His Majesty the King Appellant v. Renno Allen Lonechild, 2023 SKCA 75

Restriction on Publication An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying a complainant or witness shall not be published. Court of Appeal for Saskatchewan Docket: CACR3466 Citation: R v Lonechild , 2023 SKCA 75 Date: 2023-07-05 Between: His Majesty the King Appellant And Renno Allen Lonechild Respondent Before: Jackson, Tholl and Kalmakoff JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Mr. Justice Tholl The Honourable Mr.

Justice Kalmakoff On appeal from: 2021 SKQB 174 , Saskatoon Appeal heard: November 7, 2022 Counsel: Dean Sinclair, K.C., for the Appellant Michael Nolin for the Respondent Jackson J.A. I. Introduction [ 1 ] This is a Crown appeal from a decision of the Court of Queen’s Bench refusing to designate Renno Lonechild as a dangerous offender. Mr. Lonechild pleaded guilty to two counts of sexual assault contrary to s. 271 of the Criminal Code [predicate offences], following which the Crown applied to have him declared a dangerous offender pursuant to

Part XXIV of the Criminal Code , which pertains to dangerous and long-term offenders. [ 2 ] The sentencing judge, who heard the Crown’s dangerous offender application, found Mr. Lonechild’s risk for recidivism is high, but that his offending conduct is not intractable. Having so concluded, she declared him to be a long-term offender. She then sentenced him to a determinate sentence of 11 years to be followed by a 10-year, long-term supervision order. After taking into account remand credit, this left 3 additional years for Mr.

Lonechild to serve before commencing the supervision order: see R v Lonechild , 2021 SKQB 174 [ Sentencing Decision ]. [ 3 ] The Crown appeals what it labels as the sentencing judge’s failure to declare Mr. Lonechild a dangerous offender. It does so on the broad basis of arguments directed to a conclusion that the sentencing judge erred in her

interpretation and application of s. 753(1) of the Criminal Code . For the reasons that follow, I have concluded that the sentencing judge did not commit any of the Crown’s suggested errors of law. Hence, I would dismiss the Crown’s appeal. II. Background [ 4 ] Before providing some background leading up to the Sentencing Decision , it may be helpful to note that this was Mr. Lonechild’s second dangerous offender hearing in relation to the predicate offences. At the first hearing, a judge of the Court of Queen’s Bench declared Mr.

Lonechild a dangerous offender in a decision reported as R v Lonechild , 2017 SKQB 338 . That decision was set aside with the consent of the Crown and a new dangerous offender hearing ordered: R v Lonechild (19 June 2019) Regina, CACR3047 (Sask CA). [ 5 ] Three years passed before the next dangerous offender hearing. During this three-year interval, Mr. Lonechild was being treated for schizophrenia – a condition that had only been diagnosed in 2017, notwithstanding the fact that Mr.

Lonechild has been in almost continuous federal custody since committing his very first offence at the age of 19, which was a sexual assault that took place in Alberta in 2006 [Alberta sexual assault]. In part, as a result of the extended period of time between dangerous offender hearings, coupled with a proper diagnosis and treatment, the experts became more optimistic about Mr. Lonechild’s ability to control himself and to be managed in the community. The change in Mr. Lonechild became a central part of the second dangerous offender hearing and the Sentencing Decision . [ 6 ] Since Mr.

Lonechild has been in custody for some considerable period of time, both before and after the predicate offences, there are extensive reports about him from various institutions in addition to the psychiatric and psychological assessments filed in

connection with his two dangerous offender hearings. These reports are reviewed in the Sentencing Decision such that I will not recount them here. [ 7 ] I will, however, provide a broad overview of (

a) Mr. Lonechild’s childhood with an emphasis on his Gladue factors, (

b) his first offence, which was the 2006 Alberta sexual assault, and (

c) the predicate offences, before proceeding to describe the second dangerous offender hearing. A. Childhood history [ 8 ] Mr. Lonechild, born in 1987, grew up on a First Nation in the south-eastern part of the province. His mother is Indigenous and his father is Caucasian. In terms of Gladue factors, Mr. Lonechild’s stepfather, mother, two older brothers and the sister with whom he lived were part of the residential school system.

According to the pre-sentence report prepared for his first dangerous offender hearing and updated for the second, he “was raised on the reserve in a family atmosphere that experienced substance abuse, physical abuse, and some domestic violence although he feels he was too young to remember much of it”. [ 9 ] The best description of his early life comes from R v Lonechild , 2008 ABPC 263 , 450 AR 146 [ Alberta Sentencing Decision ], where the judge sentencing Mr. Lonechild quoted from a psychiatric report that the Crown had filed on that occasion. In

summary, that assessment reveals the following aspects of his childhood: (

a) his Indigenous mother was a residential school survivor, who struggled with addictions, and there was domestic abuse in the family home; (

b) he alleged his stepfather had sexually abused him when he was about 8 or 9 years old; (

c) he had a history of petty theft while growing up on the First Nation; (

d) by the age of 15, he was abusing alcohol and marijuana, which led to conflict within the home and truancy from school (resulting in his attaining only a grade 10 education); at 17 years of age, he moved out of the family home on the First Nation; and (

e) the $10,000 band cheque he received when he was 18 was mostly spent on cocaine. While this psychiatric report was prepared when Mr. Lonechild was 19, since then, he has been in almost continuous provincial or federal custody. B. Criminal history before the predicate offences [ 10 ] With no previous record, Mr. Lonechild first came to the attention of the police at the age of 19 when, on November 1, 2006, he committed the Alberta sexual assault mentioned earlier. [ 11 ] The facts are fully set out at paragraph 3 of the Alberta Sentencing Decision .

For the purposes of these reasons, it is sufficient to note that Mr. Lonechild brutally sexually assaulted, beat and choked a 34-year-old woman. The victim, M.B., had been a teacher in Africa before she immigrated to Canada. She was living in Alberta and learning to speak English in order to upgrade her skills to assume a similar position in her new country. Meanwhile, she was working as an unarmed security guard on a night shift alone on a construction site at 3:00 a.m. when Mr. Lonechild encountered her. M.B. was able to phone 911. [ 12 ] In a bizarre twist of events, Mr.

Lonechild spoke to the 911 operator whom M.B. had called for assistance and identified himself. Before help could arrive, however, Mr. Lonechild attacked M.B., beat her, punched her in the face, and forced his penis into her vagina. He hit her and dragged her across pavement. When she pushed him away, he forced her to perform fellatio and then raped her vaginally all the while threatening to kill her. The police arrived and arrested him as he tried to flee the scene. The victim was hospitalized for one day.

She was severely traumatized, including being unable to leave her home for about one year. [ 13 ] Following Mr. Lonechild’s arrest for the Alberta sexual assault, he was initially placed on judicial interim release. He breached the terms of his recognizance, for which he was sentenced to time served on March 22, 2007. He then returned to Saskatchewan where he worked until August 16, 2007, when the police arrested him for four other offences as follows ( Alberta Sentencing Decision at para 1 ): 5.

On May 24, 2007, he unlawfully broke a window and thereby did commit mischief, contrary to section 430(4) of the Criminal Code . 6. On May 24, 2007, he breached a condition of his recognizance by having consumed alcohol, contrary to section 145(3) of the Criminal Code . 7. On August 15, 2007, he breached a condition of his recognizance by not being in his residence when so required, contrary to section 145(3) of the Criminal Code . 8. On August 16, 2007, he breached a condition of his recognizance by not being in his residence when so required, contrary to section 145(3) of the Criminal Code .

Thereafter, he remained in custody awaiting trial on all of the above offences, including the Alberta sexual assault. [ 14 ] After a preliminary inquiry had taken place, Mr. Lonechild pleaded guilty to the following offences arising out of the Alberta sexual assault (at para 1): 1. On November 1, 2006, he committed a sexual assault upon [M.B.], contrary to

section 271 of the Criminal Code . 2. On November 1, 2006, he choked [M.B.] with intent to enable or assist himself in committing the indictable offence of sexual assault

upon [M.B.], contrary to

section 246 (

a) of the Criminal Code . 3. On November 1, 2006, he unlawfully confined [M.B.], contrary to section 279(2) of the Criminal Code . 4. On November 1, 2006, he uttered to [M.B.] a threat to kill [M.B.], contrary to

section 264.1(1) (

a) of the Criminal Code . He also pleaded guilty to the remaining offences that he had committed while on judicial interim release and which are mentioned above. [ 15 ] As I have indicated, the Alberta judge who sentenced Mr. Lonechild had before him a psychiatric assessment of Mr. Lonechild. The author of that report offered the following opinions: Mr. Lonechild “is a low risk for future sexual violence” (at para 10) and “there is no evidence of any severe personality psychopathology or other difficulties in this manner” (at para 9). [ 16 ] The Alberta judge accepted that opinion.

After accounting for the principle of totality, he sentenced Mr. Lonechild to seven years for the sexual assault and one year, consecutive, for the choking offence. The offences of unlawful confinement and uttering threats attracted concurrent sentences of one year and three months, respectively. The judge credited him with 33 months for time spent in pre- sentence custody, which left 63 months to serve. In relation to the four offences committed while on recognizance, the Alberta judge sentenced Mr.

Lonechild to one month on each charge, consecutive one to the other, but concurrent to the other sentences. [ 17 ] The Alberta Sentencing Decision was released on September 12, 2008. Mr. Lonechild was granted conditional release in December of 2011. That release was suspended because Mr. Lonechild assaulted his domestic partner. He was given a subsequent period of parole, and it was suspended for violating conditions, including drinking and not abiding by a curfew. In the end, Mr. Lonechild served out his sentence until the expiry of the warrant on December 11, 2013. C.

The predicate offences [ 18 ] Within a year of his release from the Alberta sexual assault convictions, Mr. Lonechild committed the predicate offences. Each of these was a sexual assault, contrary to s. 271 of the Criminal Code . [ 19 ] Mr. Lonechild committed the first offence on April 6, 2014. On that day, he sexually assaulted a sleeping woman. However, before the police could identify and apprehend him in relation to that offence, he sexually assaulted another woman on November 4, 2014, while she was unconscious and left her naked outside of her home. [ 20 ] Following this second offence, and before Mr.

Lonechild could be arrested, there was an altercation at his mother’s home, where he was living at the time. When his mother thwarted his attempts to take her recreational vehicle, he threatened her and damaged the vehicle. Mr. Lonechild was severely intoxicated. His actions resulted in the police being called. The police arrested him and charged him with resisting arrest, failing to comply with an undertaking and committing mischief under $5000. This was March 23, 2015. It was then that the police also arrested Mr.

Lonechild for the predicate offences and charged him with two counts of sexual assault contrary to s. 271 of the Criminal Code . He has remained in custody since then. [ 21 ] Again, Mr. Lonechild pleaded guilty and an agreed statement of facts was filed. The sentencing judge summarized the circumstances pertaining to the sexual assaults ( Sentencing Decision ): [31] According to an Agreed Statement of Facts with respect to the predicate offences, Mr. Lonechild sexually assaulted Ms. T.P-L on April 6, 2014. He and some other individuals, including Ms. T.P-L, were drinking at her apartment in Saskatoon.

She had passed out in her bedroom and, when she woke up in the morning, she had no pants or underwear on. Her friends advised her that they had seen Mr. Lonechild go into her room and leave after about 20 minutes. A sexual assault kit was obtained and the DNA obtained from an anal swab matched Mr. Lonechild’s DNA. [32] Mr. Lonechild committed the second of the predicate offences – another sexual assault – just seven months after he sexually assaulted Ms. T.P-L. At approximately 1:00 a.m. on November 4, 2014, Carlyle RCMP responded to a call from a house on [a] First Nation regarding a female, Ms.

J.O-P, lying naked and unresponsive in the snow on the road outside a house. Mr. Lonechild had been seen driving alone with her before she was found outside the home. Ms. J.O-P was taken to the Regina General Hospital. She had sustained multiple bruises and abrasions over her entire body and tenderness to her vaginal and anal regions. A sexual assault kit was obtained and the DNA from both a vaginal and an anal swab matched Mr. Lonechild’s DNA. [ 22 ] While no victim impact statements were filed, the sentencing judge rightly concluded that these victims, like the first woman Mr.

Lonechild had assaulted in Alberta, would have been significantly harmed. [ 23 ] Following his guilty plea to the predicate offences, the Crown instituted proceedings under

Part XXIV of the Criminal Code to have Mr. Lonechild declared a dangerous offender. III. Dangerous offender hearing in 2021 [ 24 ] Eight witnesses testified at the dangerous offender hearing. It is sufficient to summarize the evidence of Dr. Shabehram Lohrasbe, Dr. Terry Nicholaichuk, Mr. Guy Lonechild, Mr. Everett Bigeagle and Mr. Lonechild, as described by the sentencing judge, for the purposes of setting the context for the legal issues that the Crown has raised. [ 25 ] Dr. Lohrasbe is the psychiatrist who conducted the court-ordered assessment of Mr. Lonechild and testified as the Court’s witness. Dr.

Nicholaichuk, an adjunct professor at the University of Saskatchewan and a registered psychologist, was called by the defence. Both Dr. Lohrasbe and Dr. Nicholaichuk are well-known to the courts in Saskatchewan, having testified frequently as experts in their respective fields. Guy is Mr. Lonechild’s half-brother, and Mr. Bigeagle is Guy’s long-time friend. [ 26 ] Both Dr. Lohrasbe and Dr. Nicholaichuk interviewed Mr. Lonechild in 2017, prepared written reports and testified at the first

dangerous offender hearing. Similarly, they interviewed him, prepared further written reports and testified at the second hearing. In addition to presenting their clinical assessment, their evidence in the second hearing focussed on how and in what manner Mr. Lonechild had changed in the intervening period between hearings. It should also be observed that Dr. Lohrasbe met with Mr. Lonechild on December 6, 2019, whereas Dr. Nicholaichuk interviewed him twice in October of 2020. This additional evidence provided by Dr. Nicholaichuk allowed Dr.

Lohrasbe to have the benefit of a more up-to-date report when he testified on November 24, 2020. A. Evidence of Dr. Nicholaichuk [ 27 ] Dr. Nicholaichuk’s October 28, 2020, report formed the basis of his testimony. The salient features of that report are the following: Although Mr. Lonechild shows clear markers for criminal risk, there are indications that these may be changing. He did not show the sort of criminal personality and pattern of interpersonal violence common among more thoroughly criminalised people usually found in the Federal prison population .

Rather, he has worked when he has been able and appears to value working for a living. He told me that he has never collected social assistance. Mr. Lonechild appears to be developing insight into the factors which probably precipitated his offences (e.g., awareness of the roles his alcohol use and his associates play in his offence pattern). Further, he is not now notably impulsive. This is perhaps best shown by the absence of institutional incidents since July, 2017.

He has cooperated with the treatment opportunities available to him in remand (primarily medication management) and expressed an interest in continuing with treatment. He now understands the risk represented by his pattern of substance abuse and his former social network. He is cooperating with correctional staff. … Mr. Lonechild did not show evidence of sexual deviance. All of his victims were adult females. There is no evidence that his use of violence in the case of his first sexual offence was associated with sexual arousal.

Rather, he used violence in order to secure compliance with the sex act, but not because he found it arousing. Unnecessary violence was absent in the next two offences as well. … Taken together, it appears that Mr. Lonechild’s sexual crimes may well constitute an extension of his typical approach to sex. He drinks to become comfortable enough to approach a woman for sex. Ordinarily, the woman has been drinking as well. For Mr. Lonechild, having sex with intoxicated or even unconscious women seems to be normative.

He does not show the sort of criminal personality features common among more persistent offenders . (Emphasis added) [ 28 ] As to the programs within the institution, Dr. Nicholaichuk opined that it could not be said that Mr. Lonechild “failed treatment because treatment did not properly take into account the degree of his learning disability”. [ 29 ] One of the notable areas of focus in Dr. Nicholaichuk’s second report, reiterated in his testimony at the second dangerous offender hearing, is the change in Mr. Lonechild’s institutional behaviour. Dr. Nicholaichuk observed that prior to Mr.

Lonechild being sentenced in 2017, as part of the first hearing, he demonstrated a pattern of poor institutional behaviour. More specifically, Dr. Nicholaichuk observed that during the period of 2015 to 2017, Mr. Lonechild was involved in a number of institutional incidents such as fights with other inmates and other misbehaving behaviours: Prior to his sentencing in 2017, Mr. Lonechild showed a pattern of poor institutional adjustment.

During 2015, 2016 and in 2017, he was involved in a variety of institutional incidents such as fights with other inmates and other misbehaviours that resulted in recorded security incidents. He was placed in segregation because of his risk for self-harm. He was transferred to Saskatchewan Penitentiary on 2017/11/15 after he was sentenced, and housed in the Maximum Security area before being transferred first to health Care and then to the RPC because of his deteriorating mental health.

Since then, he has not been involved in any problematic incidents, perhaps due to his being stabilised on his current medications. [ 30 ] With respect to his overall conclusion, Dr. Nicholaichuk wrote as follows: It seems clear that with proper support, medication, abstinence and maturation, Mr. Lonechild can be stable and manageable. He is saddened by his criminal past and appeared motivated to learn how to function in the community without doing further damage to anyone.

If he is given a long-term supervision order, he should be able to be detected and corrected if he refuses to take medications as prescribed or returns to substance abuse. Criminal risk is conditional. Under the circumstances described earlier, he should be able to be successfully managed in the community. Of course, if he refuses medications and returns to alcohol abuse, his risk should be considered to be unassumable . (Emphasis added) [ 31 ] In his testimony, Dr. Nicholaichuk was asked to address specifically the effectiveness of the proper diagnosis of schizophrenia.

He offered this opinion: Q [W]hat impact do you think not having a definable diagnosis of schizophrenia had on Mr. Lonechild’s medication regime on remand prior to the conclusion of the first hearing? A … None of us really had a clear idea of what Mr. Lonechild should be treated for until recently when the diagnosis of schizophrenia was confirmed, and I think getting the diagnosis and the -- the medications right has resulted in the stability we see in Mr. Lonechild over the last, what, couple of years or last year. …

A … his stability after he was medicated tells you much of what you need to know. Prior to the -- the intervention, he was pretty unstable, even in institutions, okay? … [H]is symptoms were active and he was pretty unstable. And as I said earlier, now that he’s medicated, you know, he’s quite manageable. [ 32 ] Dr.

Nicholaichuk continued with these comments: “till [sic] fairly recently nobody had properly diagnosed him or medicated him, and, you know, having thought disorder such as the sort of disorder characteristic amongst schizophrenic patients would significantly I think interfere with one’s ability to express whatever internal states the person was actually experiencing”. [ 33 ] On the question of treatability, Dr. Nicholaichuk opined that Mr. Lonechild was a better treatment prospect with his diagnosis and medication: Q Are there any factors present with Mr. Lonechild that negatively impact his treatability?

A Well, the mental disorder both in terms of learning and the schizophrenia could be I think correctly construed to be, you know, something that affects responsivity in treatment. That means -- responsivity means that -- refers to the ability to benefit from treatment. So if you don’t understand what’s being said or if your symptoms are such that they interfere with your ability to perceive what’s going on around you accurately, then certainly those things would limit treatment. In Mr. Lonechild’s case, though, we have him now stable, sober, and willing.

So those three things would be -- I think would make him a better treatment prospect . (Emphasis added) [ 34 ] Dr. Nicholaichuk was also asked to expand on his opinion regarding Mr. Lonechild’s institutional behaviour. He noted that institutional offending had decreased: A Well, if you take a look at the record of institutional incidents, they continue on at a certain rate which I think most people in the system would consider problematic.

And then after he’s medicated for his mental illness the institutional incidents stop which I think says a great deal about the effectiveness of, you know, pharmaceutical intervention for his schizophrenia. He has become much more stable and compliant when he’s properly medicated for his disorder . (Emphasis added) B. Evidence of Dr. Lohrasbe [ 35 ] In his February 19, 2017, report, prepared for the first dangerous offender hearing, Dr. Lohrasbe concluded that Mr. Lonechild suffered from organic brain disorder caused by solvent abuse. He described how he arrived at his opinion in the following

section taken from his report: As described … above, Mr. Lonechild manifested a range of mental abnormalities during our interview including overt psychotic symptoms such as auditory hallucinations, ideas of reference and thought disorder. He also has other symptoms that often accompany major mental disorders, such as affective instability, persistent ambivalence, and cognitive limitations. Mr. Lonechild’s current multi-faceted psychiatric dysfunctions can best be conceptualized as ‘Organic Brain Disorder’.

This diagnosis (also termed Organic Brain Syndrome) once commonly used, is not included in the current edition of Diagnostic and Statistical Manual (DSM 5). However, as a unified diagnostic concept, it captures the range of Mr. Lonechild’s current symptoms and behaviours, which are best regarded as manifestations of brain damage, itself largely the result of chronic substance abuse. It is likely that inhalant (solvent) abuse has had a specifically destructive effect.

Despite inconsistencies in his reporting of his abuse of inhalants (which may be partly the result of that abuse) it is hard to overestimate the potential significance of solvent or inhalant abuse. [ 36 ] Towards the end of his assessment, Dr. Lohrasbe speculated about the possibility that Mr. Lonechild might have schizophrenia: A caveat to this diagnostic concept is necessary. I cannot rule out the possibility that Mr. Lonechild will eventually be diagnosed with schizophrenia, as some of the features can be indistinguishable. A history of substance abuse can ‘mask’ the more obvious features of schizophrenia.

It will take time and repeated assessments to clarify this issue. [ 37 ] However, with the diagnosis of Mr. Lonechild thus established to his satisfaction at that time as organic brain disorder, Dr. Lohrasbe proceeded in his report to provide his assessment of risk. Dr. Lohrasbe began by criticizing the 2008 risk assessment that had resulted in the opinion that Mr. Lonechild was at low risk to reoffend. He labelled that opinion as misguided in light of his conclusion that the Alberta assault shows Mr. Lonechild as being “an outlier among sex offenders”.

He commented that it is “hard to overemphasize just how clearly [the Alberta sexual assault] sets [Mr. Lonechild] apart from the vast majority of sexual offenders; he is emphatically not a typical sex offender”. [ 38 ] Again, with an organic brain disorder diagnosis in mind, Dr. Lohrasbe elaborated on Mr. Lonechild’s risk assessment using the Risk for Sexual Violence Protocol [RSVP]:

The RSVP lists 22 Risk factors subdivided into five domains Sexual violence history 1. Chronicity of Sexual Violence 2. Diversity of Sexual Violence 3. Escalation of Sexual Violence 4. Physical Coercion in Sexual Violence 5. Psychological Coercion in Sexual Violence Psychosocial adjustment 6. Extreme Minimization or Denial of Sexual Violence 7. Attitudes that Support or Condone Sexual Violence 8. Problems with Self- Awareness 9. Problems with Stress or Coping 10. Problems Resulting from Child Abuse Mental disorder 11. Sexual Deviance 12. Psychopathic Personality Disorder 13. Major Mental Illness 14.

Problems with Substance Abuse 15. Violent or Suicidal Ideation Social adjustment 16. Problems with Intimate Relationships 17. Problems with Non-Intimate Relationships 18. Problems with Employment 19. Non-Sexual Criminality Manageability 20. Problems with Planning 21. Problems with Treatment 22. Problems with Supervision It should be noted that Dr. Lohrasbe found that those matters marked in bold type applied to Mr. Lonechild. [ 39 ] With the passage of three years, during which time Mr. Lonechild had been on medications for schizophrenia, coupled with the benefit of additional reporting about him, Dr.

Lohrasbe’s January 21, 2020, diagnosis shifted from organic brain disorder to schizophrenia. He noted, in particular, the differences shown in the institutional reports: In sum, despite some atypical features, for pragmatic purposes Mr. Lonechild should be regarded as an individual afflicted with schizophrenia, a chronic illness whose symptoms can be attenuated with treatment . … No other diagnoses are applicable. With the firming up of the diagnosis of Schizophrenia, I set aside any considerations about Antisocial Personality Disorder.

Although people can reasonably be diagnosed with both, in this case Schizophrenia is the dominant psychiatric diagnosis. Relatedly, I set aside all considerations regarding sexual deviancy . (Emphasis added) [ 40 ] The change in diagnosis caused Dr. Lohrasbe to also adjust his assessment of risk. He opined that the differences “suggest decreased but still high risk for sexual violence if Mr. Lonechild is not closely monitored, supervised, and treated when back in the community”. [ 41 ] Dr. Lohrasbe recharted Mr.

Lonechild’s risk assessment, using the RSVP again, which resulted in some changes (with bolded entries applying to Mr. Lonechild): The RSVP lists 22 Risk factors subdivided into five domains ( 2020 ratings) Sexual violence history 1. Chronicity of Sexual Violence 2. Diversity of Sexual Violence 3. Escalation of Sexual Violence 4. Physical Coercion in Sexual Violence 5. Psychological Coercion in Sexual Violence Psychosocial adjustment 6. Extreme Minimization or Denial of Sexual Violence 7. Attitudes that Support or Condone Sexual Violence 8. Problems with Self- Awareness 9. Problems with Stress or Coping 10.

Problems Resulting from Child Abuse Mental disorder 11. Sexual Deviance 12. Psychopathic Personality Disorder 13. Major Mental Illness 14. Problems with Substance Abuse 15. Violent or Suicidal Ideation Social adjustment 16. Problems with Intimate Relationships 17. Problems with Non- Intimate Relationships 18. Problems with Employment 19. Non-Sexual Criminality Manageability Manageability 20. Problems with Planning 21. Problems with Treatment 22. Problems with Supervision

[ 42 ] Dr. Lohrasbe explained the changes as follows: I have moved five items from being unequivocally present to being partially present or absent: item numbers: 7. Attitudes that Support or Condone Sexual Violence, 8. Problems with Self- Awareness, 20. Problems with Planning, 21. Problems with Treatment, and 22. Problems with Supervision. These salutary changes are all based on his improved mental state: less frequent and less intense psychotic symptoms; improved and appropriate affect; much improved insight; genuine remorse; acceptance of responsibility; and his acceptance of the need for ongoing treatment.

He was able to project himself into the victims’ experiences. Almost surely these changes are due to the medications prescribed together [with] a long period of abstinence from alcohol and drugs. Hence maintaining these positive changes is contingent on continued medication compliance and abstinence from alcohol and drugs. The improvements have included changes in the content of his thinking. During the second interview, he elaborated on the sexual traumas he has experienced and on the enduring emotional impact on him; these can be the foci for future therapy.

Similarly, he was trusting enough to disclose the psychotic experience he had had about me during our first interview, an experience which must have been frightening for him and explains some of what was described in my first report. These changes have all been relatively recent and under controlled conditions and much depends on his continued and ongoing compliance. Mental illness and substance abuse problems do not disappear but can be controlled.

Decades of research point to the persistent influence of static or historical risk factors in perpetuating sexual violence, and hence caution against overly optimistic

interpretations of recent improvements within the realm of dynamic or changeable risk factors. To reiterate and summarise: without treatment and supervision Mr. Lonechild remains a high risk for sexual violence , and the consequences for a future victim may be severe. However, so long as both treatment and supervision can be continued when back in the community, his risk will be lowered . (Emphasis added) [ 43 ] Dr. Lohrasbe offered a

summary of his assessment of Mr. Lonechild’s risk:

Summary Based on my interview with Mr. Lonechild and a review of all available information, it is my opinion that as things stand and in the foreseeable future:

a) There is a high likelihood that he will commit further acts of sexual violence.

b) The harm to a future victim may be severe.

c) He has a major mental disorder, Schizophrenia, that has an indirect role in his risk for sexual violence.

d) Acute intoxication is the more immediate and direct risk factor.

e) Treatment with medications and abstinence from alcohol or drugs has reduced his risk and will continue to do so if he remains abstinent from substance abuse and takes his medications.

f) His risk is likely to decline with age.

g) At the point that he is released into the community, a prolonged period of follow up is key to ongoing risk reduction and risk management.

h) Periodic risk assessments will assist in planning the specifics for ongoing safe management in the community. [ 44 ] When Dr. Lohrasbe testified, he confirmed that Mr. Lonechild (

a) has schizophrenia, (

b) has difficulty inhibiting behaviour, and (

c) is at a high risk to reoffend if he is not supervised and does not abstain form alcohol. However, he expressed the opinion that Mr. Lonechild had changed since he had seen him in 2017 and that, based on Dr. Nicholaichuk’s report, “his improvement has continued in the year since I’ve seen him”. Dr. Lohrasbe indicated he believes the most important change is that Mr. Lonechild’s risk is “closely tied into the combination of acute intoxication and acute psychotic symptoms”. He also agreed that, when sober, “Mr. Lonechild has a radically lower risk … than an intoxicated Mr. Lonechild”. [ 45 ] Dr.

Lohrasbe further described the change in Mr. Lonechild in these terms: The sort of most striking is the entire

section of manageability, which is -- overlaps with the concept of risk management in the community. Whereas on the first assessment, given his presentation during our interview and his attitudes, it was hard for me to see that -- how, without significant change, he was going to be … possible to manage him in the community. And there’s been a significant turnaround in that regard, where he has embraced the need for medications. He’s developed insight. He is able to have some realistic plans about what the future -- of what’s possible for him in the future in the community. In addition, the -- the

section above it of the psychosocial adjustment, there’s been a shift in his attitudes, and he certainly had a degree of insight than… during our first interview. (Emphasis added) C. Evidence of Guy Lonechild

[ 46 ] Guy is Mr. Lonechild’s older brother and the president and chief executive officer of the First Nations Power Authority of Saskatchewan. [ 47 ] Guy testified that once released, Mr. Lonechild can live with him and his spouse. In Guy’s view, this stable family and home environment will provide the structure and support that Mr. Lonechild will need to be successful. [ 48 ] Guy works in Saskatoon.

On cross-examination, he agreed that he is required to regularly travel between Edmonton, Calgary, Regina and Saskatoon, spending one week each month in each of Alberta and Regina with the remainder of the time being in Saskatoon. However, he is hoping that by the time Mr. Lonechild is released from custody, his company will have more employees in Alberta so he will be travelling less. Further, Guy’s spouse is a lawyer and works from home. His mother-in-law lives with them, as well.

Therefore, as the sentencing judge noted, there will be individuals at home even if Guy is away. [ 49 ] There is a 14-year age difference between Guy and Mr. Lonechild. Guy left home when he was approximately 14 years old and Mr. Lonechild was only about a year old. They, therefore, did not grow up together. But, like his brother, Guy too suffered from childhood sexual abuse. Further, Guy himself has had treatment and counselling so that, in his view, he is now able to provide the support that Mr.

Lonechild needs and will continue to need when released from custody. [ 50 ] Guy advised the sentencing judge that he has had considerably more contact with Mr. Lonechild, weekly and sometimes more, since the first hearing. Guy testified that it is important for his friend (Mr. Bigeagle) and himself to be involved in Mr. Lonechild’s life because they can talk to him about their own healing and support for each other, and they can be that support for Mr. Lonechild, as well. They both understand what Mr. Lonechild has faced because their lives have also been affected by drugs, alcohol and abuse.

Therefore, they can speak to him from experience. [ 51 ] Guy was asked what he would do if he were to learn that Mr. Lonechild has violated any of his conditions. He advised that he would have no hesitation in phoning the police. D. Evidence of Everett Bigeagle [ 52 ] Mr. Bigeagle is a witness who did not testify at the first hearing. [ 53 ] Mr. Bigeagle is from the same First Nation as Mr. Lonechild. He is one of Guy’s best friends. He testified that he considers Mr. Lonechild to be akin to an adopted little brother. In recent years, through conversations with Guy, Mr.

Bigeagle learned about the sexual abuse that Mr. Lonechild suffered when he was a child. He believes that he can relate to and help Mr. Lonechild because he himself was a victim of abuse. [ 54 ] Mr. Bigeagle testified that he is committed to supporting Mr. Lonechild upon his release. Mr. Bigeagle hopes to provide guidance to him by referring to his own mistakes and by demonstrating how he overcame the abuse that he had suffered. [ 55 ] He acknowledged that he knows that Mr. Lonechild’s crimes were very violent. When asked what he would do if he became aware that Mr.

Lonechild has violated any release conditions imposed on him in the future, Mr. Bigeagle testified that he would call the police or Mr. Lonechild’s parole officer. E. Evidence of Mr. Lonechild [ 56 ] When questioned about the difference in his mental health since the first hearing, Mr. Lonechild attested that he feels like his “life has been saved” because, in his words, he was in “rough shape there when I was hearing voices and not telling anybody”. He also recounted that he was getting in trouble in the institution a lot. Mr.

Lonechild testified that his current medications have been helpful by keeping him less tense and decreasing his mental stress. He testified that he does not hear as many voices as he used to and he is able to pay less attention to them. Further, he has not had any behavioural issues within prison, and he has not been “written up for anything”. [ 57 ] Mr. Lonechild was asked how important it was to him that Guy and Mr. Bigeagle have committed to supporting him. He answered, “Oh, it’s -- it’s very important.

I feel … cared about and there’s … someone I can talk to now… being able to discuss anger through -- like, discuss problems I’m having”. He was also asked about his understanding of his risks, to which he replied: Q What do you understand you need to do to make sure this never happens again? … And before you answer that, Mr. Lonechild, when I say make sure this never happens again, I mean that you never harm another woman, girl, sexually again. What do you understand you need to do to make sure that never happens again? A Well, I know that I can’t have alcohol ever in my -- ever again around me or -- around it.

I can never do drugs again, and be able to overcome my peers by saying, no, I’m -- I don’t want to -- I don’t want anything to do with alcohol or drugs, no matter what the -- what they -- what the peer pressure is. Also I need to take programming, AA, work the programs, the steps, and utilize my social -- my support network. IV. Criminal Code provisions [ 58 ] The following are the provisions of

Part XXIV of the Criminal Code , which are relevant to this appeal:

PART XXIV Dangerous Offenders and Long-term Offenders

Definitions

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

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

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

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

b) of the definition of that expression in

section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses. … If offender not found to be dangerous offender

(5) If the court does not find an offender to be a dangerous offender, (

a) the court may treat the application as an application to find the offender to be a long-term offender,

section 753.1 applies to the application and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or (

b) the court may impose sentence for the offence for which the offender has been convicted. … Application for finding that an offender is a long-term offender 753.1(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that (

a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted; (

b) there is a substantial risk that the offender will reoffend; and (

c) there is a reasonable possibility of eventual control of the risk in the community. Substantial risk

(2) The court shall be satisfied that there is a substantial risk that the offender will reoffend if (

a) the offender has been convicted of an offence under …

section 271 (sexual assault) … . Sentence for long-term offender

(3) If the court finds an offender to be a long-term offender, it shall (

a) impose a sentence for the offence for which the offender has been convicted, which must be a minimum punishment of imprisonment for a term of two years; and (

b) order that the offender be subject to long-term supervision for a period that does not exceed 10 years. … Appeal — offender 759(1) An offender who is found to be a dangerous offender or a long-term offender may appeal to the court of appeal from a decision made under this Part on any ground of law or fact or mixed law and fact. Appeal — Attorney General

(2) The Attorney General may appeal to the court of appeal from a decision made under this Part on any ground of law. V. Sentencing Decision

[59] Applying s. 753(1) of the Criminal Code, the sentencing judge had no difficulty in finding that the Crown had proven beyond areasonable doubt that (

a) Mr. Lonechild had been convicted of, and was required to be sentenced for, two serious personal injury offenceswithin the meaning of s. 752(b), (

b) these offences were part of a broader pattern of violence, and (

c) there is a high likelihood of harmfulrecidivism. [60] It was on the question of whether Mr. Lonechild’s violent conduct is intractable that the sentencing judge had a reasonabledoubt. The need to assess intractability, when determining if someone should be declared a dangerous offender, was first introduced in R vLyons, (SCC), [1987] 2 SCR 309, when the Supreme Court considered the equivalent of s. 753(1).

Writing for themajority, La Forest J. stated that the dangerous offender provisions were designed “to carefully define a very small group of offenderswhose personal characteristics and particular circumstances militate strenuously in favour of preventive incarceration” (at 339). TheSupreme Court affirmed the principles underlying the decision of the majority in R v Johnson, 2003 SCC 46 at paras 19–24, [2003] 2 SCR357.

The Supreme Court affirmed both Lyons and Johnson in R v Boutilier, 2017 SCC 64, [2017] 2 SCR 936: for example, see Boutilier atparagraphs 25 to 35 (for reference to Lyons) and paragraphs 53, 57, 59, 65 and 68 (for reference to Johnson). Since the sentencing judgehad a reasonable doubt about the intractability of Mr. Lonechild’s future offending conduct, she could not designate him as a dangerousoffender. [61] The sentencing judge then went on to determine if Mr. Lonechild should be declared a long-term offender under s. 753.1. Inthat regard, she found that all three of the requirements outlined in that

section had been proven to her satisfaction. That is to say, shedetermined (

a) it is appropriate to impose a sentence of imprisonment of two years or more for the two sexual assaults for whichMr. Lonechild had been convicted, (

b) there is a substantial risk that Mr. Lonechild would reoffend, and (

c) there is a reasonablepossibility of eventual control of that risk in the community. She therefore declared him to be a long-term offender. [62] Having made the requisite findings under s. 753.1, the sentencing judge sentenced Mr. Lonechild to an 11-year determinatesentence of imprisonment. After the application of pre-sentence credit, he was left with a net sentence of 3 years. She ordered thatMr. Lonechild be subject to a long-term supervision order for a period of 10 years, to commence on the expiration of his prison term.

Shealso made the usual ancillary orders under the Criminal Code. [63] I will review the sentencing judge’s reasons in greater detail when assessing the Crown’s arguments. VI. Right of appeal, standard of review and questions oflaw [64]

Section 759 of the Criminal Code creates an asymmetrical right of appeal for an offender and the Crown. Whereas an offendermay appeal to the court of appeal from a decision made under

Part XXIV on “any ground of law or fact or mixed law and fact” (s. 759(1)),the Crown is restricted to a right of appeal on any ground of law only (s. 759(2)). In practical terms, this means that, absent an error of law,an appellate court has no jurisdiction to review the merits of any decision not to declare someone a dangerous offender or to determinewhether any given decision is reasonable or unreasonable.

Rather, an appellate court is restricted to determining if a sentencing judge hascorrectly decided any question of law that was necessary for them to make in order to render their decision and if any such error had ameaningful effect on the outcome. [65] With that in mind, the Crown submits that the sentencing judge erred in her

interpretation and application of s. 753 of theCriminal Code. In my view, the Crown’s submissions raise these questions of law: (

a) Did the sentencing judge err in law by considering whether Mr. Lonechild’s violent conduct is intractable or is this findingsubsumed in her conclusion that Mr. Lonechild is highly likely to reoffend? (

b) Did the sentencing judge err in law by mixing issues relating to risk management with the concept of “substantial orpathological intractability”, thereby combining the decision she had to make at the designation stage with the decision reserved for thesentencing part of the proceedings? (

c) Did the sentencing judge err in law by misinterpreting s. 753(1) of the Criminal Code as requiring proof that Mr. Lonechild isuntreatable or absolutely intractable before he could be declared a dangerous offender? VII. Addressing the Crown’s arguments A. Intractability is not subsumed in a finding of high risk 1. Sentencing judge’s reasons: High risk and dangerous offender designation analysis [66] The sentencing judge quoted s. 753(1)(

a) and s. 753(1)(b).

She also reviewed paragraph 26 of Boutilier, where Coté J., onbehalf of the majority, confirmed s. 753(1) establishes that four criteria must be satisfied when applying the dangerous offenderdesignation: [26] In Lyons, Justice La Forest read the objective element of the designation — the requirement that the predicate offence be a “seriouspersonal injury offence” — together with the subjective element — the “threat” assessment — and concluded that four criteria were“explicit” from the language of s. 753(1): (1) the offender has been convicted of, and has to be sentenced for, a “serious personal injuryoffence”; (2) this predicate offence is part of a broader pattern of violence; (3) there is a high likelihood of harmful recidivism; and (4) theviolent conduct is intractable (p. 338).

(Emphasis added) [67] The sentencing judge then worked her way through the criteria listed in the above paragraph. As I have indicated, she had nodifficulty in finding that the Crown had proven beyond a reasonable doubt that Mr. Lonechild had been convicted of, and was beingsentenced for, serious personal injury offences, which satisfied the first element. She also easily concluded that the predicate offences “arepart of a broader pattern of sexual violence and that Mr. Lonechild is a threat to the life, safety or physical or mental well-being of otherpersons under s. 753(1)(a)(

i) to (iii) and s. 753(1)(b)” (Sentencing Decision at para 142), such that the second criterion had also been met. [68] The sentencing judge observed that the assessment of the third and fourth elements of recidivism and intractability required aprospective analysis. In that regard, she found that the evolution of the experts’ opinions had “created a discernable link and overlapbetween the risk of recidivism and the question of whether that risk of future violent conduct is intractable and Mr. Lonechild isuntreatable” (at para 147).

This caused her to say that she would “meld together [her] discussion of the third and fourth elements of thedesignation stage of this dangerous offender application” (at para 147). She, nonetheless, offered a separate analysis with respect to each,before giving her final opinion regarding recidivism and intractability. [69] In relation to recidivism, she observed that the experts were agreed there is a high likelihood Mr. Lonechild will commit furtheracts of sexual violence, but the risk had abated somewhat in the three years since the last dangerous offender hearing: see paragraphs 148,149 and 151.

By way of counterpoint, she noted both experts testified about the possibility of managing Mr. Lonechild’s risk and beingmore optimistic in that regard: paragraphs 150 and 151. She also indicated his brother’s and friend’s promised support “have amelioratedMr. Lonechild’s risk and bode well for the future” (at para 152) and that Mr. Lonechild had demonstrated “a level of insight and empathy”that had been “previously lacking” (at para 154). [70] The sentencing judge noted the Crown’s position that Mr.

Lonechild’s violent conduct is intractable because it is dependent onhis maintaining abstinence from alcohol and drugs and taking his psychiatric medications. She rejected this stance for two reasons. First,she opined that “amelioration of the risk of recidivism is invariably contingent upon an offender’s compliance, something that is neverguaranteed” (at para 158).

Second, she commented that “the Crown’s position ignores the fact that an offender under a long-termsupervision order can be compelled to undertake treatment and take medication, to abstain from drugs and alcohol and to submit to regulartesting to ensure abstinence” (at para 159). [71] In conclusion, the sentencing judge determined that Mr. Lonechild’s risk of recidivism is high but his behaviour is notintractable: [160] At the end of the day, Dr. Lohrasbe and Dr. Nicholaichuk do not speak of Mr. Lonechild as a man whose behaviour is intractableand untreatable.

They speak of a man who has, at the very least, a chance of being successfully reintegrated into the community, providedthat he remains compliant with his medication regime and abstains from drugs and alcohol. In short, they have expressed a very cautiousoptimism about Mr. Lonechild’s treatability.

They draw this cautious optimism from tangible evidence of an established change in hisbehaviour over the three years since the Original Hearing. [161] Thus, although the risk of recidivism is high and the third element for a dangerous offender designation is met, the Crown’s casefails on the fourth element of a dangerous offender designation. I am not satisfied, on the totality of the evidence, that Mr. Lonechild is anintractable offender. Indeed, there has been three years in which Mr. Lonechild has demonstrated that his behavior is not intractable.

Assuch, I cannot designate him as a dangerous offender. (Emphasis added) 2. The Crown’s arguments: High risk equates to intractability [72] On appeal, the Crown submits that since the sentencing judge was satisfied all of the statutory criteria under s. 753(1) weremet, she was required to designate Mr. Lonechild a dangerous offender. In other words, according to this submission, when the sentencingjudge stated she was satisfied Mr.

Lonechild had committed serious personal injury offences that were part of a pattern of violent sexualoffences and that there was a high likelihood of recidivism, she was then obligated by s. 753(1) to declare him to be a dangerous offender:i.e., “the court shall find the offender to be a dangerous offender if it is satisfied …” (emphasis added).

Underpinning the Crown’sargument is the proposition that intractability is not a separate element to be proven beyond a reasonable doubt, but rather it is subsumedby a finding of a high likelihood of recidivism. [73] In support of its argument, the Crown refers to the emphasized portion of Boutilier, contained in the paragraph below: [20] In 1997, the scheme became a “one stage” process. The judge had discretion to designate an offender as dangerous, but there was nodiscretion at the sentencing stage — an indeterminate sentence flowed as a consequence of the designation.

The current version of thescheme reverts to a “two stage” process but removes the discretionary language from the designation stage. If a sentencing judge issatisfied that the statutory criteria have been met, the designation must follow. There is, however, some discretion remaining at thesentencing stage. (Emphasis added) [74] In further support, the Crown relies on the following authorities: R v Wesley, 2018 ONCA 636 at para 18 [Wesley-CA]; R vT.L.P., 2021 BCCA 36 at para 93, 400 CCC (3d) 194 [T.L.P.-CA]; and R v Primmer, 2021 ONCA 564 at para 70, leave to appeal to SCCrefused, . In

summary, the Crown asserts in its factum that “whether she appreciated it or not, her findings amounted toa legal finding that [Mr. Lonechild’s] risk was substantially or pathologically intractable”. 3. Analysis on high risk and intractability [75] In my view, the Crown’s argument on this point is answered by Boutilier. In that decision, the Supreme Court relied on Lyons,where it had considered the equivalent of s. 753(1) (i.e., s. 688, as it then was), as enacted by the Criminal Law Amendment Act, SC 1976-

77, c 53, s 14 [1977 amendments]. [ 76 ] Based on its assessment of the 1977 amendments, the majority of the Court in Lyons concluded that “explicit in one form or another in each subparagraph of s. [688, now s. 753(1)] is the requirement that the court must be satisfied that the pattern of conduct is substantially or pathologically intractable” (at 338). A reference to the intractability of the identified risk does not appear in s. 688. [ 77 ] The Tackling Violent Crime Act , SC 2008, c 6, s 42 [2008 amendments], resulted in s. 753(1), as reproduced above.

Instead of providing that when the statutory criteria are satisfied the “court may find the offender to be a dangerous offender” (emphasis added, 1977 amendments), Parliament amended s. 753(1) to read that the “court shall find the offender to be a dangerous offender” (emphasis added). With this modification to the provision, the courts were faced with the question of whether the law regarding what the Crown was required to prove, before an offender could be declared dangerous, had changed.

In particular, did the 2008 amendments continue the burden on the Crown to prove that the offender’s behaviour is intractable? [ 78 ] Boutilier was the Supreme Court’s first opportunity to respond to that question. On that occasion, as in Lyons , the Supreme Court held the Crown must prove that the offender’s risk is intractable before they can be declared dangerous. [ 79 ] The Supreme Court concluded thusly because s. 753(1) (

a) and s. 753(1) (

b) continue to use the exact same language regarding likelihood of causing harm as existed in 1977, as the comparison below demonstrates: 1977 Amendments to Criminal Code (interpreted in Lyons ) 2008 Amendments to the Criminal Code (interpreted in Boutilier ) Application for finding Application for finding that an offender is a dangerous offender 688.

Where, upon an application made under this Part following the conviction of a person for an offence but before the offender is sentenced therefor, it is established to the satisfaction of the court 753(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied (

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

a) of the definition of that expression in

section 687 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (

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

a) of the definition of that expression in

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

i) a pattern of repetitive behaviour by the offender, of which the offence for which he has been convicted forms a part, showing a failure to restrain his behaviour and a likelihood of his causing death or injury to other persons, or inflicting severe psychological damage upon other persons, through failure in the future to restrain his behaviour , (

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

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

b) of the definition of that expression in

section 687 and the offender, by his conduct in any sexual matter including that involved in the commission of the offence for which he has been convicted, has shown a failure to control his sexual impulses and a likelihood of his causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses , (

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

b) of the definition of that expression in

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

the court may find the offender to be a dangerous offender and may thereupon impose a sentence of detention in a penitentiary for an indeterminate period, in lieu of any other sentence that might be imposed for the offence for which the offender has been convicted. (Emphasis added) 1977 Amendments to Criminal Code (interpreted in Lyons ) 2008 Amendments to the Criminal Code (interpreted in Boutilier ) [ 80 ] Since the legislative obligation on the Crown to prove the likelihood of harm had not changed between 1977 and 2008, the Court concluded in Boutilier that proof of substantial or pathological intractability continues to form part of the

section and, therefore, determines what a judge must find before declaring an offender dangerous. This was found to be so, notwithstanding the change from may to shall . By interpreting the provision in this manner, the constitutionality of s. 753(1) was again assured. [ 81 ] While the Crown accepts that intractability remains part of the analysis necessary to declare someone a dangerous offender, it submits nonetheless that a specific holding that an offender is highly likely to reoffend ends the matter.

In the Crown’s view, a sentencing judge should not go on to determine whether the behaviour is intractable because that notion is subsumed by the finding of a high likelihood of recidivism. In my view, this is not what the Supreme Court held in Boutilier. [ 82 ] A finding (

a) of a high likelihood of threat, and (

b) that an offender’s behaviour is not intractable are not incompatible conclusions.

More importantly, this is precisely the division of analysis contemplated in Boutilier , as the following quotation from that decision illustrates: [26] In Lyons , Justice La Forest read the objective element of the designation — the requirement that the predicate offence be a “serious personal injury offence” — together with the subjective element — the “threat” assessment — and concluded that four criteria were “explicit” from the language of s. 753(1): (1) the offender has been convicted of, and has to be sentenced for, a “serious personal injury offence”; (2) this predicate offence is part of a broader pattern of violence; (3) there is a high likelihood of harmful recidivism; and (4) the violent conduct is intractable (p. 338).

The last three criteria are part of the assessment of the “threat” posed by the offender. The last two of these are future-oriented, and Justice La Forest explained them as follows: Thirdly, it must be established that the pattern of conduct is very likely to continue and to result in the kind of suffering against which the

section seeks to protect, namely, conduct endangering the life, safety or physical well-being of others or, in the case of sexual offences, conduct causing injury, pain or other evil to other persons.

Also explicit in one form or another in each subparagraph of s. [688, now 753] is the requirement that the court must be satisfied that the pattern of conduct is substantially or pathologically intractable . [p. 338.] (Underline emphasis added) [ 83 ] Indeed, the majority’s very definition of intractable carries within it the idea of future change, which means that intractability is not a one-time static state ( Boutilier ): [27] The language of s. 753(1), which led Justice La Forest to develop the four criteria outlined above, has never been amended since its enactment in 1977.

Before designating a dangerous offender, a sentencing judge must still be satisfied on the evidence that the offender poses a high likelihood of harmful recidivism and that his or her conduct is intractable. I understand “intractable” conduct as meaning behaviour that the offender is unable to surmount .

Through these two criteria, Parliament requires sentencing judges to conduct a prospective assessment of dangerousness. (Emphasis added) [ 84 ] In this conceptualization of intractability, the majority does not define intractable conduct to be behaviour that the offender has not surmounted but rather that they are unable to surmount , with the latter verb tense indicating a future perspective. [ 85 ] The seeming dichotomy between present threat and future treatability is best appreciated when it is understood that the dangerous offender application process requires a sentencing judge to assess and have in mind at least four points in time: (

a) when the offence was committed; (

b) when the hearing is held; (

c) when the offender is to be released from custody, if a determinate sentence is imposed; and (

d) if a long-term supervision order is made, when the offender will no longer be subject to such an order. [ 86 ] That is not to say that the judge will necessarily impose a determinate sentence or a long-term supervision order, but they must have in mind the threat at these points in order to assess whether a dangerous offender option is the only one available to adequately protect the public when the designation is being considered.

It does mean, however, that a judge could decide that as of the date of sentencing, the offender’s risk of threat is high but that the violent conduct is surmountable and will be surmounted over the life of the sentence that is imposed, which is what I take the sentencing judge to have decided with respect to Mr. Lonechild. [ 87 ] As I noted, the Crown relied on Wesley-CA , T.L.P.-CA and Primmer for the proposition that a conclusion indicating a high risk of recidivism necessarily denotes a finding of intractability. In my view, however, these cases are not authority for that assertion.

Notably, each of these appeals concerns trial decisions rendered after the 2008 amendments and before the Supreme Court released Boutilier . Given this, the sentencing judges did not have the benefit of the Supreme Court’s conclusion that the 2008 amendments still require the Crown to prove beyond a reasonable doubt that the offender’s behaviour is intractable. As a result, none of those judges considered, as a separate

question, whether the offender’s behaviour was in fact intractable. [88] For example, in R v Wesley, 2016 ONSC 408 [Wesley-SC] (i.e., affirmed in Wesley-CA), the sentencing judge followed R vSzostak, 2014 ONCA 15 at para 61, 306 CCC (3d) 68, leave to appeal to SCC refused, .

Szostak had also been reliedupon by the trial judge in Boutilier in support of the proposition that, following the 2008 amendments to s. 753(1), it was no longernecessary for the Crown to prove that the offender’s conduct shows a high level of intractability before being declared a dangerousoffender: “in Szostak at para. 52 … ‘any doubt that intractability is not a necessary element to find a person to be a dangerous offender hasbeen removed by the 2008 amendments’” (R v Boutilier, 2014 BCSC 2187 at para 52, 317 CCC (3d) 1). [89] As I mentioned, the Supreme Court in Boutilier did not accept that proposition.

Indeed, it overruled Szostak on that point.Notwithstanding this error in the Wesley trial court decision, the Ontario Court of Appeal did not allow the appeal. While the trial judgehad not used “the precise labels of ‘intractability’ and ‘high likelihood of harmful recidivism’ to characterize her findings”, the Court ofAppeal held that “in substance, her findings satisfy both tests” (Wesley-CA at para 15).

The Court of Appeal concluded that the trial judgehad committed no error when she “proceeded on the basis that she had to declare the appellant a dangerous offender if the statutorycriteria were met but enjoyed some discretion at the penalty stage to avoid imposing an indeterminate sentence” (at para 18). In my view,the latter holding rests on the Court of Appeal’s conclusion that the trial judge had in fact found both a high likelihood of harmfulrecidivism and intractability.

The decision is not authority for the proposition that a finding of a high likelihood of harm means that it isunnecessary to go on to consider whether the offender’s behaviour is also intractable. [90] T.L.P.-CA is also an offender appeal. The trial judge held that “it is highly unlikely that any treatment [the accused] mayreceive will in future restrain his behaviour or control his sexual impulses against prepubescent female children” (R v T.L.P., 2017 BCSC1868 [T.L.P.-SC]).

On appeal, the offender argued that “the sentencing judge erred by failing to consider the prospect of control in thecommunity at the designation stage” (T.L.P.-CA at para 84).

The Court of Appeal rejected this notion saying, “[t]he prospect of managingthe threat posed by an intractable, high-risk offender through a sentence less draconian than indeterminate incarceration – one that allowsfor the imposition of externally-imposed supervisory conditions – is, however, an inquiry reserved to the penalty stage” (at para 100).Again, like in Wesley-SC, the trial judge in T.L.P.-SC concluded that both elements of high likelihood to reoffend and intractability hadbeen proven. [91] Primmer, another offender appeal, also contains no direct statements that are of assistance to the Crown’s position.

LikeWesley-SC and T.L.P.-SC, the trial decision pre-dated Boutilier, such that the offender appealed on the basis of that decision, saying that“the trial judge failed to consider the factors of treatability and intractability at the designation phase of her dangerous offender analysis”(Primmer at para 4). After noting the curative provision under s. 686(1)(b)(iii) of the Criminal Code, the Court of Appeal held that even ifthere were an error, there was no reasonable prospect that the decision would have been different: see paragraphs 65 and 66.

In the result,the Court of Appeal held that the “trial judge’s assessment of the evidence was thorough, her reasons are comprehensive and herconclusions with respect to the appellant’s dangerousness and the need for an indeterminate sentence are reasonable” (at para 66).

Whenthe reasons were considered as a whole, the Court of Appeal was satisfied that the trial judge had decided the questions of treatability andintractability in the course of her reasons: see paragraph 71. [92] Here, unlike the sentencing judges in Wesley-SC, T.L.P.-SC and Primmer, the sentencing judge made separate decisions as tothe likelihood of harmful recidivism and intractability.

In that regard, her understanding of what s. 753(1) requires tracks that of otherpost-Boutilier decisions, including such authorities as R v Bird, 2023 SKCA 40 at para 38, R v Ross, 2022 SKCA 149 at paras 94–95, andR v Parfitt, 2019 SKCA 55 at para 65, 378 CCC (3d) 490. In those appeals, and others, this Court quoted from Boutilier and concludedthat there are four distinct elements in s. 753(1), rather than three.

For example, in Bird the Court wrote, “a dangerous offender findingcannot be made if the offender’s treatment prospects are so compelling that they raise a reasonable doubt about whether there is a highlikelihood of harmful recidivism, or about whether the offender’s violent pattern is intractable” (at para 53). [93] In terms of direct and recent application of these principles in this province, I note that in R v Keenatch, 2019 SKPC 38, R vHarding, 2019 SKPC 63, and R v Paskimin, 2022 SKPC 27, the sentencing judges found a high likelihood of recidivism but that theoffender’s violent conduct was not intractable.

For example, in Keenatch, the sentencing judge wrote the following: [52] … When I apply a prospective assessment, I find that there is a risk of harmful recidivism. However, the risk can and should bemanageable given appropriate programming. I am not satisfied that Keenatch is unable to surmount his past violent conduct. I am unable,considering the evidence presented at this hearing, to conclude that his conduct is intractable.

In these circumstances the application for adesignation that Cody Keenatch is a dangerous offender is dismissed. (Emphasis added) [94] In Harding, the sentencing judge also made the same two types of findings: [99] Taking into account Mr. Harding’s pattern of offending, the serious nature of the predicate offence and the risk assessments, theCrown has established beyond a reasonable doubt that there is a moderate to high likelihood of Mr. Harding’s harmful recidivism in thefuture. … [108] On the whole of the evidence, including the future prospects for Mr.

Harding’s treatability, coupled with the risk lowering factors, Iam not satisfied beyond a reasonable doubt that Mr. Harding is substantially or pathologically incapable of surmounting or overcoming hisviolent behaviour. (Emphasis added) [95] Similarly, in Paskimin, the sentencing judge held as follows: [155] Taking into account Mr. [Paskimin’s] pattern of offending, the nature of the predicate offences, the risk assessments, as well as theopinions of Dr. Lohrasbe and Dr. Nicholaichuk, I conclude there is a high likelihood of Mr. [Paskimin’s] harmful recidivism in the future,

if he remains untreated . I accept that the likelihood of his risk of harmful recidivism for sexual offences is low. … [157] On the totality of the evidence, I find the Crown has failed to prove beyond a reasonable doubt that Mr. [Paskimin] is unable to surmount his violent offending behaviour or that his pattern of conduct is substantially or pathologically intractable.

Therefore, I am not satisfied beyond a reasonable doubt that Mr. [Paskimin] actually constitutes a future threat to safety in light of the evidence. (Emphasis added) [ 96 ] Based on this analysis, I conclude that if a sentencing judge makes a finding under s. 753(1) to the effect that there is a high likelihood of harmful recidivism, this does not remove the obligation of considering whether the offender’s future conduct is intractable or preclude the possibility of finding it is not.

In other words, it is legally possible for a sentencing judge to find a substantial risk of recidivism and that the violent behaviour is not intractable. B. Intractability was not conflated with manageability 1. Sentencing judge’s reasons: Intractability and manageability [ 97 ] The sentencing judge held that Mr. Lonechild’s violent conduct is not intractable for these reasons: (

a) Mr. Lonechild’s “risk has been demonstrably reduced since [he] was diagnosed with schizophrenia and properly medicated for his mental illness” ( Sentencing Decision at para 149); (

b) when Dr. Lohrasbe was “asked whether it was a reasonable expectation that Mr. Lonechild can reduce risk through programming, the passage of time and through a cascaded reintegration into the community, Dr. Lohrasbe answered with an unequivocal ‘yes’” (at para 150); (

c) the two expert witnesses agreed that “the risk of recidivism has abated somewhat over the three years” (at para 148) and noted the following: [151] Dr. Lohrasbe’s assessment of risk was echoed by Dr. Nicholaichuk. In Dr. Nicholaichuk’s second report at page 13, he opined that “with proper support, medication, abstinence and maturation, Mr. Lonechild can be stable and manageable” and “should be able to be successfully managed in the community”. Similarly, during his testimony at the Hearing, Dr. Nicholaichuk stated that, although there are clear markers for risk with Mr.

Lonechild, there are also indications that this is changing and that now that Mr. Lonechild is medicated, he appears to be manageable. Assuming that Mr. Lonechild participates in programming, and is compliant with his medication regime and abstinent from substances, Dr. Nicholaichuk is of the view that there is reason to believe that Mr. Lonechild is treatable and can be controlled in the community; (d) “there are positive supports in place to ensure that Mr. Lonechild remains compliant with his medication regime and remains abstinent when released from custody”, and “Dr. Lohrasbe and Dr.

Nicholaichuk both acknowledged that these supports will be of value in reducing Mr. Lonechild’s risk of recidivism” (at para 153); (e) “Mr. Lonechild now recognizes that his abstinence will depend upon ensuring he does not fall back into the clutches of his prior peer group. He understands that he cannot go to a party where people are drinking and ‘drink a cup of tea’. He also has connected what his victims experienced to his own experience with sexual abuse. This suggests that he is not just ‘sorry’ in an abstract way but that he is ‘sorry’ because he has been a victim himself. Dr.

Lohrasbe noted that this new-found connection that Mr. Lonechild has drawn between himself and his victims demonstrates a level of insight and empathy that Mr. Lonechild was previously lacking” (at para 154); (f) “both experts referred to the reduction in risk of recidivism that often arises out of aging in and of itself. With the imposition of a custodial sentence and a 10-year long-term supervision order, Mr. Lonechild will be in his mid 40s by the time he is in the community and outside the control and management of CSC. This falls within the age category of reduced risk described by Dr.

Nicholaichuk” (at para 155); and (g) “Dr. Lohrasbe and Dr. Nicholaichuk do not speak of Mr. Lonechild as a man whose behaviour is intractable and untreatable. They speak of a man who has, at the very least, a chance of being successfully reintegrated into the community, provided that he remains compliant with his medication regime and abstains from drugs and alcohol. In short, they have expressed a very cautious optimism about Mr. Lonechild’s treatability.

They draw this cautious optimism from tangible evidence of an established change in his behaviour over the three years since the Original Hearing” (at para 160). 2.

The Crown’s arguments: Intractability and manageability [ 98 ] The Crown asserts that, in addressing the question of intractability, it is an error to consider whether the offender’s risk is manageable in the community. [ 99 ] The following paragraph from the Crown’s factum encapsulates it’s argument: 82. … Boutilier makes it clear that judges must not interpret s. 753(1) as if it concerns anything other than whether the offender poses a high risk of future reoffence. Further, that issue must not be confused with the issue of whether that high risk may be manageable under community supervision .

Risk management strategies are relevant at the sentence stage, not the designation stage. (Emphasis added) The Crown relies, again, on Wesley-CA and T.L.P.-CA and also on R v Hornby , 2021 ABCA 254 at para 36 [ Hornby-CA ].

3. Analysis: Link between intractability and manageability [100] This aspect of the Crown’s appeal requires an analysis of Boutilier in terms of what a court can consider when determiningwhether an offender’s conduct is intractable. [1

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