R v Goodpipe, 2021 SKCA 122

Court of Appeal for Saskatchewan Docket: CACR3298 Citation: R v Goodpipe , 2021 SKCA 122 Date: 2021-09-09 Between: Elwin Michael Goodpipe Appellant And Her Majesty the Queen Respondent Before: Richards C.J.S., Schwann and Barrington-Foote JJ.A. Disposition: Appeals dismissed Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Madam Justice Schwann The Honourable Mr. Justice Barrington-Foote On appeal from: CRM 7 of 2017 and 2019 SKQB 221 , Regina Appeal heard: March 17, 2021 Counsel: Brian Pfefferle for the Appellant W. Dean Sinclair, Q.C., for the Respondent Richards C.J.S.

I. INTRODUCTION [ 1 ] Elwin Goodpipe and Jerid Azure gained entry to the home of Andre Aubertin for the purpose of robbing him. Mr. Azure produced a gun and shot Mr. Aubertin at close range. Mr. Aubertin died soon afterward. [ 2 ] Mr. Goodpipe was charged with manslaughter and proceeded to trial before a judge and jury in the Court of Queen’s Bench. The central issue at the trial concerned Mr. Goodpipe’s liability pursuant to s. 21(2) of the Criminal Code .

It speaks to the liability of a party to a common unlawful purpose for an incidental crime committed by another participant while carrying out the original unlawful purpose. The jury found Mr. Goodpipe guilty as charged. He was designated as a dangerous offender and sentenced to an indefinite term of imprisonment. [ 3 ] Mr. Goodpipe appeals both his conviction and his sentence.

He argues that the conviction was unreasonable and that, in reaching the sentencing decision, the judge erred in assessing whether the risk he poses to the community can be managed by measures short of incarceration. [ 4 ] As explained below, both Mr. Goodpipe’s conviction appeal and his sentence appeal must be dismissed. A finding of guilt was open to the jury on the basis of the evidence adduced at trial. There was no error in the sentencing decision. II. THE CONVICTION APPEAL A. Background [ 5 ] It is useful to begin the analysis of Mr.

Goodpipe’s conviction appeal by reviewing the material aspects of the testimony at the trial. 1. Angel Severight [ 6 ] Angel Severight lived with her spouse, Drake Stonechild, at 915 Argyle Street in Regina. That is approximately three blocks away from the Aubertin residence. Ms. Severight did not know Mr. Aubertin. She knew Mr. Goodpipe as Mr. Stonechild’s friend. She knew Mr. Azure because he is Mr. Stonechild’s cousin. [ 7 ] Ms. Severight testified that Mr. Azure came to her house the night before the shooting. He was with his spouse and child and wanted Mr. Stonechild to give him a tattoo.

It was late by the time the tattoo was finished and it was agreed that Mr. Azure and his family would spend the night. [ 8 ] Ms. Severight testified that Mr. Goodpipe, who went by the nicknames of “Lil G” and “Mikey”, showed up at her house the next morning. Ms. Severight indicated that it looked like Mr. Goodpipe had been up all night. He said he had spent his money on drugs the night before. Ms. Severight saw Mr. Goodpipe and Mr. Azure talking to one another in the porch. She overheard them talking about “jacking” a French guy. She explained that “jacking” refers to taking property from, or robbing, someone.

She also overheard the two men talking about the French guy as a person who would not likely retaliate against them. [ 9 ] Ms. Severight said that she was concerned about what the men were planning to do. She tried to talk Mr. Azure out of participating by telling him that he should just stay at the house with his daughter. Mr. Azure made it clear he was not interested in following her advice. [ 10 ] Ms. Severight then left for school. She returned home sometime later the same morning and saw Mr. Azure running into the

house. According to Ms. Severight, Mr. Azure was sweaty and looked scared or shaken. She did not see a firearm in his possession. She testified there were no firearms in her house. 2. Drake Stonechild [ 11 ] Mr. Stonechild confirmed that Mr. Azure and his family spent the night before the shooting at his home and that Mr. Goodpipe showed up sometime the next morning between 8:30 and 9:00 a.m. He said that Mr. Goodpipe wanted to use his phone to call his landlord. He testified Mr. Goodpipe made the call and spoke to the landlord. He also testified that Mr. Goodpipe left the house about 25 minutes before Mr.

Azure left. Mr. Azure departed the house at approximately 10:30 a.m. [ 12 ] Mr. Stonechild also testified that Mr. Azure ran back into the house sometime later. He could tell that Mr. Azure had been running because he was breathing hard. Mr. Azure asked for a change of clothes. According to Mr. Stonechild, Mr. Azure then cut off his hair. Shortly afterwards, Mr. Stonechild saw that the police had surrounded the house. He told Mr. Azure to get out. The police would later find a shotgun shell on the kitchen table. Mr. Stonechild testified the shell was not there earlier that morning and that he thought Mr.

Azure must have put it there before he went outside to surrender to the police. 3. Brandi Ray [ 13 ] Brandi Ray and her spouse, Joseph McKay, lived at 1051 Princess Street, across the street from where Mr. Aubertin and his girlfriend, Candace Itittakoose, lived. Shortly before Mr. Aubertin was shot, Ms. Ray saw two men cutting through her yard. Mr. McKay spoke to the men and asked them what they were doing. One of them asked if “Frenchie” had any “weed”. Mr. McKay told them that he did not. Ms. Ray understood “Frenchie” to be Mr. Aubertin. She saw the two men approach the front door of Mr. Aubertin’s house.

She testified that they knocked on the door and were let into the house soon after. Ms. Ray said that she then heard what sounded like a gunshot. She saw both men running from the Aubertin residence and through her yard into the back alley. [ 14 ] She acknowledged that her sister-in-law is Alexis McKay and that Ms. McKay and her boyfriend “Lil G” had lived with her and Joseph McKay at 1051 Princess Street sometime before the shooting. She also acknowledged that one of the men who cut through her yard was “Lil G”. Even so, she claimed she could not identify Mr.

Goodpipe as one of the men who cut through her yard. 4. Candace Itittakoose [ 15 ] Ms. Itittakoose was acquainted with Ms. Ray, Mr. McKay and Mr. Goodpipe. She knew that Mr. Goodpipe was in a relationship with Mr. McKay’s sister, Alexis. She knew that he and Ms. McKay had lived across the street from them at 1051 Princess Street. She testified that Mr. Goodpipe had been over to visit them at 1056 Princess Street on a couple of occasions before the shooting. [ 16 ] Ms. Itittakoose testified that Mr. Aubertin was a drug dealer who sold marihuana from their home.

Shortly before 11:00 a.m. on the morning in question, she saw two men walking out of the front gate at 1051 Princess Street and across the street to her house. She identified Mr. Goodpipe as one of those men, although she acknowledged that she did not know his name. She did not know the man who was with Mr. Goodpipe. She assumed they wanted to buy marihuana from Mr. Aubertin and told Mr. Aubertin that his “bros” were coming over. [ 17 ] Mr. Aubertin told her that he did not want anyone in the house. As a consequence, Ms. Itittakoose said that she opened the front window and told the men there was “nothing here”.

Mr. Goodpipe responded by stating he wanted to use their phone. Mr. Aubertin once again told Ms. Itittakoose that he did not want anyone to come inside the house. He told her to let Mr. Goodpipe use the phone in the porch. Ms. Itittakoose said that she opened the door and both men then simply walked into the living room without being invited into the house. Ms. Itittakoose handed Mr. Aubertin’s cell phone to Mr. Goodpipe. She saw him looking at the phone. She testified that although he appeared to be dialling a number, he did not call anyone. Mr. Goodpipe and Mr.

Azure were standing side-by-side in the living room facing Mr. Aubertin. Mr. Aubertin was standing in front of the couch. Mr. Azure asked Mr. Aubertin, “what you got?” Then, according to Ms. Itittakoose, Mr. Azure pulled a gun from under his sweater and shot Mr. Aubertin in the torso. [ 18 ] Ms. Itittakoose testified that she saw the tip of the gun’s barrel poking out from the left side of Mr. Azure’s sweater about 10 to 15 seconds before the shot was fired. She saw Mr. Azure’s right hand holding the barrel before he pulled the gun out. She said it was a shotgun and that Mr.

Aubertin reacted to the gun by trying to raise his hands. She testified that Mr. Azure shot Mr. Aubertin before he had a chance to say anything, about three seconds after Mr. Azure had asked, “what you got” and about 15 to 20 seconds after she had handed Mr. Goodpipe the cell phone. [ 19 ] Ms. Itittakoose testified that she ran out the back door of the house in a panic. By the time she returned a minute or so later, Mr. Goodpipe and Mr. Azure were gone. She believed they had taken Mr. Aubertin’s cell phone when they left. Mr. Aubertin was dying on the living room floor. Ms.

Itittakoose used the bedroom phone to call 911 for help. [ 20 ] Ms. Itittakoose also testified that the next morning, at approximately 5:00 a.m., she was walking back to her house to see if the police were finished with their investigatory work. She saw two people walking on the other side of the street. She recognized Ms. McKay as one of those persons and noted that Ms. McKay was with a man. The man asked Ms. Itittakoose if she wanted to buy some morphine. Ms. Itittakoose recognized the man’s voice.

She testified that he was the same person who had walked into her house the day before with the person who shot Mr. Aubertin. She identified Mr. Goodpipe as that man and phoned 911 to provide this information to the police. The police arrested Mr. Goodpipe at 1111 McTavish Street. He was with Ms. McKay at the time. 5. Police Officers [ 21 ] The testimony of various police officers revealed that, after being called to attend at 1056 Princess Street, and speaking with Ms. Itittakoose, they checked with the occupants of 1151 Princess Street.

One of the officers saw two sets of footprints in the mud in the alley behind that house. A canine unit was called in to track the scent of the persons who had left the footprints in the mud. The dog led the police through various yards and down various alleys to 915 Argyle Street, the residence of Mr. Stonechild and Ms. Severight. The

police were there by 11:38 a.m. and they surrounded the house. Shortly afterward, Mr. Azure walked out the back door and wasimmediately placed under arrest. [22] The police searched the interior of 915 Argyle Street. The clothes Mr. Azure had been wearing were found in the washingmachine. They saw hair clippings on the kitchen floor. They also found a shotgun shell on the kitchen table and a bulletproof vest in oneof the bedrooms. [23] The police also conducted a search along the canine track from 915 Argyle Street to 1056 Princess Street. The firearm that wasused to kill Mr. Aubertin was not located.

However, the police did find an unspent shotgun shell next to a garage at the rear of 1017Argyle Street. 6. Mr. Goodpipe [24] Mr. Goodpipe did not testify or call any evidence in his own defence. [25] Mr. Goodpipe admitted, by way of agreement, that Mr. Azure had pled guilty to manslaughter in relation to Mr. Aubertin’sdeath. B. ANALYSIS [26] As noted above, Mr. Goodpipe contends that his conviction was unreasonable or cannot be supported by the evidence as per s.686(1)(a)(

i) of the Criminal Code. [27] A verdict is unreasonable or cannot be supported by the evidence if it is one that a properly instructed jury acting judiciallycould not reasonably have rendered. See: R v Biniaris, 2000 SCC 15 at para 36, [2000] 1 SCR 381; R v Yebes, (SCC),[1987] 2 SCR 168 at 185. [28] The nature of a proper appellate inquiry into the reasonableness of a jury verdict was explained as follows in R v W.H., 2013SCC 22, [2013] 2 SCR 180: [27] Appellate review of a jury’s verdict of guilt must be conducted within two well-established boundaries.

On one hand, thereviewing court must give due weight to the advantages of the jury as the trier of fact who was present throughout the trial and saw andheard the evidence as it unfolded. The reviewing court must not act as a “13th juror” or simply give effect to vague unease or lurkingdoubt based on its own review of the written record or find that a verdict is unreasonable simply because the reviewing court has areasonable doubt based on its review of the record. [28] On the other hand, however, the review cannot be limited to assessing the sufficiency of the evidence.

A positive answer to thequestion of whether there is some evidence which, if believed, supports the conviction does not exhaust the role of the reviewing court.Rather, the court is required “to review, analyse and, within the limits of appellate disadvantage, weigh the evidence” (Biniaris, at para.36) and consider through the lens of judicial experience, whether “judicial fact-finding precludes the conclusion reached by the jury”:para. 39 (emphasis added).

Thus, in deciding whether the verdict is one which a properly instructed jury acting judicially could reasonablyhave rendered, the reviewing court must ask not only whether there is evidence in the record to support the verdict, but also whether thejury’s conclusion conflicts with the bulk of judicial experience: Biniaris, at para. 40. [29] The jury was instructed that Mr. Goodpipe could be convicted of manslaughter if the Crown established his liability as a partyto the offence pursuant to s. 21(2) of the Criminal Code. That subsection reads as follows:

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any oneof them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission ofthe offence would be a probable consequence of carrying out the common purpose is a party to that offence. [30] A finding of guilt pursuant to s. 21(2) depends on there being proof beyond a reasonable doubt of three elements: (

a) a commonintention of two or more persons, including the accused, to carry out an unlawful purpose and to assist each other therein; (

b) thecommission of an incidental crime by one of the other participants; and (

c) the required degree of foresight with respect to whether theincidental crime would be committed. See, for example: R v Phillips, 2017 ONCA 752 at para 222, 355 CCC (3d) 141; R v Harkes, 2017ABCA 229 at para 28, 56 Alta LR (6th) 237. This appeal is concerned only with element (c), the knowledge or foresight element. [31] The trial judge charged the jury on this issue by instructing it, most centrally, as follows: The Crown must prove either (

a) that Michael Goodpipe knew that Jerid Azure would probably commit an unlawful act that would likelyput another person at risk of some harm or injury that is more than brief or minor in nature in carrying out their original agreement, or (b)that a reasonable person in the same circumstances would know that Jerid Azure would probably commit an unlawful act that would likelyput another person at some – risk of some harm or injury that is more than brief or minor in nature in carrying out their original agreement. [32] Quite properly, Mr.

Goodpipe does not any take issue with this instruction or the understanding of the law that it reflects. See:R v Jackson, (SCC), [1993] 4 SCR 573 at 577, 586–587. Rather, he submits that the jury’s finding was unreasonable, asexpressed in his factum, because there was no evidence capable of proving that he agreed to participate in a crime that would involve theuse of violence or threats of violence.

He contends that, at best, the evidence was capable of proving that he agreed to participate in a theft. [33] In considering this argument, it is important to recognize at the outset that there was no requirement for the jury to find Mr.Goodpipe had agreed to act violently towards Mr. Aubertin in order to convict him of manslaughter. As per s. 21(2), it was enough thatMr. Goodpipe ought to have known that a probable consequence of pursuing his and Mr. Azure’s common purpose would be the carryingout of an unlawful act involving a risk of bodily harm that was neither trivial nor transitory.

A finding of guilt did not depend on proof thatMr. Goodpipe himself intended for Mr. Aubertin to be physically harmed or killed.

[ 34 ] With that point made, I turn now to the evidence itself. Mr. Goodpipe begins his review of it by underlining Ms. Severight’s testimony about the conversation between him and Mr. Azure that she overheard on the morning of the shooting. He suggests the prosecutor introduced the idea of robbery and that there was no evidence that Ms. Severight understood the crucial difference between theft, which does not involve violence, and robbery, which does. The key aspects of Ms. Severight’s testimony on which Mr. Goodpipe relies in this regard are set out below: Q And what were they going to do that day?

A Not too sure. Like, they just, like, go see somebody, like, basically -- yeah. Q And did they say what they were going to do with that person? A From what I remember, what I heard, yes. Q What did they say? A That they were just probably going to jack somebody. Q Okay. And when you say they’re going to jack somebody, what -- A Well -- Q -- does that mean? A Like, take something from them. Q So rob them? A Basically. … A Just like them -- I don’t know, trying to get -- go get some money or something. Q Okay. Just like them -- I don’t know.

A Just like them trying -- yeah, I don’t know, trying to go get money or something. Q Trying to get money or something. So you weren’t quite sure? A Yeah, I wasn’t positive. Q Okay. You were, sort of, making an assumption that’s what they were going to do. A Yes. [ 35 ] Mr. Goodpipe stresses there was no evidence that he and Mr. Azure discussed bringing weapons with them to Mr. Aubertin’s house; no evidence that they talked about using force or violence as part of their plan; no evidence he and Mr. Azure discussed how they might prevent or overcome resistance by Mr. Aubertin; no evidence he knew that Mr.

Azure had armed himself; and no evidence that he saw the gun before Mr. Azure produced it. Mr. Goodpipe underlines that he and Mr. Azure had been in Mr. Aubertin’s house for less than two minutes before Mr. Aubertin was shot and that, before the shooting, there had been no exchange of aggressive or angry words. In light of all of this, Mr. Goodpipe submits that it was not reasonable for the jury to conclude that the knowledge or foreseeability element of manslaughter under s. 21(2) had been satisfied. [ 36 ] I am not persuaded by this line of argument.

Simply put, it fails to take a fair and reasonable account of the evidence as a whole and, in particular, fails to appreciate the probative value of the circumstantial evidence that was before the jury. [ 37 ] Ms. Severight testified about the conversation she had overheard between Mr. Goodpipe and Mr. Azure as they discussed “jacking” a “French guy”. She explained that jacking refers to taking property from someone. The technical distinction between “theft” and “robbery” was not central to the significance of her evidence. As a result, it was clearly open to the jury to conclude that Mr. Goodpipe and Mr.

Azure had hatched a plan to rob Mr. Aubertin. This was not an agreement to surreptitiously relieve Mr. Aubertin of his property. The plan necessarily involved a face-to-face confrontation at 11:00 in the morning. In the circumstances of this case, it was open to the jury to conclude it was probable that Mr. Aubertin would resist the attempt to take his property and that such resistance would lead to a violent, unlawful act directed against him. [ 38 ] The jury could also have reasonably inferred that Mr. Goodpipe was aware that Mr.

Azure was carrying a shotgun even though such a conclusion was not necessary for it to find Mr. Goodpipe guilty of manslaughter. There had been no shotgun at the Severight- Stonechild house, so Mr. Azure came into possession of it after he left that location. Mr. Goodpipe departed the Severight-Stonechild house approximately 25 minutes before Mr. Azure and hence he would have had time to obtain the weapon and give it to Mr. Azure. As well, it seems highly unlikely that Mr. Azure and Mr. Goodpipe would jointly undertake a robbery without Mr. Goodpipe being aware that Mr. Azure was carrying a shotgun.

Finally, the police evidence indicated that, after the shooting, Mr. Azure ran directly from Mr. Aubertin’s house to the Severight-Stonechild house. He arrived there without the shotgun and it was not found along the route between the two houses. This suggests that Mr. Goodpipe took the gun after the shooting, something he would have been likely to do if it belonged to him or if he had supplied it. I refer to all of this evidence because if the jury concluded that Mr.

Goodpipe knew about the shotgun, it would have been even easier for it to conclude that he should have foreseen the probability of an unlawful act causing harm.

[ 39 ] In short, I find no merit in Mr. Goodpipe’s attempt to suggest that he and Mr. Azure planned only a non-violent theft and that, as a result, it was unreasonable for the jury to conclude collateral violence was foreseeable or probable. Any such line of thinking does not square with the evidence or with practical experience. [ 40 ] I conclude, therefore, that Mr. Goodpipe’s conviction appeal must be dismissed. III. THE SENTENCE APPEAL A. Background [ 41 ] Mr. Goodpipe is an Indigenous man.

He was 36 years old at the time his sentence was imposed and had been in custody almost continuously since the age of 12. At the time of the offence in issue here, he had been convicted of more than 40 previous offences including another manslaughter that had also involved a home invasion and the use of a weapon, 11 other crimes involved violence, including a robbery, and one assault causing bodily harm. [ 42 ] Dr. Todd Tomita, a court-appointed psychiatrist, performed an uncontradicted assessment of Mr. Goodpipe. His key findings can be summarized as follows: (

a) Mr. Goodpipe is at high risk of future violence. (

b) Mr. Goodpipe’s criminal behaviour is rooted in an anti-social personality disorder with moderate levels of psychopathic features. This puts him towards the more severe end of the anti-social personality disorder spectrum. (

c) Mr. Goodpipe remains treatable but there is a low likelihood that any treatment will reduce his risk of violence significantly. (

d) The crux of the treatment issue is Mr. Goodpipe’s intrinsic low level of motivation and his inability to sustain motivation efforts to construct and build a pro-social lifestyle. Progress towards building a pro-social lifestyle is possible under legal supervision in the community but, given Mr. Goodpipe’s present risk profile and his functioning in the community to date, the likelihood of such success appears low. (

e) The prospect of Mr. Goodpipe’s risk being contained in the community under federal parole supervision appears poor. There appears to be little likelihood in the foreseeable future that Mr. Goodpipe’s high risk for future violence could be contained in the community if he was left to his own devices and free of legal supervision. (

f) Given Mr. Goodpipe’s age, the risk reducing effects of aging cannot be applied with any confidence for at least another decade or longer. (

g) There are no material alterations or changes in specific release conditions that were not already present in Mr. Goodpipe’s previous unsuccessful federal parole releases that could be added or modified to make his present risk more manageable. All indicators point to the likelihood that federal parole supervision is unlikely to be sufficient to contain his risk of violence in the community. B. The Sentencing Decision [ 43 ] The sentencing judge began her analysis by reviewing the relevant evidence and concluding that Mr.

Goodpipe should be found to be a dangerous offender as provided by s. 753(1) of the Criminal Code . She then went on to consider whether, as per s. 753(4.1), there was a reasonable expectation that a measure short of indeterminate detention would adequately protect the public against the commission of murder or a serious personal injury offence. In answering that question in the negative, and thereby deciding that an indeterminate sentence was required, the sentencing judge summarized her analysis by writing as follows: [59] I have considered the indigenous supports, services and programming available to Mr.

Goodpipe and whether those means and methods would allow me to conclude that there is a reasonable expectation that a sentence less than an indeterminate one would adequately protect the public: Montgrand at paras 16-17 and R v Standingwater , 2013 SKCA 78 at paras 49-52 , [2013] 10 WWR 277. I have concluded that because Mr.

Goodpipe has not historically engaged in indigenous-focused means and methods of rehabilitation, and I do not have evidence that he wishes to so engage in the future, I cannot find there is a reasonable expectation that a lesser sentence which employs an indigenous healing path and/or indigenous supports, services and programming, would adequately protect the public from Mr. Goodpipe going forward. [60] Further, I accept Dr. Tomita’s evidence that federal parole supervision is unlikely to be sufficient to contain Mr. Goodpipe’s violence risk in the community. This is particularly so because Dr.

Tomita concluded that Mr. Goodpipe had the ability to comply with conditions and succeed on parole on three occasions, but he chose not to do so. In addition, while the effect of Mr. Goodpipe’s ageing may diminish his violence risk, he is only 36 years old. Dr. Tomita concluded that there will likely be some degree of lessening of his risk in his fifties and beyond, but that is still at least 15 years away. This puts Mr. Goodpipe out of range of a long-term supervision order. C. Analysis [ 44 ] Mr. Goodpipe takes issue with the sentencing judge’s decision.

He argues that, as I understand it, the judge failed to appreciate the various systemic factors that stood in the way of him taking advantage of culturally appropriate treatment options when he was young. These factors are said to include his gang membership and the nature of institutional programming. Mr. Goodpipe says, now that he is more mature and better positioned to participate in culturally based programming, such programming would reduce the risk he poses to the community.

[ 45 ] I am unable to give effect to this submission for several reasons. First, although perhaps not an especially telling point, it is difficult to fully accept Mr. Goodpipe’s argument that he did not have the benefit of culturally appropriate programming when he was younger. Joan Whitton-Williams, the Director of Programs at the Paul Dojack Youth Centre, testified that Mr. Goodpipe had participated in sweats and a pipe ceremony, and had one-on-one counselling sessions with Elders. She described Mr. Goodpipe’s cultural connections as having been a strong point for him. [ 46 ] Second, I note that Mr.

Goodpipe’s account of the availability of culturally based programming does not square with the record. He represented to Dr. Tomita that he had never been approached to participate in a healing plan assessment by an Elder while he was in custody. However, Erin Howe, a Regina Provincial Correctional Centre employee who is involved in programming, explained that, as a remanded inmate, Mr. Goodpipe had access to an Elder who would provide one-on-one counselling but that there was no record of Mr. Goodpipe taking advantage of that program. Ms. Howe also explained that when Mr.

Goodpipe had been a sentenced offender there was a cultural coordinator who organized sweats, pipe ceremonies and other activities. Further, there were Elders available for counselling. Dr. Tomita’s report is to a similar effect. It directly contradicts Mr. Goodpipe’s claim that he was never approached to participate in a healing plan. Dr. Tomita said this: [166] An Initial Elder Review dated August 28, 2012 noted that Mr. Goodpipe had been interviewed by the Aboriginal Liaison Officer and was informed about the pathways unit rules, policies and procedures as well as the elder and aboriginal programs available.

Mr. Goodpipe refused to participate, and the plan was for him to be reviewed again in six months’ time. … [170] An Elder Review Progress Report dated April 19, 2013, noted that the onus was on an inmate to maintain contact and participate with elders and that Mr. Goodpipe had not participated in a healing plan and cultural activities that were offered through Pathways. [171] An Assessment for Decision Report dated March 21, 2014, addressed Mr. Goodpipe’s plans for his next statutory release. The report noted that Mr.

Goodpipe had been an active member of the Native Syndicate but was now assessed as inactive by the security intelligence information. He remained in voluntary segregation. Mr. Goodpipe indicated that Regina was his preferred release destination and it was noted there was a positive community assessment on file of his parents, Rhonda McNabb and Eugene McNabb who were prepared to provide him with support on conditional release.

The Reginal Parole Correctional Intervention Board made referrals to the following programs: Community Maintenance Program as follow up to the Violence Prevention Program and Substance Abuse Issues; a referral by the aboriginal liaison officer to Aboriginal Ceremonies and Cultural Activities; and a referral to the community employment coordinator to provide assistance and support in Mr. Goodpipe’s efforts to obtaining employment. The report noted that Mr. Goodpipe did not appear to have made any significant effort to engage in aboriginal programming or activities across the term of his incarceration.

They noted the two elder assessment reports on file with the first one indicating Mr. Goodpipe indicating he refused to participate in the assessment process and the second report indicating that Mr. Goodpipe had made no effort to engage in aboriginal programming or activities. [ 47 ] Third, Mr. Goodpipe did not testify at the sentencing hearing and, as a result, we are left with only his history of refusals to participate in culturally based programming on the one hand, and his counsel’s suggestion during argument that Mr. Goodpipe’s view of such participation has changed on the other. I note that Dr.

Tomita reported on this issue by writing at paragraph 34 of his report that “it is difficult to determine at this juncture whether Mr. Goodpipe would be interested in Indigenous spiritual and cultural practice and Indigenously-oriented treatment as Mr. Goodpipe did not wish to talk about any future treatment needs”. Notwithstanding this, counsel invites the Court to take “judicial notice” of rather vaguely described “systemic factors” that are said to somehow explain away what Mr. Goodpipe represented to Dr. Tomita about his willingness to participate in programming.

We are asked to proceed on the basis that, despite what he said to Dr. Tomita, Mr. Goodpipe is in fact ready to engage with programming. I see no grounds for accepting this invitation. If Mr. Goodpipe wanted to contest what Dr. Tomita had reported, he should have taken the stand at the sentencing hearing. Accordingly, and in short, the record before the Court does not support the contention that Mr. Goodpipe is now prepared to participate in culturally based programming. [ 48 ] Fourth, and most importantly, I cannot accept the proposition that, if Mr.

Goodpipe did participate in culturally based programming, a different sentencing result would follow. The evidence before the Court does not indicate that such programming would reduce Mr. Goodpipe’s risk profile and thereby change the assessment of whether an indeterminate sentence is necessary. Dr. Tomita’s testimony is all that we have on this issue and he commented only very cautiously on the possible efficacy of such treatment. He wrote as follows at paragraph 34 of his report: An untested consideration for future treatment in Mr.

Goodpipe’s case is the degree to which he is interested and potentially treatable through programs and approaches that involved an Indigenous cultural and spiritual approach. … Accordingly, there is no evidentiary basis for concluding that the type of programming in which Mr. Goodpipe now says he is interested would allow for the management of the risk that he poses to the community. [ 49 ] In light of all of these considerations, I am not persuaded that the sentencing judge erred in sentencing Mr. Goodpipe to an indefinite term of incarceration. IV. CONCLUSION [ 50 ] I conclude that both Mr.

Goodpipe’s conviction appeal and his sentence appeal must be dismissed. “Richards C.J.S.” Richards C.J.S. I concur. “Schwann J.A.” Schwann J.A. I concur. “Barrington-Foote J.A.”

Barrington-Foote J.A.