R v Ross, 2022 SKCA 149

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in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published.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: CACR3367 Citation: R v Ross , 2022 SKCA 149 Date: 2022-12-28 Between: Leonard Thomas Ross Appellant And His Majesty the King Respondent Before: Jackson, Caldwell and Tholl JJ.A. Disposition: Conviction appeal dismissed; sentence appeal allowed Written reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr.

Justice Tholl On appeal from: Provincial Court and 2020 SKPC 16 , La Ronge Appeal heard: May 16, 2022 Counsel: Brent Little for the Appellant Erin Bartsch for the Respondent Jackson J.A. I. Introduction [ 1 ] Leonard Thomas Ross was convicted of sexually assaulting I.R., contrary to s. 271 of the Criminal Code : R v Ross (20 November 2018) La Ronge, Provincial Court (Sask) [ Conviction Decision ]. After a hearing held under

Part XXIV – Dangerous Offenders and Long-term Offenders, the sentencing judge, who was also the trial judge, declared Mr. Ross a dangerous offender and imposed an indeterminate sentence upon him: R v Ross , 2020 SKPC 16 [ DO Decision ]. Mr. Ross appeals from his conviction, the dangerous offender designation, and his sentence. [ 2 ] For the reasons that follow, the conviction appeal is dismissed. In brief terms, the verdict is not unreasonable, which is the primary ground of appeal. [ 3 ] With respect to the sentence appeal, I have concluded there is no basis to disturb the judge’s decision to declare Mr.

Ross a dangerous offender. However, I do find that she erred by imposing an indeterminate sentence. I would set it aside and impose a determinate sentence of 10 years from the date of sentencing, to be followed by a 10-year, long-term supervision order. II. Conviction Appeal A. Overview of the charge and the evidence [ 4 ] The salient facts underlying the conviction may be briefly stated by summarizing the testimony of the only two witnesses: I.R., who was the complainant, and Cst.

Karol Szkwarek, the officer who interviewed I.R. on the day of the incident. [ 5 ] I.R. testified that, on June 10, 2015, she was walking by Mr. Ross’s home when he invited her into what she called his “shack” to consume a joint. He then asked her to sit beside him on the bed, which she did. She described what followed as the “bad incident” and the “rape incident”. She testified that she did not consent, but he kept on until she was able to throw him off her body by lifting her feet and hands. She described the following specific acts of a sexual nature: (

a) he grabbed her hands and pushed her onto her back on the bed; (

b) he held her hands beside her head with one of his hands and, while using his other hand, unbuttoned and unzipped her pants and removed them and her underwear; (

c) he tried to “get intimate” with her by “[f]eeling me up and trying to get me aroused” by touching her vagina and her breasts and “trying to spread my legs”; and (

d) he tried to put his penis in her vagina.

[6] I.R. described these additional discrete events: Mr. Ross hit her on the left side of her face, which left a bruise; and she got upand was able to partially dress, but he was “freaking out” and would not let her leave, so she sat on a chair and waited until she couldescape. At some point, she was able to leave the shack. I.R. said she could not put on her underwear as she left quickly. She described theunderwear as being bikini bottoms, which were brown in colour. Over the course of her testimony, she stated she saw a knife, which shethrew out the window.

She testified that when she left, she ran to see her probation officer, and, from there, they went to the police station. [7] As her testimony in cross-examination progressed, it became apparent that I.R. had not told the police about the presence ofthe knife or that the two of them had been consuming cannabis. She also gave inconsistent answers as to when and whether she hadexpressly told Mr. Ross she did not want to have sex with him. [8] Constable Szkwarek said that after he received I.R.’s statement, he went to Mr.

Ross’s home and, in due course, arrested him.With respect to the evidence gathered from the shack, he testified that he seized a pair of brown bikini bottoms. In cross-examination,Cst. Szkwarek advised that he could not recall a knife being discussed or that a joint had been smoked. He also confirmed that the policedid not take any pictures of I.R. B. Reasons for conviction [9] The judge’s review of the law and the evidence culminated in these conclusions (Conviction Decision): As I said, Mr. Ross did not testify.

However, I still consider the evidence as a whole to determine if there is evidence as to whether theaccused took reasonable steps to determine if the complainant was consenting. I find that at no point did the complainant indicate she wasinterested in having sex with Mr. Ross, or consenting to such sexual activity. Although he tried to convince her initially, it did not work.When his talk failed to convince her, I find he resorted to forceable sexual activity by pushing her back on the bed and holding her hands.He then took off her pants and panties.

He touched her breast under -- breasts under her clothing with his hands and her bare vagina withhis hands. He attempted intercourse by laying on top of her and trying to push his penis into her vagina and trying to spread her legs. Shewould not let him spread her legs, and despite his efforts, he did not have sexual intercourse with her. She was able to push him off andleave the residence.

I find that [on] all of the evidence, the Crown has proven beyond a reasonable doubt, and I am satisfied beyond a reasonable doubt thatLeonard Ross sexually assaulted the complainant and I find him guilty of the offence, contrary to s. 271 of the Criminal Code. [10] I will review the judge’s reasons in greater detail in the context of the issues raised by Mr. Ross regarding his convictionappeal. C. Conviction ground of appeal [11] Mr.

Ross submits that his appeal should be allowed because I.R.’s evidence “was vague, inconsistent, and lacking in sufficientdetail to support a conviction for sexual assault pursuant to

section 271 of the Criminal Code”. His principal complaint is that I.R. seemedto give three versions of what happened: a version before the morning break and one after the morning break and a third during cross-examination. For example, she did not initially mention the knife, and her answers varied as to when she threw the knife out the window.In the first part of her narrative, she did not indicate that Mr. Ross was naked or that there had been any sexual touching. It was onlythrough questioning that these details were provided.

She admitted in cross-examination that she did not actually use words indicating shewas not consenting. After the morning break, I.R. indicated Mr. Ross hit her, and, this time, when recounting what had happened, she didnot mention the knife. During cross-examination, I.R. said she got rid of the knife when, at some point, Mr. Ross left to go to thebathroom, which contradicted her earlier testimony. [12] In light of these aspects of I.R.’s testimony, Mr. Ross maintains that the judge erred by finding I.R. to be credible and reliable.With this argument, Mr. Ross invokes the Court’s power provided by s. 686(1)(a)(

i) of the Criminal Code. Under that section, a court ofappeal may allow an appeal where it is of the opinion that “the verdict should be set aside on the ground that it is unreasonable or cannotbe supported by the evidence”. [13] Mr. Ross does not challenge his conviction on the basis that it is unsupported by the evidence. The conviction is supported byI.R.’s evidence if that evidence is believed. Rather, Mr.

Ross says the conviction is unreasonable because the complainant’s testimonywas replete with inconsistencies, which he has identified as above, and should have resulted in an acquittal based on reasonable doubt. D. Analysis of the conviction appeal [14] With these arguments, Mr.

Ross correctly refers the Court to the line of authority that includes R v Yebes, (SCC), [1987] 2 SCR 168, R v Burke, (SCC), [1996] 1 SCR 474 at para 7, and R v Biniaris, 2000 SCC 15 at para 36,[2000] 1 SCR 381, as setting the standard of review to apply: “the test is ‘whether the verdict is one that a properly instructed jury actingjudicially, could reasonably have rendered’” (Yebes at 179–180, citing R v Corbett, (SCC), [1975] 2 SCR 275 at 282).This line of authority includes R v François, (SCC), [1994] 2 SCR 827, and R v W.H., 2013 SCC 22, [2013] 2 SCR 180. [15] François remains the leading Supreme Court decision with respect to appellate review where a verdict is said to beunreasonable because of inconsistencies in witness testimony, both in terms of its statement of the principles to apply and with respect totheir application.

In François, the complainant provided what appeared to be conflicting versions about what had happened to her. Shealso gave different answers at the trial than she had given either to the police or at the preliminary inquiry with respect to the number oftimes she had been assaulted. The answers varied from 3 assaults, which is what she told the police, to between 10 and 20 assaults, whichwas her testimony at the trial. She did, however, provide an explanation as to why she had previously lied and why her testimony varied asto the number of assaults. [16] In sustaining the conviction of Mr.

François, McLachlin J., as she then was, wrote as follows (at 836–837):

The reasoning here is that the witness may not have been telling the truth for a variety of reasons, whether because of inconsistencies inthe witness’s stories at different times, because certain facts may have been suggested to her, or because she may have had reason toconcoct her accusations.

In the end, the jury must decide whether, despite such factors, it believes the witness’s story, in whole or in part.That determination turns not only upon such factors as the assessment of the significance of any alleged inconsistencies or motives forconcoction, which may be susceptible of reasoned review by a court of appeal, but on the demeanour of the witness and the commonsense of the jury, which cannot be assessed by the court of appeal.

The latter domain is the “advantage” possessed by the trier of fact, be itjudge or jury, which the court of appeal does not possess and which the court of appeal must bear in mind in deciding whether the verdictis unreasonable: R. v. W.(R.), [ (SCC), [1992] 2 SCR 122]. In considering the reasonableness of the jury’s verdict, the court of appeal must also keep in mind the fact that the jury may reasonablyand lawfully deal with inconsistencies and motive to concoct, in a variety of ways. The jury may reject the witness’s evidence in itsentirety.

Or the jury may accept the witness’s explanations for the apparent inconsistencies and the witness’s denial that her testimonywas provoked by improper pressures or from improper motives. Finally, the jury may accept some of the witness’s evidence whilerejecting other parts of it; juries are routinely charged that they may accept all of the evidence, some of the evidence, or none of theevidence of each witness. It follows that we cannot infer from the mere presence of contradictory details or motives to concoct that thejury’s verdict is unreasonable.

A verdict of guilty based on such evidence may very well be both reasonable and lawful. A final factor which the court of appeal reviewing for unreasonableness must keep in mind, is that the jury may bring to the difficultbusiness of determining where the truth lies special qualities which appellate courts may not share. This most certainly applies to sexualoffences. (Emphasis added) [17] In applying these principles in François, McLachlin J. wrote the following (at 839–840): The important point is this. The complainant offered an explanation for each of the alleged inconsistencies.

It was open to the jury toaccept those explanations. If they did, the inconsistencies lost their power to raise a reasonable doubt with respect to the accused’s guilt.The explanations provided a means of reasonably resolving such doubt as may have been created by the inconsistencies themselves. Itwas for the jury to weigh both the significance of the alleged contradictions and whether such significance as they might have, had beenneutralized by explanations as to why they occurred. The jury might have concluded that the contradictions were significant and had notbeen neutralized by the proffered explanations.

That result would have been reasonable. But it was equally open to the jury to concludethat the alleged contradictions had been neutralized by the explanations.

That alternative too was “reasonable”. (Italicized emphasis in original, underlined emphasis added) (See also R v Solivio, 2022 SKCA 117 at paras 23–28 and 41–42, for a recent analysis of François in the context of children’s evidence.) [18] While the trier of fact in François was a jury, the same general principles are applied when an appellate court reviews thefindings of credibility of a trial judge: R v R.D.A., 2015 SKCA 100 at para 6, 465 Sask R 313, leave to appeal to SCC refused,, and R v Leroux, 2015 SKCA 48 at para 38, [2015] 9 WWR 709.

There is, however, the added advantage in that judgesgive reasons, and, in this case, the judge comprehensively detailed why she believed I.R. and why the inconsistencies in her testimony didnot affect either her credibility or the reliability of her testimony. [19] The judge was clearly aware of what Mr. Ross characterizes as contradictions.

While the entirety of the judge’s decision couldbe referenced in support of this proposition, it is sufficient to quote these paragraphs (Conviction Decision): During her evidence-in-chief, she mentioned that when she first went into the shack and was sitting on the bed, she felt around and found a“rusty old ugly knife” under the pillow on the bed, so she threw it out a hole in the window. In cross-examination, the complainant agreedshe did not tell the police about the joint. She denied telling the police she was rolling a tobacco cigarette.

The police officer testified shedid not mention smoking a joint, but said she rolled a cigarette. I find nothing turns on this. From the complainant’s reaction to thequestion about the joint, it was apparent she did not tell the police about the joint because it was illegal and she was not going to mentionit. With respect to the knife, the police officer testified he did not recall a knife being discussed. The complainant agreed in cross-examination that she did not tell the police about the knife. She said she was scared of the knife, and that is why she got rid of it whenMr. Ross went to the bathroom.

When asked why she didn’t tell the police, she said, I didn’t really tell them, because he did not use it. Thisexplanation makes sense to me. … It also came out in cross-examination that Mr. Ross left the shack to go outside to use the bathroom. Defence counsel asked if she recalledhim getting mad when he came back in, because she was going through his stuff. She responded that she was not going through his stuffand was just sitting there. When asked if he didn’t kick her out for that, she said, Yeah, right, not even.

I accept her evidence that she wasnot going through his stuff and was not kicked out for that reason. … The complainant said also that she had a bruise from being slapped by Mr. Ross, but the officer did not observe it. I find nothing turns onthis, as the complainant did not give any indication of the size or colour of the bruise, or the amount of force used, and it may not havemanifested itself when she saw the police that same day. On all of the evidence, I find the Crown has proven beyond a reasonable doubt,the actus reus of the offence.

There was a touching of a sexual nature, which was voluntarily done by Mr. Ross, and there was an absenceof consent by the complainant at the time of the touching. I accept the complainant’s evidence that she was not drinking that date, andwhile she was capable of consenting, she did not consent to the sexual activity. [20] To paraphrase François, an appellate court cannot infer from the mere presence of contradictory details that a verdict isunreasonable. It is rather first and foremost for the trial judge to weigh the significance of any alleged inconsistency and the explanationfor it.

In this case, the judge discarded certain factual matters as being insignificant. For example, the date and time were of no importance.

After the police officer testified, the when had been proven. Similarly, what Mr. Ross wore at each point of the encounter was of little import. The judge said, “Initially, [I.R.] could not recall what Mr. Ross was wearing, but later in her evidence, said that he had on jeans and a t-shirt and socks when she saw him outside”, and later “She could see his underwear, or as she described it, his gitchy shorts” and that “he took off his pants before he took hers off”. [ 21 ] There is another aspect to all of this, which emphasizes more than usually the special position of the judge as the trier of fact.

I.R.’s cognitive challenges would not be readily apparent to an appellate court that looks only at the words of the page, but it was a factor that the judge had to consider when assessing I.R.’s testimony. How the evidence was presented was as much a factor as the testimony itself.

The complainant explained to the satisfaction of the judge why, at critical junctions, she did not tell the police officer about certain matters and why her testimony on the question of consent changed during the trial: see R v Figg , 2022 NBCA 30 at paras 22–29 . [ 22 ] The judge identified the important details that had to be addressed in the context of this case: (

a) whether I.R. consented to having sexual relations with Mr. Ross; (

b) whether there was a knife and what had happened to it and why I.R. did not tell the police about it; and (

c) whether Mr. Ross struck her and why, if he did, the police did not see a bruise. [ 23 ] I will now review I.R.’s evidence regarding each of the above points. (

a) Consent [ 24 ] The principal matter that requires separate consideration is how the judge resolved I.R.’s testimony as to consent. The judge said as follows: As well, in cross-examination, the complainant agreed with defence counsel that contrary to her examination-in-chief, she did not say to Mr. Ross, no, or stop, or don’t do this. She was asked if she didn’t say this to Mr. Ross, because she was feeling all gross. She said, No, scared.

She was then asked if she didn’t say anything to Leonard, because she was scared, and she responded, Yes. … I find they had a discussion about having sex, but she was not a willing partner. While it may be said that initially, Mr. Ross took steps to ascertain that the complainant was consenting, given what appears to be a fairly lengthy conversation about having sex, I find that I accept that her evidence, that it was Mr. Ross who wanted to have sex with her, but she did not want to. As noted in Kishayinew [2017 SKQB 177] at paragraph 68, there’s no such thing as implied consent.

Even if the complainant did not verbally tell Mr. Ross no or to stop, that does not translate into consent. [ 25 ] I.R. admitted she had not told Mr. Ross, “No”, and that she did not do so because she was scared. The judge accepted this evidence and concluded that she never verbally said she did not consent, but nonetheless the judge inferred from all of the evidence consent had not been given. This was made manifest by I.R.’s evidence that she had extricated herself by throwing Mr.

Ross to the floor. [ 26 ] In these paragraphs, read in context, the judge concluded that I.R. had not consented to sexual intercourse or activity. (

b) The knife [ 27 ] With respect to the knife, the judge noted that I.R. testified she did not tell the police about the knife “because [Mr. Ross] did not use it”. The judge said this explanation made sense. It is at this point in her reasons that the judge described I.R.: “The complainant is a 39-year-old woman with less than a grade 8 education who requires the assistance of a guardian to help her manage her finances and get groceries. She’s a very unsophisticated woman. Her responses to questions involved gestures and very simple phrases and words”. (

c) The bruise [ 28 ] Regarding the bruise and that the police saw nothing that merited taking a photograph, the judge found little turned on this “as the complainant did not give any indication of the size or colour of the bruise, or the amount of force used, and it may not have manifested itself when she saw the police that same day”. [ 29 ] As in François , I.R. testified with respect to each of these matters, and the trial judge accepted what she said. Obviously, it was open to her to do so. E. Conclusion on the conviction appeal [ 30 ] In

summary, the appeal from conviction is dismissed. Courts of appeal always retain the right of review, even with respect to credibility and its high standard of review of palpable and overriding error. However, there is no basis here to question the judge’s findings of credibility and reliability, notwithstanding the seeming inconsistencies in the complainant’s testimony. [ 31 ] It is this conviction that constitutes the predicate offence which resulted in the dangerous offender proceedings being brought against Mr. Ross. That brings us to Mr.

Ross’s appeal from his dangerous offender designation and his indeterminate sentence. III. The Dangerous Offender Hearing [ 32 ] At sentencing, the Crown applied to have Mr. Ross designated as a dangerous offender and sentenced to an indeterminate

period of incarceration under

Part XXIV of the Criminal Code .

Part XXIV pertains to dangerous offender and long-term offender proceedings. Sections 752 to 753 list the essential provisions. Section 753(1) states the requirements that must be met before a court can designate an offender as dangerous. Sections 753(4) and 753(4.1) relate to sentencing. As such, dangerous offender proceedings are often described as a two-stage process: the designation stage and the penalty stage. [ 33 ] The judge found that Mr. Ross met the criteria set out in s. 753(1)(a) (involving violent offences) and s. 753(1)(b) (involving sexual offences).

She found his behaviour was intractable and, as a consequence, declared Mr. Ross to be a dangerous offender. She then went on to impose an indeterminate sentence. Her reasons for doing so will be reviewed below in the context of the various grounds of appeal. [ 34 ] Before proceeding to address the issues, I will provide some detail regarding Mr. Ross and then I will briefly review the evidence of the court’s expert witness, Dr. Shabehram Lohrasbe. After that, I will state Mr.

Ross’s grounds of appeal before considering his appeal from the dangerous offender designation and the indeterminate sentence imposed upon him. A. Mr. Ross’s background 1. Mr. Ross’s childhood [ 35 ] This

summary is taken from the judge’s reasons and Dr. Lohrasbe’s 2019 psychiatric assessment [Lohrasbe Report]. [ 36 ] Mr. Ross, who was born in 1966, is a treaty member of the Lac La Ronge Indian Band. He was born into a dysfunctional home plagued by alcoholism and violence. His mother was a residential school survivor, and his father played no role in his childhood. Mr. Ross was apprehended as a baby and again as a young child and was placed in foster homes, where he was abused sexually and emotionally. From the age of 4 until 12 years, he had no contact with his birth mother.

His longest placement in a foster home was four years but none of the other arrangements lasted more than a year. [ 37 ] At the age of 12, Mr. Ross made a serious attempt at suicide, which prompted his return to his mother, where she continued to abuse alcohol and inflict violence upon him. It was then that Mr. Ross began to sniff gasoline, which he did for about a year. Encounters with the justice system ensued, and Mr. Ross spent two years in a boy’s camp, following which he was returned to his mother’s home.

Then, as a result of various behavioural issues, he was placed by the La Ronge Indian Band at the Prince Albert Residence, where he was, again, sexually abused. [ 38 ] As Dr. Lohrasbe outlined in his report, Mr. Ross’s life has been characterized by significant trauma stemming, in no small part, from serious neglect and abuse and an almost complete lack of meaningful affection during his formative years. 2. Record of offences [ 39 ] Mr. Ross’s criminal behaviour began in earnest in 1982 when he was 16.

In the beginning, his offences were mostly of a property nature, but, in 1985, he was convicted of one count of assault causing bodily harm, for which he received a sentence of one year of imprisonment, and one assault for which he received a sentence of four months’ consecutive. The assault causing bodily harm was particularly egregious as it was carried out against his baby son. When the child would not stop crying, Mr. Ross assaulted him repeatedly and, when the mother intervened, he assaulted her too. [ 40 ] In 1993, Mr.

Ross was before the courts four times, and on each occasion he was convicted of several offences, including assaults and other offences, such as uttering threats, with sentences varying in severity from a suspended sentence and one year of probation for the first set and a six-month custodial sentence for the last group of offences. [ 41 ] Then in 1994, he committed two sexual assaults, for which he received consecutive sentences of two and four years. The first offence is described in the court record as follows: Facts: Ross was at the home of F.H. drinking with two other females.

Georgina Sanderson (Sanderson) and Pearl Ross (Pearl). F.H. went to bed early as she had consumed a large amount of alcohol. Pearl helped F.H. into bed and Sanderson and Pearl left to get more alcohol, leaving Ross in the home with F.H. Sanderson returned approximately 10 minutes later to find the door to F.H.’s bedroom closed. She kicked the door open to find Ross on top of F.H., having sex with her while she was unconscious. Ross had his pants down, had taken F.H.’s pants and underwear off, and pushed F.H.’s shirt up past her breasts.

She asked him “what the fuck did you do to my friend?” Ross told her to get out, and she left the house again. Pearl arrived back at the house and the two women entered the home to find Ross sitting in the main room fully clothed. When they confronted him, he denied assaulting F.H. and became physically violent with both Sanderson and Pearl. F.H. suffered some minor bruising to her stomach area.

It is important to note that F.H. is Ross’s first cousin. [ 42 ] Five weeks later, he committed his second sexual assault on another female relative (as taken from the Court file): Facts: M.C. was at a party with friends and Ross asked M.C. to go with him to get more beer for the party. Ross suggested they take the back road to the bar. M.C. was reluctant and stated that she did not want to stumble and fall due to being slightly intoxicated, but Ross convinced her to go that way and said that she could hold onto him while they walked so she would not fall.

After walking a little while, Ross stated that he had to use the washroom and stepped off the path a bit out of view. When he returned to M.C., he pushed her until she fell to the ground. He asked her if he could make love to her and she said no. He then started to get violent and she began to cry. He sat on her chest and pinned her to the ground. She asked him how he could do this to her as they were related. Ross then began choking M.C. into submission and told her to take her pants off. M.C. started blacking out and started removing her pants out of fear. He forced M.C. to have sexual intercourse with him.

When he was done, he got up and pulled his pants up, telling her to do the same. He stated, “I’m not finished with you yet” and they walked to the bar. M.C. stayed with him out of fear until she met a friend at the bar. While at the bar, Ross “head butted” M.C. and told her to tell her friend that he was her “old man”. She eventually left with her friend and was able to get away from Ross.

[ 43 ] In 2000, while on statutory release for the above two offences, Mr. Ross committed another sexual assault on his 16-year-old cousin. He received another four-year sentence on this occasion. The facts are outlined in the record: Facts: K.C. was only 16 years of age at the time of the offence. Ross and K.C. were at a house party and discussed tattoos. K.C. told him she wanted a tattoo on her back and Ross told K.C. that if she wanted a tattoo, he would have to sketch it first. He took her into a bedroom where he asked her to take off her clothes.

K.C. said no, but Ross persisted; stating it would be easier to sketch the tattoo if she were to remove her shirt. K.C. told Ross to “forget it” and Ross began to touch K.C. on her breasts and vagina. K.C. tried to leave the room but Ross would not allow her to leave. Ross then began pushing his right hand down the front of K.C.’s pants and continued to touch her breasts. As Ross touched her breasts, he attempted to undo her pants. K.C. buttoned her pants back up which made Ross angry, so he punched her in the mouth with a closed fist.

Ross left the room, and told K.C. that she “better stay put as he would be right back”. In fear of being assaulted again, K.C. climbed out of the bedroom window and ran to another residence. Ross was on statutory release at the time of the offence. Mr. Ross was released at the three-year point in the above sentence, but he was recommitted as a statutory release violator. [ 44 ] In 2006, Mr. Ross was convicted of one count of assault on his common law wife and another on his sister. He punched his wife approximately three times, causing a black eye.

When his sister attempted to intervene, he kicked her in the face, causing her nose to bleed. He was sentenced to two year’s incarceration for both offences. While serving this sentence, he was released several times, only to breach his reporting or other conditions and to be re-incarcerated. His 2006 offence was his last offence of violence, until the predicate offence. [ 45 ] Despite his history of sporadic, violent offending, Mr. Ross committed no violent offences after being released from the penitentiary for the above offences in 2009, until 2015, when the predicate offence occurred.

He was in and out of the correctional system on charges of breaching conditions or undertakings and failing to attend court, including violating the terms of his statutory release twice, but there are no other types of offences on his record during that time. [ 46 ] Between April of 2014 until June of 2015, there are no offences on Mr. Ross’s record. It is also true to say that he was not under a court order that could have resulted in any breaches of a systems nature during this period. [ 47 ] The date of the predicate offence is June 10, 2015. After being arrested, Mr.

Ross was held for approximately one year and then released. He remained in the community until 2017, when he again breached his terms by failing to report; at which point, he was reincarcerated. 3. Time in the penitentiary and correctional systems [ 48 ] Notwithstanding what can only be described as an unpredictable and troubling record of violence, Mr. Ross appears to have presented himself to a number of correctional officials and to Dr. Lohrasbe as a sympathetic individual. While there are some mixed reviews, for the most part, he does what is known as quiet time .

Indeed, Crown counsel at trial indicated that Mr. Ross is “a good inmate”. He is not a member of any gang, he does not possess or use weapons, and he does not make or consume alcohol or non-prescription drugs in the institution. Indeed, as Dr. Lohrasbe indicated, he is not prescribed and does not need any medications. [ 49 ] The issues for Mr. Ross are his alcohol addiction and his failure to comply with any conditions that seek to restrain or prohibit his alcohol consumption when he is in the community. For example, Tammy Davies, a 20-year parole officer with Corrections Service Canada, worked with Mr.

Ross from 2006 until 2009. She described Mr. Ross as always being “very polite and respectful” and “likeable” and “easy to work with”. She talked about his artwork: “It was very important to him. You could tell it meant a lot to him, that he wanted to share it with members of his case management team and -- and I knew that he did get paid for some of his work and it gave him a sense of -- of pride and self-worth”. It was her view in 2007 that “he can be managed in the community ultimately”.

She assessed him as presenting a low risk for general recidivism, violent recidivism, and sexual recidivism. [ 50 ] However, Ms. Davies also testified that Mr. Ross’s repeated failures to comply with release orders from 2007 to 2009 demonstrated that even though there was a lot of programming completed by Mr.

Ross, that he was not able to carry what he learned in the classroom and apply it to his life in the community, that he just wasn’t ready to internalize the skills and strategies he learned and to deal with the stresses of his life and he reverted back repeatedly to substance abuse and -- and just not abiding by the conditions of his release. 4. Mr. Ross’s artwork and living in the community [ 51 ] Mr. Ross’s home community is La Ronge. He resided there from 2009 when he was released from prison until he committed the predicate offence in 2015.

During this period, when he was not reincarcerated for breaching terms, he lived alternately with his mother and in the bush and engaged in trapping and fishing. [ 52 ] Mr. Ross has six children with whom he had little contact while they were growing up, but by the time of the sentencing hearing, this seemed to be changing. He also maintains a close relationship with his current partner’s twin daughters. Mr. Ross’s former partner, whom he identified as his soulmate, passed away while he was incarcerated in 2015.

He stated that this had a significant effect on him. [ 53 ] At some point during his custodial history, Mr. Ross discovered he had a talent for drawing and painting. Christine MacDonald, manager of assessment and intervention at the Saskatchewan Federal Penitentiary, testified about a report she reviewed where Mr. Ross was referred to as “an exceptional artist whose work reflects much sensitivity and feeling”. In the main, his creative works depict Indigenous themes. He has been able to earn some money through the sale of his art, even while incarcerated, and often donates his work for charitable purposes. 5. Mr.

Ross’s testimony

[54] Mr. Ross testified about his experiences at home as a child, his circumstances in foster care and his ordeals in the residentialschool system. He described how he was neglected and rejected while growing up. With respect to his time with foster families, hetestified that “no child should have to go through any kind of foster homes like I did”, making specific mention of the “whipping, sexualassaults, threats, thrown in the corners, dark rooms, whipped with a belt”. He also discussed the impact of what happened to him as achild.

He explained his distrust in the authorities in this way: “It took away my trust of authorities, people around me”, and “It took meaway from my culture. I lost my Cree, my identity”. His memories cause him to feel ugly, unworthy and “not a person”. He described thebig role of alcoholism in his offending, which he agreed he had struggled with “throughout much of [his] life”. [55] With respect to his art, Mr. Ross described his drawing as a “healing mechanism” that takes “away all the bad, makes me feelgood”.

He recounted to the judge that when he was at the Stan Daniels Healing Center, a Métis-run facility in Edmonton, he was “onGlobal News, donating my artwork to Ronald MacDonald for [a] charity [auction]”. He showed his pictures to the judge who commentedon Mr. Ross’s obvious pride in what he has accomplished through art. B. Dr. Lohrasbe’s expert opinion evidence [56] Dr. Lohrasbe reviewed Mr. Ross’s history of violence with reference to a binder, which contained “previous convictionmaterials”. With respect to a formal diagnosis of mental illness, he found Mr.

Ross met the criteria for the diagnosis of antisocialpersonality disorder and substance abuse disorder, but no other disorders. He did not find “an established sexual deviancy such aspedophilia or sexual sadism” but opined that Mr. Ross’s “sexual violence is one aspect of antisociality, impulsivity, and lack of effectiveself-regulation manifesting in multiple contexts, including sexual ones” (Lohrasbe Report at 12). [57] The Lohrasbe Report noted the following risk factors for Mr.

Ross: (a) “Historical factors, such as adverse childhood developmental events, prior criminal and violent behaviours, and priorresponses to treatment and supervision” (at 13). (b) “Dispositional factors are resident in the individual and manifest over time; the range of habits of mind and action that shapepersonality” (at 13). He has established antisocial personality traits. (c) “Clinical factors … such as symptoms and dysfunctions related to abnormal mental functioning, substance abuse, andconflicted interpersonal functioning in the community” (at 13–14).

It is further noted, “Most obvious is acute substance abuse. At theimmediate or acute level, extreme intoxication can disinhibit pre-existing or reactive anger. Conflicted interpersonal functioning alsoappears to be an important risk factor. Among those who live marginal or antisocial lifestyles, substance abuse tends to go along with risk-enhancing relationships and situations, including conflicted intimate relationships” (at 14). (d) “Specific to his risk for sexual violence, the extended period of abstinence from sexual assault is a ‘double edged sword’.

Onthe one hand the long gap indicates his potential for desistance since there has not been the kind of unremitting sexual violence sometimesseen in sexual offenders. On the other hand, the return of sexual violence even after a long period of desistance indicates that at least someof the factors that have perpetuated sexual violence in the past persisted and were reignited under particular circumstances. Hence there isan unavoidable dilemma: a long gap between convictions for sexual violence and then an incident that cannot be explored with him toexplore currently relevant risk factors.

That gap in information, together with the longstanding and breadth of risk factors, his continuedprojection of responsibility on the victim, his resentment of direction and supervision, and his overall lack of insight, it is difficult to avoidthe conclusion that the forces that have driven his violence, including sexual violence, remain with him, and hence that his risk remainshigh” (emphasis added, at 14–15). [58] After identifying Mr. Ross’s risk factors, Dr. Lohrasbe’s report considered “several potential risk-reducing features” andexpanded on each of them (at 15): (

a) sobriety, (

b) aging, (

c) current sentencing proceedings, (

d) identity, (

e) treatment programs, and (f)risk management in the community. Dr. Lohrasbe offered the opinion that, taken together, these factors “suggest there is a reasonableprospect for significant reduction of risk in the foreseeable future” (at 15). In cross-examination, he confirmed that “Mr. Ross [is] able toovercome his antisocial personality disorder and his substance abuse disorder”. [59] In addition to risk reduction, Dr. Lohrasbe also offered the opinion about the manageability of Mr. Ross’s risk in thecommunity.

He testified as follows: “this man has enough strengths going for him that, given some tweaks in the treatment options madeavailable to him, which I’ve referenced a bit earlier, and I can expand on if you want, I don’t see any reason that his risk could not bereduced to the point where it could then be managed in the community”. [60] The judge did not accept either aspect of Dr. Lohrasbe’s opinion regarding risk reduction or risk management. IV. Grounds of Appeal: Dangerous Offender Designation [61] Mr. Ross’s grounds of appeal in relation to his dangerous offender designation may be summarized as follows: (

a) the judge failed to consider prospective factors when assessing whether his offending was intractable; and (

b) the judge erred by mischaracterizing the evidence in relation to aging in her intractability analysis. [62] His grounds of appeal in relation to the imposition of an indeterminate sentence may be restated as follows: (

a) the judge erred by not considering other sentencing factors beyond the protection of the public when sentencing him,specifically as it relates to the application of R v Gladue, (SCC), [1999] 1 SCR 688, and s. 718.2(

e) of the CriminalCode;

(

b) the judge erred by not considering a less restrictive sentence that would adequately protect the public before sentencing him to an indeterminate sentence; and (

c) the judge did not consider the question of intractability at the penalty stage of the proceedings. V. Appeal from the Dangerous Offender Designation and Indeterminate Sentence A. Dangerous offender designation 1. Legislative provisions at designation [ 63 ] The applicable parts of s. 752 and s. 753 are reproduced here:

Definitions 752 In this Part … serious personal injury offence means (

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

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

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

section 271 (sexual assault) … . … Application for finding that an offender is a dangerous offender 753(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied (

a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (

a) of the definition of that expression in

section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (

i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or (

b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (

b) of the definition of that expression in

section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses. 2.

Right of appeal [ 64 ] Section 759(1) provides the right of appeal by an offender of the dangerous offender designation: Appeal 759(1) An offender who is found to be a dangerous offender or a long-term offender may appeal to the court of appeal from a decision made under this Part on any ground of law or fact or mixed law and fact. 3. Standard of review re designation [ 65 ] A dangerous offender or long-term offender determination made under

Part XXIV of the Criminal Code is a finding of fact: R v

Currie, (SCC), [1997] 2 SCR 260 at para 44. In appeals against such a determination, absent an error of law, thestandard of appellate review is reasonableness: see Currie at paras 33–35. 4. Jurisprudential framework re designation [66] R v Boutilier, 2017 SCC 64, [2017] 2 SCR 936, is the leading authority with respect to

Part XXIV proceedings. It has beenanalyzed and applied in numerous decisions of this Court: R v Laprise, 2022 SKCA 77, [2022] 9 WWR 191; R v Toulejour, 2022 SKCA20; R v Potter, 2022 SKCA 14; R v Ballantyne, 2022 SKCA 13; R v St. Cyr, 2021 SKCA 169; R v Pelly, 2021 SKCA 50, 403 CCC (3d)127; R v Deckert, 2021 SKCA 49; R v Bird, 2021 SKCA 35, [2021] 5 WWR 441; R v Starblanket, 2019 SKCA 130, [2020] 6 WWR 288;R v Napope, 2019 SKCA 124; and R v Piche, 2019 SKCA 54, [2020] 2 WWR 240. Given this extensive jurisprudence, it is unnecessary toreview the whole of Boutilier.

Instead, I will refer to it when necessary to assess one or more of the aspects of Mr. Ross’s grounds ofappeal. 5. Reasons for designation [67] The judge’s reasons will be discussed in context. It is sufficient to note at this point that she did not accept all aspects ofDr. Lohrasbe’s opinion. She found that Mr. Ross’s substance abuse disorder was intractable. 6. Analysis in relation to designation [68] Mr. Ross submits that the judge committed two errors of principle, which he argues go to the heart of her decision declaringhim to be a dangerous offender and require it to be set aside: (

a) she misapprehended the evidence pertaining to aging; and (

b) she limited her analysis to retrospective factors, in spite of evidence before the court in relation to prospective treatmentoptions. [69] I will consider each of these issues separately. a. Effect of aging in the intractability analysis [70] Dr. Lohrasbe provided evidence regarding aging. He opined that, as a universal principle, a person’s offending declines withage, which means their risk diminishes as well. At the hearing, he offered these comments and opinions on the effect of aging, specificallyin relation to Mr. Ross: (

a) in examination-in-chief, Dr. Lohrasbe agreed with counsel that “statistical evidence indicates a well-established trend that ingeneral, aging leads to a decline in offending, in terms of both frequency and severity”; (

b) he also agreed that “this [decline in offending] seems to hold true according to the research, regardless of that offender’s risklevel”; (

c) he cautioned that “one of the … exceptions is people or offenders who routinely use handguns as part of their violence.Obviously not relevant here … so that’s one more reason not to see him as one of the likely exceptions”; (

d) he agreed that “there’s no reason to believe that aging might not lessen [Mr. Ross’s] risk”; (

e) Dr. Lohrasbe noted to Crown counsel that “there are a couple of things that give me good reason [to believe that Mr. Ross isnot an exception]. One is if he had, and he does not -- if he had a really high degree of psychopathy in him, for all the reasons that I can getinto, but are relevant in -- in this case. Psychopathy seems to resist more so than people who are just playing the antisocial or justbehaviourally antisocial. It’s not that psychopaths also don’t burn out, but they burn out later. And the other group is among sex offenders,those who are sadistic. Sadism seems to, in some, actually escalate.

Older sexual sadists can do more harm to their victims than youngersexual sadists. So there’s no reason to believe … he’s in those two broad categories”; (

f) he also said that “it’s certainly not uncommon for Indigenous offenders, as they age, to start finding more solace and comfortin their heritage. As it’s true for, I don’t know, Christian or any other individual where, you know, you are starting to see your morality.You’re starting to look at what gives you a sense of meaning, and often, in his case, for instance, if his artistic interests intersect with hisIndigenous heritage, I would expect that they will, sort of, boost each other up. So I grant that like most young people, he may have, sortof, dipped in and out. I would expect that to become more consistent as he ages”; and (

g) Dr. Lohrasbe further agreed in cross-examination to these propositions: “if [Mr. Ross] never changes his view on the justicesystem, that his risk, simply due to aging and the changes in his body, will continue to decrease”, “this change is, essentially, a natural andunconscious risk reduction”, and, because of the gaps in his record, “we might already be seeing some of the effects of age-related declineunderway in [Mr. Ross]”. [71] The judge did not give any weight to Dr. Lohrasbe’s opinion that Mr. Ross’s risk would decline with age.

After acknowledginghis testimony, she made these comments (DO Decision): [101] Aging is another factor that can reduce risk. Dr. Lohrasbe noted that it is expected that “with passing years his risk will decline” (T-Vol 3, p. 523). Dr. Lohrasbe noted in the Assessment at page 15, and in his evidence that statistically, the frequency and severity ofoffending decline as an offender ages, and that such a drop is usually around the age of 21 or 22 (T-Vol 3, p. 524). He testified that,“statistically it drops to zero when they’re 60 but obviously there are exceptions”.

He noted that there was no strong reason for him tothink Mr. Ross would be an exception (T-Vol 3, p. 537–538).

[102] With all respect, I disagree with Dr. Lohrasbe’s assessment in this regard. Mr. Ross has already defied the statistics that his offending behaviour will reduce as he ages . He has continued to commit violent offences well beyond the age of 21 or 22. His first convictions for violent offences were on July 31, 1985, for offences that occurred on July 23, 1985, when he was 19 years of age. This was the start of his violent offending and it has continued, as he aged, culminating with the predicate offence in June 2015 at age 49. I find that aging will have little to no impact on reducing Mr.

Ross’s future risk of reoffending violently or sexually. [103] Furthermore, Mr. Ross requires close, continual and life-long supervision. (Emphasis added) [ 72 ] As I read these reasons, the judge did not misapprehend the evidence and she did not overlook it. She reviewed it, but she did not accept that it would apply to Mr. Ross, because, at the age of 49, he committed yet another sexual assault. This was her prerogative; and, in the end, she gave little weight to this aspect of Dr. Lohrasbe’s opinion, preferring instead to make the finding in the last paragraph above that Mr.

Ross would require “close, continual and life-long supervision”. It is well established that a trier of fact is entitled to “accept all of the evidence, some of the evidence, or none of the evidence of each witness” ( François at 837). [ 73 ] Specifically, there is no law or principle that requires a judge deciding a dangerous offender application to give any particular weight to the effect of aging on risk or to accept the expert’s opinion that, statistically, it is not expected that the offender will be an exception to the norm in this regard.

Unlike with respect to the need to consider retrospective and prospective treatment options, which the law specifically requires, the effect of aging on whether an offender’s behaviour is intractable is a matter of evidence, which is left to the judge hearing the matter to weigh in context. [ 74 ] In short, I find that there is no basis to interfere with the judge’s decision not to accept the evidence on aging when determining whether Mr. Ross’s behaviour was intractable. To be clear, Mr. Ross does not challenge the judge’s decision to declare him a dangerous offender as being unreasonable. b.

Treatment options [ 75 ] As Boutilier directs, “the sentencing judge must consider all retrospective and prospective evidence relating to the continuing nature of this risk, including future treatment prospects” in order to determine “whether an offender will continue to be ‘a real and present danger’, being unable to surmount his or her violent conduct” as part of the assessment of prospective risk (at para 43). Thus, it would be an error in law if the judge had not considered evidence of prospective treatment options.

However, I am not satisfied that she made that error. [ 76 ] The judge instructed herself in Boutilier -like terms. She wrote as follows: [90] I must be satisfied the pattern of violent conduct is substantially or pathologically intractable. In other words, that the offender is unable to surmount their violent conduct. This involves a prospective assessment of risk and viability of future treatment .

The Crown must demonstrate intractability of the violent pattern of conduct ( Boutilier , para 26 ). [91] As stated in Boutilier , an offender should not be designated a dangerous offender if the future treatment prospects are so compelling that the offender can overcome those factors that lead to their risk. In his evidence, Dr. Lohrasbe testified that sobriety is the overriding issue for Mr. Ross. Further, he agreed that Mr. Ross will “need someone on him” for the rest of his life to remain sober (T-Vol 3, p. 521– 522). (Emphasis added) [ 77 ] With that as the backdrop, the judge proceeded to assess Mr.

Ross’s treatability. As the judge noted, “The primary risk factor for Mr. Ross is substance abuse, notably alcohol” (at para 87). The judge recounted Mr. Ross’s efforts to control his addiction in paragraphs 33 to 48. Clearly, Mr. Ross’s past attempts at overcoming his alcoholism have met with failure outside of the prison setting. As a general rule, Mr. Ross would show progress when in an institution but was unable to maintain sobriety in the community. The judge described what happened to Mr.

Ross upon his release in 2009 and again in the period between 2010 and 2014 and in 2017: [44] His sentence expired in June 2009, but his Institutional Parole Officer, Tammy Davies, testified that he had accomplished little.

She was of the opinion that while he had completed a lot of programs, “he was not able to carry what he learned in the classroom and apply it to his life in the community, that he just wasn’t ready to internalize the skills and strategies he learned and to deal with the stresses of his life and he reverted back repeatedly to substance abuse and – and just not abiding by the conditions of his release” (T-Vol 2, p. 325). [45] This is in line with the evidence of Mr. Ross as he testified that the programming he received worked, but everything went out the window when he was drinking (T-Vol 3, p. 438, L 1–20).

I also note that Dr. Lohrasbe observed at page 10 of the [Lohrasbe Report] that “Mr. Ross was generally dismissive and skeptical of the value of programs”. [46] Despite knowing that he will be returned to jail for non-compliance, Mr. Ross has, on multiple occasions, breached his release conditions and been held in custody for varying lengths of time between 2010 and 2014. … [49] A report prepared by Nancy Elder on September 11, 2019 (Exhibit P-5) provides information as to his performance during his current period of remand which began on March 17, 2017.

It notes he has access to programming and work placements, based on a tiered system employed for offenders in his unit: The subject has maintained short terms of employment as the Unit Domestic, however, he became frustrated and quit. Between 24-Apr- 2017 – 19-Oct-2017, the subject was employed as the Activities Helper, Recreation Assistant. This employment was sporadic, duties included assisting the Activities Coordinator in delivering canteen and recreation items such as board games to all units throughout the

centre. The subject spends the majority of his days completing his artwork. Over the past year, this writer has observed a decline in the subject’s attitude toward other inmates and Corrections Officers’ (silent treatment, argumentative). The subject displays no interest in attending programs and has not applied for programs available to him. He does appear interested in cultural activities when offered. The subject has also volunteered some of his artwork to the Be Real Gang Exit Strategy program within the centre. [ 78 ] That brings us to the judge’s findings on point. Specifically, with respect to s. 753(1)(a)(

i) and s. 753(1)(a)(ii) and the question of alcoholism, the judge made these findings: [95] Dr. Lohrasbe expanded upon this and noted that sobriety is the foundation to ensuring Mr. Ross does not reoffend in a sexual or violent manner. He said Mr. Ross must fully understand and commit to the fact that he must not ever again consume alcohol. He testified that the focus for Mr. Ross is on his behavioural commitment to self-control and sobriety. If he can do that, then everything else, including a trauma-approach to his childhood experience can proceed (T-Vol 3, p. 521). [96] Dr.

Lohrasbe was, in my opinion, overly optimistic about the prospects of Mr. Ross being able to maintain sobriety . While Mr. Ross has maintained sobriety in an institution, he immediately reverts to alcohol consumption upon his release. [97] Further, Mr. Ross has a deep mistrust of authority and the system in general. From his evidence and the Assessment, it is clear Mr. Ross trusts no one and listens to no one but himself. He is reluctant to follow through with any programing or reporting once he is back in the community.

This is reflected in the numerous entries in the Correctional Service of Canada records where Mr. Ross has been released on parole and, within days of release, absconds and is back to his old behavior of drinking alcohol and becoming intoxicated. Violence often follows hand in hand with his consumption of alcohol. [98] Mr. Ross has adopted this pattern for years. Most recently, on March 30, 2016, Mr. Ross, was released from custody when he entered into an undertaking with conditions. Those conditions included reporting to a probation officer. Mr.

Ross, no stranger to reporting conditions, failed to report as directed on April 6, 2016. He remained at large until his arrest in March 2017. Even when he was aware that he may be subject to a dangerous offender application by the Crown, as he has been for approximately 15 years, Mr. Ross chose to ignore lawfully imposed release conditions designed to secure his good behaviour. [99] While on remand during the past year awaiting trial and sentencing for the sexual assault on I.R., Mr.

Ross has not participated in programming available, or made efforts to pursue cultural activities to move forward on a healing plan. … [103] Furthermore, Mr. Ross requires close, continual and life-long supervision. Dr. Lohrasbe was optimistic that Mr. Ross’s risk to reoffend violently or sexually could be reduced in the community in the foreseeable future with the proper treatment plan. Self-awareness, sobriety and supervision are the path forward for Mr. Ross. [104] However, Dr. Lohrasbe was clear, that supervision is not be measured in years, but in a lifetime. Mr. Ross needs life-long supervision.

Nothing short of a life of supervision, designed to keep Mr. Ross “laser focused” on the path of sobriety, will keep the public safe from his violent and sexual offending behaviour. (Emphasis added) [ 79 ] When it came to s. 753(1)(b), and Mr. Ross’s risk to reoffend sexually, the judge was even more pointed in her conclusions: [117] I adopt my comments above concerning the treatment prospects and future reduction of his sexual offending behavior. Substance abuse is a huge impediment to Mr. Ross and his treatment program.

It is directly tied to his violent criminal offending behavior, generally and specifically to his sexually offending behavior . He will need “someone on him for life” in order to remain sober. He requires life-long supervision to effectively manage his risk in the community. [118] While I respect and accept Dr. Lohrasbe’s opinion on most issues, I find Mr. Ross’s prospects of successful treatment are illusory. [119] He has shown time and again that he prefers to run away from his problems.

He resents being told what to do by persons in authority, and has shown a long, continuous history of not complying with terms of release in the community while on parole or release conditions imposed by the court. He has been incarcerated for the majority of the last 38 years. His recent time from April 2016 to March 2017 as unlawfully at large is yet another example of Mr. Ross’s distain for authority, and being told what to do. [120] Considering all of the evidence, Mr.

Ross is one of that small group of offenders whose treatment prospects are not so compelling that he can overcome the factors that lead to his risk to reoffend violently or sexually. (Emphasis added) [ 80 ] Clearly, the judge looked to Mr. Ross’s past behaviour as a measure of weighing his ability to commit to sobriety and considered, as part of that analysis, whether he would be able to accept the necessary curbs on his behaviour. She found that he would not be successful in that endeavour.

In other words, she held that his substance abuse disorder, which is the root cause of his offending, is intractable. [ 81 ] However, I cannot say that she did not also consider Mr. Ross’s future treatment prospects as part of the analysis leading to that conclusion. Even Dr. Lohrasbe, who was optimistic about Mr. Ross being able to live peaceably in the community, was less certain about his ability to remain sober without ongoing help. [ 82 ] While the judge stated she was disagreeing with Dr. Lohrasbe regarding the intractability of Mr.

Ross’s substance abuse disorder, in my view, unlike with respect to the aging evidence, he expressed cautious optimism only. Dr. Lohrasbe testified that Mr. Ross

would be able to overcome his substance abuse disorder, but he also said that alcohol must be “completely off the table” and agreed that “he would also need a long period of support” to ensure that would happen. For Dr. Lohrasbe, treating Mr. Ross’s alcoholism is the critical missing piece. After testifying that Mr. Ross’s antisocial personality disorder could be mitigated, Dr. Lohrasbe was less definitive about the alcoholism: Q Sobriety is the number 1 thing with Mr. Ross? A Yes, and it is concrete.

So unlike personality, there’s not a lot of subtlety to this point and if -- if I was managing him, I would spend a lot of time bringing him onside that this is not negotiable, okay? This is -- this is black and white. You are never going to get high again in your life and most people will resist that, particularly if they’re coming from backgrounds where all they’ve known, in terms of their socializing, has been getting high. But he has had periods of sobriety.

He understands, in principle, that he -- his risk would drop like a stone if he were to never get high again, and part of my job as his therapist, if I was his therapist, is that we’re going to -- that is going to be front and centre and we’re not going to ignore all the other stuff that has to do with the pain that leads you to drink and all the people you have known to drink or use drugs, as the case may be. But we are going to start and remain very focused, like a laser, on the behavioural thing. You’re never going to have a beer again. You’re never going to smoke dope again. Do you get that? No, I don’t.

So we -- we’ll have to butt heads until we sort that out because quite literally, if I can’t get there with an offender, I’m not sure I’m willing to work with him. It is the linchpin of everything that comes. It’s that behavioural commitment to self control and if he can do that, everything else, including, kind of, a trauma-informed approach to the childhood experience, can proceed. But you need sobriety. [ 83 ] Reading the judge’s reasons as a whole, I cannot find that she made an error in law by not considering Mr. Ross’s future treatment prospects because she did in fact do so.

She just found them unlikely to be effective. She stated the law correctly, she made defensible findings of fact and concluded that his substance abuse disorder is intractable. [ 84 ] The question of intractability is inextricably linked to the reasonableness of Mr. Ross’s designation as a dangerous offender. Just as I would be unable to say that Mr. Ross’s designation is not unreasonable, I cannot say the judge’s determination of intractability is unreasonable. I find it is supported by Dr. Lohrasbe’s opinion. c. Conclusion on designation [ 85 ] Mr.

Ross’s appeal from the dangerous offender designation is dismissed. That brings us to the question of whether the judge erred by imposing an indeterminate sentence. B. Indeterminate sentence 1. Legislative provisions for sentencing [ 86 ] Section 753(4) and s. 753(4.1) describe the sentencing options available to a judge after declaring an offender dangerous: Sentence for dangerous offender 753(4) If the court finds an offender to be a dangerous offender, it shall (

a) impose a sentence of detention in a penitentiary for an indeterminate period; (

b) impose a sentence for the offence for which the offender has been convicted — which must be a minimum punishment of imprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or (

c) impose a sentence for the offence for which the offender has been convicted. Sentence of indeterminate detention

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(

b) or (

c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. 2. Jurisprudential framework for sentencing [ 87 ] The Supreme Court in Boutilier affirmed the principles derived originally from R v Johnson , 2003 SCC 46 at para 23 , [2003] 2 SCR 357, that “a sentencing judge in a dangerous offender proceeding must apply the sentencing principles and mandatory guidelines outlined in ss. 718 to 718.2 ” ( Boutilier at para 53 ). [ 88 ] Of particular importance to this appeal, Côté J., writing for the majority in Boutilier , also reaffirmed the importance of considering s. 718.2 (

d) and s. 718.2 (

e) when sentencing a dangerous offender. Those provisions read as follows: Other sentencing principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: …

(

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victimsor to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [89] Justice Côté described s. 718.2(

d) and s. 718.2(

e) as embodying the principle of restraint and, quoting from Johnson, noted thatthis principle dictates that “a judge ought to impose an indeterminate sentence only in those instances in which there does not exist lessrestrictive means by which to protect the public adequately from the threat of harm …” (Johnson at para 29). With specific reference to theplace of s. 718.2(

e) in the analysis, Côté J. commented as follows (Boutilier): [108] If the offender is an Indigenous person, Gladue principles are important in crafting a proportionate sentence. Indigenous persons aregreatly over-represented in prisons and especially in the dangerous offender population (Canada, Public Safety Canada PortfolioCorrections Statistics Committee, Corrections and Conditional Release Statistical Overview (2015 Annual Report), at p. 107). This Courthas recognized that racism, colonialism, and intergenerational trauma inform this disturbing statistic (R. v.

Williams, (SCC), [1998] 1 S.C.R. 1128, at para. 58; R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, at para. 65; Ipeelee, at para. 61).Through s. 718.2(

e) of the Criminal Code, Parliament has directed sentencing judges to pay particular attention to the circumstances ofIndigenous offenders. This recognizes that the systemic disadvantages and marginalization faced by Indigenous people inform moralblameworthiness and therefore the proportionality of sentences for Indigenous offenders (Ipeelee, at para. 73). In Gladue, this Courtinterpreted s. 718.2(

e) as requiring sentencing judges to consider the following principles in sentencing decisions for Indigenous offenders: (

A) The unique systemic or background factors which may have played a

part in bringing the particular aboriginal offender before thecourts; and (

B) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or herparticular aboriginal heritage or connection. [para. 66] (Emphasis added) 3. Standard of review for sentencing [90] In Boutilier, the Supreme Court reaffirmed that a sentence imposed under s. 753(4.1) is a sentence and is reviewable as such:

(1) The Sentencing Judge’s Discretion to Impose a Fit Sentence Under Section 753(4.1) [53] This Court has consistently affirmed that dangerous offender proceedings are sentencing proceedings: R. v. Steele, 2014 SCC 61,[2014] 3 S.C.R. 138, at para. 40; Jones, at pp. 279–80 and 294–95; Lyons, at p. 350. Accordingly, a sentencing judge in a dangerousoffender proceeding must apply the sentencing principles and mandatory guidelines outlined in ss. 718 to 718.2: R. v.

Johnson, 2003 SCC46, [2003] 2 S.C.R. 357, at para. 23; Neuberger [Assessing Dangerousness: Guide to the Dangerous Offender Application Process, loose-leaf (2017) (Toronto: Carswell, 2011)], at p. 3–4. These sections of the Criminal Code set out the purpose and objectives of sentencing(s. 718), the fundamental principle of proportionality (s. 718.1) — “the sine qua non of a just sanction” (R. v. Ipeelee, 2012 SCC 13,[2012] 1 S.C.R. 433, at para. 37) — and the other sentencing principles that a court “shall” consider before imposing any sentence on anoffender (s. 718.2).

An error in the application of these principles is reviewable by an appellate court: R. v. Lacasse, 2015 SCC 64, [2015]3 S.C.R. 1089. [91] The reference to R v Lacasse, 2015 SCC 64, [2015] 3 SCR 1089, takes one to this standard of review: “except where asentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary thesentence unless it is demonstrably unfit” (at para 11). 4. Reasons for imposing an indeterminate sentence [92] The entirety of the judge’s reasons for imposing an indeterminate sentence is contained in these paragraphs: [128] Mr.

Ross has had many opportunities to make the necessary changes in his life to be successful upon release and while in thecommunity. Unfortunately, he does not appear to understand that alcohol can have no

part in his life or that he must use the skills he learnsin treatment to avoid reoffending violently in the community. [129] He has repeatedly been non-compliant with conditions of parole and court orders, and most recently was unlawfully at large fromApril 2016 to March 2017 while awaiting trial on the predicate offence. This should come as no surprise given that he does not like to betold what to do by anyone, especially a person in authority, and does not see the value in supervision. [130] Mr. Ross has little to no insight into his offending behavior other than to say he was drunk (T-Vol 3, p. 490, L 22–34).

He is not ableto show empathy for his victims unless it is brought to his attention. [131] His moral blameworthiness is high, and while I consider the Gladue factors, I find they carry little weight in these proceedings. Theoffence is serious, as is Mr. Ross’s criminal record. Mr. Ross repeatedly resorts to violence against women, despite having takennumerous programs to address and lessen his sexual and violent behaviour. He appears unable to internalize or draw upon hisprogramming to stop his offending behaviour.

Notably, he is unable to stop consuming alcohol or remain sober outside of an institution. [132] There is no reasonable expectation that a lesser measure under paragraph 4(

b) or (

c) will adequately protect the public against thecommission by Mr. Ross of a serious personal injury offence. [133] A conventional sentence of imprisonment up to two years, followed by the maximum period of probation of three years, is welloutside the range of sentencing for Mr. Ross, given the facts of the predicate offence and his history of convictions for sexual assaults andviolent offences. Even if I were to sentence him to a conventional sentence or a period of incarceration in a penitentiary to the maximum of

10 years, he would likely be eligible for parole in a short period of time and be released into the community. I find that the imposition of a conventional sentence will not adequately protect the public against the commission by Mr. Ross of a serious personal injury offence. [134] If I were to impose a sentence of a minimum punishment of imprisonment for a term of two years followed by a long-term supervision order for a period that does not exceed 10 years, it will not adequately protect the public against the commission by Mr. Ross of a serious personal injury offence.

This is so because there would be little time for supervision in the community before the sentence expires. [135] As well, if I were to impose the maximum sentence of 10 years incarceration followed by a long-term supervision order for a period of 10 years, it will not adequately protect the public against the commission by Mr. Ross of a serious personal injury offence. While Mr. Ross will age as he serves his sentence, he would still be relatively young upon his release into the community, and will only be under supervision for a period of 10 years.

I am of the opinion that the evidence indicates that even as he ages, Mr. Ross will not slow his violent or sexual offending behavior. He is 54 years of age now, and committed the predicate offence at the age of 49. He has already defied the statistics concerning aging as a means of reducing risk. [136] Considering all of the evidence adduced, and that only lifelong supervision of Mr. Ross can protect the public, I find that nothing short of detention in a penitentiary for an indeterminate period will adequately protect the public against the commission by Mr.

Ross of a serious personal injury offence. [137] I appreciate Dr. Lohrasbe does not feel long sentences are beneficial to the offender and that such can lead to “warehousing” in the sense that the offender simply gives up and loses interest in following through with programs. However, the Correctional Service of Canada will follow its mandate and make appropriate programs available to Mr. Ross to reduce his risk and treat his underlying issues. It is up to Mr.

Ross whether he will choose to fully participate. [138] A future where he is sober, able to live off the land or find employment, and supplement his income with his art is still open and available to Mr. Ross. Even as a dangerous offender serving an indeterminate sentence, he will be assessed for possible parole. He will need to comply with his treatment plan and work with the authorities as he moves forward. He may one day be back in the community, but he will always be under supervision, as protection of the public demands. 5. Analysis in relation to sentence [ 93 ] Mr.

Ross submits that the judge did not give effect to Gladue and ss. 718.2(

d) and 718.2(

e) of the Criminal Code , did not give effect to the principle of restraint and concluded, wrongly, that her finding of intractability in relation to the designation stage meant that an indeterminate sentence must be imposed. In my respectful view, the judge did make these errors. [ 94 ] These three issues are interrelated and are appropriately considered together. The factor that links them is the manageability of Mr. Ross’s risk in the community.

As Côté J., writing for the majority in Boutilier made clear, a sentencing judge in a dangerous offender hearing is required to consider evidence of treatability of the offender at both the designation and the sentencing stage. Justice Côté also observed, importantly, that such evidence plays a different role at each stage: [44] Given that a dangerous offender application is typically conducted in one hearing, it would be artificial to distinguish evidence that should be considered to designate an offender as dangerous from evidence that should be considered to determine the appropriate sentence.

All of the evidence adduced during a dangerous offender hearing must be considered at both stages of the sentencing judge’s analysis, though for the purpose of making different findings related to different legal criteria . During the application hearing, the Crown or the accused must present any prospective evidence concerning risk, intractability, or treatment programs, including the required assessment report addressing prospective treatment options.

Many aspects of clinical evaluations provide evidence going to both the assessment of the offender’s future risk and the sentence necessary to manage this risk: Clinical evaluations identifying the presence of enduring mental illnesses and their treatability, presence of deeply ingrained personality traits or personality disorders that are likely to persist with time, sexual deviations, and substance-use disorders all become relevant in understanding the meaning of repetitive behaviours, persistent aggressive behaviours, and their relationship to the predicate offence/offences .

The presence of impulsivity, lack of empathy, and need for immediate gratification at the expense of others will assist the court in examining whether the risk assessment and management of risk factors are related to the statutory tests concerned . [Emphasis added in Boutilier ; footnotes omitted.] (Neuberger, at p. 2-37) [45] The same prospective evidence of treatability plays a different role at the different stages of the judge’s decision-making process .

At the designation stage, treatability informs the decision on the threat posed by an offender, whereas at the penalty stage, it helps determine the appropriate sentence to manage this threat . Thus, 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: see Neuberger, at p. 7-1,

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