Her Majesty the Queen - v. -, 2012 SKPC 192

IN THE PROVINCIAL COURT OF SASKATCHEWAN Date: December 21, 2012 2012 SKPC 192 Information: 3733173 Location: Saskatoon ____________________________________________________________________________ Between: Her Majesty the Queen - and - David Andrew McCallum Appearing: Buffy Rodgers For the Crown Mike Nolin For the Accused JUDGMENT M.D. IRWIN , J [ 1 ] David Adrian McCallum was convicted on June 30, 2012 of the following offence: That on or about the 14 th day of April, A.D. 2010, at or near Saskatoon, in the Province of Saskatchewan, did commit an assault on David Myles with a weapon, to wit a pencil, contrary to

Section 267 (

a) of the Criminal Code . [ 2 ] Prior to sentencing, the Crown applied under

Part XXIV, s. 752.1 of the Code to have Mr. McCallum remanded for assessment for the purposes of a dangerous offender application. The Crown’s application was granted and a psychological assessment

report was completed by Dr. Roger Holden on December 10, 2010. With the Attorney General’s consent the Crown proceeded to a dangerous offender hearing and applied under s. 753 of the Code to have Mr. McCallum declared a dangerous offender. [ 3 ] A dangerous offender hearing commenced on November 5, 2012. Prior to the hearing proper, the Crown submitted evidence on voir dire attempting to show Mr. McCallum had committed a violent offence subsequent to the predicate offence. At the time of the hearing Mr.

McCallum had been charged as follows: That on or about the 24 th day of January, A.D. 2012, at or near Saskatoon, in the Province of Saskatchewan , did commit an assault on Richard Firbank with a weapon, to wit a pen, contrary to

Section 267 (

a) of the Criminal Code . [ 4 ] The Crown requested that it be allowed to call evidence on this offence and Mr. McCallum was found to have committed the lesser included offence of common assault and the evidence was applied to the hearing proper. [ 5 ] The Crown now submits that Mr. McCallum should be found a dangerous offender within the meaning of s. 753(1)(a)(i)(ii) and (iii) and should be sentenced to an indeterminate sentence. [ 6 ] The position of the Defence is that Mr. McCallum does not meet the criteria of dangerous offender and that rather Mr.

McCallum should be sentenced to a determinate sentence in the range of 8 years followed by a long-term supervision order of 10 years. [ 7 ] The Crown called eight witnesses including Dr. Holden who performed the forensic assessment of Mr. McCallum pursuant to the order of the court. The Crown’s witnesses provided evidence regarding Mr. McCallum’s prior criminal convictions and testified about Mr. McCallum’s institutional behaviour. [ 8 ] The defence called Dr. Nicholaichuk who also performed a forensic assessment on Mr. McCallum. Mr. McCallum also testified on his own behalf.

Issues [ 9 ] The issues in this case are as follows: 1. Is assault with a weapon a serious personal injury offence as defined under s. 752 of the Criminal Code ? 2. Is David McCallum a dangerous offender on any of the grounds set out in s., 753(1)(a)(i), (ii), and (iii) or (

b) of the Criminal Code ? 3. If Mr. McCallum qualifies as a dangerous offender under s. 753, is there a reasonable expectation a lesser measure than an indeterminate sentence will protect the public from murder or a serious personal injury offence? Criminal Record [ 10 ] Mr. McCallum has amassed more than 100 criminal convictions in various crime categories, despite being only 35 years of age. Seventeen of his convictions are for violent offences, five of which have involved the use of weapons. [ 11 ] Mr. McCallum’s record discloses a wide range of sentences from time served to five years in a federal penitentiary. Since

committing his first criminal offence in 1989, Mr. McCallum has committed multiple offences on almost a yearly basis, resulting in him having spent the majority of his life in custody. [ 12 ] The Crown has provided in exhibits PS-9(a)-PS-10(b), four binders summarizing the various court documents and institutional records for offences that Mr. McCallum has been convicted of and which are outlined in his criminal record. A

summary of Mr. McCallum’s criminal history has been reproduced below however his complete criminal record may be found in Appendix A: 1989-1991 Between 1989-1991, Mr. McCallum was convicted of: four BE & Theft charges; three counts of Theft Under; three counts of Breach of Probation; Escape Lawful Custody; Failure to Comply; Mischief Under; and Unlawfully at Large. Mr. McCallum spent time in youth custody facilities and was noted to suffer from aggression and behavioural issues; was sniffing inhalants; destroying property; breaking into homes to steal solvents and jewellery; and escaping from facilities.

During this period he also attended substance abuse treatment. 1992-1993 During the period of 1992-1993, Mr. McCallum was convicted of: three counts of Possession of Property Obtained by Crime; two counts of Theft Over; three counts of Escaping Lawful Custody; two counts of Mischief Under; two counts of BE & Theft; Dangerous Operation of a Motor vehicle; Obstruct Peace Officer; Mischief Over; Uttering Threats; Obstruction; and Assault. Mr.

McCallum continued to run from youth facilities to commit offences including stealing vehicles, theft and one incident where he broke into a car dealership, smashing and destroying a large amount of property. During this period he reportedly began to accept the need for treatment however he was also involved in damaging cells at his facility and assaulting another offender by punching that youth in the head. 1994 In the one year period spanning 1994-95, Mr. McCallum continued to reoffend while in youth custody.

He was described as “becoming very violent” with “numerous charges pending” and “not learning from being in custody.” RCMP called Mr. McCallum “dangerous with his violent behaviour.” During this year, Mr. McCallum was convicted of four counts of Escape Lawful Custody; Dangerous Operation of a Motor Vehicle; Possession of Property Obtained by Crime; Theft Under; Obstruct Peace Officer; Possession of Credit Card Obtained by Crime; Mischief; Assault Causing Bodily Harm; and Dangerous Operation of a Motor Vehicle Causing Bodily Harm. In order to escape secure custody, Mr.

McCallum lit a broom handle on fire to set off the alarm and when staff came in to assist he assaulted one with a metal bar and injured others. Each time he escaped custody Mr. McCallum stole a bike or a vehicle and engaged in two high speed chases with police. In one chase, Mr. McCallum ran numerous stop signs and red lights, lost control of the vehicle, drove in speeds in excess of 100 and when police approached him he continued to drive directly at the police vehicle, hitting the car and continuing to flee. 1995 Later in 1995, Mr.

McCallum accumulated additional youth convictions for: Assault with a Weapon; Escape Lawful Custody; Theft Over; two counts of Assault; Possession of Property Obtained by Crime; Dangerous Operation of a Motor Vehicle; Mischief Under; and Assault. During one incident, Mr. McCallum held a fork to the throat of a worker at the Paul Dojack Youth Centre, forcing her to let him and another inmate out of the facility. Again after escaping he stole a vehicle. He also assaulted another worker by grabbing them and pulling them into his cell. During another incident, while in isolation, Mr.

McCallum was found lying on the floor with a cord wrapped tightly around his neck; his face turning blue. When workers went to his assistance, he attacked them. 1997-2000 As an adult, between 1997-2000, Mr. McCallum was convicted of: Possession of a

Schedule III Substance for the Purpose of Trafficking; Attempt Theft Over; Possession of Property Obtained by Crime Under; Robbery; two counts of BE & Theft; Possession of Break-in Instruments; two counts of Failure to Comply with Recognizance; Carrying a Concealed Weapon; Disguise with Intent; Uttering Threats; three counts of Failure to Comply with Probation Order; Possession of a Scheduled Substance for the Purpose of Trafficking; Use of an Imitation Firearm; Possession of Property Obtained by Crime Over; Dangerous Operation of a Motor Vehicle; Theft Over; and Possession of a Weapon. In 1997, Mr.

McCallum had been admitted to the RPC Aggressive Behaviour Control Program but was discharged due to involvement in the institutional drug trade. He was detained until his warrant expiry in 1999 at which point he again stole a vehicle. Later that same year

while fleeing police, Mr. McCallum broke into a business and stole a bicycle. During this period, Mr. McCallum was engaged in a robbery of a gas station where he pointed what appeared to be a handgun at the victim and demanded money, jewellery and cigarettes. He also threatened to kill police. In 2000, Mr. McCallum and two other accomplices broke into a residential garage to steal gasoline. He was later observed attempting to break into a vehicle when he was confronted by the owner. Mr. McCallum threatened the victim with a knife and gave chase when the victim attempted to run.

Later that night he was observed by police to be in a stolen vehicle at which point Mr. McCallum fled and another high speed chase ensued. 2005-2008 During this three year period, Mr. McCallum was convicted of the following offences: three counts of Uttering Threats; Assault a Peace Officer; two counts Failure to Comply with Recognizance; and Intimidation of a Justice System Participant. In 2005 Mr. McCallum threatened to kill correctional officers and staff on numerous occasions, he physically assaulted officers by spitting blood and saliva at them and attempting to pull them into his cell.

When released on warrant expiry in 2007, Mr. McCallum committed numerous breaches and was found in possession of drug paraphernalia. He threatened the life a justice system participant, told a corrections worker she would be “gang-raped” and caused a disturbance while in cells. 2010-2011 During the period of 2010-11, Mr. McCallum amassed convictions for: Assault with a Weapon; Uttering Threats; Obstructing Justice (Dissuade Witness); and Assault a Peace Officer. In 2010, Mr. McCallum threatened the life of another inmate who was to testify against him in court. 2010 was also the year Mr.

McCallum was convicted of his index offence for an assault against another inmate at RPC. Reports indicated that Mr. McCallum approached his victim while he was seated and proceeded to stab him in the face with a pencil as he watched television. The assault appeared completely unprovoked. In 2011, after being instructed to return to his cell by a Corrections Officer because he appeared agitated, Mr. McCallum spat at her and uttered expletives. 2012 Prior to the dangerous offender hearing proper, the Crown submitted evidence on voir dire proving that Mr. McCallum has committed an assault against another inmate.

The assault had been captured on the institution’s video surveillance system. Mr. McCallum testified that he had been aware the camera would capture the incident as the victim always made sure to get before a camera when being attacked. Evidence Crown Evidence [ 13 ] The Crown called eight witnesses including Dr. Holden, a forensic psychologist with over thirty years experience working with violent offenders. Dr. Holden has performed over sixty assessments for dangerous offender hearings for the Province of Saskatchewan, including the forensic report on Mr. McCallum dated December 3, 2010. Dr.

Holden was qualified as an expert to give opinion evidence with regard to the assessment and treatment of violent offenders including the assessment of risk. The Crown submitted Dr. Holden’s assessment of Mr. McCallum as viva voce evidence in this dangerous offender hearing. [ 14 ] The Crown called Dr. John Steven Richardson who was qualified as an expert to give opinion evidence on the effects on the brain and brain function of inhaling toxic chemicals. Dr. Richardson, prior to testifying, had read Dr. Holden’s Forensic Assessment report and was aware that Mr.

McCallum had admitting using inhalants at an early age including glue, gasoline, lacquer, solvents, plastic wood and spray paint. In Dr. Richardson’s opinion sniffing these inhalants will destroy brain cells particularly involved in the limbic system that is involved in emotion and motivation.

One area of the brain affected by inhaling solvent is the amygdala which contributes to controlling appropriate emotional responses to stress and affects judgment. [ 15 ] The Crown’s other witnesses included:James Gonzo, the Regional Segregation Oversight Manager for CSC in Saskatoon; Cara Deobald, a CSC Regional Program Manager; Brian McDonald, a clinical psychologist qualified as an expert in assessment of youth with respect to risk to reoffend and providing recommendations to reduce risk; Natalie Polvi, a psychologist at RPC; James McLean, a Discharge Planner at RPC; and Craig Podgurski, parole officer.

Each of the Crown’s witnesses verified and confirmed the reports they made on Mr. McCallum on which Dr. Holden had based his assessment.

Evidence of Dr. Holden [ 16 ] Dr. Holden interviewed Mr. McCallum on two separate occasions in October, 2010 at the Saskatoon Correctional Centre. In the six hours he spent with the offender, Dr. Holden obtained a detailed psychosocial history and conducted psychological testing on Mr. McCallum. In preparing his report, Dr. Holden reviewed a number of pre-sentence reports, correctional facility reports and other documents in order to reach a conclusion as to whether or not he believed Mr. McCallum to be a Dangerous Offender within the meaning of the statutory requirements. [ 17 ] Dr. Holden determined that Mr.

McCallum was operating within the average level of mental development at the time of the interviews but warned that Mr. McCallum’s test self-report testing on personality, substance abuse, anger and hostility and criminality should be interpreted with caution as Mr. McCallum appeared to have responded highly defensively, possibly malingering so that his responses would appear more positive. [ 18 ] In addition to the psychological testing discussed above, Dr.

Holden also conducted a risk assessment and administered the HCR-20, a structured clinical instrument consisting of variables consistently found in the backgrounds of individuals who commit violent crimes and considered to be predictive of the potential for future violent offending. Based on these variables, Dr. Holden concluded that Mr. McCallum was at a high risk to reoffend violently in the future and in Dr. Holden’s view, Mr. McCallum met the criteria of Dangerous Offender under all three subsections. [ 19 ] Specifically, Dr. Holden found that given Mr.

McCallum’s unstable history and impulsivity almost any circumstance could exacerbate his risk for future violence including his refusal to accept his mental illness (Paranoid Schizophrenia), lack of progress or refusal to participate in programming, chronic substance abuse problem and chronic criminality and antisocial personality with psychopathic traits (Exhibit PS-6, p. 60). Defence Evidence [ 20 ] At the request of defence counsel, Dr. Terry Nicholaichuk also completed an assessment on Mr. McCallum. The assessment is dated October 9. 2012. Dr.

Nicholaichuk was qualified as an expert in the field of forensic and clinical psychology, capable of giving opinion evidence on assessment and treatment of violent offenders, including assessment of risk as well as in correctional research. [ 21 ] Dr. Nicholaichuk interviewed Mr. McCallum for a total of 2.5 hours at the Regional Psychiatric Centre where he preformed psychological testing including the Wechsler Intelligence Scale and the Brown Attention Deficit Scale for Adults (Exhibit DS-2, p. 2). [ 22 ] Unlike Dr. Holden, Dr. Nicholaichuk assessed Mr. McCallum as being intellectually impaired.

He did not however perform assessments regarding Mr. McCallum’s risk for violence as the same tools had already been administered by other examiners and his criminal risk assessed repeatedly in the recent past and Dr. Nicholaichuk indicated he had no reason to believe such risk assessments did not apply to some extent today as well (Exhibit DS-2, p. 17). [ 23 ] Dr. Nicholaichuk concluded that while Mr.

McCallum has not been able to function successfully in the community since childhood, incarceration appears to have either exacerbated his aggressive behaviour (both self-directed and directed toward others) or left it unchanged. At the same time Dr. Nicholaichuk attributed Mr. McCallum’s mental illness and persecutory delusions as a reason for his aggression over recent years (Exhibit DS-2, p.7). [ 24 ] Dr. Nicholaichuk did not deny Mr. McCallum was at a high risk to reoffend violently in the future. He did however indicate he believed Mr.

McCallum’s risk could be managed should he receive proper psychiatric care because Dr. Nicholaichuk identified mental illness as the primary concern at present. Dr. Nicholaichuk further concluded Mr. McCallum had no community supports and was not a candidate for release in the community. Analysis

Issue 1: Is assault with a weapon a serious personal injury offence as defined under s. 752 of the Criminal Code ? [ 25 ] Under s. 752 of the Criminal Code , “serious personal injury offence” is defined as: (

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

i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person, and for which the offender may be sentenced to imprisonment for ten years or more [ 26 ] Mr. McCallum was convicted of the predicate offence of assault with a weapon contrary to s. 267(

a) of the Code in which the Crown proceeded by indictment. This offence carries with it a maximum term of imprisonment of ten years. By definition, assault with a weapon involves the “use or attempted use of violence” required to constitute a “serious personal injury offence.” I note that the assault perpetrated by Mr. McCallum involved a high degree of unprovoked violence in which Mr. McCallum stabbed another RPC inmate in the face with a pencil while the victim was watching television. [ 27 ] I find Mr. McCallum committed a serious personal injury offence as defined under s. 752 of the Code .

Issue 2: Is David McCallum a dangerous offender on any of the grounds set out in s., 753(1)(a)(i), (ii), (iii) or (

b) of the Criminal Code ? [ 28 ] The dangerous offender provisions relevant to the present case may be found under Section 753(1) (

a) of the Criminal Code : 753

(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied (

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

a) of the definition of that expression in

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

i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender's behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; [ 29 ] In finding the offender dangerous, the court need only find the Crown has proven Mr.

McCallum’s behaviour satisfies one of the three subsections under s. 753(1) (

a) or alternatively s. 753(1) (b). Section 753(1) (

b) however is only employed where the predicate offence is a sexual assault. As that is not the case here, this

section is not applicable to Mr. McCallum. [ 30 ] In undertaking a s. 753(1) (

a) analysis, I am mindful of the great deal of case law providing guidance on dangerous and long-

term offender applications and as set out in R v. Ben 2012 SKPC 52 at paragraph 129 and R v. Harris 2011 SKPC 176 at paragraph 60and some of the following principles that have emerged which are applicable to this hearing: 1. The Crown has the onus of proof beyond a reasonable doubt to establish that the offender fulfils the criteria in s. 753 (R. v. Ewenin,2009 SKQB 207, para. 23; R. v. Natomagan, 2010 SKPC 7 at para. 56). 2. The principles of sentencing contained in the Criminal Code, ss. 718, 718.1 and 718.2 must be considered by the Court (R. v. Johnson,2003 SCC 46 at para. 23, [2003] 2 S.C.R. 357 and R v.

Gamble 2012 SKQB 249). 3. Sentencing is an individualized process in which the trial judge has considerable discretion in fashioning a fit sentence. In the case ofa dangerous offender application, the focus must remain on the offender's own record, personal characteristics, and on the availability oftreatment and rehabilitation programs for the particular offender (R. v. Merasty, 2011 SKPC 109, at para. 110; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 (S.C.C.) at para. 82; R. v. Daniels, 2011 SKCA 67 at para. 19.) 4. The primary purpose of the dangerous offender legislation is the protection of the public (R. v.

Johnson, 2003 SCC 46 at para. 19; R.v. Ewenin, 2009 SKQB 207, para. 22). Recent amendments to the dangerous offender legislation "... have placed greater emphasis on theprimacy of the protection of the public.": R. v. J.E.M., 2011 BCSC 715 at para. 37. [31] It is important to keep in mind that regardless of whether an offender presents himself as a typical dangerous offender, thecourt shall declare him dangerous so long as the statutory criteria have been made out: Gamble, supra and R v. Downs 2012 SKQB 101,391 Sask.R. 240 (Q.B.). Pattern of Behaviour—Section 753(1)(a)(

i) and (ii) [32] In R v. Ben 2012 SKPC 52 at paragraph 132, Dyck J., turned to Justice Ottenbreit’s comments in R. v. Casemore, 2009 SKQB306, when considering what requirements were necessary to show a “pattern” of behaviour: 9 A pattern does not need to equate to similar fact evidence; general similarity is sufficient. There need not be a lengthy historyof violence or aggression for a pattern to be found, so long as there are sufficient elements of similarity in the offender'sbehaviour.

The pattern must contain an element that the dangerous behaviour was not restrained in the past, and there must bea likelihood that the same behaviour in the future will not be restrained and will cause death, injury or severe psychologicaldamage. Or, alternatively, the pattern must contain aggressive behaviour which demonstrates a substantial degree ofindifference to the reasonably foreseeable consequences to the victims of the offence. [33] Similarly, the Saskatchewan Court of Queen’s Bench in R v.

Bunn 2012 SKQB 397, and the Alberta Court of Appeal in R v.Neve 1999 ABCA 206, [1999] 11 W.W.R.649 considered the nature of similarity of the predicate offence necessary to establish a patternunder either of ss. (

i) or (ii). The Neve court held there were two possible alternatives: 111 ... The first is where there are similarities in terms of the kind of offences; the second where the offences themselves are not similarin kind, but in result, in terms of the degree of violence or aggression inflicted on the victims. Either will do. Thus, the mere fact that anoffender commits a variety of crimes does not mean that no pattern exists.

There is no requirement that the past criminal actions all be ofthe same or similar form, order or arrangement; though if this has occurred, it may well suffice. [34] A pattern of “repetitive behaviour” is not based solely on the number of offences but also on the elements of similarity in theoffenders behaviour: Gamble, supra; R v. Lewis (1984), (ON CA), 12 C.C.C. (3d) 353 (Ont. C.A.) and Langevin,supra. The court must be satisfied that the pattern of conduct is substantially or pathologically intracatable (Gamble para 114 perLaForest in R. v.

Lyons, (SCC), [1987] 2 S.C.R. 309 at 338). [35] In defining a “pattern of persistent behaviour” under s. 753(1)(a)(ii), Acton, J. in Bunn, supra at paragraph 17, looked to the

Saskatchewan Court of Appeal’s discussion in R. v. Yanoshewski (1996), (SK CA), 104 C.C.C. (3d) 512, 141 Sask.R. 132 (C.A.) at page 522: ... the Concise Oxford Dictionary defines the word "persistent" as meaning "enduring" or "constantly repeated".

The judge made no errorin finding that the behaviour of the appellant was persistent in view of the fact that the period of time during which he committed theoffences of which he was convicted extended from 1964 to 1992 without any significant periods during that time when no offences werebeing committed. [36] For example, the pattern may include two very similar incidents or several non-similar incidents: Bunn, paragraph 16. In orderto determine whether a pattern exists under subsections (a)(

i) or (ii), we look to Mr. McCallum’s criminal history. [37] Mr. McCallum’s criminal record illustrates convictions on an almost yearly basis. There are similarities in terms of kind ofoffences as well as result and degree of aggression. Mr. McCallum’s criminal history and particularly the 17 convictions on record forviolent offences including the predicate violent offence, show the following similarities:

i) The majority of offences were committed in institutions or while under conditions in the community. ii) Many of Mr. McCallum’s victims were authority figures in the criminal justice system including Correctional workers and staff andjustice system participants. (iii) In committing offences, Mr. McCallum used whatever weapons were at his disposal including pencils, vehicles, forks and metalbars. (iv) Mr.

McCallum’s criminal history suggest he committed many of his offences after becoming angry and perceiving real or imaginedthreats or to get what he wanted (for example, escaping custody). [38] Defence argued that according to Dr. Nicholaichuk’s report, Mr. McCallum’s behaviour had either been exacerbated byincarceration or incarceration had left it unchanged and that his degree of violence had not escalated in recent years. Defence did nothowever proffer that Mr. McCallum’s violence had decreased in any meaningful way. In this respect, Mr.

McCallum’s violent behaviourcould be seen as both persistent and repetitive. [39] A look at Mr. McCallum’s criminal history shows both a pattern of repetitive behaviour as well as a pattern of persistentaggressive behaviour within the common law and statutory meaning required under s. 753(1)(a)(

i) and (ii). The predicate offence ofassault with a weapon forms a part of both types of patterns. [40] Having found that a pattern exists, I now turn to the other requirements under subsections (a)(

i) and (ii) respectively. Failure to Restrain Behaviour-Section 753(1)(a)(i) [41] Having shown pattern of repetitive behaviour under subsection (a)(

i) the Crown must also prove beyond a reasonable doubtthat there has been a failure by Mr. McCallum to restrain that behaviour and that there is likelihood of causing death, injury or severepsychological damage through similar failures in the future. [42] The Crown need only establish a likelihood, not a certainty Mr. McCallum will fail to restrain his behaviour in thefuture: Bunn, supra at paragraph 18 and R. v. Langevin (1984), (ON CA), 8 D.L.R. (4th) 485, 39 C.R. (3d) 333 (Ont.

C.A.) . Likelihood means more than a possibility and at the very least means more probable than not ( Neve, supra and Gamble , supra at para 114 ). [ 43 ] Dr. Holden testified that Mr. McCallum has a tendency to justify his violence, believing he is acting is self-defence whether he is actually doing so or not. According to Dr. Holden, Mr. McCallum advises he “incapacitates his victims” in self-defence and assaults them in non-lethal ways. He has clearly failed to restrain his violent behaviour in the past. In regards to restraining his behaviour in the future, I find the following comments in Dr.

Holden’s report at Exhibit PS-6, p. 57 of particular use: …file information suggests that he has justified his violent behaviour and in this regard and his release plan suggests that if he is involved in violent conflict, it would be a result of provocation and not because he perpetrated such violence [ 44 ] Dr. Nicholaichuk similarly concluded that Mr.

McCallum’s “aggressive outbursts” have been “in response to real or imagined threat” and that “further, although his is criminalized to some degree, his attitudes are changing in that he appears to not condone violence except in self-defence” (Exhibit DS-2, p. 17). The problem here is that Mr. McCallum believes he is acting in self-defence even when he is not, making it difficult for Mr. McCallum to restrain future acts of violent behaviour if he does not see it as wrong. [ 45 ] According to Dr.

Holden research suggests that “if there is one finding that overshadows all others in the area of prediction; it is that the probability of future crime increases with each prior criminal act” (Exhibit PS-6, p. 31). Further, according to Dr. Holden, Mr. McCallum’s long history of violent assaults beginning in 1993 and continuing until his 2010 index offence suggests the frequency of future assaults will be high. In this respect, Dr.

Holden has drawn some of the following conclusions: The nature of such assaults is obviously speculative but given his record, he appears to perpetrate non life-threatening assaults upon a variety of victims” (Exhibit PS-6, p. 58). (

i) The nature of assaults are grave cause for concern, possibly outside scope of his control due to mental illness (Exhibit PS-6, p.58). (ii) His impulsivity combined with an untreated substance abuse problem combine to make him a dangerous man ” (Exhibit PS-6, p. 58). (iii) …in perpetrating crimes of violence, Mr. McCallum has used his fists, teeth and various weapons including a metal bar, bleach, a pencil, a broomstick, a fork, knives and an imitation handgun” (p.58). (iv) … anyone in Mr. McCallum ’ s environment could be a potential victim ” (Exhibit PS-6, p. 59). [ 46 ] Dr. Holden notes Mr.

McCallum’s past suicide attempts in assessing his impulsivity and advises that during interview Mr. McCallum indicated he had “tried to hang himself when he was around nine and had slashed his arms, not as a suicide attempt, but rather in order to gain attention of Correctional Officers” (Exhibit PS-6, p. 45-46). Reports indicate that Mr. McCallum has an extensive history of previous suicide attempts and self injurious behaviour. A report in 1996 suggested: McCallum presents as a very angry individual who is very comfortable with his violent behaviour.

He does not appear to be aware of any alternatives other than violence when dealing with stressful situations. He appears to value instrumental violence as a coping skill and is not discriminating about whom is victimized by his violent outbursts (Exhibit PS-6, p. 46). Despite programming and treatment, Mr. McCallum has continued to violently reoffend both in the community and in custody. While his violence may not have escalated it appears to have continued in severity. I find that Mr.

McCallum’s past offences have caused injury to others both physically and psychologically and there is likelihood that he will commit future offences causing a similar degree of injury to others. Substantial Degree of Indifference-Section 753(1)(a)(ii)

[47] Section 753(1)(a)(ii) requires the Crown to prove beyond a reasonable doubt a pattern of persistent aggressive behaviourshowing a substantial degree of indifference respecting the reasonable foreseeable consequences of that behaviour. [48] In defining a “substantial degree of indifference” the court in Bunn (paragraph 19) and the British Columbia Court ofAppeal in R. v. George (1998), (BC CA), 126 C.C.C. (3d) 384, [1998] B.C.J.

No. 1505 (QL) (B.C.C.A.) at 394-95established that: …the court cannot only look at the offender's actions at the time of the offence but other offences as well in determining "substantialdegree of indifference". If the offender has a conscious but uncaring awareness of causing harm to others and this has occurred over aperiod of long duration involving frequent acts and with significant consequences, this is sufficient to establish a substantial degree ofindifference. [49] Dr. Holden assessed lack of insight into Mr.

McCallum’s violent reoffending as a clinical variable, noting that a reportgenerated in 2009, addressed to Mr. McCallum indicated: You have a history of violent reoffending, lack insight and/or remorse for your actions, have a mental illness characterized by auditoryhallucinations, have made numerous threats to cause harm or death, and lack progress in addressing your dynamic factors (Exhibit PS-6,p. 44). [50] Dr. Holden concluded that Mr. McCallum lacks insight into the aetiology of his offending behaviour and that this leaves himat a high risk to reoffend violently.

In his assessment report (Exhibit PS-6, p.26), Dr. Holden writes: In particular he appears motivated to portray himself as being exceptionally free of common shortcomings to which most individualswould admit…Accompanying this reluctance may be a tendency to minimize any negative impact that his actions may have on otherpeople, and also on himself. Particular attention should be paid to the possibility of denial of problems with drinking or drug use, as suchindividuals are not likely to disclose information about use or any impairment arising from such problems. [51] It is clear that Mr.

McCallum’s behaviour illustrates a substantial degree of indifference respecting the reasonable foreseeableconsequences of his behaviour. Defence argues however that Mr. McCallum’s violent behaviour is a result of his mental illness. [52] Institutional professionals including those at RPC have attempted to control Mr. McCallum’s mental illness for some time. Asthe forensic reports suggest, he has struggled to admit he suffers from a mental illness, has not had success with programming andcontinues to have difficulty taking his medication. More importantly, even while medicated and in psychiatric care, Mr.

McCallum hascommitted violent offences. The index assault he committed against another inmate was unprovoked and occurred while Mr. McCallumwas at RPC under care. [53] Therefore while taking Mr. McCallum’s mental illness into consideration when doing a s. 753(1)(a)(i)-(iii) analysis, I cannotconclude that because of his mental illness he does not meet the criteria of dangerous under the legislation. Behaviour of a Brutal Nature [54] [53] I cannot conclude that Mr. McCallum meets the criteria under s. 753(1)(a)(iii).

However the Crown need only provebeyond a reasonable doubt that he meets one of the criteria under s. 753(1)(a)(i), (ii), or (iii) and I have found Mr. McCallum meets thecriteria of dangerous offender under both s. 753(1)(a)(

i) and (ii).

Issue 3: If Mr. McCallum qualifies as a dangerous offender under s. 753, is there a reasonable expectation a lesser measure than anindeterminate sentence will protect the public from murder or a serious personal injury offence? [55] If I am satisfied that Mr. McCallum should be declared a dangerous offender under s. 753(1), ss. 753(4) and (4.1) of the Codeprovide the court with three sentencing options:

(4) If the court finds an offender to be a dangerous offender, it shall (

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

b) impose a sentence for the offence for which the offender has been convicted -- which must be a minimum punishment ofimprisonment for a term of two years -- and order that the offender be subject to long-term supervision for a period that does not exceed10 years; or (

c) impose a sentence for the offence for which the offender has been convicted.

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

b) or (c)will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. [56] I have concluded that Mr. McCallum does meet the dangerous offender criteria under ss.(a)(

i) and (ii), I now turn to considerwhether he should be sentenced to an indeterminate period of incarceration. [57] The Court may exercise its discretion to sentence a dangerous offender to something less than an indeterminatesentence if it is satisfied such a lesser sentence will protect the public. As stated by Gerwing J.A. in R. v. Otto (M.E.), 2006 SKCA 52,279 Sask.

R. 182, “there was nothing in the evidence that showed a realistic mode of treatment that would permit the offender to becomecontrolled in the community.” As discussed in Bunn, supra, in coming to this conclusion, Gerwing J.A. relied upon an Ontario Court ofAppeal decision, R. v. McCallum (2005), (ON CA), 201 C.C.C. (3d) 541, [2005] O.J.

No. 1178 (QL) (C.A.) thatprovided: 47 Case law from this court and from the British Columbia Court of Appeal under the former dangerous offender legislation and theamended provisions has held that in order to achieve the goal of protection of the public under the dangerous offender and long-termoffender provisions, there must be evidence of treatability that is more than an expression of hope and that indicates that the specificoffender can be treated within a definite period of time: ... Evidence of Treatability [58] Mr.

McCallum’s potential for treatability relate directly to the management of his mental illness. In considering the mentalillness variable, Dr. Holden noted that research suggests that while violent and criminal acts directly attributable to mental illnessaccount for a very small proportion of overall violence, “schizophrenics have a three times greater rate of violence then the generalpopulation” (Exhibit PS-6, p. 35). Mr. McCallum has been diagnosed with schizophrenia and a report generated in 2010 suggested:

You have previously been diagnosed with paranoid schizophrenia and drug induced psychotic disorder under Axis I. On February 11, 2010, as per your own request in order to manage your paranoia and mental health, you were moved to the Intensive Psychiatric Intervention Care Unit. Your Primary Worker indicated that you continue to hear voices, even with medication. You cope with the voices and environmental stressors by isolating yourself in your room. You do not leave the unit or even your cell very often as you are paranoid of others and their actions.

You remain assessed as a high risk to reoffend violently and continue to not accept your having a mental disorder (Exhibit PS-6, p.38-39). [ 59 ] The evidence indicates that Mr. McCallum has suffered from significant mental illness problems for a large part of his life. It has been noted in various reports that Mr. McCallum continues to deny suffering from mental illness and refuses to cooperate with mental health professionals. In the past Mr. McCallum had been unresponsive to treatment and had been certified under the Mental Health Services Act S.S. 1984-85-86, c.

M-13.1 four times, most recently in 2012. [ 60 ] Dr. Holden further found that Mr. McCallum qualified for a diagnosis of substance abuse disorder and antisocial personality disorder and that other professionals had similarly diagnosed him in the past ( Exhibit PS-6, p. 42). He also found that due to an inability to recognize and address his alcohol and chronic polysubstance abuse issues and their impact on his offence cycling he will likely continue to commit future violent offences. [ 61 ] In his assessment ( Exhibit PS-6), Dr. Holden cites a 2009 report demonstrating Mr.

McCallum ’ s inability to learn from treatment despite completing several programs on substance abuse and the control of aggressive behaviour as well as mental health programming: [David McCallum] seems to have difficulty internalizing the program materials so that he can practice the skills he learns in his day-to- day experience. In addition, his belief that programming is unnecessary to his rehabilitation because of his spirituality may have impeded his ability to engage in and benefit from the programs provided. [ 62 ] In assessing Mr. McCallum’s risk management and release plan, Dr. Holden concluded Mr.

McCallum’s plan lacked feasibility, did not address his mental illness or programs designed to alleviate potential for criminal or violent behaviour, that there would be many destabilizers in the community, that he lacked community support has had very little compliance with remediation attempts, will face multiple sources of distress in the future and on the basis of these variables his risk to reoffend violently in the future is high ( Exhibit PS-6, p. 50-57). [ 63 ] Further, Dr. Holden testified that given Mr.

McCallum’s unstable history and impulsivity “almost any circumstance might exacerbate his risk for future violence” ( Exhibit PS-6, p. 59). More specifically his refusal to accept his mental illness, lack of progress or refusal to participate in programming, chronic substance abuse problem and chronic criminality and antisocial personality with psychopathic traits would exacerbate risk for future violence (Exhibit PS-6, p. 60). [ 64 ] Dr. Nicholaichuk, Dr. Holden and Mr. McCallum himself all seem to agree that Mr. McCallum should not be released into the community at this time. In Dr.

Holden’s view, “the only step that could be taken to manage Mr. McCallum’s risk for future violence would be to incarcerate him and hope that, as he grows older, he becomes less impulsive, sober, and more open to the imposition of medications to control his mental illness and more open to participate, in a conscientious way, in programs designed to teach him how to vent his frustration in a more socially appropriate way” ( Exhibit PS-6, p. 59). Dr. Nicholaichuk ’ s opinion is that Mr.

McCallum requires “ some form of humane, long-term institutional or supervised residential care ” and that he might one day be managed in a “ minimum security institution or psychiatric facility such as that which exists in North Battleford ” (Exhibit DS-2, p.22). Mr. McCallum himself has indicated an agreement to be placed similar to the Saskatchewan Hospital. [ 65 ] A Psychiatric Court Report was prepared on December 13, 2012 by Dr. Adams at Regional Psychiatric Centre at the request of the court for an update on Mr. McCallum’s condition prior to sentencing (Appendix B). Dr. Adam he had been involved with Mr.

McCallum on and off for the past three years. Dr. Adams indicated that Mr. McCallum had been suffering from Paranoid Schizophrenia for a long time and had a history of “partial response to medication therapy which tends to lessen his aggression, decrease the intensity of his conspiratorial beliefs and allows him to interact with others in a more productive manner.” According to Dr. Adam’s however, “unfortunately, Mr. McCallum’s treatment has been plagued with frequent episodes of non-compliance with medication. When he becomes non-compliant his aggression and anger escalates relatively quickly.” According to Dr.

Adams, Mr. McCallum’s recent non- compliance was what led to his fourth certification under The Mental Health Services Act, S .S. 1984-85-86, c. M-13.1 in September, 2012.

[ 66 ] Dr. Adams further reported that Mr. McCallum had not been involved in any aggressive acts since his certification as he is now medication compliant however had chosen to remain voluntarily locked up throughout most of the day “as he finds the stressful environment of his current range overwhelming.” Dr. Adams further reported that despite being medicated, Mr. McCollum claims to have evidence from visions which precede events that he sees on the news but despite this he “is likely doing as good as he has done in quite some time” (Exhibit PS-13). Conclusion [ 67 ] Mr.

McCallum’s circumstances are very unfortunate. He had a troubled childhood and became involved in the criminal justice system at a very young age. Since that time Mr. McCallum has not developed the skills necessary to extract himself from the system and has become an institutionalized repeat violent offender. It is clear that Mr. McCallum suffers from a major mental illness and that this has likely largely contributed to his failure to abstain from criminal behaviour. While there is no doubt in my mind that Mr.

McCallum will continue to need institutional psychiatric care, due to a history of inability to demonstrate long term control of his violence and impulsivity and a failure to take medication designed to control his mental illness despite programming designed to assist him, I cannot conclude at this time that anything less than an indeterminate sentence will adequately protect the public. [ 68 ] In

summary, I find Mr. McCallum to be a dangerous offender pursuant to the statutory requirements under s. 753(1)(a)(

i) and (ii) and I sentence him to an indeterminate period of incarceration under s. 753(4)(a). [ 69 ] It is my hope that Mr. McCallum will continue to get the help he needs and that he might one day be successful in transitioning to an institution like the Saskatchewan Hospital. ________________________ M.D. Irwin, J