can supply him with drugs. He continues to have the support of his mother, his sister, a long-time friend, and Father André Poilievre, the founder and driving force behind STR8 UP, an organization dedicated to supporting people who want to leave gangs and start new lives. B. Mr. Starblanket’s criminal offending history [ 11 ] Mr.

Starblanket has convictions for violent offences including, robbery with violence (1999); assault peace officer x 2 (2002); uttering threats (2002); assault with a weapon (2003); assault (2003); assault with a weapon, forcible confinement, uttering threats, and assaulting a peace officer (2003); assault causing bodily harm and uttering threats (2007); two counts of robbery and one of assault (2008); assault causing bodily harm (2009); assault and assault causing bodily harm (2010); and assault x 2 (2013). [ 12 ] For the most part, Mr.

Starblanket has received relatively short periods of incarceration as a young offender and as an adult. Although he served two terms in federal institutions, his sentences were comparatively short. The first federal term was in 2003, when Mr. Starblanket was 21, for assault with a weapon and unlawful confinement. (This was a sentence of five years and three months, but a period of 30 months in pre-sentence custody resulted in an actual penitentiary sentence of two years.) The second federal term was for two years in 2010 for assault and assault causing bodily harm of a domestic partner. He was 28 at the time.

He committed the predicate offence in 2014, when he was 32. C. The predicate offence [ 13 ] The circumstances of the predicate offence may be briefly described. A high-quality surveillance video recording showed Mr. Starblanket and a young woman, the co-accused, entering a convenience store in the early evening. Mr. Starblanket was wearing dark clothes, a hoodie with the hood pulled up, and sunglasses. The co-accused was wearing dark clothes and a baseball cap. They walked around the store for several minutes during the course of which they placed items on the counter. While Mr.

Starblanket stood by the door, the co-accused walked behind the counter and raised a Taser gun. The clerk emptied the cash register and placed the grocery items in two bags. Mr. Starblanket rushed to the counter, grabbed the grocery bags, and quickly left the store with the co-accused. [ 14 ] Mr. Starblanket testified. He claimed he had no foreknowledge about his co-accused’s intent to rob the store. He said he was tired and hungry and just wanted to get something to eat.

The sentencing judge did not accept his version of events and found him guilty of robbery. [ 15 ] In her oral reasons for conviction, the judge found that Mr. Starblanket was guilty either as a principal or as a party to the offence of robbery. In convicting him as a principal, she said: I conclude from the video and the evidence that the robbery was a coordinated effort. I do not believe the testimony of the defence witnesses that they did not have a common plan to commit robbery, nor am I left with a reasonable doubt about it. The evidence as a whole satisfies me beyond a reasonable doubt that Mr.

Starblanket was keeping six by the door and, in doing so, that he intended to aid [the co-accused] in committing the robbery. I find Mr. Starblanket guilty of count number 1. [ 16 ] With respect to Mr. Starblanket’s being a party to robbery, the judge found the actus reus of the offence was committed by

his own admission “that he grabbed the two bags of groceries from the counter and took them from the store”. As to the mens rea , she found that the knowledge component was established by his admission that he saw the co-accused robbing the store clerk. She also noted that Mr. Starblanket had been standing by the door for almost a minute while the co-accused was robbing the store clerk, which gave him sufficient time to think about his actions. She noted that “instead of removing himself from the situation, he walked purposefully over to the counter, grabbed the grocery bags and ran from the store”.

With this conclusion, she found that the Crown had proven beyond a reasonable doubt that, in doing so, Mr. Starblanket intended to assist the co-accused in the commission of the offence, thereby proving guilt by virtue of being a party. As indicated earlier, Mr. Starblanket appealed his conviction; however, that appeal was dismissed with oral reasons from the bench on the day the conviction appeal was heard. D. Expert reports 1. Dr. Tomita [ 17 ] Dr. Tomita was retained as the court-appointed assessor to complete a forensic psychiatric assessment of Mr.

Starblanket under s. 752.1 of the Criminal Code for use as evidence in an application under s. 753 or s. 753.1 of the Criminal Code . His report is dated August 10, 2015. The sentencing judge found him to be qualified to give opinion evidence “in the area of the assessment, treatability … and management of violent offenders”. When he began his testimony, he stated that he was currently working for the Correctional Service of Canada [CSC] at the Regional Treatment Centre in Abbotsford. Counsel for Mr. Starblanket did not object to Dr. Tomita’s appointment or to his being qualified as an expert. [ 18 ] Dr.

Tomita diagnosed Mr. Starblanket as having an antisocial personality disorder and alcohol and substance abuse problems. Dr. Tomita indicated that a personality disorder diagnosis is made “when a person has evidenced an enduring pattern of thinking, feeling and behaving that results in problems with functioning attributable to pathological personality traits”. He described Mr. Starblanket as having “an egocentric, callous lack of concern for others, accompanied by irresponsibility, impulsivity, irritability and aggressiveness, risk taking, and a lack of remorse”. He opined that Mr.

Starblanket’s personality-based problems are not “primarily attributable to substance use problems” but that “his substance abuse appears to have aggravated problems related to his Antisocial Personality Traits”. [ 19 ] Applying all three risk assessment methodologies, Mr. Starblanket was assessed to be at a high risk to reoffend. Of particular note is Dr. Tomita’s assessment that Mr. Starblanket’s “pool of potential victims is extremely broad and includes strangers, casual acquaintances, intimate partners, family members, correctional staff, and treatment providers”.

Applying the Violence Risk Appraisal Guide-Revised test (VRAG-R), Mr. Starblanket “shares characteristics of a group of offenders who are at the highest risk of having future charges or convictions for violent offences”. [ 20 ] On the question of treatability, Dr. Tomita reviewed all of the programs that Mr. Starblanket had already completed. From this, Dr. Tomita concluded that “Mr.

Starblanket possesses an intellectual understanding of self-management skills taught in programs but not the ability nor the willingness to apply them consistently in his life generally”. [ 21 ] As to the possibility of control of the risk that Mr. Starblanket presents, Dr. Tomita drew a distinction between provincial and federal control of risk within the community. He wrote: “There is little likelihood that Mr. Starblanket’s risk of violence can be contained in the community either on provincial probation or if he is off legal supervision ” (at para 31, emphasis added). Dr.

Tomita offered the opinion that, “on balance, the prospects are not overly optimistic but it is possible to foresee that his risk can be controlled in the community after a decade or longer within the institution and on federal parole ” (emphasis added).

He also opined that “[B]ecause of his antisocial personality traits, it is unlikely that he can stop all violence but the possibility of limiting violence to the level of threats and verbal abuse rather than physical violence appears to be a realistic possibility assuming a treatment response and an ability for a more durable commitment to school and work occurring” (at para 244). 2. Dr. Nicholaichuk [ 22 ] Dr. Nicholaichuk was engaged by Mr. Starblanket’s counsel to prepare a psychological assessment of his client. His report, dated March 23, 2016, was prepared after the report of Dr. Tomita. Dr.

Nicholaichuk was “qualified as a clinical psychologist, an expert in assessment and treatment of sexual and non-sexual violence”. Dr. Nicholaichuk’s report refers to Dr. Tomita’s and is largely consistent with it. [ 23 ] Dr. Nicholaichuk wrote as follows: Mr. Starblanket clearly meets the criteria for antisocial personality disorder. He has an extensive history of disregarding and violating the rights of others. This is shown by his history of arrests and assault.

He shows other markers for the disorder such as failure to plan ahead, repeated failure to sustain consistent employment and being indifferent to hurting others. Unfortunately, this disorder is so ubiquitous in the federal inmate population (about 80 – 85% of offenders), it has little predictive or discriminative value. Mr. Starblanket shows the signs of alcohol and stimulant use disorders. Both have been reliably associated with his crimes and his inability to meet the usual requirements of daily living (e.g. interfered with his ability to further his education or to sustain employment).

His history shows that he has experienced cravings for both alcohol and stimulants and the use of substances has resulted in persistent personal and interpersonal problems. … Based upon his rating on the LSI-R, Mr. Starblanket’s risk for any type of new criminal behaviour, including offences such as breaches of conditions, was estimated to be greater than or equal to 61% within one year after release. The scale is not specific to violence but includes all criminal offences. This estimate is also based upon the assumption that there will be no appropriate intervention in his case.

If a suitable intervention can be arranged, his risk for some sort of new criminal act can be expected to be somewhat lower. Overall, his score placed him in the upper portion of the distribution of risk scores given by this test. Incarceration at a medium level of security is acceptable. Halfway house placement is considered to be appropriate only if intensive supervision and treatment are provided. This

formulation of risk appears to be consistent with that given by Dr. Tomita. [24] Dr. Nicholaichuk indicated that Mr. Starblanket’s ability to govern his aggression seems to be improving: Although he was repeatedly violent when younger, Mr. Starblanket’s ability to govern his aggression seems to be improving. Log entriesfrom Provincial and Federal institutions indicate a steady rate of institutional charges beginning in 2001. Institutional reports showconvictions for fighting, threatening other inmates, and swearing at staff.

Over the two years that he has been on remand at theSaskatoon Correctional Centre for the index offence, he was charged with two instances of fighting and one charge of causing adisturbance. Staff who are familiar with him said he had a “short fuse” but that they see him trying to control it. He incurred his lastcharge … for fighting while working at his institutional job. He was working as a domestic and got into a fight over juice. Correctionalstaff on the unit where he is being housed reported that overall he was doing “OK” and that he caused no significant problems. 3. The pre-sentence report [25] Mr.

Starblanket’s sentencing counsel, Mr. Bodnar, requested that the judge “order a pre-sentence report with emphasis on theGladue factor”. His request was granted. The resulting report, dated September 14, 2016, was prepared by a probation officer employedin the Serious Violent Offender Response unit of the Ministry of Justice. The author of the pre-sentence report had reviewed the reportsof Drs. Tomita and Nicholaichuk. Like Dr. Nicholaichuk, she was of view that Mr. Starblanket seemed to be improving as a result ofprogramming within the institution. She wrote: Based on [Mr.

Starblanket’s] previous unsuccessful periods of community supervision, there is little confidence that his risk can beappropriately managed in the community without first accessing intensive and long term interventions in custody. As the Gladue factorsapply to this case, it is this writer’s respectful recommendation that such interventions are not only intensive in nature but are alsoculturally inclusive in order to most effectively address [Mr. Starblanket’s] rehabilitative needs. Furthermore, because [Mr.

Starblanket] has been engaged in programming, and appears to be gaining insight into his offendingbehaviour, a strength based approach to supervision should be considered in the future. His access to pro-social supports, includingnatural kinship ties, is also an asset and should also be incorporated into future case management planning. IV. Sentencing Reasons [26] The sentencing judge held that the Crown had discharged its burden and had proven beyond a reasonable doubt thatMr.

Starblanket should be designated as a dangerous offender, and that there was no sentencing alternative available other than anindeterminate sentence. I will present the sentencing judge’s reasons in more detail when considering Mr. Starblanket’s grounds ofappeal. V. Standard of Review [27] It is worth repeating the Supreme Court’s statement of the standard of review in R v Currie, (SCC), [1997] 2SCR 260 [Currie]. Writing for a unanimous Court, Lamer C.J. stated: [33] In this respect, the role of an appellate court is to determine if the dangerous offender designation was reasonable.

This standard ofreasonableness is similar to the traditional standard employed by appellate courts in their review of verdicts under s. 686(1)(a)(

i) of theCriminal Code. Reasonableness is the appropriate standard of review in this case because, as much as dangerous offender status is a partof the post-conviction process, the application of general standards of sentence review is not warranted given the broad language ofs. 759. Section 759(1) provides: 759.

(1) A person who is sentenced to detention in a penitentiary for an indeterminate period under this Part may appeal to the court ofappeal against that sentence on any ground of law or fact or mixed law and fact. [Emphasis added by Lamer C.J.] Given this provision, I do not find the “manifestly wrong” or “demonstrably unfit” general sentencing standards developed and applied incases such as R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227, R. v. M. (C.A.), (SCC), [1996] 1 S.C.R.500, or R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948, to be applicable to this situation.

However, it is equally true thats. 759 cannot be interpreted as calling for the equivalent of a trial de novo on the dangerous offender application. Some deference to thefindings of a trial judge is warranted. After all, credibility should be assessed and findings of fact should be made by the trier of fact.

Thetrier of fact is present when the testimony is being given and has the contemporaneous ability to assess each witness. [34] I should also point out that I am sympathetic to the submission of the respondent and the conclusion of the Ontario Court of Appealbelow that, given their s. 759 jurisdiction to review the propriety of an indeterminate sentence, appellate courts are necessarily entitled toconsider whether the finding of dangerousness itself was justified. In other words, as much as R. v. Langevin (1984), (ON CA), 11 C.C.C. (3d) 336 (Ont. C.A.), and R. v. Sullivan (1987), (ON CA), 37 C.C.C. (3d) 143 (Ont.

C.A.),correctly held that s. 759 does not give appellate courts an explicit jurisdiction to overturn a dangerous offender designation, the factsupon which a dangerousness finding are based are necessarily relevant to determining whether an indeterminate sentence should bequashed. Hence the finding of dangerousness is properly before an appellate court. [35] Accordingly, absent an error of law (which I discuss below), the crucial question on appeal is whether the trial judge’s findings werereasonable. (Underline emphasis added; italics emphasis in original)

[28] In Sipos, Cromwell J., for the Court, referred to the type of review contemplated by the Court in Currie as being “somewhatmore robust”, yet one that “does not call for a completely fresh look” at the designation, but rather the appellate court “must give somedeference to the findings of the sentencing judge” (at para 26). The Court in Boutilier has again affirmed this standard of review (atpara 81). VI. Fresh Evidence [29] Mr. Starblanket asks this Court to admit fresh evidence falling into two categories: (

i) evidence from sentencing counselstating that they were either not aware of Dr. Tomita’s employment with the CSC before they agreed to his being appointed pursuant tos. 752 of the Criminal Code and his being accepted as an expert by the sentencing judge, or they did not perceive the significance of theconnection between Dr. Tomita and the CSC; and (ii) evidence directed to how well Mr. Starblanket has done since he was sentenced.Mr.

Starblanket relies on the principles derived from R v Palmer, (SCC), [1980] 1 SCR 759 at 775 [Palmer], and R vStolar, (SCC), [1988] 1 SCR 480 at 486, among other decisions, in support of his submission that the fresh evidence beadmitted. A. Dr. Tomita’s employment with the CSC [30] With respect to the first category of evidence, Mr. Starblanket applied to adduce as fresh evidence the affidavit of D. MichaelBuchinski, the affidavit of Morris P. Bodnar, Q.C., and his own affidavit. [31] Mr. Buchinski, who is a member of the Bodnar Law office, indicated that he acted briefly for Mr.

Starblanket before the filewas transferred to Mr. Bodnar. In his affidavit, Mr. Buchinski states: Now produced and marked as Exhibit “A” to this Affidavit is a true copy of [Dr. Tomita’s] Curriculum Vitae (CV). Dr. Tomita’s CVclaims he is the Program Manager for the Pacific Region of Corrections Service Canada. I was not provided with a copy of thisCurriculum Vitae for Dr. Tomita by the Prosecutor when I obtained instructions from Mr. Starblanket to consent to the appointment ofDr. Tomita as the Court Appointed Dangerous Offender Assessor.

Had I been given or shown this Curriculum Vitae at the relevant timeframe I would have advised Mr. Starblanket to oppose the appointment of Dr. Tomita. I may have even advised him to not participate inthe assessment if the Court had appointed Dr. Tomita notwithstanding our opposition. The Defence gets a say in the appointment of theCourt Appointed Assessor. Mr. Starblanket has been denied the opportunity to provide informed consent. [32] In his affidavit, Mr. Bodnar attests to the following: Dr. Tomita’s CV claims he is the Program Manager for the Pacific Region of Corrections Service Canada.

I was not provided with acopy of this Curriculum Vitae for Dr. Tomita by the Prosecutor. When the Prosecutor qualified Dr. Tomita she asked him to state hisemployer and he mentioned he was employed by [the CSC]. Because Dr. Tomita’s accurate Curriculum Vitae had not been disclosed tome, I did not consider the significance of Dr. Tomita’s statement that he was currently employed by [the CSC]. Had I known I wouldhave conducted the hearing much differently. [33] Finally, Mr. Starblanket states that if he had known that Dr.

Tomita was employed by the CSC, he would not have participatedin the assessment and he would have instructed Mr. Bodnar to oppose Dr. Tomita’s being qualified as an expert. [34] Mr. Starblanket asks this Court to admit the fresh evidence in support of his ground of appeal alleging that “the appointmentof Dr. Tomita as the Court Appointed Assessor and the admission of his Assessment Report and testimony violated the Applicant’ssection 7 and 11(

d) rights as guaranteed by the Charter; and the violations resulted in a miscarriage of justice that only a remedypursuant to sections 24(1) or 24(2) can cure”. By way of remedy, Mr. Starblanket argues for a stay of hearing or, at the very least, a newhearing. [35] In the result, I have concluded that the fresh evidence relating to sentencing counsel’s understanding of the relationshipbetween Dr. Tomita and the CSC has no bearing on the issue of whether Mr. Starblanket is entitled to a stay or a new hearing. I willelaborate on this conclusion when I address the ground of appeal to which Mr.

Starblanket says it relates. B. Mr. Starblanket’s progress [36] With respect to how well Mr. Starblanket has done since he was sentenced, the fresh evidence demonstrates that he has madegood progress at Stony Mountain Institution. As a result of his performance as a cook, he has been accepted by the Industry TrainingAuthority (a provincial certification body) to become a certified tradesperson as a professional cook. He attached his most recentperformance report in that program as an exhibit to his affidavit, showing his performance to be “excellent” in all 11 areas measured.

Healso seeks to file with the Court: (

i) a report describing his participation in the Aboriginal Primer Program, which reviews his history andshows he has been accepted into the Aboriginal Integrated Correctional Program Model High Intensity program; (ii) a two-pageurinalysis testing document showing a negative result; and (iii) an inmate pay review report which states he “has made excellent progressover the last months”. [37] In Sipos, a dangerous offender appeal, the Court considered the admission of fresh evidence directed to an offender’s currenttreatment and prospects.

The Court noted that s. 759(7) and s. 683(1) of the Criminal Code confer the authority on an appellate court toadmit fresh evidence when it is in the interests of justice to do so, but post-sentencing rehabilitative efforts by an accused will rarely beadmitted as fresh evidence on a dangerous offender appeal: [43] In dangerous offender appeals, the appellate courts are frequently confronted, as we are in this appeal, with evidence about theoffender’s rehabilitation efforts and prospects long after the initial sentencing.

While the Lévesque [2000 SCC 47]/Angelillo [2006 SCC55] test sets out the applicable legal framework for admitting this sort of evidence, appellate courts generally take a very cautious

approach to intervening solely on the basis of evidence of this nature: see, e.g., R. v. T.L., 2008 ONCA 766 ; R. v. Mason (2001), (ON CA), 147 O.A.C. 388; Halliday [2012 ONCA 351]; R. v. Henry, 2002 BCCA 575, 174 B.C.A.C. 238; Jimmie[2009 BCCA 215]. Appellate courts have also recognized that in a proper case, in which the evidence is sufficiently compelling, theymay intervene on the basis of after-the-fact evidence: see, e.g., Halliday, at para. 17; R. v. Armistead, 2003 BCCA 699,192 B.C.A.C. 227.

However, evidence about the offender’s post-sentencing rehabilitative efforts and prospects will only exceptionallymeet the Lévesque/Angelillo test. Those developments are generally speaking matters for the correctional authorities to consider in thecourse of administering the offender’s indeterminate sentence. [44] While fresh evidence has a potentially larger role to play in this context, the focus is still to a degree retrospective. The focus is onthe impact of the new evidence on the sentencing proceeding, viewed in the context of the whole record. [38] Mr.

Starblanket does not explicitly state how his fresh evidence meets the Palmer or Sipos tests or to which particular issuethe evidence is directed. Rather, Mr. Starblanket’s factum states that the “fresh evidence [is] germane to his sentence appeal”. Given thecontents of the fresh evidence and the issues raised by Mr.

Starblanket, it is assumed he is arguing that the fresh evidence should beadmitted for the purpose of calling into question the reasonableness of his designation as a dangerous offender or the imposition of theindeterminate sentence. [39] Since I ultimately find an error of law with respect to both the designation and the imposition of the indeterminate sentence, Ido not address the reasonableness of the sentencing judge’s decision on either issue. As such, this particular fresh evidence has norelevance to the result and can be rejected on that basis. [40] It may be that Mr.

Starblanket believes that the fresh evidence could influence the Court’s decision as to whether to exercisethe curative power. However, as the Court indicated in Sipos, the focus at that point is on “the possible impact of the error on thesentencing judge’s decision, not on the offender’s current prospects for control in the community (at para 39, emphasis in the original).While I have decided that the Court should not exercise its curative power, the fresh evidence has not played any role in that assessment.The fresh evidence does show that with treatment Mr.

Starblanket can make continuous and sustained progress, and, in that regard, lendssupport to my decision to order a new hearing, but it is not qualitatively different from what was presented to the sentencing judge. Thus,I would not admit his post-sentence evidence of conduct within the penitentiary for that purpose either. VII. Issues [41] While Mr. Starblanket puts forward a number of grounds of appeal, they are best categorized according to the followingissues: (

a) Is a new hearing or a stay of proceedings in order because the appointment of Dr. Tomita violated Mr. Starblanket’s s. 7 ands. 11(

d) Charter rights, resulting in a miscarriage of justice? (

b) Did the sentencing judge err by finding that Mr. Starblanket had committed a “serious personal injury offence” as defined bys. 752 of the Criminal Code? (

c) Can the sentencing judge’s

interpretation of s. 753(1) of the Criminal Code stand in light of Boutilier? (

d) Can the sentencing judge’s

interpretation of s. 753(4.1) of the Criminal Code stand in light of Boutilier? (

e) If the answer to either (

c) or (

d) is yes, should this Court exercise its curative power and dismiss the appeal in any event? (

f) If the answer to (

e) is no, what is the appropriate remedy? [42] Mr. Starblanket also argues that the sentencing judge did not give effect to R v Gladue, (SCC), [1999] 1SCR 688, and R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433, when she decided to declare him a dangerous offender and to impose anindeterminate term of imprisonment, and that the imposition of an indeterminate term of imprisonment was demonstrably unfit andunreasonable. Since I have decided to order a new hearing based on my analysis of issues (c), (d), and (

e) as identified above, I do notneed to address those additional grounds of appeal. VIII. Analysis A. Is a new hearing or a stay of proceedings in order because theappointment of Dr. Tomita violated Mr. Starblanket’s s. 7 and s. 11(

d) Charter rights,resulting in a miscarriage of justice? [43] Mr. Starblanket submits he was declared a dangerous offender by an unfair process, as the judge relied on the evidence of anexpert witness, i.e., Dr. Tomita, who is employed by the CSC, which is the entity that had prepared the reports detailing his earliernegative progress in the penitentiary. He relies on a series of cases and journal articles directed to the question of when someone can bequalified as an expert if an allegation of bias or a lack of impartiality is made.

Of particular application to this case, he relies on R v GaryIron (24 November 2016) Saskatoon, CRM 116/2015 (Sask QB) [Iron], where Acton J. refused to appoint Dr. Tomita as the courtappointed assessor in an application for an assessment order under s. 752.1 on the basis of his employment with the CSC. [44] In White Burgess Langille Inman v Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 SCR 182 [White Burgess], CromwellJ., on behalf of the Supreme Court, concluded that “an expert’s lack of independence and impartiality goes to the admissibility of the

evidence in addition to being considered in relation to the weight to be given to the evidence if admitted” (at para 45). The Court heldthat impartiality is a threshold requirement, but it is not particularly onerous and “it will likely be quite rare that a proposed expert’sevidence would be ruled inadmissible for failing to meet it” (at para 49).

The Supreme Court went on to address the particular issuefacing this Court, which is the effect of the employment relationship on a witness’s impartiality: “the existence of some interest or arelationship does not automatically render the evidence of the proposed expert inadmissible. In most cases, a mere employmentrelationship with the party calling the evidence will be insufficient to do so” (at para 49). The real issue is whether “the proposed expertis unable or unwilling to provide the court with fair, objective and non-partisan evidence” (at para 49). [45] Based on White Burgess, Mr.

Starblanket must persuade this Court that the sentencing judge could not have qualifiedDr. Tomita as an expert if he had been challenged by virtue of his employment with the CSC only – and this, of course, would be apartfrom any hurdles that Mr. Starblanket would have to surmount in order for this Court to find a Charter breach in any event. In light ofWhite Burgess, I am not persuaded that an automatic disqualification would ever be in order when someone’s impartiality is challengedbased on an employment relationship only. With respect to the Iron decision, Mr. Starblanket’s claim also assumes that, if Dr.

Tomita’sstatus as an expert witness had been challenged, the sentencing judge would not have qualified him. In my view, however, Irondemonstrates that one judge, on the basis of the submissions made to him, exercised his gatekeeper function not to appoint Dr. Tomita asan expert witness. It is a decision of no more authoritative weight in the circumstances of this case than that. [46] Nothing on the record indicates that Dr. Tomita was “unable or unwilling to provide the court with fair, objective andnon-partisan evidence” to use the words from White Burgess (at para 49). According to Dr.

Tomita’s testimony, he had prepared 35 otherPart XXIV assessments. He did not go further into his qualifications or into whether he had been employed by the CSC when heconducted those assessments, because no objection had been taken either to his qualifications or to his expertise, nor was a claim madebased on bias.

In that regard, his report begins with a statement of his qualifications, followed by a certification attesting to hisacceptance of his role to assist the court without being an advocate for either party: CERTIFICATION: [3] I certify that I am aware that I have a duty to assist the Court and not to be an advocate for any party. I have prepared this report inconformity with my duty to the Court and, if I am called to give oral or written testimony, I will give that testimony in conformity withmy duty to the Court. [47] Further, according to the written transcript of the proceedings before the sentencing judge, Dr.

Tomita was completelyeven-handed; when giving an answer that pointed in Mr. Starblanket’s favour, he did not expand on the positive, but he also did notexpand on his answer when describing Mr. Starblanket in less favourable terms. As I will point out later, Dr. Tomita’s evidence wasdirected to the feasibility of the combination of a determinate sentence coupled with a long-term supervision order, and, in answeringquestions directed to that issue, he pointed out all the occasions when Mr. Starblanket did well while being supervised federally but notwell when he was supervised provincially. Dr.

Tomita was clearly of the view that a determinate sentence alone was not an option, but hedid not rule out a determinate sentence with a long-term supervision order. [48] Moreover, in the concrete reality of this appeal, a ground of appeal based on a claim of bias due to Dr. Tomita’s employmentstatus alone cannot succeed. That Dr. Tomita had a connection with the CSC was known. In that regard, this exchange between Crowncounsel at trial and Dr. Tomita is relevant: Q And I’m just going to ask you to highlight your education and workexperience for the court, please.A Yes.

Currently I work for the Correctional Services of Canada, at theRegional Treatment Centre in Abbotsford. I’m the program director of theForensic Training Program at UBC. I work in private practice, andadditionally I’m a member of the British Columbia Review Board. (Emphasis added) [49] In addition, while sentencing counsel states that Crown counsel did not give him a copy of Dr. Tomita’s curriculum vitae, itwas made an exhibit during the sentencing hearing at the moment when Dr. Tomita was being qualified as an expert. The curriculumvitae clearly reveals Dr.

Tomita’s status as a “Psychiatry Program Manager, Correctional Services of Canada, Regional Treatment Centre(Pacific), Abbotsford, British Columbia”, as well as indicating his other employment with the University of British Columbia and inprivate psychiatry practice. That brings us to the relevance of the fresh evidence related to this issue. [50] Mr. Starblanket’s counsel acknowledges that, as a general rule, the principles set forth in Palmer apply to the admission offresh evidence in dangerous offender appeal hearings.

However, he asserts that appellate courts have recognized a broader authority toadmit fresh evidence in certain circumstances.

In that regard, he directs the Court’s attention to R v S.G.T., 2011 SKCA 4,[2011] 5 WWR 10 [S.G.T.] (rev’d without comment on the point in question, 2010 SCC 20, [2010] 1 SCR 688), where this Courtrecognized that when an appellant contends he or she received an unfair trial, the Palmer criteria governing the admission of freshevidence must “give way to case-sensitive considerations” (at para 36). [51] At paragraph 39 of S.G.T., the Court quoted favourably from R v W.(W.) (1995), (ON CA), 100 CCC (3d)225 at 232 (Ont CA) [W.W.], where Doherty J.A. wrote: The Palmer criteria do not, however, apply to all situations where fresh evidence is offered on appeal.

Those criteria reflect the balancingof competing considerations relevant to the interests of justice when fresh evidence is offered to attack a determination made at trial. Thesame criteria cannot necessarily be applied where, as here, the fresh evidence is offered for a different purpose. The material sought to beadmitted here is not directed at a finding made at trial, but instead challenges the very validity of the trial process. The nature of thismaterial and the purpose for which it is offered places it outside the Palmer paradigm [citations omitted]. (Emphasis added)

[ 52 ] In W.W. and S.G.T. , the courts were considering ineffective counsel claims, but, in my view, there is no reason why those authorities must be confined to such claims. A claim that a trial is unfair can often be addressed on the basis of a review of the transcript, but it may be necessary and appropriate to receive evidence directed to proving either the details or the effect of what transpired.

In such circumstances, it would not be appropriate to confine an appellant to satisfying the Palmer criteria in the usual way. [ 53 ] In S.G.T. , this Court also recognized that a claim of ineffective counsel is adjudicated by appellate courts as a challenge to a verdict on the basis that a miscarriage of justice has occurred. In that regard, other tests and formulations may be necessary to ensure appellate power always exists to set aside verdicts on the basis of a miscarriage of justice. That said, however, there must still be a correlation between the claim asserted and the challenged verdict.

In S.G.T. , this Court described the evidential standard in these terms: [39] The evidential standard for admission where issues of trial fairness are concerned is that the evidence must be relevant to the remedy sought before the court of appeal, credible and convincing, and sufficient, if uncontradicted, to justify the appellate court making the order sought (see: [ W.W. ]; and United States of America v.

Shulman , 2001 SCC 21 at para. 45 , [2001] 1 S.C.R. 616 ). [ 54 ] In my view, the fresh evidence in this case is really tendered to overcome an argument that it was presumed Crown counsel would make on appeal, which is that appellate counsel is bound by the approach of sentencing counsel, or that sentencing counsel should have known about Dr. Tomita’s employment status because the record disclosed it. [ 55 ] Since Dr. Tomita’s status must be taken to have been known by Mr.

Starblanket’s sentencing counsel, the fresh evidence application appears to be a change of trial strategy and has the feel of a new argument being made for the first time on appeal. However, many sentencing counsel could, after the fact, make a claim of a lack of knowledge or understanding about the significance of some aspect of the trial. In the absence of a claim of ineffective counsel, fresh evidence directed to such issues would rarely be relevant. In this case, there has been no challenge to the effectiveness of counsel.

Indeed, as these reasons will show, sentencing counsel elicited all of the evidence necessary to warrant a new hearing. [ 56 ] However, apart from any consideration of whether sentencing counsel is entitled to make any such submissions, this Court never reaches the issue of whether the fresh evidence should be admitted unless it is persuaded that Mr. Starblanket’s s. 7 or s. 11(

d) Charter rights were violated by the appointment of Dr. Tomita and his subsequent acceptance as an expert. That issue turns on whether his appointment and acceptance as an expert gives rise to a claim of bias derived from his employment status only. Since I have concluded that the ground of appeal alleging a Charter breach cannot succeed, this means, in turn, that the fresh evidence directed to a claim of a lack of Dr. Tomita’s impartiality due to his employment with the CSC should not be admitted.

To paraphrase S.G.T. , an appellant seeking to adduce fresh evidence directed to issues of trial fairness must still persuade the appellate court that the evidence is sufficient, if uncontradicted, to justify the appellate court making the order sought. B. Did the sentencing judge err by finding that Mr.

Starblanket had committed a “serious personal injury offence” as defined in s. 752 of the Criminal Code ? [ 57 ] Citing R v Steele , 2014 SCC 61 , [2014] 3 SCR 138 [ Steele ], the sentencing judge found that the predicate offence was “a robbery involving a threat of violence with a weapon”, which, in her view, satisfied the criterion that Mr. Starblanket “committed a serious personal injury offence within the meaning of s. 752 (a)(

i) of the Criminal Code ” ( Sentencing Decision at para 20). [ 58 ] Mr. Starblanket’s argument challenging the sentencing judge’s conclusion that he had committed a serious personal injury offence is difficult to understand fully. In his notice of appeal, he states, “The learned trial Judge erred in concluding a party to an offence is the equivalent to a serious personal injury offence as contemplated by

Part 24 of the Criminal Code ” (at para 9). [ 59 ] An “offence for which the offender has been convicted”, as those words are used in s. 753(1) (a), draws no distinction between an offence committed as a principal or as a party. In any event, the sentencing judge expressly convicted Mr. Starblanket as both a principal and a party to the offence of robbery. [ 60 ] It is possible that Mr. Starblanket’s arguments are intended to say that, by virtue of being a party to the commission of this particular form of robbery, he did not commit a violent act.

If that is the case, the sentencing judge’s reliance on Steele is a complete answer to the argument. Justice Wagner, as he then was, writing for the Supreme Court, rejected any notion that the words “use or attempted use of violence” required an assessment of objective seriousness (at paras 38–41). He specifically noted that the term “violence” in s.752 (a)(i) “does not invite [the court] to assess the seriousness of the violence the offender used or attempted to use [and that] any level of violence is sufficient” (at para 39).

The Court went on to reason that “violence”, in both its plain and ordinary meaning and in the context of its use under

Part XXIV, favoured a “harm-based” rather than a “force-based” approach (at para 46). [ 61 ] The distinction Mr. Starblanket seeks to make implies that individuals who are engaged in violent crimes, but who do not themselves directly commit the violent act, are immune from dangerous offender proceedings. This proposition runs counter to the protective function that the dangerous offender regime is meant to embody ( Steele at paras 27–31 ).

Trial level decisions in Saskatchewan, as well as decisions in other jurisdictions, have refused to draw a distinction between parties and principals when determining whether the offence is a serious personal injury offence: for examples of Saskatchewan decisions, see R v Shawn Curtis Keepness , 2011 SKQB 293 at paras 20 and 145 , 379 Sask R 68; R v Simpson , 2012 SKPC 18 at paras 12–14 , 389 Sask R 157; and R v Macri , 2012 SKPC 94 at para 10 , 400 Sask R 130.

For examples of decisions from other jurisdictions, see R v K.R. , 2014 NSPC 41 at paras 55–56 , 345 NSR (2d) 83, and R v Thompson , 2009 ONCJ 359 at para 35 (the ultimate conclusion of which would be different based on Steele ). [ 62 ] In Steele , the offender was the person directly making the threats, not merely assisting another person making the threats. Mr. Starblanket may be arguing that this distinction removes the offence from the category of “serious personal injury offence”; however, this assertion also lacks merit. The threat of violence is an element of the offence ( Steele at para 50 ).

In this case, the sentencing judge clearly found Mr. Starblanket guilty as a party (per s. 21(1)(b)) to a robbery wherein threats of violence against a

person were used (albeit not by him). [63] In his written argument, Mr. Starblanket’s counsel may be taken to be saying that his client’s commission of the offence ofrobbery is not part of “a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convictedforms a part”. If that is the case, this argument too must fail. Even a cursory review of Mr. Starblanket’s criminal record indicates that hehas committed a number of violent offences, including three prior counts of robbery. [64] Thus, I would conclude that the judge committed no error by finding that Mr. Starblanket had committed a serious personalinjury offence within the meaning of s. 752(a)(

i) of the Criminal Code. C. Can the sentencing judge’s

interpretation of s. 753(1) of the Criminal Codestand in light of Boutilier? 1. The effect of Boutilier [65] Before the Supreme Court’s decision in Boutilier, a number of courts in Canada had interpreted the Tackling Violent CrimeAct, SC 2008, c 6 [2008 Amendments] as narrowing judicial discretion by adding the word “shall” to s. 753(1): “On application madeunder this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender ifit is satisfied …”.

Before Boutilier, it was widely believed that, with the 2008 Amendments, Parliament had intended courts to finddangerousness upon proof of one of the criteria listed in s. 753(1)(a)(i)–(iii) without considering any aspect of the offender’s treatability.As part of this

interpretation, it was also accepted that the Crown no longer had to prove intractable behaviour. [66] Both of these propositions were laid to rest by the majority decision in Boutilier.

The majority held that the 2008 Amendmentsdid not change the law appreciably from the prior law; treatability is part of the assessment of dangerousness and the sentencing judgemust be satisfied that the offender’s conduct is intractable. [67] Importantly, the majority in Boutilier, under the pen of Côté J., made these declarations of principle: (a) “an offender cannot be designated as dangerous unless the judge concludes that he or she is a future ‘threat’ after aprospective assessment of risk” which requires a “consideration of future treatment prospects” (at para 23, italics emphasis in original); (

b) following R v Lyons, (SCC), [1987] 2 SCR 309 [Lyons], a sentencing judge must still be satisfied on theevidence that (Boutilier at paras 26–27): (

i) the offender poses a high likelihood of harmful recidivism; (ii) his or her conduct is intractable, which is defined as “behaviour that the offender is unable to surmount” (at para 27); (c) “[d]etermining whether or not a high risk of recidivism and intractability are present necessarily involves a prospectiveinquiry into whether an offender will continue to be … ‘a real and present danger to life or limb’” (at para 35); (d) “the Crown must prove every dangerousness criterion beyond a reasonable doubt (R. v. Gardiner, (SCC),[1982] 2 S.C.R. 368; R. v.

Jones, (SCC), [1994] 2 S.C.R. 229)”, but “what must be proven beyond a reasonable doubtwith respect to these two prospective criteria is not their certainty, but their likelihood: Currie, at para. 42.

This is so because ‘as a matterof practicality, the most that can be established in a future context is a likelihood of certain events occurring’: Lyons, at p. 364” (atfootnote 1; see also para 41); (e) “the sentencing judge must consider all retrospective and prospective evidence relating to the continuing nature of this risk,including future treatment prospects” (at para 43); (f) “[a]t the designation stage, treatability informs the decision on the threat posed by an offender” (at para 45); and (g) “offenders will not be designated as dangerous if their treatment prospects are so compelling that the sentencing judgecannot conclude beyond a reasonable doubt that they present a high likelihood of harmful recidivism or that their violent pattern isintractable” (at para 45).

See S.P.C., Piche, Parfitt, and R v Napope, 2019 SKCA 124. 2. Decision of the sentencing judge as to dangerousness [68] Based on prior authority, both Crown counsel and sentencing counsel took the view that the 2008 Amendments hadsignificantly changed the law. In her brief to the sentencing judge, Crown counsel submitted that the 2008 Amendments had made adangerous offender designation “more easily available” and automatic as soon as the s. 753(1) criteria are satisfied: 66.

Part XXIV of the Criminal Code addresses the dangerous and long-term offender sentencing regimes. This

section underwent radicalchanges when new amendments came into force July 2, 2008, as part of the Tackling Violent Crime Act. The amendments have “made the dangerous offender designation and an indeterminate sentence more easily available, as there is an increase in the pool ofpredicate offences, a mandatory designation of dangerous offender once the criteria are satisfied and presumptive indeterminatesentence” R v Warawa 2011 ABCA 294 at para 6; R v Downs 2012 SKQB 101 at paras 4–10. 67. With the 2008 amendments, the wording of s. 753(l)(

a) has changed from “may” to “shall”. Therefore, the Court must find an

offender to be dangerous once the statutory criteria is satisfied. Prior to 2008, sentencing judges had discretion and if the risk wascontrollable, the Court could decline to declare an offender dangerous even though the statutory criteria had been made out. Instead ofmaking the declaration of dangerousness, the Court had the ability to instead declare the offender a long-term offender and impose adeterminate sentence. The assessment of dangerousness and designation all occurred at the threshold stage. 68. After the 2008 amendments, the sentencing judge’s discretion shifted to the sentencing stage.

The Court in finding an offenderdangerous has discretion to impose an indeterminate sentence or a fixed sentence with or without a long-term supervision order to followpursuant to s. 753(4). However, this discretion is limited by s. 753(4.1). Marvin Starblanket’s offence occurred in 2014, accordingly thecurrent provisions contained in

Part XXIV are applicable. … 104. If the Court is satisfied the Crown has proven, beyond a reasonable doubt, that Mr. Starblanket meets the dangerous offendercriteria, the Court must designate Mr. Starblanket a dangerous offender. 105. In R v Downs (2012 SKQB 101), Mills J., stated at paragraph 9: In my opinion, that entire approach has been supplanted by the new legislation. The initial application to label someone a dangerousoffender is accomplished within the application of the criteria in the legislation to the offender s circumstances.

The Court’sconsideration of reserving the dangerous offender designation for the worst of the worst has been subsumed into the legislation.Parliament, through its amendment, has, in fact, determined that those offenders who fall within the criteria enumerated are, bydefinition, the worst of the worst and deserving the dangerous offender designation. The issue is of particular significance to Mr. Downsbecause a review of his big picture, his conviction record and previous sentences, would not obviously label him as the worst kind ofcriminal society demands be locked up indefinitely in order for protection.

There appears to be, however, no place to apply thecomments found in Johnson [2003 SCC 46 , [2003] 2 SCR 357], Lyons [ (SCC), [1987] 2 SCR 309] andLemaigre [2004 SKCA 125] in the structure of the designation post amendment. The Crown, in argument, stated that Mr. Downs doesnot present himself as a typical dangerous offender. I agree. The Crown further argues that it does not matter so long as the criteriacontained in the new legislation are met. I reluctantly agree. (Emphasis added) [69] In his brief to the sentencing judge, Mr.

Starblanket’s sentencing counsel agreed with the Crown as to the effect of the 2008Amendments: 3. The sentencing of dangerous offenders is the cornerstone of the 2008 amendments to the Criminal Code and accordingly, sections753(4) and 753(4.1) must be closely examined. What used to be a decision for the sentencing judge between a dangerous offenderdesignation (requiring a sentence of indeterminate duration), a long-term offender designation (requiring the original sentence with along-term supervision period of up to ten years), and merely ordering the original sentence has now become moot.

Once the criteria ofdangerousness have been met under section 753(1), the Judge shall designate the offender a dangerous offender. (Emphasis added) [70] In my respectful view, the sentencing judge was influenced by the submissions before her; indeed, it would be difficult for hernot to have been. On the essential issue of whether one proceeds directly from a finding that s. 753(1)(a)(

i) or s. 753(1)(a)(ii) applies to aconclusion of dangerousness, counsel agreed on the law. Further, her reasons bear out that she accepted their submissions. [71] First of all, she stated the issues in this manner (Sentencing Decision): [6] Accordingly, the issues to be determined in this case are: 1. Did Mr. Starblanket commit a “serious personal injury offence” as defined in s. 752 of the Criminal Code? 2. Does the evidence establish a pattern of repetitive or persistent aggressive behaviour pursuant to ss. 753(1)(a)(

i) or (ii) of the CriminalCode? 3. If Mr. Starblanket is designated as a dangerous offender, is there a reasonable expectation that a lesser measure will adequately protectthe public against the commission of murder or a serious personal injury offence? She did not address the intermediate issue, between the second and third issues, which is whether Mr. Starblanket should be declared adangerous offender after considering the evidence of treatability. [72] Second, in her conclusion on the question of dangerousness, she states, “I conclude that the Crown has proven therequirements of ss. 753(1)(a)(

i) and (ii) of the Criminal Code beyond a reasonable doubt. Accordingly, I designate Mr. Starblanket as adangerous offender” (at para 33). [73] From this, I find that the sentencing judge was responding to the submissions before her to the effect that there is noadditional step between satisfying the requirements of s. 753(1)(a)(

i) and s. 753(1)(a)(ii) of the Criminal Code and the finding ofdangerousness. [74] As I have indicated, the majority in Boutilier held that “the sentencing judge must consider all retrospective and prospectiveevidence relating to the continuing nature of this risk, including future treatment prospects” (at para 43, emphasis added). See also Picheat para 90 and Parfitt at para 65.

Even if an offender meets the criteria for s. 753(1)(a)(i)–(iii), trial judges are obliged to considerwhether the offender constitutes a future threat in order to meet the criteria set out in s. 753(1)(a), which requires a consideration of theoffender’s treatability prospects. Failing to proceed in this manner constitutes a legal error pursuant to Boutilier. It follows that

Mr. Starblanket’s treatment prospects were a mandatory consideration at the designation stage. I will consider the effect of this misinterpretation of s. 753(1) later in these reasons. D. Can the sentencing judge’s

interpretation of s. 753(4.1) of the Criminal Code stand in light of Boutilier ? 1. The effect of Boutilier [ 75 ] As with the previous point, prior to Boutilier , courts in Canada had concluded that the 2008 Amendments had fundamentally changed the law with the enactment of s. 753(4.1), which, for ease of reference reads as follows: Sentence of indeterminate detention 753(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(

b) or (

c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. Again, the majority of the Supreme Court in Boutilier , in order to maintain the constitutionality of the dangerous offender regime, interpreted the 2008 Amendments differently.

In effect, the majority held that R v Johnson , 2003 SCC 46 , [2003] 2 SCR 357 [ Johnson ], still governed how judges should exercise their discretion in determining the appropriate penalty. [ 76 ] In Johnson , the Court stressed at several points that the question is one of “adequate” protection (at paras 29 and 44), “lesser” or “least restrictive” means (at paras 22, 28, 29 and 44), and the reduction of a threat of violence to “an acceptable level” (at paras 29, 30, 32, 40, 44, 45, 46 and 50). [ 77 ] In response to the argument that s. 753(4.1) imposes a burden or onus on an offender or otherwise changes the law as represented by Johnson , Côté J. indicated her di sagreement in Boutilier : [65] Section 753(4.1) guides the discretion of the judge, who ultimately must determine the fittest sentence in a given case based on the evidence adduced during the sentencing hearing.

This Court in Johnson stated that the “sentencing judge should declare the offender dangerous and impose an indeterminate period of detention if, and only if, an indeterminate sentence is the least restrictive means by which to reduce the public threat posed by the offender to an acceptable level”: para. 44.

Again, s. 753(4.1) is simply a codification of the exercise of discretion required by Johnson in light of the regime’s general purpose of public protection in dealing with offenders presenting a very high likelihood of harmful recidivism. … [70] The framework a sentencing judge should adopt in exercising his or her discretion under s. 753(4.1) has been aptly explained by Justice Tuck-Jackson of the Ontario Court of Justice: R. v. Crowe , No. 10-10013990, March 22, 2017.

First, if the court is satisfied that a conventional sentence, which may include a period of probation, if available in law, will adequately protect the public against the commission of murder or a serious personal injury offence, then that sentence must be imposed.

If the court is not satisfied that this is the case, then it must proceed to a second assessment and determine whether it is satisfied that a conventional sentence of a minimum of 2 years of imprisonment, followed by a long-term supervision order for a period that does not exceed 10 years, will adequately protect the public against the commission by the offender of murder or a serious personal injury offence . If the answer is “yes”, then that sentence must be imposed. If the answer is “no”, then the court must proceed to the third step and impose a detention in a penitentiary for an indeterminate period of time.

Section 753(4.1) reflects the fact that, just as nothing less than a sentence reducing the risk to an acceptable level is required for a dangerous offender, so too is nothing more required . (Emphasis added) [ 78 ] In his analysis of Boutilier , Ottenbreit J.A., writing for this Court in S.P.C. , confirmed that determining the appropriate penalty for a dangerous offender requires an assessment of the management of the risk, not its complete elimination: [41] Management of the risk posed by the individual is central to the application of the test set out above and to the determination of the appropriate sentence.

Of necessity, this is partly an exercise of looking into the future and examining the prospective evidence as described in Boutilier (at para 31 ). … [44] It was therefore essential for the sentencing judge to consider what mechanisms could be used to manage the risks posed by S.P.C. Examination of whether the offender’s risk could be managed by some internal or external controls informs whether the risk is such that there is a reasonable expectation the public will be adequately protected by the lesser sentence. (Emphasis in original) 2.

Decision of the sentencing judge as to penalty [ 79 ] The sentencing judge in this case framed the issue before her in terms of s. 753(4.1): If Mr. Starblanket is designated as a dangerous offender, is there a reasonable expectation that a lesser measure than an indeterminate sentence will adequately protect the public against the commission of murder or a serious personal injury offence?

In light of Boutilier , the focus of s. 753(4.1) is the same as it was in Johnson , which is whether “an indeterminate sentence is the least restrictive means by which to reduce the public threat posed by the offender to an acceptable level” (at para 44).

[80] The sentencing judge also referred to case law that held that “once an offender is designated a dangerous offender, anindeterminate sentence is presumed to be a fit sentence” (Sentencing Decision at para 35). With this at the forefront of her analysis, it isnot apparent that the sentencing judge considered whether a determinate sentence of some length plus a long-term supervision orderwould adequately contain Mr. Starblanket’s risk.

Specifically, she did not state why a lengthy determinate sentence and a long-termsupervision order of ten years would not “adequately protect the public from the commission by the offender of murder or a seriouspersonal injury offence” (Boutilier at para 70, emphasis added), to use the words of Côté J. [81] The sentencing judge does discuss the treatment that Mr. Starblanket underwent in 2003 and 2010, but she does not relate thisevidence to the possibility of a determinate sentence and a long-term supervision order as of 2017. She refers to the experts’ reports andDr.

Tomita’s statements regarding the “intensity of supervision” that will be required, but there is no discussion as to whether long-termsupervision, which involves intensive control by the CSC, could fulfill this same role: [64] As previously stated, both experts assessed Mr. Starblanket at a high risk to reoffend violently. Based on Mr. Starblanket’s history,Dr. Tomita opined that there is limited prospect that further treatment will reduce his risk of violence in the community and stated atpara. 28 of his report that “the only mechanism that can contain Mr.

Starblanket’s risk of violence in the community is federal parole”. [65] Dr. Nicholaichuk stated, at page 15, that “Mr. Starblanket’s risk for future violence could conceivably be addressed by propertreatment and effective community based case management”; however, he also wrote, at page 17, that Mr. Starblanket “requires theintensity of supervision which is provided by parole supervision in order to be successful” and to “help ensure public safety”.

Thus, I conclude that the sentencing judge, without the benefit of Boutilier, applied an incorrect framework in arriving at her conclusionto impose an indeterminate sentence. Specifically, she asked the wrong question and presumed an indeterminate sentence to be a fitsentence once she had determined that Mr. Starblanket is a dangerous offender. [82] I will now turn to consider whether, in spite of these errors, this Court should nonetheless exercise its curative power anddismiss the appeal. E.

Should this Court exercise its curative power and dismiss the appeal inany event? [83] In Johnson, the Crown had submitted that the power under s. 759(3)(

b) is analogous to that provided for in s. 686(1)(b)(iii),which empowers a court of appeal to “dismiss an appeal against a conviction on the basis that the trial court’s error of law has resulted inno substantial wrong or miscarriage of justice” (at para 48). Without making any definitive statement on the matter, the Court stated, “Itis a reasonable assumption, in our view, that Parliament would not have intended that any error of law in the course of a dangerousoffender application would necessitate a new hearing” (at para 49).

Assuming such power exists, the Supreme Court cautioned against itsuse except in “only the rarest of cases”: [49] … But if a court of appeal has the power to dismiss an appeal against a declaration that an offender is dangerous on the basis thatthe error of law has resulted in no substantial wrong or miscarriage of justice, that power may be exercised in only the rarest ofcircumstances. In R. v.

Bevan, (SCC), [1993] 2 S.C.R. 599, at p. 617, the Court concluded that the curative provisocontained in s. 686(1)(b)(iii) is to be applied in only those circumstances in which there is no reasonable possibility that the verdictwould have been any different had the error of law not been made.

The same high standard applies in the context of s. 759(3)(b). (Emphasis added) [84] In Sipos, the Court interpreted Johnson in this manner: [24] Consistent with this broad understanding of the appellate court’s review of the sentence, this Court in Johnson interpreted the powerto dismiss an appeal as including the power to do so even in the face of a legal error, provided that the error occasioned no substantialwrong or miscarriage of justice. The Court emphasized, however, that this will be so “in only the rarest of circumstances, if any”:para. 50.

For the court to exercise this curative power, the Crown must show that there is “no reasonable possibility that the verdictwould have been any different had the error of law not been made”: para. 49. [85] In Boutilier, the majority referred to both Johnson and Sipos in support of the conclusion that “[i]n rare circumstances, wherethe error of law has not resulted in a substantial wrong or miscarriage of justice, a court of appeal may dismiss an appeal against adeclaration that an offender is dangerous under s. 759(3)(b)” (Boutilier at para 82).

The majority went on to exercise this curative poweron the footing that the sentencing judge had found the offender’s conduct “to be intractable because his prospect of overcoming hisaddictions, the source of his dangerousness, was nothing more than an ‘expression of hope’” (at para 83). In the case before us, while theCrown does not concede that the sentencing judge made any errors, it takes the alternative position that the Court should exercise itscurative power because there is no reasonable possibility that the result would have been any different, even if the errors had not beenmade.

I am unable to agree with the Crown. [86] In this case, I have identified two errors of law: first, declaring Mr. Starblanket a dangerous offender after finding that thecriteria under s. 753(a)(

i) and s. 753(a)(ii) were met without a further consideration of the evidence pertaining to treatability; and, second,asking the wrong question and applying a now-incorrect presumption to determine the appropriate penalty. [87] With respect to the first error, regarding Mr. Starblanket’s dangerousness, I cannot say, based on the evidence before thisCourt, “there is no reasonable possibility that the verdict would have been any different had the error of law not been made” (Johnson atpara 49). Based on the evidence adduced thus far, Mr.

Starblanket performs, for the most part, in an “above average” manner within thepenitentiary system but deteriorates in the community because of his addictions and peer pressure and commits further violent offences. [88] The real issue is with respect to the second error. Since Boutilier, three appellate courts have considered the effect of a

sentencing judge’s conclusion that s. 753(4.1) establishes a rebuttable presumption that an indeterminate sentence is a fit sentence once a dangerous offender designation is made: R v Paxton , 2018 ABCA 386 , 78 Alta LR (6th) 242 [ Paxton ]; R c Francoeur , 2018 QCCA 1988 [ Francoeur ]; and R v Cox , 2019 ONCA 466 [ Cox ] – with Cox holding that it warranted a new hearing and the remaining two holding that the appellate court could exercise its curative power and dismiss the appeal. [ 89 ] From my reading of these decisions, whether such an error will result in a new trial depends on whether the sentencing judge thoroughly considered the possibility of eventual control through the imposition of lesser sentences and concluded that they were inadequate to protect the public ( Paxton at paras 18 and 21 and Francoeur at paras 69 and 70 ).

In short, in order to dismiss the appeal from a decision imposing an indeterminate sentence, an appellate court must be able to say, “there is no reasonable possibility that the verdict would not have been different had this error not occurred” ( Cox at para 4 ). [ 90 ] Unlike in Paxton or Francoeur , the sentencing judge in this case did not review the sentencing options in detail – as that was not the thrust of the arguments made to her.

However, following Boutilier , it is now the law that even those individuals whose conduct is found to be intractable are still entitled to a thorough inquiry to determine whether they can be controlled within the community: [76] Furthermore, as I have already concluded, s. 753(4.1) does not create a presumption that indeterminate detention is the appropriate sentence – the sentencing judge is under the obligation to conduct a thorough inquiry that considers all the

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