R v Napope, 2023 SKCA 1

Court of Appeal for Saskatchewan Docket: CACR3470 Citation: R v Napope , 2023 SKCA 1 Date: 2023-01-04 Between: His Majesty the King Appellant And Norris Leonard Napope Respondent Before: Caldwell and Kalmakoff JJ.A. and McMurtry J. (ad hoc) Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Kalmakoff In concurrence: The Honourable Mr. Justice Caldwell The Honourable Madam Justice McMurtry (ad hoc) On appeal from: QBNJ 24 of 2014, Saskatoon Appeal heard: October 12, 2022 Counsel: W.

Dean Sinclair, K.C., for the Appellant Brian Pfefferle, K.C., and Thomas Hynes for the Respondent Kalmakoff J.A. I. INTRODUCTION [ 1 ] A judge of the Court of Queen’s Bench found Norris Napope to be a dangerous offender under

Part XXIV of the Criminal Code and sentenced him to a term of imprisonment of two years (in addition to 8 years of credit for pre-sentence custody), followed by a 10-year long-term supervision order, in relation to convictions for aggravated assault and sexual assault ( R v Napope (25 June 2021) Saskatoon, QBNJ 24/2014 (Sask QB) [ Sentencing Decision ]). [ 2 ] The Crown appeals against the Sentencing Decision , arguing that the sentencing judge erred by failing to properly apply s. 753(4.1) of the Criminal Code .

It invites this Court to set aside the determinate sentence and impose in its place an indeterminate sentence of imprisonment against Mr. Napope. [ 3 ] For the reasons that follow, I conclude that the Crown’s appeal must be allowed. II. BACKGROUND A. The Offences [ 4 ] The offences that led to the Sentencing Decision took place in late October of 2013. At the time, Mr. Napope was involved in a relationship with a woman, S.P. They were drinking together one evening. Mr. Napope became angry with S.P. because she had hidden a bottle of wine that he wanted to consume.

He proceeded to inflict a prolonged and vicious beating upon her. He repeatedly stomped on her face, head and body while she lay on the floor begging him to stop. He threw her around the room and smashed her head into a mirror. After all of this, he helped her into a bed, cleaned the blood off her face, and made her some food. He followed that by violently sexually assaulting her, vaginally, anally and orally, slapping her in the face several times as he did so. [ 5 ] Mr.

Napope’s attack on S.P. left her with serious injuries, including a broken nose and cheekbone, bruising all over her body, and hair torn from her scalp. Although she badly needed medical attention, he did not permit her to seek it. Instead, he made sure that she could not leave the house. To make things even worse, by refusing to permit S.P. to leave the house, Mr. Napope denied her access to her regular dose of methadone, which caused her to suffer additional unpleasantries associated with withdrawal from opioid drugs. In an effort to stave off S.P.’s withdrawal symptoms, Mr.

Napope obtained a different drug, Dilaudid, and injected it into her neck without her consent. [ 6 ] Eventually, Mr. Napope left the house to purchase cocaine for himself. With him gone, S.P. was able to make her way to the methadone clinic. When she arrived there, the extent of her facial injuries was such that members of the clinic staff had difficulty recognizing her, even though she was well known to them. A clinic worker took S.P. to the hospital to get medical treatment, and then to the police station. B. The Trial Decision [ 7 ] Mr.

Napope’s trial proceeded in April of 2015, before a judge sitting alone, in what was then the Court of Queen’s Bench. The trial judge found Mr. Napope guilty of aggravated assault and sexual assault. In doing so, he described S.P.’s testimony as “wrenching, searing and more to the point, believable”, and found that the evidence as a whole “overwhelmingly [made] out that Mr. Napope

committed an aggravated assault on [S.P.]” and, in addition, “committed a sexual assault against her”. C. The First Dangerous Offender Hearing [ 8 ] After Mr. Napope was convicted, the Crown applied under

Part XXIV of the Criminal Code to have him designated as a dangerous offender. The hearing of that application took place in April of 2016. At the end of the hearing, the trial judge found Mr. Napope to be a dangerous offender and sentenced him to an indeterminate period of imprisonment ( R v Napope (22 April 2016) Saskatoon, CRM 24/2014 (Sask QB) [ First D.O. Decision ]). D. Mr. Napope’s appeal [ 9 ] After the First D.O. Decision was delivered, Mr. Napope appealed against his convictions and his sentence. That appeal was heard on October 15, 2019.

On November 20, 2019, this Court rendered a decision dismissing Mr. Napope’s appeal against the convictions, but allowing his sentence appeal ( R v Napope , 2019 SKCA 124 ). The basis upon which the sentence appeal was allowed was that the trial judge had erred by finding that Mr. Napope had effectively “conceded” that a dangerous offender designation and an indeterminate sentence were appropriate and, in doing so, he failed to evaluate the evidence and conduct the analysis required by ss. 753(1) to 753(4.1) of the Criminal Code .

Accordingly, the matter was remitted to the Court of Queen’s Bench for a new dangerous offender hearing. E. The Second Dangerous Offender Hearing [ 10 ] The second dangerous offender hearing proceeded before a different judge, who I will refer to as the sentencing judge, in April of 2021. [ 11 ] At the second hearing, the Crown tendered documentary evidence which included Mr.

Napope’s criminal record, the transcript of the first dangerous offender hearing, binders of court documents that detailed his lengthy and violent history of criminal offending, as well as binders of records generated during the sentences he served in provincial correctional centres and federal penitentiaries, a report that described the programming available through Correctional Service Canada [CSC], and a victim impact statement prepared by S.P.

The Crown also called viva voce evidence from Troy Appleyard (a regional program manager for CSC Prairies) and Taylor Nyberg (an Indigenous Correctional Program Officer for CSC). Dr. Shaberam Lohrasbe, the forensic psychiatrist who conducted the court-ordered assessment of Mr. Napope also testified, and his reports (both the original report prepared in 2015 and an updated report prepared in 2020) were tendered. Mr. Napope testified in response to the

Part XXIV application. [ 12 ] The Crown argued that Mr. Napope should be designated as a dangerous offender and sentenced to an indeterminate prison term. Mr. Napope contended that a dangerous offender designation was not warranted but, even if it was, an indeterminate sentence was not appropriate. He argued that he had made substantial progress in the period between when Dr. Lohrasbe assessed him in 2015 for the first hearing, and when he was re-assessed in 2020 for the second hearing.

He also pointed out that, during that interval, CSC had changed its approach to programming, by developing a better program delivery model for Indigenous offenders like him and argued that, with the benefit of this new approach, any risk he posed for reoffending could be managed in the community, especially in light of his advancing age (Mr. Napope was 61 years old at the time of the second hearing). [ 13 ] The sentencing judge rendered the Sentencing Decision on June 25, 2021. Ultimately, he concluded that the Crown had proven what was necessary under s. 753(1) to designate Mr. Napope as a dangerous offender.

In that respect, after reviewing the evidence and instructing himself on the governing law, by referring to and quoting portions of R v Boutilier , 2017 SCC 64 , [2017] 2 SCR 936 [ Boutilier ], and R v Starblanket , 2019 SKCA 130 , [2020] 6 WWR 288 [ Starblanket ], he said: [30] The question here becomes: Has the Crown proven beyond a reasonable doubt that even with the new model for treatment programs within the corrections system and the greater emphasis on one-on-one counselling with offenders especially, counselling with indigenous offenders and elders that Mr.

Napope still presents a high likelihood of recidivism if and when released into the community? … [33] Mr. Napope’s history is not in his favour. He has had much programming although that programming is seen to be inferior to the programming he is likely to receive going forward. However, if he was a positive participant in such programming and even with his participation and generally good standing in those programs, he was unable to reintegrate into society without creating another violent offence within a very short period of time.

This history must be taken into consideration with the possibility of future treatment, including one-on-one counselling being more successful and helping Mr. Napope to successfully reintegrate. [34] Taking everything into consideration that is before me, I conclude that Mr. Napope still poses a high likelihood of harmful recidivism and is currently unable to surmount that conduct without extensive programming and counselling. That may well change in the future, but I am satisfied that the Crown has proven what it needs to prove beyond a reasonable doubt to designate Mr.

Napope as a dangerous offender. [ 14 ] Having made that decision regarding the designation, the sentencing judge turned to consider the penalty that should be imposed under s. 753(4) of the Criminal Code . After reviewing the arguments that had been put forward by counsel, and after referring specifically to the evidence about Mr. Napope’s chaotic and dysfunctional upbringing and how his experiences as an Indigenous person had shaped his identity, the sentencing judge said: [40] …[T]hese statements can be read in different ways. They can both be read in that Mr.

Napope’s future is constrained by the negative experiences he had growing up, including residential school, sexual assault, drug and alcohol abuse and addiction. However, as Dr. Lohrasbe stated in his evidence, he believes Mr. Napope can eventually be reintegrated and managed in the community with less risk. His evidence was that Mr. Napope would need confining conditions to ensure that he had a lengthy period of time to transition to “normal

life”. Dr. Lohrasbe also stated that Mr. Napope, to be successful, would need ongoing counselling and supervision. [41] I also find that Mr. Napope’s goal of becoming an elder to help others who are incarcerated leads me to believe that he has, at last in part, already determined that he will do his best to make positive changes in his behaviour. His contact with elders and his realization that he may be able to help other people who have been incarcerated gives him a pathway to demonstrate to himself that he can be a positive contributing citizen.

I also find that the new enhanced integrated programming provided by CSC provides offenders like Mr. Napope to have access to individual work with elders and counsellors which can only help to reduce the risk in the future of his re- offending violently. [42] I conclude that with enhanced programming, one-on-one counselling, work with elders and continued counselling and supervision, which may include a long stay in a halfway house once released plus strict conditions, Mr.

Napope may still be able to surmount his violent behaviours and successfully be reintegrated into society. [ 15 ] Having reached that conclusion, the sentencing judge determined that an appropriate fixed term of imprisonment for Mr. Napope’s crimes was 10 years (which, after credit for pre-trial custody was applied, left two years remaining to be served), followed by a 10-year long-term supervision order [LTSO]. The sentencing judge also made several ancillary orders as part of the sentence, including a lifetime firearms prohibition order, a DNA sample order and an order that Mr.

Napope comply with the provisions of the Sex Offender Information Registration Act , SC 2004, c 10 , for a period of 20 years. III. ISSUES AND STANDARD OF REVIEW [ 16 ]

Part XXIV of the Criminal Code authorizes and governs the conduct of dangerous and long-term offender proceedings. Under s. 759(2), appeals by the Crown from decisions made in these proceedings are limited to questions of law. As such, the operative standard of review is correctness ( Boutilier at para 81 ; R v Pelly , 2021 SKCA 50 at paras 19-20 , 403 CCC (3d) 127 [ Pelly ]). [ 17 ]

Part XXIV proceedings have two stages: the designation stage and the penalty stage. Section 753(1) lists the statutory requirements that must be met before a court can designate an offender as a dangerous offender. The sentencing judge concluded that those requirements were met in this case. No appeal is taken from that determination. [ 18 ] This appeal concerns only the penalty stage. At the penalty stage, where an offender has been found to be a dangerous offender, s. 753(4) provides a sentencing judge with three options: (

a) a sentence of indeterminate detention in a penitentiary; (

b) a determinate term of imprisonment of a minimum of two years, followed by a LTSO not exceeding 10 years; and (

c) a “standard” sentence. In determining the sentence to be imposed under s. 753(4) , judges are bound to exercise their discretion in accordance with s. 753(4.1) , which reads as follows: 753

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

b) or (

c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. [ 19 ] The Crown contends that the sentencing judge failed to determine Mr. Napope’s sentence in accordance with s. 753(4.1) . While the Crown takes issue with many aspects of the sentencing judge’s reasoning, its primary submission is that he erred by failing to apply the correct legal test to the determination of whether a lesser measure than indeterminate detention would adequately protect the public from the risk of violent offending posed by Mr. Napope.

The Crown submits that the sentencing judge approached the problem from the wrong angle, in that he failed to ask himself whether he was satisfied that there was a reasonable expectation that a lesser measure would provide adequate public protection, and, if he had applied the proper legal standard, there was nothing in the evidence to support the findings necessary to properly impose a lesser sentence than indeterminate imprisonment. IV. ANALYSIS A. Governing principles [ 20 ] Dangerous offender proceedings are sentencing proceedings. This means all of the sentencing objectives codified in

Part XXIII of the Criminal Code must be considered, even when sentencing an offender under

Part XXIV. However, while the principles and objectives in

Part XXIII must form part of the analysis, they cannot be permitted to dominate the determination of a fit sentence under

Part XXIV. For those offenders who have been designated as dangerous because of their past, current, and likely future violent conduct,

Part XXIV gives protection of the public enhanced status as a sentencing consideration ( Boutilier at paras 55–56 ; R v Potter , 2022 SKCA 14 at paras 94–96 [ Potter ]; Pelly at para 28 ). Public protection is the purpose behind

Part XXIV, and this purpose informs the exercise of discretion required under s. 753(4.1) . [ 21 ] While the use of the word “shall” in s. 753(4.1) speaks of an imperative, it does not create a presumption of an indeterminate sentence for a dangerous offender ( Boutilier at para 71 ). An indeterminate sentence may only be imposed where it is the least restrictive means by which to reduce to an acceptable level the public threat posed by an offender who has been designated as dangerous under s. 753(1) ( Boutilier at para 65 ; Starblanket at para 79 ; Potter at paras 91–93 ).

However, absent a reasonable expectation that a lesser sentence will achieve that goal, the court must impose an indeterminate sentence ( Boutilier at para 70 ; R v Natomagan , 2022 ABCA 48 at para 87 ) . [ 22 ] Making this call requires sentencing judges to address head-on the question of whether something less than an indeterminate sentence can adequately protect the public ( Pelly at para 23 ).

This necessitates an individualized assessment of all relevant factors and circumstances, and a thorough inquiry on the part of a sentencing judge into the prospect of control in the community ( Boutilier at paras 68 and 71 ). A sentencing judge does not need to find that a dangerous offender’s risk will be entirely eliminated in order to conclude that there is a reasonable expectation that something short of indeterminate incarceration will adequately protect the public. However, the risk

management question posed by s. 753(4.1) must be answered with reference to whether there is proof that the nature and severity of therisk the offender presents can be adequately contained in the community by treatment, external controls, or some other means (R v S.P.C.,2018 SKCA 94 at paras 41-44; Potter at para 107). [23] While s. 753(4.1) does not require complete elimination of an offender’s risk to justify a lesser sentence than indeterminateincarceration, a reasonable expectation of the sort referred to in that subsection must be grounded in evidence that is more than speculativeor hopeful in nature, and that demonstrates more than just a possibility of the eventual control of an offender’s risk.

Several appellatecourts, including this one, have held that the current “reasonable expectation” standard required under s. 753(4.1) is more stringent thanthe former “reasonable possibility” standard, because a “reasonable expectation” suggests “a “likelihood”, or “a belief that something[will] happen” or “a confident belief, for good and sufficient reasons” (Pelly at para 35; see also: R v Bunn, 2014 SKCA 112 at paras 36-37, 446 Sask R 184; R v D.J.S., 2015 BCCA 111 at para 30, leave to appeal refused, ; R v Lawrence, 2019 BCCA 291at para 72; R v Sanderson, 2018 MBCA 63 at para 20; and R v Groves, 2020 ONCA 86 at para 15). [24] In R v Straub, 2022 ONCA 47, 411 CCC (3d) 119 [Straub], the Ontario Court of Appeal described the test to be applied unders. 753(4.1) and the nature of the “reasonable expectation” standard as follows: [70] The legal standard imposed by s. 753(4.1) for a lesser measure than an indeterminate sentence to be imposed on the dangerousoffender is whether there is a reasonable expectation that the lesser measure will adequately protect the public against commission by theoffender of murder or a serious personal injury offence.

This standard refers to a likelihood, a belief something will happen, not thatsomething might happen. And that something is that the lesser measure will adequately protect the public against the dangerous offender’sviolent recidivism. [71] A reasonable expectation is not a reasonable possibility.

A reasonable possibility sets the bar for a lesser measure too low toensure adequate protection of the public. ... (italicised emphasis in original, underlined emphasis added) [25] A number of courts have commented on what sort of evidence might be relevant to the determination of whether or not there isa reasonable expectation that a dangerous offender’s risk to the public might be adequately controlled by something short of indeterminateincarceration. For example, in Straub, Watt J.A. said: [63] Treatability is a relevant factor at the penalty stage of dangerous offender proceedings.

But evidence of treatability must extendbeyond speculative hope about successful treatment. The evidence must give some indication that the offender can be treated within anascertainable time: Awasis, at para. 73, citing, R. v. Little, 2007 ONCA 548, 87 O.R. (3d) 683, at para. 42, leave to appeal refused, [2008]S.C.C.A. No. 39. See also, Boutilier, at para. 45. [64] Manageability of a dangerous offender’s behaviour is also a factor to be considered at the penalty stage.

On this issue, thefollowing is relevant: evidence that the offender avoided treatment, failed to respond to or terminated treatment, breached court orders,lacked motivation, continued to be involved in high-risk conduct, had a serious personality disorder, and was a high risk to engage inviolent recidivism. See R. v. K.P., 2020 ONCA 534, 152 O.R. (3d) 145, at para. 13, citing, R. v. Radcliffe, 2017 ONCA 176, at paras. 64-65, leave to appeal refused, [2017] S.C.C.A. No. 294.

The moral culpability of a dangerous offender also remains relevant at the penaltystage of the proceedings: Pelly, at para. 49; Boutilier, at para. 63. [65] The nature and duration of a dangerous offender’s prior conduct may provide cogent evidence of how that offender would act inthe future, given the opportunity to do so: Groves, at para. 6.

Likewise, the manageability of the offender under supervision in thecommunity. [26] The offender’s moral culpability is also a relevant consideration under s. 753(4.1) to the extent that it bears upon and informsthe question of whether the risk posed by a dangerous offender can be managed in the community.

While factors that may serve to reducean offender’s moral culpability – including Gladue considerations for Indigenous offenders – cannot be ignored, they may have lessimpact in the sentencing of a dangerous offender, where the focus must remain on protection of the public (Pelly at paras 48-49; R vRadcliffe, 2017 ONCA 176 at para 57, 347 CCC (3d) 3, leave to appeal to SCC refused ). [27] This is not to say that s. 718.2(

e) and the circumstances of Indigenous offenders are immaterial when sentencing under PartXXIV. Those circumstances must be considered in every case before a sentence is imposed, including the imposition of an indeterminatesentence (R v Ballantyne, 2022 SKCA 13 at para 23 [Ballantyne]; Boutilier at paras 43–44).

When Indigenous offenders are sentencedunder s. 753(4.1), sentencing judges must consider whether, and to what extent, culturally specific treatment and programming can serveto reduce the offender’s risk or assist in managing that risk in the community (Ballantyne at para 23; Pelly at paras 50–51; Starblanket atparas 71, 74 and 81; R v Standingwater, 2013 SKCA 78 at paras 49–53, 417 Sask R 158 [Standingwater]; R v Montgrand, 2014 SKCA 31at paras 16–17, 433 Sask R 248). B. Applying the principles 1.

The sentencing judge erred by failing to apply the correct legal test at the penalty phase of thehearing [28] In my view, the sentencing judge erred by applying the wrong legal test when deciding what sentence ought to be imposed oncehe had found Mr. Napope to be a dangerous offender.

Although the sentencing judge cited s. 753(4.1) of the Criminal Code as part of hisself-instruction on the law (Sentencing Decision at para 25), it is apparent that he failed to apply the standard that the authorities say mustbe applied to his consideration of the evidence when determining the appropriate penalty to be levied under s. 753(4). [29] In paragraph 42 of the Sentencing Decision, the sentencing judge listed a number of measures that may be brought to bearduring the course of Mr. Napope’s sentence, including enhanced programming, individual counselling, work with elders, continued

supervision, and strict conditions of release such as a requirement for residence in a halfway house. The sentencing judge concluded that, if all of those measures could be successfully implemented, “Mr. Napope may still be able to surmount his violent behaviours and successfully be reintegrated into the community” (emphasis added). [ 30 ] With respect, this reasoning demonstrates legal error. Given the conclusion the sentencing judge had already reached at the designation stage, namely that “Mr.

Napope still poses a high likelihood of harmful recidivism and is currently unable to surmount that conduct without extensive programming and counselling” (at para 34), it is not possible to read his conclusion in the penalty stage as reflecting a finding that he was satisfied there was a likelihood, or that he had a confident belief, that a lesser measure than indeterminate imprisonment would adequately protect the public from the risk of future violent conduct by Mr. Napope. [ 31 ] The use of the word “may” as the qualifier for Mr.

Napope’s prospects for overcoming his violent behaviours—if a long list of contingencies all were met—shows that, at most, the sentencing judge was satisfied there was a possibility that a lesser measure than indeterminate imprisonment would adequately protect the public against the risk of his future violence. The authorities are clear that a possibility, even a reasonable one, is something less than a reasonable expectation, and does not meet the standard called for by s. 753(4.1).

In short, the sentencing judge applied a less rigorous standard than the law requires to the determination of the question he was called upon to decide at the penalty stage. The Crown’s appeal must be allowed, as this error is sufficient to set aside the sentencing judge’s conclusion that a determinate sentence was appropriate. 2. Imposing a sentence that is adequate to protect the public [ 32 ] Having determined that the Crown’s appeal must be allowed, s. 759(3)(

a) leaves this Court with two options: (

i) impose an appropriate sentence under s. 753(4) ; or (ii) remit the matter to the Court of King’s Bench for a new hearing. A new hearing will not be necessary where the record is sufficient for this Court to make a proper determination as to the appropriate sentence. However, if there is a need for further findings of fact to be made, or some other matter that requires determination by a sentencing judge, the matter must be returned to the sentencing court for that purpose ( Pelly at para 32 ). [ 33 ] In this case, there is no need to remit the matter to the Court of King’s Bench.

There are no further factual findings that are required, and the record is sufficient for this Court to properly consider and determine an appropriate sentence for Mr. Napope. [ 34 ] As I will explain, when the proper legal test under s. 753(4.1) is applied in this case, it compels the conclusion that an indeterminate sentence must be imposed.

This is so because the evidence does not support a finding that there is a reasonable expectation that a lesser sentence will adequately protect the public. [ 35 ] In order to ground a reasonable expectation, within the meaning of s. 753(4.1) , there must be evidence that permits the court to form a confident belief that the risk of violence an offender poses will be able to be safely managed in the community.

In other words, the evidence must support a conclusion that the offender will make the progress required to get to that point within the period of time comprehended by an appropriate determinate sentence (see: R v M.A.G. , 2007 SKCA 144 at para 65 , 302 Sask R 265; R v Haug , 2008 SKCA 23 at paras 88 and 127 , 229 CCC (3d) 132; Standingwater at para 35 ; and R v Natomagan , 2012 SKCA 46 at para 32 , 393 Sask R 130).

If an offender requires 24 hour a day supervision for the foreseeable future, it cannot be said that there is a reasonable expectation that a lesser sentence will adequately protect the public (see: R v Otto , 2006 SKCA 52 at para 22 , 279 Sask R 182; R v Goodpipe , 2019 SKQB 221 at para 55 , affirmed 2021 SKCA 122 ; R v Ballantyne , 2019 SKPC 32 at para 85 , affirmed 2022 SKCA 13 ; and R v Bitternose , 2013 ABCA 220 at paras 11-12 ). [ 36 ] In this case, the sentencing judge concluded that Mr.

Napope may be able to surmount his violent behaviours and achieve successful reintegration, if he receives enhanced programming, works with elders, continues to receive individual counselling, and is released from incarceration with strict supervision. It appears that he based this conclusion, in large measure, on his understanding of Dr. Lohrasbe’s bottom-line opinion, which he described as being that Mr.

Napope could “eventually be reintegrated and managed in the community with less risk” if he was subject to “confining conditions to ensure that he had a lengthy period of time to transition to a “normal life””, coupled with “ongoing counselling and supervision” ( Sentencing Decision at para 40). [ 37 ] The sentencing judge also stated that he accepted that Mr. Napope had “already determined that he will do his best to make positive changes in his behaviour”, based on his expressed goal of becoming an elder to help other inmates, and that the “new enhanced programming provided by CSC” would give Mr.

Napope greater access to work individually with elders and counsellors in a way that he had not previously been able to (at para 41). These factual findings are entitled to deference. However, even accepting those factual findings, the underlying premise necessary to make all of this work is that, in order for Mr. Napope’s risk to be effectively managed, he must unreservedly comply with the confining conditions and the sort of counselling programs and supervision about which Dr. Lohrasbe had testified. [ 38 ] In my respectful view, the evidence simply does not support that premise. Everything about Mr.

Napope’s history points directly to a conclusion that the chances of him following through with treatment or counselling if released into the community, or of complying with restrictive conditions, or any form of supervision, for even a short period of time, are extremely remote. Moreover, there is no basis in the evidence to support a conclusion that CSC’s “new approach” to programming is likely to lead to any different result with Mr. Napope than in the past. Let me explain, with reference to the evidence, why this is so. [ 39 ] I begin with Mr. Napope’s criminal record.

Since 1976, when he was 16 years of age, Mr. Napope has repeatedly and continuously engaged in criminal activity. He has been convicted of no fewer than 65 criminal offences. Of those, 19 were for offences involving violence or weapons. These offences have run the gamut, from assault simpliciter, to assault causing bodily harm, to causing bodily harm with intent to wound, to robbery, to sexual assault. [ 40 ] Mr. Napope’s violent offences have been committed against men, women, and children. Some victims were known to him, others were strangers.

Several of the women against whom he has offended violently have been his domestic partners. He has also committed two sexual assaults against his partners’ young children. The violent offences he has committed against strangers include robberies at commercial establishments and an incident where he broke into an occupied home and confronted the homeowner while armed with a handgun that he was in the process of stealing.

[ 41 ] All of this is to say that Mr. Napope’s violent offending has been as diverse as it has been persistent. He has offended against a wide variety of people, in a wide variety of circumstances. This adds a layer of complexity to the risk management question, in that Mr. Napope’s history demonstrates that he has limited control over his violent impulses, and the situations in which he may offend violently cannot be easily predicted. As Dr. Lohrasbe noted in his initial assessment report in 2015, for Mr.

Napope (at 26): …violent impulses are likely to arise more frequently, and maintaining self-awareness and self-control in situations of conflict and emotional arousal is a strenuous process. The skills to restrain himself have not become intuitive and reflexive. … For Mr. Napope to refrain from violence, there will be a need for perpetual vigilance. … From his history we know that he cannot or will not (or does not want to) exert such continuous vigilance. Hence vigilance will have to be externally supplemented or imposed. [ 42 ] Dr.

Lohrasbe confirmed the foregoing comments in his 2020 assessment report, by stating that his opinion regarding Mr. Napope’s propensity for violence and his overall risk profile remained “broadly unchanged”. He also acknowledged that Mr. Napope’s diverse range of offending behaviour presented a greater challenge from a therapeutic perspective. [ 43 ] During his various previous periods of incarceration, Mr. Napope has engaged in numerous forms of programming offered by CSC. These have included programs aimed at addressing substance abuse and addiction as well as violent offending and sexual offending behaviour.

Several of the programs he has taken have had Indigenous offender-oriented or Indigenous offender-specific components. Others have involved periods of one-on-one counselling. One program in particular, the Who Spa Gan Healing Program, that Mr. Napope attended while serving a period of imprisonment in 2002, involved traditional Indigenous elements such as pipe and sweat lodge ceremonies, talking circles and one-on-one counselling with elders. A consistent theme that runs through Mr.

Napope’s experiences with in-custody programming, as revealed by CSC records, is that he attended regularly, participated appropriately, and made good progress. He was able to convey the impression that he understood and had absorbed the concepts intended from the programs. In fact, at one point in 2003, he was asked to speak to other inmates, to share his experiences in the Aboriginal Sex Offender Program because CSC officials believed that would be of value in that context. [ 44 ] However, the more foreboding, and no less consistent theme arising from the evidence is that the level of Mr.

Napope’s engagement in programming is significantly less when that programming takes place outside of a prison setting, and any lessons he may acquire from institutional programming are quickly forgotten once he is released back into the community. Invariably, on each occasion that he has been released from incarceration, Mr. Napope has soon diverted from his correctional plan.

He has persistently, and without exception, resisted efforts by the authorities to supervise him, failed to attend recommended community-based programming, and returned to alcohol and drug use. [ 45 ] Perhaps none of this should be surprising. In his 2015 assessment report, Dr. Lohrasbe opined that Mr. Napope has personal issues, including “significant psychopathic features” that are “stubbornly resistant to intellectual insights”, and have given rise to “deeply entrenched … interpersonal habits”. Dr. Lohrasbe also noted that Mr.

Napope is highly institutionalized, which means that learning to function effectively outside of a prison environment will be a difficult process for him. It will require that he slowly learn how to do something with which he has had very little past experience, namely, making “decisions that are truly his own … without doing something criminal or violent” (2020 assessment report at 10). In this regard, Dr. Lohrasbe stated that, because Mr.

Napope is “at his best” in prison, there “should be much caution in assuming that cooperation and progress within institutional programs will be effective in reducing his risk” (2015 assessment report at 27). In his 2020 assessment report, and in his testimony at the second dangerous offender hearing, Dr. Lohrasbe also stated that he observed signs of cognitive decline on Mr. Napope’s part. Whether this cognitive decline was due to a lifetime of substance abuse or some other factor, Dr.

Lohrasbe could not be certain, but he expressed the opinion that such decline would be concerning from a risk management standpoint, not only because it would tend to diminish Mr. Napope’s ability to fully process the information covered in programming, but also because it may cause difficulty for him in regulating his behaviour. [ 46 ] Also significant, in this respect, is the evidence regarding Mr. Napope’s denial of the severity of the offences he committed against S.P. In his 2015 assessment report, Dr. Lohrasbe noted that Mr.

Napope categorically denied having inflicted any physical or sexual violence on S.P. Dr. Lohrasbe opined that, if Mr. Napope persisted with this sort of complete denial, “it may be an absolute obstacle to treatment and risk management” (at 60). [ 47 ] When Dr. Lohrasbe re-interviewed Mr. Napope in 2020 in preparation for the second hearing, Mr. Napope had changed his tune, but only slightly. He admitted that he had slapped S.P. “a few times” but maintained that her injuries had not been serious. He continued, however, to completely deny having committed any sexual violence against her. This caused Dr.

Lohrasbe to state, in his 2020 assessment report, that Mr. Napope’s “grudging acknowledgement of some physical violence during the predicate offence did not suggest that he is ready, even now, to accept responsibility for his violence. Justifications and victim-blaming continues. There has been no profound change of heart with acceptance of moral and psychological responsibility”. Dr.

Lohrasbe confirmed that opinion when he testified at the second hearing, saying that an offender’s persistent denial of the severity of their offending tends to function as a barrier that can adversely affect the delivery of treatment programming. [ 48 ] In light of all of this, even though there is evidence that CSC has changed its program delivery model, from one that delivers programming on an offence-specific or issue-specific basis (i.e. sex offender programming, substance abuse programming), to one that is holistic in nature, and also has implemented programming that seeks to better address the needs of Indigenous offenders, there is little basis upon which to conclude that such programming can produce a change of any significance in Mr.

Napope within an ascertainable time. To be sure, Dr. Lohrasbe and the CSC witnesses who testified at the second dangerous offender hearing agreed that this new program delivery method was likely to be more effective than the previous model had been. But Mr. Napope’s problem has never been a reluctance to participate in programming or an inability to grasp the concepts taught therein. The problem has been his ability—or, perhaps more accurately, his resolve—to apply the lessons learned in programming once he is released into the community. [ 49 ] In that regard, Dr.

Lohrasbe testified at the first hearing that “[Mr. Napope has] the skills, there’s no question. It’s that they go out of the window when he’s out in the community again”. At the second hearing, Dr. Lohrasbe said much the same thing, namely that Mr. Napope understands what he must do in order to maintain a pro-social lifestyle, but problems arise because he is unable to put that understanding into action for any sustained period of time: So I think again conceptually and intellectually he has no difficulty understanding those principles. It’s that he is not stuck consistently

with what he knows he should do, that’s going to be the challenge, that there can be no loosening up of that kind of giving himself self- direction. … With Mr. Napope in particular I -- I don’t see him as lacking prosocial skills. I -- I think the challenge is not to give in to any temptation to return to the thrill seeking and irresponsibility, that the temptation will inevitably come his way.

You know, there’s -- it wouldn’t matter which community he is in or how tightly you supervise him, eventually he will be exposed to people who manifest the kind of self- indulgent carelessness that has marked his -- his functioning in the community. So, it’s not so much that he doesn’t have the skills to engage with prosocial people, it’s that he’s going to put a hard firewall between that and the opposite, which he hasn’t been able to do in the past. [ 50 ] Dr. Lohrasbe also expressed concern about Mr. Napope’s ability to take the guidance and direction necessary to facilitate his rehabilitation.

In his 2020 assessment report, he wrote: “[i]f Mr. Napope persists in his views that he alone will set the agenda for his rehabilitation, there is no reasonable possibility for effective treatment or long-term risk management in the community”. And, when Mr. Napope testified at the second dangerous offender hearing, he appeared to take precisely that view.

Although he professed a willingness to engage in programming, he acknowledged that he believed he had little need for it, saying he knew how to access the resources he would require, and that he would simply counsel himself. [ 51 ] Perhaps the most important component of risk management, from Dr. Lohrasbe’s standpoint, was supervision. He testified that effective management of Mr. Napope’s risk would require close scrutiny and strict supervision, and Mr. Napope’s unequivocal compliance with that supervision, for a lengthy period of time.

The evidence, however, does not provide a basis for any degree of confidence that Mr. Napope will hold up his end of that bargain, as all previous efforts at supervising him in the community have been an utter failure. In fact, several of Mr. Napope’s most serious violent offences have been committed while he was still subject to parole or some other form of supervision in the community by correctional authorities. [ 52 ] For example, on October 21, 1986, Mr.

Napope was released on Mandatory Supervision from an aggregate 4.5-year sentence he was serving in relation to three charges of causing bodily harm with intent to wound, mischief, and obstruction of justice. While under the supervision of CSC authorities, on March 1, 1987, Mr. Napope broke into an occupied residence in Prince Albert in the middle of the night. He found a cache of firearms in the house and stole a handgun. While he was engaged in that process, he ran into the homeowner. After a brief physical confrontation, during which Mr. Napope was armed with the handgun, he fled the house.

He was convicted after a trial of breaking, entering and committing theft, and possession of a weapon for a dangerous purpose in relation to this incident, and sentenced to another 4.5 years (reduced to 3 years on appeal). [ 53 ] In March of 1996, Mr. Napope robbed a tavern in Duck Lake, Saskatchewan, while armed with an imitation firearm. He was on probation at the time. Three months later, he pleaded guilty to charges of armed robbery, using an imitation firearm while committing an offence, and breach of probation. He received an aggregate sentence of 3.5 years. Mr.

Napope was granted full parole from this sentence on August 27, 1997, with a direction to attend an in-patient substance abuse program on the James Smith First Nation. He did not last long in that setting. He left the treatment facility and began drinking again. By November 10, 1997, a parole suspension warrant had issued. [ 54 ] Mr. Napope remained unlawfully at large until February 12, 1998, when he was arrested for committing a violent assault, during which he slashed a woman’s head with a knife, causing a cut that required 15 stitches to close, and stole her car.

He would eventually plead guilty to theft and assault causing bodily harm in relation to this incident, receiving a sentence of 18 months consecutive to the unexpired portion of his previous sentence. [ 55 ] As it turned out, that was not the only serious offence Mr. Napope had committed while he was subject to that period of parole supervision.

At some point between August 27, 1997, and his arrest in February of 1998, he sexually assaulted the 4-year-old daughter of his then-girlfriend (although he would not be charged with this offence until several years later). [ 56 ] While serving his sentence, between 1998 and 2000, Mr. Napope performed reasonably well in custody. He attended several treatment programs and progressed through various security classifications. However, each time the reins were loosened, his performance deteriorated, and trouble soon followed. Despite all of that, he was granted statutory release on July 7, 2000.

By October of that year, the wheels had begun to come off. Although his statutory release conditions required him to maintain residence at the home of the woman with whom he was in a relationship at the time of release, he quickly began a relationship with a different woman (who I will refer to as D.P.) and moved in with her. Even while Mr.

Napope actively attended Indigenous-based community programs, reported to his parole supervisors that he was maintaining sobriety, and professed to have aspirations of becoming an elder and a band councillor, he continued to offend, by repeatedly sexually assaulting D.P.’s daughter who, like the victim of his prior sexual assault, was 4 years old at the time. [ 57 ] On September 19, 2001, Mr. Napope pleaded guilty to two counts of sexual assault, and received a 4-year sentence.

He was released at his statutory release date, but that statutory release was eventually revoked on the basis that he had committed further offences, albeit non-violent ones. [ 58 ] In addition, Mr. Napope’s record of compliance with other, less restrictive forms of supervision in the community is similarly abysmal. He has violated parole or statutory release conditions on multiple occasions apart from those detailed above.

The evidence filed at the second dangerous offender hearing shows that he has amassed 29 convictions for offences against the administration of justice, 25 of which relate directly to breaching conditions designed to supervise his behaviour or failing to comply with restrictions on his liberty (i.e., convictions for breach of probation, breach of bail or release conditions, or being unlawfully at large). [ 59 ] As I have previously observed, while Dr. Lohrasbe stated that he believed it was possible Mr. Napope’s risk could eventually be managed in the community, that belief was predicated on Mr.

Napope submitting, for the foreseeable future, to the scrutiny and supervision of the correctional authorities. All of the evidence, including Mr. Napope’s continuing assertion that he can be the one to decide what rehabilitative measures he needs, establishes that there is no reasonable expectation that that will occur. [ 60 ] Accordingly, taking all of that into account, I can find no basis upon which to conclude that it is likely that Mr. Napope will

make – or sustain - the changes necessary to reduce the risk he poses to the public within any ascertainable period of time. In short, I am not satisfied that there is a reasonable expectation that a lesser sentence will adequately protect the public. An indeterminate sentence must be imposed. [ 61 ] I would note here, as a final observation, that an indeterminate sentence is not a life sentence without parole. Indeed, given the length of time that he has been in custody, Mr. Napope is already eligible for a review of his detention by the National Parole Board.

In short, there are mechanisms available that can result in Mr. Napope’s return to the community once his risk can be managed. But, in the meantime, considering all of the evidence, an indeterminate sentence is the least restrictive measure capable of adequately protecting the public in this case. V. CONCLUSION [ 62 ] For the foregoing reasons, the Crown’s appeal is allowed. The sentence imposed by the sentencing judge is set aside and, in its place, Mr. Napope is sentenced to detention in a penitentiary for an indeterminate period.

I would also impose the same ancillary orders as were imposed by the sentencing judge, under ss. 109(3) , 487.051 and 490.012 of the Criminal Code . Finally, there will be an order under s. 760 of the Criminal Code , that a copy of all reports and testimony given by Dr. Lohrasbe, together with a transcript of Mr. Napope’s trial, and a copy of these reasons be forwarded to CSC. “Kalmakoff J.A.” Kalmakoff J.A. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Kalmakoff J.A.” for McMurtry J. (ad hoc) (as per authorization)