R v Parfitt, 2019 SKCA 55

Court of Appeal for Saskatchewan Docket: CACR2822 Citation: R v Parfitt , 2019 SKCA 55 Date: 2019-06-17 Between: Gerry Michael Parfitt Appellant And Her Majesty the Queen Respondent Before: Jackson, Ottenbreit and Whitmore JJ.A. Disposition: Conviction appeal 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: CRIM 21/2014, Melfort Appeal Heard: May 9, 2018 Counsel: Marianna Jasper for the Appellant Erin Bartsch for the Respondent Jackson J.A. I.

Introduction [ 1 ] After a trial before a judge of the Court of Queen’s Bench, Mr. Parfitt was found guilty of two counts of breaking and entering and committing an assault causing bodily harm, contrary to s. 348(1) (

b) of the Criminal Code , two counts of uttering threats contrary to s. 264.1(1) , one count of mischief contrary to s. 430(4) , and one count of assault contrary to s. 266 . He was designated a dangerous offender and sentenced to a ten-year determinate sentence (less pre-sentence credit) and a ten-year long-term supervision order with respect to the first two counts. He appeals his convictions and all aspects of the sentence for those two counts. [ 2 ] Mr. Parfitt appeals his convictions on the basis of the recantations of a trial witness.

He applies to admit fresh evidence pertaining to those recantations, including expert forensic evidence. The Crown opposes the admission of the evidence and applies to admit its own evidence. A particular aspect of this fresh evidence application is that the witness denies that she recanted, but the forensic evidence suggests she did in fact recant, but Mr. Parfitt makes no application to have this Court hear her evidence. Mr. Parfitt agrees with the Crown that if his fresh evidence is not admitted there is no basis upon which his conviction appeal can be challenged.

In short, his conviction appeal turns on the admission of the fresh evidence. [ 3 ] Mr. Parfitt appeals his sentence on the basis that R v Boutilier , 2017 SCC 64 , [2017] 2 SCR 936 [ Boutilier ], which was released after Mr. Parfitt was sentenced, has clarified the law with respect to dangerous offender designations. As well, the judge in this case believed Mr. Parfitt’s trial counsel had agreed that Mr. Parfitt should be designated as a dangerous offender. His appeal counsel denies her client agreed to be so designated but submits, in any event, that Mr.

Parfitt should not be bound by such a concession in light of Boutilier . It is argued that Boutilier has overtaken significant case law from this jurisdiction and elsewhere such that, at the very least, Mr. Parfitt should be permitted to make arguments about the effects of the changes on current jurisprudence and on his dangerous offender designation. [ 4 ] For the reasons that follow, I have decided that the fresh evidence should not be admitted, which means that the conviction appeal, as argued by Mr. Parfitt on appeal, should be dismissed. With respect to Mr.

Parfitt’s appeal from sentence, I would allow the appeal and order a new sentencing hearing. II. Conviction Appeal A. Background to the Fresh Evidence Application [ 5 ] It is uncontroverted that around 12:20 a.m. on March 19, 2014, Mr. Colin McKenzie called the Tisdale RCMP detachment to report a crime. When he made that call, he was en route to Regina from Tisdale with Ms. Christine Severight. Constable Money testified that Mr. McKenzie sounded “very upset and distraught and scared” on the phone and that Mr. McKenzie told the officer he was “scared for his life”. As a result of this call, Cst. Money went to Mr.

McKenzie’s home in Tisdale where he noticed that the main entrance of the home was damaged. He took a picture of the damaged door and then left. [ 6 ] On March 22, 2014, Mr. McKenzie and Ms. Severight gave videotaped statements to the police wherein they described what had happened during the later hours of March 18th, which included two forced entries and the commission of acts by Mr. Parfitt that led him to be charged with the above-mentioned offences. Both Mr. McKenzie and Ms. Severight described being physically assaulted and

threatened by Mr. Parfitt. [ 7 ] At the preliminary inquiry, Ms. Severight testified that she could not recall what had happened on the night in question. Her testimony was challenged on the basis of her warned videotaped statement. Following completion of the preliminary inquiry, Mr. Parfitt was ordered to stand trial on all counts. [ 8 ] At trial, Ms. Severight testified, saying she had lied on Mr. Parfitt’s behalf at the preliminary hearing and repeated what she had told the police in her videotaped statement.

She also testified that she did not want to call the police as she “was terrified of what would happen if … Gerry knew I called the cops”. [ 9 ] Mr. McKenzie recounted that Mr. Parfitt threatened to tie them up in the basement because he wanted them to admit they had “ratted” him out to the police. He testified as follows: Yeah, yeah, that was the messed up part, the -- the thing that I found messed up about this whole situation is that we had never said anything to anybody at all, and he -- like, he accused us of being rats and lost it on us to the point that he wanted to kill us.

So then we had no choice but to actually rat because he thought we were rats. [ 10 ] Mr. McKenzie further testified that the back door to his home was still damaged from the break in and would need to be replaced. He also stated he had suffered a black eye and blurry vision for a few days following the March 18th assault. Ms. Severight testified that she suffered a bruised and swollen cheek. [ 11 ] Mr. McKenzie was also the sole witness regarding the s. 266 assault charge, which arose out of an incident alleged to have taken place a few days before the March 18th incident. [ 12 ] Mr.

Parfitt took the stand in his own defence. He admitted he was at Mr. McKenzie’s home in the later hours of March 18th and he was “high” at that time. He testified that Ms. Severight had called asking for drugs but when he arrived and learned she had no money for him, he left following a cordial, uneventful conversation about how they planned to repay their existing drug debt.

He denied having committed the offences. [ 13 ] As part of his reasons for conviction, the trial judge made these findings regarding the credibility of the witnesses: (a) “There are various versions as to what took place on the night in question. Firstly, I do not believe the testimony of Mr. Parfitt …”; (b) “The testimony of Ms. Severight was forthright, clear and convincing”; and (c) “To the extent Mr. McKenzie’s testimony was coherent, and it was intermittently so, it was corroborative of Ms. Severight’s evidence”. Mr.

Parfitt was convicted on April 22, 2015. [ 14 ] Following his conviction, the Crown applied to have Mr. Parfitt designated as a dangerous offender. Immediately after counsels’ submissions were complete, the judge found Mr. Parfitt to be a dangerous offender and imposed the sentence referred to above. B. Proffered Fresh Evidence [ 15 ] As part of his fresh evidence application, Mr. Parfitt puts forward his own affidavit. He avers to having received two letters, purporting to have been signed by Ms. Severight, recanting her trial testimony: (

a) a letter written in 2015 [2015 Letter], which was written before the sentencing hearing but received by Mr. Parfitt’s counsel after the sentencing hearing; and (

b) a letter written in 2016 [2016 Letter], which was given to Mr. Parfitt’s counsel during that hearing. I will refer to these letters collectively as the Recant Letters. The 2015 Letter indicates it was posted from the Pinegrove Correctional Institute on August 18, 2015, where Ms. Severight was serving as a prisoner. In these letters, Ms. Severight indicates she lied when she testified at trial. [ 16 ] Mr. Parfitt also states that the Crown forwarded a disclosure package to his appellate counsel informing him of the following: (

a) on June 25, 2016, Ms. Severight provided a sworn statement to the police denying that she had written the 2016 Letter; (

b) on June 28, 2016, the police obtained original handwriting samples from Ms. Severight; and (

c) on July 11, 2017, a police officer made inquiries about the process of submitting documents to Questioned Document Investigations Ltd. in Lethbridge. [ 17 ] The final piece of Mr. Parfitt’s fresh evidence application is an affidavit sworn by a forensic document examiner with Kovacs Forensic Document Examination Ltd. who compared the 2015 Letter, the 2016 Letter and a sample of Ms. Severight’s handwriting and concluded the following: 4. … The comparison to the specimen handwriting … has disclosed significant handwriting similarities in combination with no significant differences. …

CONCLUSIONS: I am of the opinion that there is a strong probability that the writer of the specimen handwriting … wrote the questionedhandwriting on [the Recant Letters]. REMARKS: 1. The conclusion is a qualified opinion of identification of the … (1) writer (Christine Bundus) as having written thequestioned letters. The limiting factor is the reproduction of the exhibit documents. On a photocopied document the handwriting is twodimensional whereas on an original document the handwriting is three dimensional. Pressure characteristics, hesitations or pen lifts aredifficult to determine. [18] In response, the Crown applied to have three affidavits admitted as fresh evidence: (

a) an affidavit of George Coombe, who was Mr. Parfitt’s counsel during the sentencing hearing; (

b) an affidavit of Sgt. Andrusiak, a member of the RCMP, who had been in charge of the investigation involving Mr. Parfitt; and (

c) an affidavit of a forensic document examiner with Questioned Document Investigations Ltd. [19] Mr. Coombe describes how the Recant Letters came to be in his possession. On April 8, 2016, he received a photocopy of aletter dated March 10, 2016, from the Parlee Law Office (the 2016 Letter). He received this letter before the sentencing hearing had beencompleted. He promptly forwarded the 2016 Letter to the Crown. (The hearing concluded on June 29, 2016 – after an adjournment toallow the 2016 Letter to be considered.) Sometime after Mr. Parfitt was sentenced, Mr.

Coombe received a second letter, a copy of the2015 Letter – again, the origin was the Parlee Law Office. (Todd Parlee was Mr. Parfitt’s trial counsel.) [20] To his affidavit, Mr. Coombe also attaches a third document, purporting to have been signed by “Christine Bundus”(Ms. Severight’s married name), which he received on July 13, 2016. That third letter states, “I’m gonna keep my promise. Do what I say Iwas going to do. But when you get out you are not to keep in contact … this out of the kindness of my heart and because you don’t deserve10 years.

I think the time you’ve done so far is time served”. [21] In his affidavit, Mr. Coombe details his efforts to speak to or meet with the author of the various documents that had been sentto him, but with no success. [22] Sergeant Andrusiak attaches the transcript of two videotaped interviews that took place with Ms. Severight: one on June 28,2016, i.e., before the sentencing hearing concluded on June 29, 2016, and another on October 31, 2017. In the first interview, she deniedwriting the 2016 Letter. In the second interview, she denied writing either of the Recant Letters.

In both interviews, she swears that whatshe said at the trial was the truth. [23] In his affidavit, Mr. Peace (the Crown forensic document examiner) swears that he examined the original Recant Letters andcompared them to a sample of writing, which was known to have been produced by Ms. Severight. (The difference between the opinionsmay be explained by virtue of the fact that the Crown had the original letters, but Mr.

Parfitt’s expert had copies of the Recant Lettersonly.) Based on his examination of the items given to him, he offers the opinion that the Recant Letters and the sample writing werewritten by the same person – which contradicts Ms. Severight’s statements to the police. [24] As I indicated, Mr. Parfitt, his counsel, the Crown, and the court knew about the 2016 Letter before the sentencing hearing hadbeen completed. According to the sentencing transcript, on June 28, 2016, Mr. Coombe asked the Court for a one-day adjournment.

It isclear from the transcript that the judge had been informed about the 2016 Letter in preparation for the hearing that day. On the record, thejudge was advised that the police were now investigating the matter. Mr. Coombe said he was applying to adjourn for one day to allowthose investigations to continue. As the Crown’s fresh evidence indicates, it was on that day that Ms. Severight gave her first warnedstatement to the police, denying she had written the 2016 Letter and re-affirming her trial testimony.

The following day, June 29, 2016,Crown counsel advised the Court that “there won’t be an application for a mistrial and the issue is not in any way going to be raised again”and continued, “I think Mr. Coombe is in agreement with that”. The sentencing hearing resumed. C. Should the Fresh Evidence Be Admitted? [25] In Palmer v The Queen, (SCC), [1980] 1 SCR 759 [Palmer], the Supreme Court set out the principles governingthe admission of fresh evidence on an appeal from a conviction.

After emphasizing that the overriding consideration must be “the interestsof justice”, in accordance with the wording of what is now s. 683 of the Criminal Code, McIntyre J. set out the applicable principles (at775):

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases (McMartin v. The Queen [ (SCC), [1964] SCR484]).

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affectedthe result. [26] The admission of the fresh evidence in this instance turns on the third and fourth arms of Palmer: whether the Recant Lettersare credible and whether the Recant Letters and the expert reports, taken with all of the other evidence adduced at trial, could reasonablybe expected to have affected the result.

Applying the more flexible view of fresh evidence, as is customary in the criminal context, the duediligence and relevance criteria are met in relation to this evidence: see R v Warsing, (SCC), [1998] 3 SCR 579 atpara 56, and R v J.A.A., 2011 SCC 17 at para 8, [2011] 1 SCR 628. I say this because the 2015 Letter was not known to Mr. Parfitt’sdefence counsel until sometime after conviction and sentence. The forensic report obviously was prepared after the sentencing decision.

The Recant Letters and the forensic report challenge the credibility of a key witness, i.e., Ms. Severight, without whose testimony aconviction would have been put into doubt. [27] Recanted evidence occupies a particular place in the canon of fresh evidence cases. In Palmer, also a recanted evidence case, akey witness at trial recanted his testimony some two years after the trial.

In what McIntrye J. described as “a series of declarations”, thekey witness “asserted that his trial evidence was untrue, that it had been fabricated in its entirety, and that he had been influenced bythreats and inducements, including the promise of payments of money, by the police” (at 762).

The British Columbia Court of Appealdismissed an application to adduce this fresh evidence and the Supreme Court sustained that conclusion. [28] In doing so, the Supreme Court had no difficulty saying the proffered fresh evidence met the first two criteria of due diligenceand relevance but, on an examination of the case, found the evidence was not credible. Of principal concern was the timing of thedeclarations – two years after trial – and their plausibility. The recanting witness had testified at the preliminary hearing and at the trial.He was strenuously cross-examined on both occasions.

His trial evidence was “in harmony with the general picture of events whichemerged from the evidence of many other witnesses” (at 777).

Thus, a thorough review of the proffered fresh evidence in context led to itsrejection. [29] Other notable cases considering a fresh evidence application on the basis of a recanting witness include the following, interalia: R v Big Eagle (1997), (SK CA), 163 Sask R 3 (CA) [Big Eagle]; R v Babinksi (1999), (ONCA), 122 OAC 1 (CA) [Babinski]; R v A.J.H. (1999), (NS CA), 136 CCC (3d) 285 (NSCA) [A.J.H.]; R v Trudel(2004), (ON CA), 182 CCC (3d) 321 [Trudel]; R v Snyder, 2011 ONCA 445, 273 CCC (3d) 211 [Snyder]; R v Kassa,2013 ONCA 140, 296 CCC (3d) 353 (leave to appeal to the SCC denied, ); and R v M.G.T., 2017 ONCA 736, 357CCC (3d) 109 [M.G.T.].

In each of these decisions, the appeal court conducted a thorough review of the fresh evidence in the context ofthe case as a whole to determine whether it should be admitted. [30] In some decisions, such as Big Eagle, the Court concluded that the trial evidence of the recanting witness was “only marginalor tangential to the pivotal testimony of the main Crown witnesses” (at para 29).

In others, like Babinski, the evidence was moresignificant. [31] In Babinski, the Court concluded, “the evidence may have substantial impeachment value if made available to a reasonable trierof fact” (at para 70) and, taken together with all of the evidence expected to be adduced at the trial, could, “in Palmer terms, reasonably beexpected to have affected the result” (at para 78). Babinski and Snyder stress that an out-of-court statement, even if recanted, has potentialimpeachment value if it is inconsistent with the trial testimony on a material matter.

In A.J.H., the Court ordered a new trial in partbecause of the impeachment value of the fresh evidence. The Court also reviewed the factors relevant to such an inquiry. Finally, M.G.T.reinforces the principle that a “searching assessment of the credibility of a post-conviction recantation is necessary” (at para 111) and listsa number of factors that may, in any given case, assist an appeal court in deciding whether the recanted evidence is credible and whether itmight have affected the result (see paras 111 and 112).

A common thread running through all of the recantation cases is the need toconsider carefully the recanted evidence in the overall context of the trial and in the context of the issues raised on appeal so as to avoidthe possibility of a wrongful conviction but, as well, to avoid ordering a new trial out of an abundance of caution where a new trial is notwarranted. [32] In the decisions noted above, the fresh evidence was that of either (

a) a recanting witness who now says the trial evidence wasfabricated, or (

b) a witness who, at some earlier time, had recanted but now maintains his or her trial evidence was the truth. In the casebefore us, the witness, whose trial evidence has been put in question, denies that she recanted her evidence, but forensic evidence issufficiently cogent to allow this Court to conclude, for the purposes of this application, that the witness did in fact write the Recant Letters. [33] Mr. Parfitt’s appeal counsel submits the impeachment value of the fresh evidence is therefore high. She asserts that Mr. Parfittshould be able to challenge Ms. Severight with respect to (

a) her preliminary inquiry testimony, (

b) each of the Recant Letters, and (

c) theforensic evidence. Even her interviews with the police, denying that she had recanted, may assist to challenge the reliability of herevidence at trial. As Babinski demonstrates, the impeachment value of a recanting witness, who retracts the recantation, can lead anappellate court to conclude that a new trial is in order. [34] The Crown asserts that the Recant Letters are not credible evidence in the sense of being what Ms. Severight believes happenedon the night in question. According to this argument, this Court should conclude that, even if Ms.

Severight lied about having written theRecant Letters, this does not mean the letters tell the truth. The Crown submits, further, that the Recant Letters are not credible because ofthe very real possibility that Mr. Parfitt orchestrated them as he had orchestrated Ms. Severight’s evidence at the preliminary inquiry. Inthat regard, Crown counsel directs the Court’s attention to the preliminary inquiry transcript. [35] After Ms. Severight testified at the preliminary inquiry, the Crown called Cst. Garneau as a witness. He had driven Mr. Parfitt,Mr. Mackenzie and Ms.

Severight to the courthouse for the preliminary inquiry. During that drive, he overheard the three of them talking.The transcript of his testimony, regarding that conversation, reads as follows (preliminary inquiry transcript at 141–42): Q[Crown counsel] Well, I am asking, is that the most accurate recollection you can give us, Officer. Do you recall what they said?AGerry [Mr. Parfitt] asked Christine [Ms. Severight] if she got that letter and she said, “Yeah.” And then Colin [Mr.

McKenzie] said,“What the “f”, you guys are buddy, buddy now, talking to each other?” And then Gerry said to Colin, “Oh, calm down, buddy, you’resolid then?” And then he said, You’re a --,” he said, “Don’t worry” he said, “Christine loves you” he said, “That’s all I hear from her.She loves you, so, you know, don’t worry about it.”QDid you hear anything else?ALater on after I got to the courthouse and one of the constables brought Gerry Parfitt up the to the courtroom here, separate, ahead ofthem, they were in the van and they were arguing and yelling at each other.

Colin started by saying to Christine, “I can’t believe yourf’ing buddy, buddy with him now. I can’t believe you’re going to lie in court just to get him off.” And then she’s, like, “Shut the f up.You don’t – you don’t even know what’s happening. Gerry was cracked out when that happened and he didn’t know what he was doing.So just – so just never mind.” And the Gerry’s [sic], like, “I can’t believe you’re going to choose that guy over the guy that you lovewant to marry.”

Q And who said that ? A Colin . Q Okay. A -- said to Christine, “I can’t believe you’re going to choose that guy over me, the guy you love and that you want to marry.” And she’s, like, “Just the f up you big baby and that’s they [ sic ] way its’ going to – that’s the way it’s going to be play or going to be.” And then he’s, “I can’t f’ing believe this.” Q Who said that? A Colin. Q Is that the last you heard? A Basically. (Emphasis added) From this, Crown counsel asks the Court to conclude that Mr.

Parfitt directed the production of the Recant Letters just as he appears to have directed the preliminary inquiry testimony. [ 36 ] I agree with Crown counsel that the possible manipulation and orchestration of Ms. Severight’s preliminary inquiry testimony, coupled with the timing of the discovery of the Recant Letters, strongly suggests that they are not credible. (The 2015 Letter appears to have been written 4 months after Mr. Parfitt’s conviction, but was not sent to Mr. Coombe until after the sentencing, which took place in June of 2016.

The 2016 Letter appeared 14 months after the conviction, but came to light at the end of the sentencing hearing.) For my part, however, I would be reluctant to assess the application to admit the fresh evidence on the basis of a lack of credibility only. The number of times that Ms. Severight has changed her testimony makes appellate assessment of her credibility problematic. [ 37 ] In that regard, this case is like Babinski and Trudel .

In both of these decisions, the appeal court doubted whether the recantation was credible, but nonetheless went on to consider the admissibility of the fresh evidence on the basis of the fourth Palmer factor: whether the proposed evidence could have affected the result. On this fourth limb of Palmer , I can consider the credibility of the Recant Letters in the context of all of the evidence adduced at trial, coupled with the fresh evidence of both parties.

When viewed against this wider framework, I conclude that the fresh evidence should not be admitted. [ 38 ] At this juncture, it is critical to my analysis that Mr. Parfitt neither sought to have Ms. Severight examined by this Court nor did he want this Court to subpoena her, which it clearly could have been done under s. 683(1) (

b) of the Criminal Code . The likely inferences that can be drawn from the taking of that strategic position is that it was anticipated Ms. Severight would (

a) continue to deny she wrote the Recant Letters, or (

b) admit she wrote the Recant Letters, and offer an explanation as to why she had previously denied writing them, and, in either case, affirm her trial testimony – or, at least, counsel was concerned that this is what Ms. Severight might say. In short, it was expected that Ms. Severight would continue to say she had told the truth at trial and that Mr. Parfitt had committed the acts of which he had been convicted. Such a conclusion is consistent with her two most recent interviews with the RCMP. On those two occasions, she repeated what had happened and attested that what she said at trial was the truth.

It is against that backdrop that the effect on the verdicts must be considered. In that regard, Ms. Severight is not truly a recanting witness – or can no longer be classified as such. Unlike the witnesses in some of the cases cited, she at one time recanted her evidence, but now no longer does so. [ 39 ] With that essential context, I will now turn to consider what effect the fresh evidence might have had on the conviction if it had been led at trial. In that regard, I note that the trial judge found Ms. Severight to be credible, notwithstanding her recantation of her preliminary hearing testimony.

He also knew she was a reluctant witness because a warrant had to be issued to bring her to Court on the day she was to testify. Her testimony, regarding why she changed her evidence between the time of the preliminary hearing and the trial, was the subject of a thorough cross-examination. During that cross-examination, Ms. Severight did not deny her drug addiction, her relationship with Mr. Parfitt, and the fact that she had also committed crimes – lending further weight to her veracity. [ 40 ] Further, Ms. Severight’s evidence was not the only evidence available to the trial judge – he also had Mr.

McKenzie’s evidence and that of Cst. Money as to what he did in response to Mr. McKenzie’s call – all of which pointed to the conclusion that Mr. Parfitt had, in fact, invaded Mr. McKenzie’s home on the night in question. While the trial judge’s reasons do not address Mr. McKenzie’s credibility in any detail, he convicted Mr. Parfitt of the s. 266 assault charge on the basis of Mr. McKenzie’s evidence alone. There was also some physical evidence: notably, the minor injury to Mr. McKenzie’s eye and the damage to the main door. [ 41 ] Finally, when Mr. Parfitt testified, he admitted that he was at Mr.

McKenzie’s home for the purposes of collecting a drug debt , lending further support to Ms. Severight’s and Mr. McKenzie’s trial version of the events. Mr. Parfitt described a peaceful exchange of views regarding the collection of the debt, which was a version of the events that was in diametric opposition to the frantic and frightened actions of Ms. Severight and Mr. McKenzie on the night in question – as described by Mr. McKenzie and Cst. Money and later detailed in a videotaped statement. [ 42 ] In light of the whole of the evidence, whether Ms.

Severight denied or admitted writing them, the Recant Letters are likely to be treated the same way as her recantation of her preliminary hearing testimony, i.e., as a stipulation to a state of affairs that would also have been recanted – which is exactly what happened when the police questioned Ms. Severight, not once, but twice, after the trial. [ 43 ] As McIntyre J. in Palmer indicated, an appellate court’s power to admit fresh evidence is derived from s. 683 of the Criminal Code .

To exercise that power and admit fresh evidence, an appellate court must consider the admission of such evidence to be “in the interests of justice” ( s. 683(1) ). But, as McIntyre J. also said, “it would not serve the interests of justice to permit any witness by simply repudiating or changing his trial evidence to reopen trials at will to the general detriment of the administration of justice” ( Palmer at 775). Here, we must take it that the witness maintains her trial position and denies the recantation. Her testimony at trial is supported by other evidence.

As the Court in M.G.T. stated, a “[t]oo ready or uncritical admission of such recantations would put at risk the finality of verdicts each time a witness had second thoughts” (at para 54). [ 44 ] In my view, a critical assessment of the proposed fresh evidence demonstrates that it should not be admitted. I am satisfied that Mr. Parfitt’s proffered fresh evidence would not reasonably have affected the result. With that, the Crown’s proposed fresh evidence, too, is rejected because it would become relevant only if Mr. Parfitt’s evidence had been accepted.

[ 45 ] In reaching this conclusion, I have given no weight to the fact that before the sentencing hearing was concluded, Mr. Coombe considered applying for a mistrial as a result of just having received the 2016 Letter, but then decided against making the application. I give no weight to this aspect of the case because, at that time, none of the parties knew of the existence of the 2015 Letter or that the 2016 Letter had been written by Ms. Severight, which was contrary to the statement she gave to the police immediately prior to Mr. Coombe’s abandonment of the mistrial application.

I also give no weight to the letter purporting to be from Ms. Severight indicating that she had “kept her promise”. Assuming she wrote this letter, it is some evidence explaining why she wrote the Recant Letters, but I prefer to rest my decision, dismissing the application to admit fresh evidence, on the basis I have outlined above. [ 46 ] As I have indicated, Mr. Parfitt’s conviction appeal turns entirely on whether the fresh evidence is admitted. Since I would dismiss the fresh evidence application, his conviction appeal, on the basis on which it was argued, is dismissed. III.

The Dangerous Offender Designation A. What Transpired at the Sentencing Hearing [ 47 ] The dangerous offender application proceeded in the typical fashion. The provincial and federal correctional system records were marked as exhibits. Crown counsel called witnesses from the Prince Albert Correctional Centre, the federal penitentiary system and probation services. With respect to those witnesses who had worked directly with Mr. Parfitt, Crown counsel fairly focussed on positive as well as negative behaviours, drawing the Court’s attention, where it was appropriate, to recent behavioural improvements. [ 48 ] Mr.

Coombe’s questions in cross-examination of the Crown’s witnesses emphasized that his client’s behaviour had improved and he usually received a favourable response. This is a typical example of what his cross-examination of a Crown witness elicited: Q And you’ve indicated, then, through much of 2015 into 2016, he has been behaving himself, for the most part. A For the most part, yes. Q Which is a lot different then he was through 2004 -- A Yes. Q -- 5, 6, 7 and 8. A Correct. Q Okay. So he’s actually improved. A Absolutely. Q Okay. Because you’ve known him a long time. A Definition of a long time? I guess, yes.

Q Okay. Was to say you’ve known him over a few years. A Yes. Q So you’ve actually seen a progression in his behaviour. A I have, absolutely. Q To the point where he’s not as bad as he used to be. A Right. [ 49 ] Dr. Lohrasbe had been earlier designated as the Court’s expert witness and the Court confirmed him to be so. He outlined a large number of risk factors, but he also spoke of “cautious optimism” regarding Mr. Parfitt’s future. These passages, taken from Dr. Lohrasbe’s report, exemplify the basis for that optimism: One indication of decline in risk is his recent record. Mr.

Parfitt did well on parole during his last stay in the community, which appears to be the first instance of such improved compliance, and he remained compliant for a sustained period of time . It is not likely to be a coincidence that he had given up gang membership and remained abstinent from substance abuse over those months. As illustrated in the file review, an overview of Mr.

Parfitt” s incarcerations within the correctional system indicates that for the most part they have been marked by immature and aggressive behaviours towards both staff and inmates, at least one incident of misogynistic verbal abuse, continued use of drugs and possible drug dealing, and failure to use his time constructively. The very brief final notation in 2014 is encouraging in that it contrasts with comments during his prior incarcerations. This shift may be in keeping with the improvement he had shown while in the community, prior to his return to substance abuse, drug dealing, and violence .

If this risk assessment had been done in early 2013 when there had been no information to support the view that he had given up gang membership, nor any information to suggest that he could remain abstinent in the community for any length of time, nor any information to indicate that he would be compliant on parole, nor any information to indicate that he could sustain employment in the community, then there would be no dynamic or risk management factors that could “balance” the heavy loading of historical or static risk factors.

What we now know is that there are two strong dynamic risk factors that have been ameliorated (gang membership, substance abuse) for a significant period of time prior to his ultimate relapse into substance abuse, and two risk management factors (employment, compliance with supervision) that demonstrate at least the short-term potential for him to be managed in the community . He relapsed only after he was no longer under supervision, remaining abstinent for more than 6 months, underlining the importance of prolonged supervision, discussed further below.

An important additional consideration is the evolving impact of ADHD on maturity and behaviour as he ages. The symptoms of AD tend to decline with age and with their decline it is likely that he will “catch up” on his delayed maturity. This process can be assisted with treatment of his ongoing ADHD symptoms . Some men with adult ADHD benefit from stimulant and/or antidepressant medications. Given his history, there is obviously a hazard in treating him with stimulant medications such [as] Ritalin (which is highly valued in institutions). However, there are alternatives, including antidepressants.

In my opinion it is more likely than not that he would be assisted both in impulse control and in his capacity to engage with treatment programs if he were to receive appropriate medications, and a cautious trial of medications is warranted, but only after there is good reason to believe he has been abstinent from all substance abuse .

There are other reasons to be cautiously optimistic. Mr. Parfitt is an intelligent man. Intelligence in itself is not necessarily a risk-reducing factor. Brighter offenders can use their intellect to evade apprehension, make excuses, and “play the system”. However, age and context are often significant modifiers of how an individual utilizes his intellect. Mr. Parfitt appears to be “burning out”, no longer drawn to the thrills of a criminal lifestyle or the stimulating tensions of incarceration . He is aware that he may face a very lengthy sentence if convicted of another significant offense.

Despite the consequences of institutionalization, his conscious motivation is not to remain in prison but to make a life for himself in the community, a life that he experienced in 2012–2013. That motivation can be enhanced . At present there is no research that I am aware of that has methodically assessed the influence of Dangerous/Long-Term Offender proceedings on subsequent risk for violence.

However, anecdotal information circulating among clinicians who deal with offenders who have gone through the DO/LTO sentencing process suggests that such proceedings do have considerable impact on compliance and cooperation, at least in the short term. Fear, as a motivation, is far from ideal, as its impact tends to decline with time. Nevertheless, “negative” or “external” motivation can be harnessed and highlighted during ongoing treatment, and, even more importantly, when he is back in the community.

While clinical experience suggests that such external motivations tend to decline over time, time does allow for them to be gradually supplemented (and ideally replaced) by internal motivations, the genuine desire for change, and the establishment of attitudes and skills that promote self-control. Knowing what he faces if he reoffends, Mr. Parfitt may now be more motivated to apply his good intelligence during relevant treatment programs. He is capable of establishing therapeutic relationships, as evidenced by our rapport during our interview. He has some insight into his past patterns .

There are obvious targets for treatment, from basic/concrete to broad/abstract. Substance abuse offers a clear and tangible therapeutic focus . As discussed above, substance abuse has both proximal/direct effects on risk for violence (through disinhibition of emotions and loosening of self-control) and more distal/indirect ones (lifestyle choices, companions, undermining of work ethic etc.). Mr. Parfitt’s chronic and extreme use of alcohol and drugs is a major risk factor, a recurrent correlate of his violence.

Eliminating substance abuse is easier said than done, but if he can embrace the necessity of abstinence, that one step alone will in itself dramatically reduce his risk for violence. Intensive substance abuse programs are likely to be of benefit . … All things considered my opinion is there are reasons to be cautiously optimistic about Mr. Parfitt’s prospects for improvement if he participates in three kinds of programs, all available within CSC: substance abuse programs, domestic violence (family violence, spousal abuse) programs, and violence prevention programs. (Emphasis added) [ 50 ] Dr.

Lohrasbe expanded on this evidence during his testimony and confirmed why there is room for cautious optimism. Towards the end of Dr. Lohrasbe’s testimony, the Crown indicated that it would not be “applying for an indeterminate sentence”; rather, “the Court still has to be satisfied, of course that there’s a reasonable expectation … that something other than an indeterminate sentence is required to protect the public”.

At that point, Crown counsel indicated that “the Crown is conceding that there is enough factors in this particular case, including your opinion that -- that will allow the Court to conclude there is such a reasonable expectation”. Crown counsel then began a series of questions to Dr. Lohrasbe in this vein: Q … it is reasonable to construct a theory that he will succeed in the community, ultimately? A The answer is yes. And I’ll just put a slightly different lens to that as I -- I think I was a bit clumsy in -- in my expressing this in my report.

A major issue in these kinds of assessments with - - and I want to emphasize this, with non-sexual offenders, and he’s clearly not a sexual offender, a major issue is whether there is any good reason to believe that this individual will be an outlier when it comes to the expected decline in risk with age. What I mean by that is that if you take a slice of 20-year-old’s and you take a slice of 40-year-old’s in the community, the incidents of violence among the 40-year-old’s is drastically less than it is among the 20-year-old’s.

So with any offender, the question is knowing -- knowing what we do about group data, are there good reasons to believe that this fellow’s trajectory is in the opposite direction. And as I tried to express in my report, there are no good reasons to believe that, in fact as I think you’ve just pointed out in your longer question, there are good reasons to believe that he will follow being [on a] trajectory of reduced risk with time in the coming years . (Emphasis added) [ 51 ] This was part of a lengthy exchange during which Crown counsel elicited from Dr. Lohrasbe why he believed Mr.

Parfitt’s risk would be reduced in the future. At one point, Mr. Coombe interjected saying that Crown counsel “is asking my questions for me”. When Dr. Lohrasbe’s examination-in-chief was finished, Mr. Coombe indicated he had no questions for the witness. [ 52 ] Before Dr. Lohrasbe testified, Crown counsel said, “my friend has been good enough to confirm he’s not opposing the DO designation … So the issues are fairly narrow at this point”; to which, Mr. Coombe agreed, “Yes, they are”. After Dr.

Lohrasbe had testified, Crown counsel then said, “I can tell you that my friend does not have instruction[s] to concede the designation is appropriate in this case”. He continued as follows: My Lord, the question, if you were to agree with our submission on that, the question becomes whether there’s a reasonable expectation that a sentence less than one of an indeterminate incarceration will adequately protect the public. We’ve conceded that in this case. We don’t always do that, but given a number of things that I pointed out in my brief, which include Mr.

Parfitt’s recent better behaviour in custody, I guess he’s shown during that period of close supervision in the community, he’s shown that he can do some things right in terms of keeping a job, staying away from substance abuse and living a pro-social life . Though it was a bit clumsy the way I put it to Dr. Lohrasbe, I -- I think his – there is quite a bit of optimism that he has . There’s a lot of --

there’s always if’s. That’s why we’re here. (Emphasis added) [ 53 ] The judge then engaged in a lengthy exchange with Crown counsel where he made it clear he may have been prepared to impose an indeterminate sentence, a provincial sentence would not be on the table, a lengthy sentence would be in order, and he would have considered not granting more than one-to-one for remand credit. When Mr. Coombe began his submissions, the following discussion took place: THE COURT: Mr. Combe, I welcome your thoughts, sir. And I think we can proceed on the basis that you don’t contest the dangerous offender designation.

You don’t contest the long-term supervision order. You can speak directly to the ten-year global that Mr. DeCorby [Crown counsel] has suggested and whether you find that troubling. Submissions by Mr. Combe MR. COMBE: It shouldn’t surprise you that I do find it troubling. It should not surprise you that your remarks to Mr. DeCorby I find troubling. [ 54 ] Mr. Coombe then proceeded to argue against a lengthy custodial sentence and in favour of pre-sentence credit at more than one-to-one or, in the alternative, a delayed parole term. [ 55 ] The judge provided the following oral reasons for judgment: Mr.

Parfitt has a terrible criminal record spanning many – many years and including not less than 20 violent offences. The Criminal Code speaks to an offender demonstrating one, a pattern of repetitive behaviour, showing a failure to restrain his criminal behaviour, and two, a pattern of persistent aggressive behaviour showing an indifference to the consequences he causes. Mr. Parfitt falls squarely into those categories which are set out in Section 753(1)(a)(i)(ii). It is common ground among counsel and the Court that Mr. Parfitt qualifies as a dangerous offender, and I so find him to be .

To the extent there is nuance in this analysis, it, as it so often does, falls to the crafting of an appropriate sentence. Although Mr. Parfitt is a dangerous offender, the Crown has not asked for an indefinite sentence. I have reviewed the authorities provided by Mr. DeCorby and reflected on their guidance. I have also benefited from the arguments of counsel, who have both been intellectually honest in their approach and in the end because of that honesty they are not radically far apart.

My focus must be on denunciation and deterrence, plus I cannot ignore and must take into account the egregious criminal record and patterns of violence and threats peppered throughout Mr. Parfitt’s adult life. In the end, I agree with Mr. DeCorby, a sentence of less than ten years for these crimes and in the face of Mr. Parfitt’s record would be, in my opinion, demonstrably unfit. Respectfully, I am uncomfortable with Mr. DeCorby’s approach of consecutive sentences totalling ten years. Typically, consecutive sentences are employed when addressing discreet incidences.

In this case it was in essence one extended criminal misadventure. So a global sentence on all counts of ten years. Mr. Parfitt is to benefit from credit for remand time, which is now two years, three months, and some days on the basis of a 1.5 to 1 ratio. I also order a long-term supervision order for a period of ten years. I also order under

Section 487.051 that Mr. Parfitt provide such necessary samples of his bodily fluids for the purposes of a DNA test. (Emphasis added) [ 56 ] Adjustments had to be made later to the sentence because the 10-year global sentence on all counts was illegal. The only two charges that could bear a sentence of this length were the charges under s. 348(1) (b). In sum, Mr. Parfitt was designated a dangerous offender and sentenced to 10 years, less a pre-sentence credit of approximately 3.5 years, leaving 6 years and 8 months to serve, coupled with a long-term supervision order. B. Effect of Boutilier 1.

Crown’s preliminary arguments [ 57 ] For her part, Crown counsel on appeal began her submissions by making two preliminary arguments, which I will address at this point. Crown counsel first submitted that Mr. Parfitt should not be able to argue that Boutilier has effected a change in the case law because his amended notice of appeal depended on the Supreme Court finding that the amendments to the Criminal Code , brought about by the Tackling Violent Crime Act , SC 2008, c 6, s 51 [the 2008 amendments], were unconstitutional. When the Supreme Court found otherwise, Crown counsel submitted that Mr.

Parfitt should be bound by the terms of his notice of appeal. In my respectful view, it would not be in the interests of justice to confine Mr. Parfitt to what his counsel anticipated the Supreme Court of Canada would find. [ 58 ] As this decision is being released concurrently with R v Piche , 2019 SKCA 54 [ Piche ], I will repeat only that part of the discussion pertaining to Boutilier that is necessary to resolve this appeal. Counsel for Mr. Parfitt, who was also counsel for Mr.

Piche, reiterated her submissions to the effect that Boutilier has effected a change in the way the courts have been interpreting the 2008 amendments to the Criminal Code . [ 59 ] The majority of the Supreme Court in Boutilier held that the impugned parts of s. 753 of the Criminal Code are constitutional but, in doing so, overruled such authorities as R v Szostak , 2014 ONCA 15 , 306 CCC (3d) 68 [ Szostak ] (leave to appeal to the SCC refused

). The majority held that R v Lyons, (SCC), [1987] 2 SCR 309 [Lyons], remains good law:intractability and treatability are essential elements of the current dangerous offender regime (Boutilier at paras 23, 26–27, 29–35 and 42–43). See also R v S.P.C., 2018 SKCA 94 [S.P.C.]. [60] In light of this Court’s decision in S.P.C. and in Piche, it would not be appropriate to limit Mr. Parfitt to his notice of appeal andcounsel’s original assessment of what Boutilier might decide. That brings me to Crown counsel’s second preliminary argument, which isthat Mr.

Parfitt should not be able to resile from his counsel’s agreement that his client should be declared a dangerous offender. [61] In response to this submission, as I have tried to indicate in my review of what transpired during the sentencing hearing, it is notentirely clear that Mr. Coombe agreed his client should be declared a dangerous offender. In light of Crown counsel’s statement at onepoint in the transcript to the effect that Mr.

Coombe did not have instructions to agree to the designation, another view of what happened isthat it became clear, through the judge’s exchanges with Crown counsel, that the dangerous offender designation would be inevitable. Thereal issue for Mr. Coombe to address was the length of the penitentiary term. [62] In any event, even if Mr. Coombe can be taken to have agreed to the designation, Mr. Parfitt should not be held to thatagreement in light of Boutilier. I find some support for this approach in R v Smarch, 2019 YKCA 5 [Smarch 2019]. Mr.

Smarch did notcontest the dangerous offender designation, although he suggested the possibility of being declared a long-term offender under s. 753(5).The trial judge went on to find Mr. Smarch to be a dangerous offender and sentenced him to a determinate sentence of 16 months ofimprisonment to be followed by 3 years of probation (see the lower-court decision, 2014 YKTC 51 at para 10). The Crown appealed thesentence, arguing that the judge should have imposed a sentence of at least 2 years of imprisonment, followed by a long-term supervisionorder. Significantly, Mr.

Smarch did not appeal the decision declaring him to be a dangerous offender. The propriety of the dangerousoffender designation was not, therefore, at issue on appeal. The Crown’s appeal was dismissed on July 14, 2015: see R v Smarch, 2015YKCA 13, 374 BCAC 291. [63] Notwithstanding the fact the accused had not actively opposed the dangerous offender designation, and the Court of Appealhad already considered one appeal pertaining to the matter, a panel of three granted an extension of time to appeal the earlier dangerousoffender decision (see Smarch 2019).

In doing so, the Court was responding to the claim that the “sentencing judge, who did not have thebenefit of Boutilier, erred in principle by designating him a dangerous offender without considering his treatment prospects at thedesignation stage and in the absence of a finding that his behaviour is intractable” (Smarch 2019 at para 1). [64] Similarly, I conclude that counsel’s submissions to the judge in this case were made on the basis of law that has now beenovertaken by Boutilier. Mr. Parfitt is entitled to argue that he benefits from that change in the

interpretation of

Part XXIV. 2. Impact of Boutilier on Mr. Parfitt’s designation as a dangerous offender [65] The most significant aspects of Boutilier, which are in play in this case pertaining to the designation stage, are as follows: (a) “an offender cannot be designated as dangerous unless the judge concludes that he or she is a future ‘threat’ after a prospectiveassessment of risk”, which includes a “consideration of future treatment prospects” (italic emphasis in original, at para 23); (

b) following Lyons, a sentencing judge must still be satisfied on the evidence that (

i) the offender poses a high likelihood of harmful recidivism; and (ii) his or her conduct is intractable, which is defined as “behaviour … unable to surmount” (Boutilier at paras 27 and 43); (c) “determining whether or not a high risk of recidivism and intractability are present necessarily involves a prospective inquiryinto whether an offender will continue to be … ‘a real and present danger to life or limb’” (at para 35); (d) “a past pattern of violence is considered in the global assessment of an offender’s future behaviour, which, in turn, isconsidered by the court in determining whether the offender constitutes a ‘threat’” (at para 37); (e) “the judge ‘shall’ designate an offender as dangerous only if he or she is satisfied beyond a reasonable doubt that the offenderactually constitutes a future threat to safety in light of all the relevant evidence” (at para 41); (

f) treatability and intractability must be considered at the designation stage (at paras 42–43); (

g) the Crown is required to demonstrate “beyond a reasonable doubt, a high likelihood of harmful recidivism and theintractability of the violent pattern of conduct” before an offender can be declared dangerous (at para 46); (

h) the dangerous offender designation is limited to a small group of offenders (at paras 3 and 90); and (i) “a rigorous application of the designation criteria under s. 753(1) ensures that the provision does not overreach by capturingoffenders that should not face the risk of a sentence of indeterminate detention” (at para 77). [66] In fairness, the judge in the case before us did not have the benefit of Boutilier and his reasons must be read in that light. As aconsequence, the judge did not consider whether the Crown had proven intractability and a high likelihood of harmful recidivism beyond a

reasonable doubt. Nor did he consider treatability. He found dangerousness on the basis of Mr. Parfitt’s past behaviour only – and mayhave done so only on the uncertain basis that dangerousness had been conceded. In light of Boutilier, such omissions constitute an error oflaw. In light of Dr. Lohrasbe’s evidence and applying R v Johnson, 2003 SCC 46 at para 49, [2003] 2 SCR 357, I am not satisfied thatthere is no reasonable possibility that the verdict would have been the same if the error of law not been made. C. Remedy [67] By way of relief, Mr.

Parfitt submits that if his arguments regarding the effect of Boutilier on the judge’s decision find favourwith this Court, he requests that “his dangerous offender designation be quashed and a new hearing ordered with any directions that theHonourable Court considers appropriate”. [68] In light of my conclusion regarding the impact of Boutilier on Mr. Parfitt’s case, I would quash the dangerous offenderdesignation.

Without the appropriate findings of fact, this Court is not in a position to do anything further. [69] As to directions, on the basis of the record before this Court, there is a strong indication that the Crown did not proveintractability beyond a reasonable doubt and that the Crown conceded Mr. Parfitt was treatable. Dr. Lohrasbe’s evidence could also beconstrued as demonstrating Mr. Parfitt’s treatability.

It may be in light of this evidence that the parties are able to agree to a resolution ofthis matter and avoid a new hearing. [70] On another matter, the Crown, to its credit, has drawn the Court’s attention to certain problems with the conviction and thesentence for the second count of breaking and entering and committing an assault causing bodily harm contrary to s. 348(1)(

b) of theCriminal Code. The Crown advised the Court that Mr. Parfitt was not properly convicted of this second count. However, within themeaning of s. 686(1)(b)(i), he was properly convicted of count #2 on the indictment, which is “did break and enter a dwelling house …and did commit therein the indictable offence of assault against Colin McKenzie, contrary to Section 348(1)(

b) of the Criminal Code”.The proper order to rectify matters in these circumstances is to dismiss the appeal from conviction pursuant to s. 686(1)(b), rather than toallow the appeal (see R v Nantais, (ON CA), [1966] 4 CCC 108 (WL) (Ont CA) at para 11), and to substitute a verdictof guilty for the lesser offence. [71] The Crown also advises the Court that Mr. Parfitt was not appropriately sentenced in relation to count #2, even if it had been inthe form as perceived by the trial judge and the parties at the time. This is so because the Attorney General granted his consent to haveMr.

Parfitt designated as a dangerous offender on count #1 on the indictment only, i.e., breaking and entering and committing assaultcausing bodily harm against Ms. Severight. No consent was granted in relation to count #2. Therefore, the dangerous offender designationand sentence could apply to count #1 only and not to count #2. [72] Therefore, having regard for these new issues, the Court dismisses Mr.

Parfitt’s appeal from conviction in relation to the secondcount appearing on the form 35 conviction but, in accordance with s. 686(3) of the Criminal Code, substitutes a verdict of guilty forbreaking and entering and committing an assault contrary to s. 348(1)(

b) of the Criminal Code, being count #2 as it reads on theindictment. Sentencing will be remitted with respect to this offence to the trial court in accordance with s. 686(3)(b). The Court notes thatthe substitution of a verdict of guilty for this offence, and the decision to remit the matter for sentence, occurs with the concurrence of theCrown and Mr. Parfitt’s counsel. IV. Conclusion [73] The conviction appeal in relation to all counts is dismissed.

In relation to count #2 on the indictment, the Court substitutes averdict of guilty on the following count: “On or about the 18th or 19th day of March, A.D. 2014 … did break and enter a dwelling house… and did commit therein the indictable offence of assault on Colin McKenzie, contrary to Section 348(1)(

b) of the Criminal Code”. [74] In relation to sentence, the Court makes the following orders: (

a) in the exercise of its powers under s. 759(3) of the Criminal Code, the Court allows the appeal from the decision made underPart XXIV of the Criminal Code, and orders a new hearing under that Part with respect to count #1; and (

b) in the exercise of its powers under s. 686(3)(

b) of the Criminal Code, the Court remits the matter of sentencing with respect tocount #2 on the indictment to the trial court to impose a sentence that is warranted in law. [75] To be clear, the sentences for the four remaining counts were not appealed. “Jackson J.A.” Jackson J.A.I concur. “Ottenbreit J.A.” Ottenbreit J.A.I concur. “Whitmore J.A.” Whitmore J.A.