R v Bird, 2023 SKCA 40

Court of Appeal for Saskatchewan Docket: CACR3496 Citation: R v Bird, 2023 SKCA 40Date: 2023-03-28 Between:His Majesty the KingAppellant AndGene Arthur BirdRespondent Before: Leurer, Kalmakoff and McCreary JJ.A.Disposition: Appeal dismissedWritten reasons by: The Honourable Mr. Justice Kalmakoff In concurrence: The Honourable Mr. Justice Leurer The Honourable Madam Justice McCrearyOn appeal from: CR 155 of 2017, Prince AlbertAppeal heard: December 7, 2022Counsel: W. Dean Sinclair, K.C. for the Appellant Brian Pfefferle, K.C., Thomas Hynes and Amy Kolenick for the Respondent Kalmakoff J.A. I.

Introduction [1] After a judge alone trial in the Court of Queen’s Bench, Gene Bird was convicted of several Criminal Code offences,including intentionally discharging a firearm at an occupied house, contrary to s. 244.2(1)(a), and carrying a weapon for the purpose ofcommitting an offence, contrary to s. 88. The Crown applied to have Mr. Bird designated as a dangerous offender and sentenced to anindeterminate term of imprisonment. The trial judge dismissed that application but found Mr.

Bird to be a long-term offender and imposeda sentence of imprisonment of two years plus a day (in addition to 1,590 days of pre-sentence custody), followed by a long-termsupervision order of ten years, along with various ancillary orders (R v Bird (13 October 2021) Prince Albert, CR 155 of 2017 (Sask QB)[Sentencing Decision]). [2] The Crown appeals against the Sentencing Decision. It contends that the trial judge made various legal errors in his treatmentof the evidence and failed to properly apply the law that governs the designation stage of dangerous offender proceedings.

The Crowninvites this Court to set aside the Sentencing Decision and order a new hearing under

Part XXIV of the Criminal Code. [3] In my respectful view, the Crown’s appeal must be dismissed. My reasons follow. II. Background A. The offences [4] The circumstances of the offences that led to the Sentencing Decision were undeniably serious. In the early morning hours ofJanuary 2, 2017, Mr. Bird was in the town of Montreal Lake and armed with a .22 calibre rifle. He was looking for his girlfriend. He wentto one residence and found her there with another man, Brandon Natomagan. Mr.

Bird entered the house and a commotion ensued.Although the precise details of what occurred in the house did not come out in the evidence, it is clear that when Mr. Natomagan left thehouse, he was bleeding. Following that, Mr. Bird, who was still armed with the rifle, also left the house. He walked toward a secondresidence and fired several rounds at it. The second residence was occupied at the time by three adults, and five children who ranged inage from 1 to 14. At least three of the shots Mr. Bird fired penetrated the walls of the house.

One bullet struck the leg of an adult occupant.It lodged in that person’s ankle and had to be surgically removed. [5] At the time all of this occurred, Mr. Bird was unlawfully at large. On July 14, 2016, he had received statutory release from a5-year sentence that he was serving for a total of 13 offences of which he had been convicted in 2012. The conditions of his statutoryrelease included a requirement that he reside at a community residential facility in Saskatoon.

He walked away from that facilityapproximately six weeks into his statutory release period and never returned. [6] As set out above, the trial judge found Mr. Bird guilty of the charges under s. 244.2(1)(

a) and s. 88 of the Criminal Code inrelation to these events. He also found Mr. Bird guilty of careless use of a firearm, contrary to s. 86(1) of the Criminal Code, and twocounts of breaching a firearm prohibition order, contrary to s. 117.01(1). The trial judge stayed one of the counts of breaching a firearmprohibition order in accordance with R v Kienapple, (SCC), [1975] 1 SCR 729, and entered convictions with respect to theother counts. The Crown pursued a dangerous offender designation only in relation to the charges under s. 244.2(1)(

a) and s. 88. B. The offender [7] Mr. Bird is originally from Montreal Lake, where the offences described above were committed. He is of Cree heritage and a

member of the Montreal Lake First Nation. His childhood was marked by familial instability, as his parents had personal issues that caused them to come into conflict with each other and with the law. During his childhood, Mr. Bird was shuttled back and forth between the communities of Montreal Lake and Prince Albert. He suffered various forms of abuse and neglect, some of which occurred while he was attending a residential school. He began to abuse substances at an early age.

He was introduced to alcohol and marijuana at age 6 or 7, began huffing gasoline when he was 8 and, by the time he was in his teens, he was using harder drugs like crack cocaine and crystal methamphetamine. [ 8 ] Mr. Bird also found himself in conflict with the law at an early age. He committed the first criminal offence for which he was sentenced – an assault – when he was just 12 years old. He continued to offend, regularly and repeatedly, after that. When he committed the predicate offences described above, he was 28 years old.

By that time, he had been sentenced on 21 previous occasions, for more than 70 criminal offences. Of those offences, 22 involved violence or weapons, including assault, assault causing bodily harm, assault with a weapon, robbery, attempted robbery, sexual assault, uttering threats, assaulting a police officer, and unauthorized possession of firearms. Mr.

Bird had also been sentenced for no less than 30 offences against the administration of justice, such as failing to appear in court, violating conditions of release, breaching probation orders, escaping lawful custody and being unlawfully at large. [ 9 ] As set out above, at the time of the predicate offences, Mr.

Bird was on statutory release from an aggregate 5-year sentence he had received on February 2, 2012, for a total of 13 offences, including sexual assault, assault causing bodily harm, theft, causing a disturbance, obstructing a police officer, and various counts of breach of probation, breach of bail conditions, and failing to appear in court. He had violated the terms of his statutory release by consuming alcohol and had been on the run for more than four months from the community residential facility at which he was required to live. C.

The sentencing hearing [ 10 ] At the sentencing hearing, the Crown led evidence that detailed Mr. Bird’s history of criminal offending and his experience with the courts and correctional system. Included in that evidence were a copy of his criminal record, transcripts of various sentencing proceedings, victim impact statements, pre-sentence reports, and records relating to the sentences he had served in the youth, provincial and federal correctional systems.

The correctional records detailed his performance while in custody and on supervision, spoke to the treatment and programming he had received, and also contained various psychological and risk assessments. [ 11 ] The Crown called several witnesses to explain the correctional records, to comment on the type of programming that Mr. Bird had received and what may be available to him through the Correctional Service of Canada [CSC] and, where applicable, to describe their experiences with Mr. Bird in the correctional system. [ 12 ] In broad strokes, several themes ran through this evidence, including that Mr.

Bird repeatedly engaged in violent offending, and had done so both while in custody and while in the community. He had committed some violent offences while under the influence of substances and others while sober. On a number of occasions, he seemed to have made progress towards his rehabilitation while in custody, including engaging in and appearing to derive benefit from treatment programs, only to see that progress quickly evaporate once he returned to the community.

In general, he had responded poorly to correctional supervision in the community, and those responsible for supervising him noted that the transition from him appearing to function well in the community to going off the rails and returning to serious criminal activity had generally occurred suddenly and without warning. [ 13 ] However, the evidence also revealed that, in the period leading up to the dangerous offender hearing, Mr. Bird’s performance in custody had markedly improved. He had maintained sobriety from alcohol and drugs and had engaged in faith-based substance abuse programming.

He had also been given a job as a range cleaner, which demonstrated an improvement of significance in his behaviour within the institution. [ 14 ] Mr. Bird testified in response to the Crown’s application and called two other witnesses in his defence. [ 15 ] In his testimony, Mr. Bird spoke of his chaotic and dysfunctional childhood. He described the abuse and neglect he had suffered at the hands of his parents. He said he had been sexually assaulted by a babysitter at age 5 and that he had been sexually assaulted by an older student at the residential school he attended, when he was 8 or 9 years old. Mr.

Bird spoke of his introduction to substance use at an early age and described how that progressed as he got older. [ 16 ] Mr. Bird also explained some of his past poor performance while in custody, which included committing acts of violence against other inmates or acting out violently against staff. He attributed much of that behaviour to a desire to gain the approval of older inmates. He said that, over the years, he had not fully opened up to correctional staff about the abuse and trauma he had suffered as a child because the custodial environment was not conducive to sharing that information.

He also stated that, even though he had engaged in programming for substance abuse while serving previous sentences, he had done so only because he saw it as a means to obtaining early release, and that he had continued to use alcohol and drugs while he participated in such programming, as those substances were always readily available within the institutions. [ 17 ] Mr. Bird also described what had occurred in the lead-up to the predicate offences. He stated that, in the period immediately following his statutory release, things were going well in Saskatoon. He was employed and involved in a relationship.

After a short time, however, his girlfriend left him, and he went on the run, as he did not want to remain in Saskatoon. He made his way to Prince Albert, found “off the books” employment, found a place to live, and stayed away from drugs and alcohol for a period of time. All of this changed, he said, when he returned to Montreal Lake to visit family around Christmas time. He started drinking again, and things spiralled until he committed the predicate offences. [ 18 ] Mr. Bird stated that, since he had been in custody on the predicate offences, his sister had been murdered and his mother had passed away.

He said those events, and the prospect of facing an indeterminate sentence, had propelled him to make the decision, as of December of 2019, to turn his life around. To that end, among other things, he had begun to engage in faith-based addiction programming and had committed to abstaining from the use of alcohol and drugs. He noted that, owing in large measure to those changes, he had been given the job as a cleaner within the remand unit at the Prince Albert Correctional Centre, where he was being housed.

[ 19 ] The trial judge also heard evidence from Dr. Todd Tomita, a forensic psychiatrist who had been appointed to conduct an assessment of Mr. Bird, pursuant to s. 752.1 of the Criminal Code . As part of that assessment, Dr. Tomita had reviewed Mr. Bird’s criminal history and the records generated by the youth, provincial and federal corrections systems during Mr. Bird’s many sentences. He had also interviewed Mr. Bird on July 12, 2019. In brief

summary, Dr. Tomita expressed the opinion that Mr. Bird posed a high risk for future violent conduct and that, based on his history, such risk was likely to persist even if he fully engaged in programming, because he had never before been able to sustain the benefits of programming once he was released from custody. In that respect, in his assessment report, Dr. Tomita said: (

a) Mr. Bird’s pattern of violent behaviour was largely connected to his antisocial personality disorder, but his most severe episodes of violence correlated to occasions when he was intoxicated by alcohol; (

b) Past treatment to address Mr. Bird’s alcohol use had been unsuccessful in bringing abstinence or an ability on his part to control the level of his use. This was, in part, due to well-established patterns of behaviour that Mr. Bird had yet been unable to change. His alcohol problem is “severe and chronic” and “that will not be easily remedied and that will likely be a lifelong condition he needs to diligently manage”; (

c) Mr. Bird is at high risk of future violence, which will most likely be driven by his antisocial values, beliefs and attitudes; (

d) The fact that Mr. Bird previously presented with the appearance of diligent motivation to control his alcohol use but was unable to sustain that motivation once he was released into the community suggests that his insight into the nature and extent of his problems is not deep. And, based on that, “the likelihood of him being able [to] remain alcohol free is low”; (

e) Mr. Bird would probably complete recommended future correctional treatment programming, but that would likely have little effect on his risk for future violence; (

f) The “critical potentially modifiable internal risk factor” for Mr. Bird is his alcohol use disorder. His risk for violent behaviour “is likely to be durably present until he can address his alcohol use disorder, a risk reducing aging effect takes hold, or he can build an architecture of supports and services that are needed to change his lifestyle in the community including a prosocial support network, realistic educational and work plans, and he finds a way to circumvent his tendency to become bored with a conventional, prosocial life”.

The prospects for him making and sustaining the necessary changes are poor. [ 20 ] In his testimony at the hearing, Dr. Tomita confirmed these opinions. He also acknowledged that, by the time the dangerous offender hearing was held, it had been nearly 20 months since he had interviewed Mr. Bird, and that Mr. Bird appeared to have made significant progress in that time. However, he stated that none of that changed his opinion, because a similar scenario had played out before for Mr. Bird. In that respect, the records revealed that, during previous sentences, Mr.

Bird had done well in treatment, and had what appeared to be solid plans in place to sustain the progress he had made once released, only to fail quickly and spectacularly. Dr. Tomita explained that, in his view, the progress Mr. Bird had made within the institution this time was not necessarily something that would translate to reduced risk once he was released, stating: A … The -- the issues with Mr. Bird do not have to do with his institutional functioning. They have to do with his community functioning and very specifically on federal parole release. To go back to your question.

I’m surprised that he was engaging in behaviours that resulted in institutional charges and using drugs in custody, given the jeopardy he faces. Again, that would be consistent with my impressions. He didn’t seem to recognize the seriousness of the jeopardy he faced. I’m not surprised that his behaviour has improved as court dates drew closer. I mean that that’s just common sense, and he has been able to do that before and make progress. [ 21 ] Dr. Tomita went on to say that part of the reason for this was Mr.

Bird’s personality disorder and the fact that, even if his issues relating to alcohol use could be treated, the personality disorder would remain, as illustrated by this exchange with Crown counsel: Q Now, in terms of the prognosis for an individual with a -- with a antisocial personality disorder, what’s -- what’s the prognosis going forward? Essentially, is it a permanent condition, or is it something that -- that can change over time? A Everything can change over time. What I would say about antisocial personality disorder is that it -- it’s just one feature of a person.

And so there are two ways to respond to your question. One of them is that people just don’t have a personality. They may have other strengths or other deficits and difficulties. And in Mr. Bird’s case, the most prominent one is his alcohol use disorder, and that, coupled with his antisocial personality disorder, in my opinion makes the prognosis much worse. The prognosis for addressing alcohol is better than addressing antisocial personality disorder. It’s simply on a practical level more potentially modifiable. Personality is by definition long-lasting and durable.

There does seem to be a trend for people with antisocial personality disorder to essentially settle down as they age, and I have addressed in my report the aging effect generally comes later, late forties, fifties, and beyond. [ 22 ] Dr. Tomita summed up his opinion of the risk that Mr. Bird posed for future violent offending, and the potential for that risk to be affected by treatment, in this way: Q Now, Dr. Tomita, … what are your thoughts on the potential for successful community management of Mr. Bird going forward under the supervision of the correctional authorities here in Canada, through CSC?

A Since you’ve asked the question very carefully, I -- I will respond very carefully. I’m responding from the perspective of a forensic psychiatrist assessor, and I am fully -- I’m mindful of the fact that legal supervision is the primary purview of parole officers and case management, if we’re talking about federal parole. With that caveat, I will say that in light of what has happened with Mr. Bird on previous attempts at parole release, I think the likelihood that he is going to encounter difficulties, including relapse to alcohol, perhaps drug use, and potentially offending is quite high.

I don’t see that there have been any material changes other than he has been in custody for some years and has had periods where he’s demonstrated an ability to maintain positive behaviour and other periods when he has not. And again, I -- I will add that I do not think in Mr. Bird’s case that his institutional functioning is a good guide to what may happen in the community. Really what will happen remains untested. Q And, Dr. Tomita, can we have your thoughts in terms of -- of his potential to remain violence-free in the community in the absence

of -- of supervision by the correctional authorities through CSC? A I -- I think it’s highly unlikely. [ 23 ] Under cross-examination, Dr. Tomita acknowledged that, during the assessment interview, Mr. Bird had not disclosed to him the sexual abuse that he had suffered as a child. He also acknowledged that Mr. Bird’s attitude respecting treatment would be an important factor, in the sense that if Mr.

Bird were to engage in programming honestly and sincerely, as opposed to merely going through the motions so that he could be eligible for early release as he had done in the past, it may well lead to a different result. Dr. Tomita also agreed that developments such as Mr. Bird becoming involved in, and engaging with, groups like Alcoholics Anonymous and Narcotics Anonymous, and avoiding substances within the institution were positive indicators in that regard. [ 24 ] Dr. Tomita also stated, in cross-examination, that Mr.

Bird’s risk of reoffending would be “substantially reduced” if he were able to “curb his alcohol consumption to the point where he never consumed alcohol again and to the point where he never used illicit drugs again”, but cautioned that he could not go so far as to quantify the risk as low, because a hypothetical of that sort departed substantially from the data upon which his opinions were based. D. The Sentencing Decision [ 25 ] The trial judge began the Sentencing Decision by setting out the standard of proof the Crown must meet at the designation stage of a dangerous offender hearing.

In that regard, citing R v Boutilier, 2017 SCC 64 , [2017] 2 SCR 936 [ Boutilier ], he said: [3] In order to designate that an offender is a dangerous offender … the Crown has the burden of proving beyond a reasonable doubt that: a. The offender has been convicted of, and must be sentenced for, a “serious personal injury offence”; b. This predicate offence is part of a broader pattern of violence; c. There is a high likelihood of harmful recidivism; and d. The violent conduct is intractable. [ 26 ] The trial judge noted that Mr.

Bird did not dispute that the predicate offences of which he had been convicted were serious personal injury offences or that they formed part of a broader pattern of violence. He took issue only with whether the Crown had proven the last two requirements listed in Boutilier , namely, that there was a high likelihood of violent recidivism on his part and that his violent conduct was intractable.

The trial judge then referred to and quoted from this Court’s decision in R v Linden Bird , 2021 SKCA 35 at para 19 , [2021] 5 WWR 441 [ Linden Bird ] (which in turn cited R v Starblanket , 2019 SKCA 130 at para 67 , [2020] 6 WWR 288 [ Starblanket ]), as a self-instruction on the framework to apply in determining whether the Crown had proven the requisite high likelihood of violent recidivism. [ 27 ] After reviewing the evidence, with specific attention to Mr. Bird’s criminal history, the trial judge turned to his analysis. He began with the questions of risk of recidivism and intractability.

There, after summarizing what he viewed as the salient features of Dr. Tomita’s and Mr. Bird’s evidence, particularly as it related to the steps Mr. Bird had taken since Dr. Tomita had interviewed him, he said: [48] However, Dr. Tomita cautioned against considering these developments out of context. He said they must be considered in the context of all factors that went into his assessment. He said institutional behavior is not a reliable gauge of the behavior that might be expected in the community and that the failures of [Mr. Bird], in the past, to control his community conduct provides a better forecast.

With respect to the enrollment in Alcoholics Anonymous he said that while that was a good start the only objective way to measure [Mr. Bird]’s durable motivation and success would be to see if he continues with it. Dr. Tomita again pointed to the fact that prior addictions programming which [Mr. Bird] seemed to engage in and learn from had no lasting effect. [49] Dr. Tomita was asked if, considering these developments, his opinion changed. He said that keeping these developments in context it would not.

He added that it would be surprising if an offender’s behavior did not improve as the date of a dangerous offender hearing approached. I too would be skeptical of an offender who appeared to show some last-minute improvements in behavior when faced with the possibility of indeterminant incarceration. [50] But, in my view, the changes that [Mr. Bird] points to go beyond just a superficial change or … changes that should only be considered with further proof that they are durable. In my view they do change the context.

That is, they are changes that show a different trajectory and must be considered in the prospective determination of whether [Mr. Bird]’s risk factors are treatable. [51] Enlisting in volunteer programs and earning the right to a job in the remand unit shows initiative. The absence of institutional misconduct and the abstinence from the use of alcohol and drugs shows that there is some ability to control an addiction and behavior. The breakthrough in being able to talk openly about his history of abuse and abandonment open new avenues for treatment that did not exist before. This is especially so when Dr.

Tomita agreed that [Mr. Bird]’s alcohol dependency was driven as much by psychological factors like abuse and abandonment as physical dependency. [52] More importantly, they speak directly to the lack of understanding and motivation that Dr. Tomita says was responsible for [Mr. Bird]’s past failures to overcome the alcohol abuse disorder and, in turn, his violent behavior. [53] It matters not what motivates an Offender to change his behavior.

What matters is whether the motivation is real and sincere and whether it is coupled with the insight necessary to take on the challenge of overcoming an addiction. [54] [Mr. Bird]’s evidence, which I accept, that he has only recently begun to share his life experiences and troubles with those in the volunteer groups suggests that he has now deepened his insight and motivation to deal with his addiction to alcohol.

[ 28 ] The trial judge then addressed the evidence respecting the treatment programming that would be available to Mr. Bird while incarcerated. He recognized that Mr. Bird had received such programming during past sentences and that it “had little effect on his ability to abstain from alcohol” (at para 59). However, he also observed that, since Mr. Bird’s last sentence, CSC had reformatted its programming delivery model, and that the new model contained an “integrated Indigenous oriented component” which would “improve [Mr.

Bird]’s chances of conquering the alcohol abuse disorder … provided he is properly motivated to do so” (at para 59). The trial judge examined Mr. Bird’s professed reasons for resolving to make substantial changes as the dangerous offender hearing approached and considered what that motivation said about Mr. Bird’s prospects for success. He went on to state: [68] In my view, [Mr. Bird], because of the positive developments since the date of [Dr. Tomita’s] Report, has shown greater insight and recognition into his alcohol disorder and is sincere and ready to build on what he has already accomplished.

There are “… indications that his insight into his alcohol use problems has changed ...”, para. 43. His prospects for treatment have improved. His risk of recidivism and the inability to surmount his dangerous conduct have been reduced. [69] I agree with Dr. Tomita that the only objective way to test the durability of [Mr. Bird]’s motivation would be to observe him upon a return to the community, para. 32, but that of course is impossible unless he is returned to the community.

It is that impossibility that necessitates that the prospective determination of treatability involves looking beyond objective benchmarks and into “future treatment prospects”, Boutilier at para. 46 . [70] In my view, [Mr. Bird]’s prospects for treatment now go beyond an “expression of hope”, Boutilier at para. 87 and unrealistic optimism.

They are compelling enough for me to conclude that the Crown has not proven “beyond a reasonable doubt that [this Offender] present[s] a high likelihood of harmful recidivism or that [his] violent pattern is intractable” Boutilier at para. 45 . [ 29 ] Having made that conclusion, the trial judge observed that Mr. Bird had conceded that he should be designated as a long-term offender and proceeded to sentence him on that basis. III. THE SCOPE AND STANDARD OF APPELLATE REVIEW [ 30 ]

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 Napope , 2023 SKCA 1 at para 16 [ Napope ]; R v Pelly , 2021 SKCA 50 at paras 19–20 , 403 CCC (3d) 127).

Absent an error of law as described in R v J.M.H. , 2011 SCC 45 at paras 24-32 , [2011] 3 SCR 197 [ J.M.H. ], a judge’s assessment of the evidence adduced in a dangerous offender proceeding is beyond the reach of appellate review in a Crown appeal under s. 759(2) ( R v Straub , 2022 ONCA 47 at paras 25-26 and 69 , 411 CCC 3(d) 119 [ Straub ]). IV. ISSUES [ 31 ] The Crown says the trial judge made three legal errors in this case. First, it argues that he failed to assess the risk that Mr. Bird would commit future violent offences “in accordance with the methodology prescribed by Parliament in s. 753(1) (

a) of the Criminal Code ”. In broad strokes, this is an allegation that the trial judge erred by emphasizing Mr. Bird’s recent positive behaviour instead of focusing on his long-established patterns of conduct. [ 32 ] Second, the Crown contends that the trial judge misapprehended the evidence relevant to the question of Mr. Bird’s risk or failed to consider that evidence in its totality. Here, the argument is that the trial judge focused only on Mr.

Bird’s recent sobriety and the prospects for successful treatment of his alcohol use disorder, while overlooking evidence that the Crown viewed as having established that even successful treatment of that problem would not meaningfully reduce his risk of future violent offending. [ 33 ] Third, the Crown submits that the trial judge misinterpreted s. 753(1) (

a) of the Criminal Code , because he did not approach the analysis of Mr. Bird’s future risk of violent offending in the way the statutory language requires. The Crown’s assertion under this heading is that the trial judge erred by reasoning as though the question of whether Mr.

Bird should be designated as a dangerous offender hinged entirely on whether his treatment prospects were more than just an expression of hope. [ 34 ] While the Crown has characterized these as three separate legal errors, its arguments are all, in my view, variations on a single theme, namely, that the trial judge failed to apply the correct legal principles to his assessment of the evidence. It is an error of law to assess the evidence on the basis of a wrong legal principle, or to fail to consider all of the evidence in relation to the ultimate issue ( J.M.H. at paras 29 and 31-32 ; Straub at para 26 ).

Accordingly, I would consolidate the Crown’s arguments into a single compendious ground of appeal and frame the issue for determination by this Court as being whether the trial judge failed to apply the correct legal principles to his assessment of the evidence in determining whether Mr. Bird should be found to be a dangerous offender under s. 753(1) (

a) of the Criminal Code . V. ANALYSIS [ 35 ] Section 753(1) of the Criminal Code sets out what the Crown must establish at the designation stage of a dangerous offender proceeding. Relevant to the circumstances of Mr. Bird’s case, and the way in which the Crown brought its application against him, s. 753(1) (

a) provides as follows: 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 thedefinition of that expression in

section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of otherpersons 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 afailure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychologicaldamage 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 otherpersons 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 tocompel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; [36] The designation stage of a dangerous offender proceeding is concerned with evaluating the offender’s future threat to publicsafety.

The question is whether the offender will continue to be a real and present danger to the public (R v Hornby, 2021 ABCA 254 atpara 36 [Hornby]). In Boutilier, the Supreme Court confirmed that this calls for an assessment of risk that looks both backward (i.e., at thepredicate offence and the past pattern of violent offending) and forward (i.e., at the future likelihood of harmful recidivism andintractability of the offender’s violent conduct).

See also: R v Parfitt, 2019 SKCA 55 at para 65, 378 CCC 3(d) 490. [37] The principles from Boutilier that govern the designation stage of dangerous offender proceedings and guide the manner inwhich sentencing judges are to approach the assessment of risk under s. 753(1)(

a) were summarized by Jackson J.A. in Starblanket: [67] Importantly, the majority in Boutilier, under the pen of Côté J., made these declarations of principle: (a) “an offender cannot be designated as dangerous unless the judge concludes that he or she is a future ’threat’ after a prospectiveassessment of risk” which requires a “consideration of future treatment prospects” (at para 23, italics emphasis in original); (

b) following R v Lyons, (SCC), [1987] 2 SCR 309 [Lyons], a sentencing judge must still be satisfied on the evidence that(Boutilier at paras 26–27): (

i) the offender poses a high likelihood of harmful recidivism; (ii) his or her conduct is intractable, which is defined as “behaviour that the offender is unable to surmount” (at para 27); (c) “[d]etermining whether or not a high risk of recidivism and intractability are present necessarily involves a prospective inquiry intowhether an offender will continue to be … ‘a real and present danger to life or limb’” (at para 35); (d) “the Crown must prove every dangerousness criterion beyond a reasonable doubt (R. v. Gardiner, (SCC), [1982] 2S.C.R. 368; R. v.

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

This is so because ‘as a matter ofpracticality, the most that can be established in a future context is a likelihood of certain events occurring’: Lyons, at p. 364” (at footnote 1;see also para 41); (e) “the sentencing judge must consider all retrospective and prospective evidence relating to the continuing nature of this risk, includingfuture treatment prospects” (at para 43); (f) ”[a]t the designation stage, treatability informs the decision on the threat posed by an offender” (at para 45); and (g) “offenders will not be designated as dangerous if their treatment prospects are so compelling that the sentencing judge cannot concludebeyond a reasonable doubt that they present a high likelihood of harmful recidivism or that their violent pattern is intractable” (at para 45). [38] As I read Boutilier and Starblanket, the assessment called for at the designation stage requires a sentencing judge to considerall evidence concerning past and likely future behaviour that is relevant to the continuing nature of the offender’s risk.

This necessarilyincludes consideration of the offender’s future treatment prospects. And, in the case of Indigenous offenders, it also calls for sentencingjudges to consider whether and to what extent culturally specific treatment and programming can serve to reduce the offender’s risk (R vBallantyne, 2022 SKCA 13 at para 23; Napope at para 27). [39] In R v White, 2022 BCCA 91 [White], the British Columbia Court of Appeal explained that the backward-looking and forward-looking aspects of risk assessment are linked, not separated.

To put that another way, the past always informs the future to some degree: [4] The links between the predicate offence, the pattern of past conduct, and the risk that the same pattern of behaviour will likelycontinue are integral components of the analysis at the first stage. These links ensure that only offenders who are shown beyond areasonable doubt to constitute a future, identifiable and specific threat to the life, safety or physical or mental well-being of other personsare labelled as dangerous: R. v. Currie, (SCC), [1997] 2 S.C.R. 260 at paras. 22, 26, 30; (SCC). As this Court put it in R.v.

Pike, 2010 BCCA 401 at para. 78 [Pike], the pattern, of which the predicate offence forms a part, defines the prospective assessment ofrisk (see also R. v.

Patel, 2020 BCCA 92at paras. 216-223 [Patel]). [40] The prospective assessment of dangerousness required at the designation stage “ensures that only offenders who pose atremendous future risk are designated as dangerous and face the possibility of being sentenced to an indeterminate detention” (Boutilier atpara 46; see also: R v Wolfleg, 2018 ABCA 222 at para 71, 363 CCC 3(d) 168; R v Natomagan, 2022 ABCA 48 at para 94 [Natomagan]). [41] The Crown argues, as set out above, that the trial judge failed to analyse future risk in the manner required by s. 753(1)(a), inthat he failed to properly consider how Mr.

Bird’s past (as evidenced by his psychological profile, historical violent offending, previous

failures to benefit from treatment, and past non-compliance with supervision) should have been used to inform the assessment of his futurerisk for violent recidivism. The Crown asserts that the trial judge fell into error by focusing entirely on what Mr. Bird’s behaviour incustody in the months leading up to the dangerous offender hearing said about his prospects for treatment, and by not giving the necessaryconsideration to what it called Mr.

Bird’s “decades-long pattern of re-offending quickly after brief interludes of improved insight,motivation and behaviour in custody”. [42] The Crown says this error led the trial judge to approach his analysis in a way that was “inconsistent with the methodologyprescribed in s. 753(1)(a)” and that he “failed to appreciate that a realistic appraisal of [Mr. Bird]’s treatment prospects, which was only asmall part of the assessment of [his] present risk, necessarily had to include a fulsome consideration of what had happened before”. [43] The Crown also asserts that the trial judge’s focus on Mr.

Bird’s behaviour in the 8 or 9 months that preceded the dangerousoffender hearing demonstrates that he must either have misapprehended or failed to consider relevant evidence, because he did not engagein any meaningful consideration of Mr. Bird’s conduct over the previous 20 years that was relevant to his future risk of violent offending.In particular, the Crown says the trial judge failed to properly consider whether Mr. Bird had been drunk or sober when he committed hispast offences, failed to consider the past occasions when Mr.

Bird had reoffended quickly even after what appeared to be interludes ofimproved insight or motivation, failed to consider Mr. Bird’s past failures to comply with supervision in the community, and failed toproperly consider Dr. Tomita’s opinion regarding how such failures bore on Mr. Bird’s future risk for violent recidivism. As the Crownsummarizes this argument in its factum: In simple terms, unlike Dr. Tomita who assessed [Mr. Bird]’s present risk based on everything the respondent had said or done before, thetrial judge opted to ignore the significance of almost everything [Mr.

Bird] had said or done between 2001 and 2017 and assess [Mr.Bird]’s risk based on what he did in prison in the eight or nine months preceding the dangerous offender hearing.

That approach wasinconsistent with the risk assessment process mandated by Parliament and it had an obvious impact on the trial judge’s ultimateconclusions. [44] I would not give effect to these arguments. [45] While it is clear that an offender’s past conduct is highly relevant in assessing their risk for future violent conduct, I do not readthe authorities as suggesting that a judge’s attention at the designation stage of a dangerous offender proceeding must remain focussed onpast behaviour.

In fact, the Supreme Court addressed this very point in Boutilier, saying: [35] Determining whether or not a high risk of recidivism and intractability are present necessarily involves a prospective inquiry intowhether an offender will continue to be, in Justice Dickson’s words (as he then was), “a real and present danger to life orlimb”: Hatchwell v. The Queen, (SCC), [1976] 1 S.C.R. 39, at p. 43. For the Court in Lyons, this prospective inquiry wascritical to the constitutionality of the scheme.

An entirely retrospective assessment could not ensure that indeterminate sentences wererationally connected to the objective of public safety going forward. Nor could it avoid catching offenders who had proved violent in thepast but who presented no future threat. [36] The jurisprudence of this Court subsequent to Lyons has consistently considered a prospective assessment of risk to be acomponent of dangerous offender applications. In R. v.

Currie, (SCC), [1997] 2 S.C.R. 260, Lamer C.J. said that a judgehas to “be satisfied beyond a reasonable doubt of the likelihood of future danger that an offender presents to society before he or she canimpose the dangerous offender designation and an indeterminate sentence”: para. 25. In Sipos, at para. 20, which concerned s. 753(1)(b),this Court explained that designation requires evidence on both the retrospective and the prospective elements. [37] Indeed, three features of the designation scheme demonstrate the importance of prospective evidence to a finding ofdangerousness.

First, the pattern of violence that is proven through evidence of past conduct is future-oriented — it must show a“likelihood” of harmful recidivism “in the future”: see the language in s. 753(1)(a). As Neuberger put it, “[t]hough a past pattern may beproved by the Crown, if there is no evidence that such a pattern will necessarily lead to a likelihood of re-offence, the dangerous offenderapplication will fail”: J. A. Neuberger, Assessing Dangerousness: Guide to the Dangerous Offender Application Process (loose-leaf), atp. 4-27.

A past pattern of violence is considered in the global assessment of an offender’s future behaviour, which, in turn, is consideredby the court in determining whether the offender constitutes a “threat”. … [43] As the assessment of prospective risk described above is concerned with whether an offender will continue to be “a real andpresent danger”, being unable to surmount his or her violent conduct, the sentencing judge must consider all retrospective and prospectiveevidence relating to the continuing nature of this risk, including future treatment prospects.

Furthermore, I am of the view that confiningthe consideration of treatability to the choice of penalty under s. 753(4.1) rests on a theoretical distinction between the designation stageand the penalty stage that is neither practical nor useful. (Footnotes omitted) [46] Nor, in my view, does the need to be informed by past behaviour preclude a sentencing judge from finding that an offender hasmade changes that bode well for the future, or from accepting evidence about more hopeful prospects going forward, even in the face ofdamning evidence concerning the offender’s past. [47] I also do not read the Sentencing Decision in the way the Crown suggests it should be read.

In that respect, it must be observedthat the trial judge clearly understood the law that he was to apply at the designation stage. To that end, he self-instructed appropriately,by referencing the salient portions of Boutilier. He also cited and quoted directly from Linden Bird, which incorporates the exact passagefrom Starblanket that I set out above. There is no reason to think that the trial judge misunderstood or forgot his own self-instruction. [48] More importantly, however, I am not persuaded that the trial judge failed to consider the relevant features of Mr.

Bird’s historyor that he failed to consider any material aspect of Dr. Tomita’s evidence. To the contrary, in fact, the trial judge’s reasons demonstrate

that he carefully reviewed all of the evidence, including the evidence pertaining to Mr. Bird’s past offences, his past supervision failures, and the fact that he had previously reoffended after appearing to have made progress. The trial judge also thoroughly reviewed Dr. Tomita’s evidence and, in his analysis of that evidence, made explicit reference to almost everything that the Crown accuses him of having failed to consider. As examples of this, the trial judge stated: [16] It is Dr. Tomita’s opinion that the Offender is a high risk for future violence. He noted that [Mr.

Bird] ‘s history of violence was broad involving both sexual and non-sexual violence, para. 20. The history also shows an escalation in the severity of the violence, para. 21. He said the cluster of violence in 2011 and in 2017 were remarkable in their escalation … [17] Dr. Tomita suggested that future scenarios of violence will be most likely driven by [Mr. Bird]’s antisocial values, beliefs and attitudes and they could be either reactive or emotionally driven, or predatory. Dr. Tomita said [Mr. Bird] used reactive violence to reach his goals and communicate his upset at people … [18] It was Dr.

Tomita’s view that [Mr. Bird] ‘s violence was understandable given [Mr. Bird]’s antisocial personality disorder traits and attitudes … [19] He also noted that intoxication with alcohol correlates to [Mr. Bird]’s most severe levels of violence and said … that “A crucial risk assessment consideration is determining the likely prognosis for [Mr. Bird] stopping alcohol use and controlling his risk of relapse over the long term. Presently, I believe that his past behaviour’s [ sic ] involving alcohol are the best guide we have to the future and it is not optimistic. [Mr.

Bird] has completed treatment, received positive assessments, appeared motivated, had community supports but went unlawfully at large twice on parole release, returned to alcohol use, and used violence.” [20] He then added … that [Mr. Bird] “... has presented with the appearance of diligent motivation to control alcohol use but it has never been durable once [Mr. Bird] is in the community under legal supervision.

This makes it very difficult to discern whether a material change in his internal motivation has· occurred and the only way of objectively testing it, is an observation of him upon a return to the community again. Motivation is built upon insight and recognition of the seriousness of one’s problems with alcohol and [Mr. Bird’s] insight is not deep. Based on available data, I would say the likelihood of him being able to remain alcohol free is low.” [21] The conclusion that [Mr.

Bird]’s insight and recognition of the seriousness of the problem, a key component to building motivation, was “not deep” was reached on the basis of the information that was reviewed and shared when the interview was conducted. … [25] It was Dr. Tomita’s opinion that the likelihood of future treatment programs having a substantial risk reducing effect on the probability of future violence is low … [ 49 ] Against all of that, the trial judge also carefully considered Mr.

Bird’s testimony, as well as the other evidence that spoke favourably of his future treatment prospects, including the changes he had made in the period leading up to the dangerous offender hearing, and his testimony about what had motivated him to make those changes. The trial judge weighed and considered all of the evidence and, as set out above, concluded that Mr. Bird had made changes that were not merely superficial in nature, but were sufficient to show “a different trajectory” such that they “must be considered in the prospective determination of whether [Mr.

Bird]’s risk factors are treatable” (at para 50). He also accepted Mr. Bird’s evidence that he had made important breakthroughs that spoke to a crucial change in his motivation, including being able to talk more openly about his history of abuse and abandonment, and that this change in motivation opened new avenues for treatment. All of this caused the trial judge to conclude that Mr. Bird’s “prospects for treatment now go beyond an ‘expression of hope’ … and unrealistic optimism”, and that they were compelling enough for him to conclude that the Crown had not proven beyond a reasonable doubt that Mr.

Bird presented “a high likelihood of harmful recidivism or that [his] violent pattern [was] intractable” (at para 70). [ 50 ] Contrary to what the Crown argues, I do not view this conclusion as reflecting a failure by the trial judge to employ the proper analysis under s. 753(1)(

a) or as reflecting that he failed to consider relevant evidence. Rather, it demonstrates that, as he was entitled to do, the trial judge did not accept all of Dr. Tomita’s evidence or treat it as the definitive word on whether the Crown had proven what was necessary to designate Mr. Bird as a dangerous offender. As he was also entitled to do, the trial judge accepted Mr. Bird’s testimony and weighed that against the evidence – both retrospective and prospective – that spoke to his risk of future violent conduct. [ 51 ] In this respect, I can find no legal error.

The trial judge followed the approach set out in Boutilier and Starblanket and, in my view, applied the risk analysis correctly to the facts as he found them after reviewing all of the relevant evidence. In essence, the Crown’s argument under this heading reduces to a complaint about the weight that the trial judge assigned to certain aspects of the evidence. Such a complaint provides no basis for intervention in an appeal under s. 759(2). [ 52 ] The Crown also contends that the trial judge “misinterpreted s. 753(1)(

a) by failing to grasp the relationship between the concept of ‘treatability’ and the appropriate legal test to be applied in dangerous offender applications”, and by “holding that he could dismiss the application simply because [Mr. Bird]’s alcohol abuse treatment prospects went ‘beyond an expression of hope’”. [ 53 ] It is well-settled law that, at the designation stage, the Crown does not need to prove that an offender will offend violently in the future ( Hornby at para 36 ).

However, a dangerous offender finding cannot be made if the offender’s treatment prospects are so compelling that they raise a reasonable doubt about whether there is a high likelihood of harmful recidivism, or about whether the offender’s violent pattern is intractable ( Boutilier at paras 42–46 ; R v A.R. , 2022 ONCA 553 at para 26 [ A.R. ]). [ 54 ] The Crown asserts that the trial judge’s conclusion that it had failed to prove the level of risk or intractability necessary to support a dangerous offender designation “ran counter to the results of every expert risk evaluation conducted in the last 20 years and was completely at odds with a simple review of the easily identifiable patterns of previous conduct in [Mr.

Bird]’s criminal history”. [ 55 ] The question of whether an offender’s treatment prospects are so compelling as to raise a reasonable doubt about future violence or intractability is a question of fact ( R v J.J.P. , 2020 YKCA 13 at para 68 , 390 CCC 3(d) 513). As mentioned earlier, that means a trial judge’s conclusion on that point is beyond the reach of appellate review in an appeal under s. 759(2), absent an error of law. The

Crown argues that the fact-finding at issue here was the product of a legal error, because the trial judge found that Mr.

Bird’s improved insight and professed motivation to change were enough to raise a reasonable doubt about his risk of future violence even though, it says, there was no evidence that those improvements were sustainable or that they addressed the true root issues underlying his violent offending. [ 56 ] At the designation stage of a dangerous offender proceeding, the Crown bears the onus of proving likelihood of future violent conduct and intractability beyond a reasonable doubt, and the factual determination that a sentencing judge is required to make in that regard must be grounded in the evidence.

The expert opinion evidence of the psychiatrist or psychologist who conducts the assessment required by s. 752.1 of the Criminal Code is, of course, highly probative of the issue at this stage. But that does not mean that a sentencing judge is required to defer to the expert’s opinion.

The ultimate decision as to whether an offender is designated as a dangerous offender rests with the sentencing judge ( R v Lukyn , 2022 BCSC 1200 at para 29 ) and any finding, whether it be that the Crown has proven the case for designation, or that there is a reasonable doubt about whether the necessary elements have been proven, must have an evidential foundation ( R v Simpson , 2020 ONCA 765 at para 40 , 153 OR (3d) 185). [ 57 ] This aspect of the Crown’s argument raises the question of what evidence is necessary to establish a reasonable doubt about the likelihood of future violent offending by the offender or the intractability of their violent pattern.

There is clear support in the jurisprudence for the proposition that, in order to add up to treatment prospects that are “so compelling” to raise a doubt about future violence or intractability, the evidence regarding successful treatment must amount to more than speculation, an expression of hope, or the mere possibility that future treatment might succeed ( Boutilier at para 83 ; A.R. at para 32 ; R v Goforth , 2007 SKCA 144 at para 54 , 302 Sask. R.).

But it is hardly surprising that what form that evidence must take is less clear, as sentencing is an inherently individual process, and the circumstances of the offences that give rise to dangerous offender proceedings, and the personal characteristics of the offenders who are the focus of those proceedings, are subject to innumerable variations. [ 58 ] Where, as in Mr.

Bird’s case, the Crown’s evidence demonstrates that an offender has a lengthy history of violent offending, has failed to benefit from rehabilitative programming, has failed to comply with supervision in the community, and has deeply-entrenched personality disorders underlying all of that, the offender may face a substantial evidentiary hurdle in raising a reasonable doubt about the intractability of their violent pattern or the likelihood of future violence.

In practical terms, this may require the offender to lead, or at least be able to point to, evidence that supports the conclusion that their treatment prospects are sufficiently compelling to meaningfully reduce the risk they pose for future violence. However, while this evidence must clearly amount to more than speculation, hope or possibility, nothing in the jurisprudence suggests that it must come from an expert, or that it must take any particular form.

The ultimate determination as to whether a reasonable doubt exists is something that falls within the exclusive province of a sentencing judge, as the finder of fact. [ 59 ] When assessing the evidence at the designation stage of a dangerous offender hearing, a judge must bear in mind the legislative purpose behind

Part XXIV, namely, protecting the public from the risk of violent harm ( R v Johnson , 2003 SCC 46 at para 29 , [2003] 2 SCR 357 [ Johnson ]; A.R. at para 33 ).

In light of that purpose, where the offender’s past behaviour suggests that their risk for violent offending will carry into the future, a reasonable doubt about future violence or intractability must be based on evidence that permits the conclusion that the prospects for successful treatment are good enough that they can reduce or contain the offender’s risk to such a degree that there is no longer a high likelihood of future violent offending (see, for example: R v W.D. , 2020 NLSC 96 at paras 19–20 , citing R v Little , 2007 ONCA 548 , 225 CCC (3d) 20).

A number of considerations will be relevant in determining whether the evidence permits such a conclusion, including (

a) whether the offender has deeply ingrained personality disorders that are resistant to change, (

b) the availability or lack of availability of appropriate treatment facilities or programs, (

c) the offender’s outlook for improvement where programs or facilities exist, (

d) whether or not an ascertainable time frame for improvement can be estimated or predicted, and (

e) whether the delivery of the necessary treatment will be impeded because the offender has multiple disorders or a limited capacity to learn (see R v Leach , 2021 ABQB 61 at para 91 , citing R v Ominayak , 2007 ABQB 442 at para 209 , 443 AR 1, aff’d 2012 ABCA 337 ,539 AR 88). I would also add that a sentencing judge must consider other contextually relevant evidence, including whether there has been a change of significance in the offender’s personal circumstances or motivation that speaks directly to their likelihood of complying with treatment or their prospects for benefiting from it.

In R v Levac , 2022 SKKB 215 at paras 93–95 , for example, Mitchell J. observed that evidence regarding the offender’s attitude and motivation to change is highly relevant in that regard. [ 60 ] I do not take the Crown as disputing the principles set out in this jurisprudence. However, it argues that Mr. Bird’s future treatment prospects turned on whether he was likely to benefit from treatment that had failed before, and that the trial judge erred by finding that there was a reasonable doubt about the likelihood of future violence and the intractability of Mr.

Bird’s conduct without being able to conclude that it was probable or likely that treatment would succeed this time around. [ 61 ] Once again, I find myself unable to agree with the Crown’s reading of the Sentencing Decision . In my view, the trial judge’s reasons make clear that his conclusion that Mr.

Bird’s treatment prospects were sufficiently compelling to raise a doubt about the likelihood of future violent offending or the intractability of his violent pattern was based in a careful consideration of the evidence. [ 62 ] In particular, the trial judge thoroughly reviewed all important parts of the evidence of Dr. Tomita that the Crown relies upon in this appeal. In examining whether the trial judge’s assessment of that evidence reveals a legal error, it is important to recall that Dr. Tomita had last seen Mr. Bird some 20 months before he gave his testimony. It also bears mentioning that, although Dr.

Tomita provided evidence that suggested that Mr. Bird’s violent offending was rooted in both his antisocial personality features and his alcohol use disorder, he agreed that the latter disorder was “the critical potentially modifiable internal risk factor”. Dr. Tomita also agreed, in cross- examination, that Mr. Bird’s risk for future violent offending would be substantially reduced if he were able to achieve and maintain complete abstinence from alcohol and drugs. [ 63 ] Standing against Dr. Tomita’s testimony and the evidence of Mr. Bird’s history was the testimony given by Mr.

Bird and two other witnesses at the hearing. The trial judge began his examination of that evidence by stating his conclusion that the changes in Mr. Bird “go beyond just a superficial change or … changes that should only be considered with further proof that they are durable” (at para 50). In this context, the fact that Dr. Tomita had not examined Mr. Bird in the 20 months before he testified is telling. The trial judge continued by stating his conclusion that the changes Mr.

Bird had made were ones “that show a different trajectory and must be considered in the prospective determination of whether [his] risk factors are treatable” (at para 50). The trial judge then explained his reasons for reaching those conclusions, by conducting a detailed examination of the evidence and making direct reference to the portions of it that underpinned them. This evidence included Mr. Bird’s testimony that he was committed to complete abstinence going forward. It

also included other evidence that supported the conclusion he had taken positive steps toward that goal. As the trial judge made clear, he accepted Mr. Bird’s evidence that he has “deepened his insight and motivation to deal with his addiction to alcohol” ( Sentencing Decision at para 54). He also accepted the evidence given by Deacon Lynn Ryan, who had been the leader of the faith-based addiction program in which Mr. Bird had been participating for the preceding four years. Deacon Ryan spoke positively of Mr. Bird’s performance in that program and of the changes he had observed in Mr.

Bird. [ 64 ] In addition to that, the trial judge accepted that the manner in which CSC had changed its program delivery model improved Mr. Bird’s chances of conquering his alcohol abuse disorder “provided he is properly motivated to do so” (at para 59). He also accepted that, while Mr. Bird had lacked this motivation in the past, his conduct in the period since Dr.

Tomita had performed the assessment demonstrated the type of change that showed his “prospects for treatment have improved” such that they were sufficient to raise a reasonable doubt about harmful recidivism or the intractability of his violent pattern (at para 68). [ 65 ] Following all of this, the trial judge wrapped up his analysis by stating his conclusion that Mr. Bird’s “prospects for treatment now go beyond an ‘expression of hope’ ... and unrealistic optimism”, and that, instead, they were “compelling enough … to conclude that the Crown has not proven ‘beyond a reasonable doubt that [Mr.

Bird] present[s] a high likelihood of harmful recidivism or that [his] violent pattern is intractable’” (at para 70). As is apparent, this language tracks the governing test from Boutilier , which the trial judge had cited and referred to several times in his reasons. [ 66 ] Against this background, I reject the Crown’s contention that somehow the trial judge identified the correct legal test but applied it incorrectly. In my view, although the trial judge did not explicitly state that he was satisfied there was a likelihood that treatment measures would be successful in reducing Mr.

Bird’s risk for future violent offending, the only fair reading of his reasons is that he reached precisely that conclusion. [ 67 ] There are two final points I would make. The first is that the task of a judge called to determine if an offender should be designated as a dangerous offender is not an easy one. It involves life-altering consequences for the offender if the designation is made, and risks to the community if it is not.

In this case, the trial judge made a difficult call that, considering all of the evidence, he was not satisfied beyond a reasonable doubt that the threshold for making the designation had been crossed. This is a decision that is uniquely that of a first-level judge to make, with the benefit of hearing and seeing the witnesses, and weighing all of the relevant criteria. [ 68 ] This leads to my second, and last, point. Although it was possible for the trial judge to have reached a different conclusion, there is a basis in the evidence to support the conclusion he reached.

In a Crown appeal under s. 759(2), this Court cannot intervene simply because it might have taken a different view of the evidence. As I have stated several times already, appellate interference with a factual conclusion such as the one at issue here is permissible only where that factual conclusion is the product of an error of law. I can see no such error here. VI. conclusion [ 69 ] For the foregoing reasons, I would dismiss the appeal. “Kalmakoff J.A.” Kalmakoff J.A. I concur. “Leurer J.A.” Leurer J.A. I concur. “McCreary J.A.” McCreary J.A.