R v Bird, 2021 SKCA 35

Restriction on Publication An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published. Court of Appeal for Saskatchewan Docket: CACR3002 Citation: R v Bird , 2021 SKCA 35 Date: 2021-03-09 Between: Linden David Jesse Bird Appellant And Her Majesty the Queen Respondent Before: Ottenbreit, Barrington-Foote and Tholl JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Ottenbreit In concurrence: The Honourable Mr. Justice Barrington-Foote The Honourable Mr.

Justice Tholl On appeal from: Provincial Court, Prince Albert Appeal heard: October 23, 2020 Counsel: Thomas P. Hynes for the Appellant Kelly L. Kaip for the Respondent Ottenbreit J.A. I. Introduction [ 1 ] Linden David Jesse Bird appeals the decision of the sentencing judge dated July 5, 2017, declaring him a dangerous offender under ss. 753(1) (a)(

i) and (ii) of the Criminal Code (as it then was). For the reasons hereinafter set forth, the appeal is allowed. II. Facts and Background [ 2 ] In February 2015, Mr. Bird was convicted after trial of sexual assault contrary to s. 271 of the Criminal Code . Following the conviction, the Crown applied to have Mr. Bird designated a dangerous offender under

Part XXIV of the Criminal Code . [ 3 ] In March of 2016, the sentencing judge found Mr. Bird to be a long-term offender: R v Jesse Bird , 2016 SKPC 37 [ First Designation Decision ] . He found that a pattern of offending justifying a dangerous offender designation had not been made out because Mr. Bird’s predicate offence of sexual assault was not similar in the manner or degree of violence with his other offences and because the pattern of offending identified by Dr. Shabehram Lohrasbe, the psychiatrist who assessed Mr. Bird, was overly generic. [ 4 ] In coming to his decision that Mr.

Bird was a long-term offender, the sentencing judge also expressly referenced and relied on R v Szostak , 2014 ONCA 15 , 118 OR (3d) 401 [ Szostak ] for the principle that, at the designation stage, offences need not be serial offences and an offender’s behaviour need not be intractable for a pattern of offending to be made out. However, he addressed Mr. Bird’s treatability and manageability in the community at the sentencing stage. He found on the evidence that, with treatment, the risk Mr. Bird presented could be reduced and that there was a reasonable likelihood of eventual control in the community.

Accordingly, he sentenced Mr. Bird to five years’ imprisonment less credit for time served, a ten-year long-term supervision order [LTSO] and ancillary orders related to firearms, DNA and the Sex Offender Information Registration Act , SC 2004, c 10 [determinate sentence]. [ 5 ] The Crown then appealed the First Designation Decision but, in so doing, did not take issue with the determinate sentence. [ 6 ] In April of 2017, this Court allowed the Crown’s appeal: R v Bird (10 April 2017) Regina, CACR2759 (Sask CA) [ Appeal Decision ].

This Court indicated that, in light of R v McCallum , 2016 SKCA 96 , 484 Sask R 175 [ McCallum ] , and R v Wilton , 2016 SKCA 131 [ Wilton ] – which were issued subsequent to the First Designation Decision – the sentencing judge’s expression of the legal requirements for a designation of dangerous offender based on a “pattern of repetitive behaviour” within the meaning of s. 753(1)(a)(

i) or a pattern of “persistent aggressive behaviour” within the meaning of s. 753(1)(a)(ii), constituted an error of law. In Wilton and McCallum , this Court found that, in order to establish the pattern referred to, it was not necessary that the offences be similar in nature or in kind, nor must the behaviour constituting the pattern arise under the same type of circumstances. [ 7 ] However, this Court determined that it could not make a determination regarding designation de novo and decide whether Mr. Bird was a dangerous offender because it was not clear that the sentencing judge had accepted Dr.

Lohrasbe’s evidence regarding the existence of a pattern or that he necessarily needed to do so. In the result, the Court determined there should be a new hearing so as to

permit a second analysis by the sentencing judge as to whether Mr. Bird met the requirements to be declared a dangerous offender. The sentencing judge was directed to consider Wilton and McCallum on the new hearing. A. Decision of the sentencing judge [ 8 ] The re-hearing proceeded before the same sentencing judge. No new evidence was presented. Counsels’ submissions were limited to the issue of whether the patterns of behaviour had been established and the legal error identified in the Appeal Decision . No submissions were made on the determinate sentence, nor was any issue taken with it.

After reserving his decision, the sentencing judge gave oral reasons finding Mr. Bird to be a dangerous offender on July 5, 2017 [ Second Designation Decision ]. [ 9 ] In the Second Designation Decision , the sentencing judge addressed the error identified by this Court in the Appeal Decision. After considering the principles set out in McCallum and Wilton , he stated: With respect to Section 753(1) (a)(i), I find this pattern is a pattern of aggressive behaviour showing a failure to restrain.

While stopping the offence once the victim’s screams shows some restraint, that restraint was in continuing the offence, not in restraining from committing in. I must also decide whether this pattern shows a likelihood of causing death or injury or inflicting severe psychological damage on victims through the -- through a future failure to restrain his behaviour. As I found in declaring Mr. Bird to be a long-term offender, I find there is a substantial likelihood of Mr. Bird reoffending.

In its recent decision in [ R v Montgrand , 2017 SKCA 49 , 352 CCC (3d) 485 ], our Court of Appeal stated the necessity of considering the connection between the pattern of behaviour and the likelihood of future death or injury to victims. I find that such likelihood of future injury is proven by Dr. Lohrasbe’s evidence of the risk of offending that Mr. Bird poses, the likely injuries that would result from future offences, and how this is consistent with the injuries and psychological damage caused through his prior offences. With respect to Section 753(1) (a)(ii), I find that Mr.

Bird’s offending and the current predicate offence are a pattern of persistent aggressive behaviour. In Montgrand , the Court of Appeal stressed the requirement to consider Mr. Bird’s or any offenders subjective mind -- subjective state of mind in determining whether he had a conscious, but uncaring, awareness of causing harms to other -- causing harm to others. Considering Mr. Bird’s actions in committing the sexual assault while intoxicated despite the victim’s resistance, a pattern consistent with his prior offences, together with Dr.

Lohrasbe’s opinion of deficient impulse control through recklessness, which I accept, that this is a pattern of deficient impulse control through recklessness exacerbated by addictions. Considering Mr. Bird’s lack of restraint while intoxicated, despite prior sentences where consequences to victims had been stressed and made aware of to Mr. Bird, I find this pattern shows a substantial indifference to the reasonably foreseeable consequences to others. In its disposition, the Court of Appeal indicated that the Crown took no issue with the determination -- with the determinate sentence that was imposed.

Of course, Section 753(4.1) of the Criminal Code requires that I impose an indeterminate sentence unless I find there is a reasonable expectation that a lesser sentence will adequately protect the public against Mr. Bird committing a murder or a serious personal injury offence. In this -​- in my sentencing decision at paragraphs 33 through 38, I concluded for the reasons stated that there is a reasonable likelihood of eventual control in the community.

Given this finding, I conclude that a determinate sentence of five years plus credit of 33 months for -​- of time served, leaving a sentence of 27 months from March 14th, 2016 is the appropriate sentence to impose, and that sentence is now confirmed. That sentence will be followed, as I indicated in March of 2016, by a long-term supervision order of ten years, which I find will adequately protect the public for the same reasons I considered in paragraphs 40 to 46 of my prior sentencing decision. I find this is further supported by defence counsel’s indication that Mr.

Bird continues to have community support and has taken programming since commencing his sentence. [ 10 ] There was no mention of Szostak by the sentencing judge. He also did not conduct any further analysis of Mr. Bird’s treatability or manageability or undertake a new examination of whether Mr. Bird’s conduct was intractable to treatment during his consideration of the proper designation. It was, however, obvious by his reference to paragraphs 33 through 38 of the First Designation Decision that the sentencing judge considered treatability of Mr.

Bird as part of his analysis regarding the appropriate sentence and that he maintained his previous conclusion that there was a reasonable likelihood of eventual control of Mr. Bird’s behaviour in the community. On that basis, he imposed the same determinate sentence. [ 11 ] In August of 2017, Mr. Bird appealed the Second Designation Decision . [ 12 ] In December of 2017, the Supreme Court of Canada issued its decision in R v Boutilier , 2017 SCC 64 , [2017] 2 SCR 936 [ Boutilier ] .

Boutilier expressly overruled Szostak , holding that a sentencing judge must consider treatability and intractability at the designation stage of a dangerous offender hearing and that the failure to do so was an error of law. III. Issues [ 13 ] The issues in this appeal concern whether Mr. Bird’s designation as a dangerous offender runs afoul of the principles in Boutilier set forth above. These issues may be stated as follows: (

a) Did the sentencing judge err in failing to consider Mr. Bird’s treatability and manageability as part of the designation stage? (

b) If the sentencing judge erred, what is the remedy?

IV. Analysis A. Did the sentencing judge err in failing to consider Mr. Bird’s treatabilityand manageability as part of the designation stage? [14] Mr. Bird argues that, when the Second Designation Decision is seen in the light of Boutilier, the sentencing judge’s designationof him as a dangerous offender was in error and therefore it should be set aside.

He submits the sentencing judge only considered histreatability at the penalty stage and not at the designation stage, pointing in particular to the following portion of the transcript: … Of course, Section 753(4.1) of the Criminal Code requires that I impose an indeterminate sentence unless I find there is a reasonableexpectation that a lesser sentence will adequately protect the public against Mr. Bird committing a murder or a serious personal injuryoffence.

In this -- in my sentencing decision at paragraphs 33 through 38, I concluded for the reasons stated that there is a reasonablelikelihood of eventual control in the community. Given this finding, I conclude that a determinate sentence of five years plus credit of 33months for -- of time served, leaving a sentence of 27 months from March 14th, 2016 is the appropriate sentence to impose, and thatsentence is now confirmed. [15] The Crown avoids directly addressing the issue of whether the sentencing judge’s reasons contain an error because there wasno analysis of Mr.

Bird’s treatability and manageability at the designation stage. Instead, it argues that there is no error at all arising fromthe application of Boutilier because, in that case, the trial judge erroneously instructed himself that he could not consider the offender’streatment prospects whereas, in this case, there was no such erroneous self-instruction. It submits that the sentencing judge correctly askedhimself whether the Crown had proven all of the dangerous offender criteria beyond a reasonable doubt. [16] There is no merit to this submission.

The absence of an erroneous self-instruction regarding treatability and manageability atthe designation stage in the Second Designation Decision is not determinative. It is clear that, in his deliberations, the sentencing judgefocused on the error identified by this Court in the Appeal Decision.

However, it may be inferred that, in respect of other aspects of thedesignation consideration, he was content to rely on his previous analysis in the First Designation Decision, which did not include anexamination of the intractability issue at that stage. [17] A determination of whether the criteria for designation as a dangerous offender have been met requires a consideration of allthe criteria, based on the germane case law.

Admittedly, Boutilier had not yet been issued at the date of the Second Designation Decision,so it is understandable that the sentencing judge would not have been alerted to this criterion and development in the law. However, theSecond Designation Decision must now be scrutinized in light of Boutilier.

The governing law requires that the offender’s treatability andmanageability must be considered by the sentencing judge at the designation stage (Boutilier at paras 45 and 82). [18] Justice Côté, writing for the majority in Boutilier, explained: [27] … Before designating a dangerous offender, a sentencing judge must still be satisfied on the evidence that the offender poses ahigh likelihood of harmful recidivism and that his or her conduct is intractable. I understand “intractable” conduct as meaning behaviourthat the offender is unable to surmount.

Through these two criteria, Parliament requires sentencing judges to conduct a prospectiveassessment of dangerousness. [19] The principles in Boutilier have been reviewed and applied by this Court in a series of cases: R v Piche, 2019 SKCA 54, [2020]2 WWR 240 [Piche]; R v Parfitt, 2019 SKCA 55, 378 CCC (3d) 490 [Parfitt]; and R v Starblanket, 2019 SKCA 130, 378 CCC (3d) 490[Starblanket].

Those principles were summarized by Jackson J.A. in Parfitt (at paras 73–86) and in Starblanket, as follows: [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 a prospectiveassessment 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 the evidence 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 prospective inquiry intowhether 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] 2S.C.R. 368; R. v.

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

This is so because ‘as a matter ofpracticality, the most that can be established in a future context is a likelihood of certain events occurring’: Lyons, at p. 364” (at footnote 1;see also para 41); (e) “the sentencing judge must consider all retrospective and prospective evidence relating to the continuing nature of this risk, includingfuture 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 judge cannot conclude

beyond a reasonable doubt that they present a high likelihood of harmful recidivism or that their violent pattern is intractable” (at para 45). (Emphasis added) [ 20 ] Failure to consider evidence relevant to treatability and manageability at the designation stage is an error of law ( R v Skookum , 2018 YKCA 2 at para 58 , 45 CR (7th) 168 [ Skookum ] ). [ 21 ] In the Second Designation Decision , after determining that Mr.

Bird posed a high likelihood of harmful recidivism, the sentencing judge conducted no further examination of his treatability and manageability at the designation stage, although the issue was canvassed in regard to sentence as explained above. There was also no mention of treatability or manageability at the designation stage in the First Designation Decision and certainly no finding – either express or implicit – that Mr. Bird’s conduct was intractable. [ 22 ] In fact, the findings of the sentencing judge at the penalty phase, insofar as they concerned Mr.

Bird’s treatment and management in the community, demonstrate that his conduct was not intractable. I cannot say that if that finding would have been considered by the sentencing judge at the designation stage, it would not have had a material effect on the designation, even though he had also found the requisite patterns and behaviours under ss. 753(1)(a)(

i) and (ii). Moreover, there is no indication in either the First Designation Decision or the Second Designation Decision , based on the treatment prospects the sentencing judge did consider, that Mr. Bird’s future treatment prospects were adequately considered as required by Boutilier (at para 43 ). [ 23 ] The Crown argues that even if there was no consideration of treatability or intractability during the designation stage, such a failure does not amount to an error of law.

In support of its position, the Crown cites R v Wesley , 2018 ONCA 636 at paras 15–18 [ Wesley ] , and R v Gracie , 2019 ONCA 658 at paras 32–41 , 147 OR (3d) 385 [ Gracie ] . However, the Crown misinterprets these two cases. [ 24 ] In both cases, the Ontario Court of Appeal found the sentencing judge had erred in law by not considering intractability at the designation stage but nevertheless upheld the dangerous offender designation.

In Wesley , the court found that although the trial judge did not have the benefit of Boutilier when she imposed sentence, she made findings of fact with a solid basis in the evidence that brought the “case squarely within the categories of ‘intractability’ and a ‘high likelihood of recidivism’” (at para 17). In Gracie , the court determined that the sentencing judge had found that there was no reasonable prospect of control of the appellant in the community at the penalty stage and that the finding could be relied on at the designation stage.

The court also found that the evidence before the sentencing judge supporting a finding of intractability was overwhelming. In short, in both cases, the court, on assessing the evidence before the presiding judge, determined the error would not have had a material effect on the verdict because there was a solid basis for a finding of intractability at the designation stage.

I am unable to come to a similar decision here. [ 25 ] Considering the Second Designation Decision as a whole, I conclude the reasons and analysis of the sentencing judge contain an error in law because there was no consideration of treatability and manageability at the designation stage. Like in Parfitt , Piche and Skookum , that lacunae with respect to the applicable principles driving the designation analysis was fundamental.

Given such a consideration, the Crown cannot discharge its heavy onus of showing that there is no reasonable possibility the result would have been different had the errors not been made: R v Johnson , 2003 SCC 46 at paras 47–51 , [2003] 2 SCR 357 . [ 26 ] Accordingly, the designation of dangerous offender must be set aside. B. If the sentencing judge erred, what is the remedy? [ 27 ] Mr. Bird submits that, given the history of the proceedings and the evidence presented, the appropriate remedy would be to restore the First Designation Decision and affirm the determinate sentence. Mr. Bird argues that Dr.

Lohrasbe provided the opinion that he could undertake and internalize necessary programming in a couple of years. The doctor observed that Mr. Bird’s participation in treatment programs in the past made it clear that he was capable of engaging and participating in treatment. Dr. Lohrasbe stated that it was conceivable that repeating the violence prevention and substance abuse programs would help Mr. Bird consolidate and internalize the superficial benefits from his prior participation in these programs.

In short, he argues that the evidence before the sentencing judge was that his conduct was not intractable. [ 28 ] Mr. Bird notes this Court has discretion under s. 759(3)(

a) to fashion an appropriate remedy when allowing his appeal. This

section reads as follows: Disposition of appeal 759(3) The court of appeal may (

a) allow the appeal and (

i) find that an offender is or is not a dangerous offender or a long-term offender or impose a sentence that may be imposed or an order that may be made by the trial court under this Part, or (ii) order a new hearing, with any directions that the court considers appropriate[.] [ 29 ] Mr. Bird further submits that a new hearing is not necessary or in the interests of justice. He argues this Court can allow the appeal and properly substitute a finding of a long-term offender designation pursuant to s. 759(3) (a)(

i) of the Criminal Code , and affirm the determinate sentence imposed following the First Designation Decision . [ 30 ] He points to the following portions of Skookum to support his argument: [63] Second, I am of the view that ordering a new hearing would be unfair in this case. The Crown conceded in the court below that the appellant should not be sentenced to indeterminate incarceration because the evidence gave rise to a reasonable expectation that a determinate sentence and long-term supervision would adequately protect the public. The Crown did not base its concession on the

proposition that the appellant’s risk could be safely managed in the community in spite of the intractability of his violent conduct. Rather, the Crown made this concession because it was satisfied on the evidence that the appellant’s behaviour was not intractable – that he would benefit from the intensive treatment programs the CSC would make available to him and there was a reasonable expectation that the risk he poses to the public would thereby be dramatically reduced and manageable within the context of a determinate sentence and long-term supervision order.

In my view, it would be unfair to the appellant, and contrary to the interests of justice, to permit the Crown to take a contrary position on a new hearing. … [68] It is beyond dispute that the language of s. 759(3) (a)(

i) empowers this Court to set aside a dangerous offender designation and substitute a finding that the offender is a long-term offender. In my view, that is the appropriate remedy in this case. On the factual findings made by the judge, there can be no doubt that the appellant meets the criteria for designation as a long-term offender under s. 753.1. These factual findings are untainted by the errors in principle that relate to the dangerous offender designation. Counsel who acted for the appellant on the sentencing hearing conceded that the appellant met the criteria for a long-term offender designation.

In the result, I would find the appellant to be a long-term offender pursuant to s. 753.1 of the Code . (Emphasis added) [ 31 ] Mr. Bird submits that fairness considerations apply in this case, given the time his designation has been undetermined. He argues that a new hearing should not be ordered. I need not consider the issue of fairness in this case. [ 32 ] I nonetheless agree that a new hearing should not be ordered for the second reason referred to in Skookum , i.e., that s. 759(3) (a) (

i) allows this Court, when finding that an offender is or is not a dangerous or a long-term offender, to impose a sentence that may be imposed or an order that may be made by the trial court. This

section empowers this Court to set aside a dangerous offender designation and substitute a finding that the offender is a long-term offender. In my view, that is the appropriate remedy in this case, given the evidence before the sentencing judge. [ 33 ] On the findings made by the sentencing judge, Mr. Bird meets the criteria for designation as a long-term offender under s. 753.1.

On the evidence, he demonstrates a pattern of repetitive behaviour that shows a likelihood of him causing injury to other persons or inflicting severe psychological damage on other persons as described in s. 753.1(2)(b)(i). [ 34 ] The sentencing judge concluded in both the First Designation Decision and the Second Designation Decision that the evidence established a reasonable expectation that the risk Mr.

Bird posed to the community could be reduced through treatment intervention and managed adequately through the imposition of a determinate sentence and a long-term supervision order. [ 35 ] These findings amount to an acceptance by the sentencing judge that Mr. Bird’s conduct was not shown to be intractable and that he was sincere in his motivation for successful treatment. These findings are not vitiated by any error in law, either as a result of the application of Szostak or the failure to conduct the analysis required by Boutilier . As well, with respect to future manageability, Dr.

Lohrasbe indicated that a longer period of support and supervision with external guidance, support and monitoring will increase Mr. Bird’s prospects for risk management in the community. This meets the requirements set out in s. 753.1(1)(c). [ 36 ] That the other requirements of s. 753.1(1), i.e., the appropriateness of a sentence of two years or more and a substantial risk Mr. Bird will reoffend, have been met are clear from the record. [ 37 ] Applying the principles set out in Boutilier to the evidence in this case necessarily leads me to the conclusion that Mr.

Bird should not be designated a dangerous offender. The appropriate designation is long-term offender and I find him to be so. [ 38 ] The Crown does not challenge the determinate sentence and concedes it is appropriate. The sentencing judge found in the First Designation Decision that the appropriate sentence for Mr. Bird was more than two years of imprisonment and that there was a substantial likelihood of Mr. Bird reoffending, but there was a reasonable possibility of his eventual control in the community.

These findings were not altered by the Second Designation Decision , nor are they tainted by any legal error. Likewise, looking at the evidence as a whole, I am of the view that a determinate sentence and long-term supervision would adequately protect the public. [ 39 ] I find, given the foregoing, that the appropriate sentence for Mr. Bird is the determinate sentence of five years’ imprisonment less credit for time served, a ten-year LTSO and the aforementioned ancillary orders. V. CONCLUSION [ 40 ] The appeal is allowed. Mr.

Bird is designated a long-term offender and he will serve the determinate sentence described above. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A. I concur. “Tholl J.A.” Tholl J.A.