R. v. Bluecloud, 2024 ONCJ 242

DATE: May 15, 2024 ONTARIO COURT OF JUSTICE Toronto

BETWEEN: HIS MAJESTY THE KING — AND — JEFFREY BLUECLOUD

For the Crown: L. Jacek For the Defendant: M. Salih Heard: April 15, 16, 17, 19, 22, 23 2024

REASONS for SENTENCE

RUSSELL SILVERSTEIN, J.:

A. INTRODUCTION

[1] On June 22, 2021, after a trial before me, I found Mr. Bluecloud guilty of having committed four bank robberies as well as two counts of failing to comply and other associated charges. He was found not guilty of three bank robberies. See R. v. Bluecloud, 2021 ONCJ 349. He pleaded guilty before me to another robbery on a later date.

[2] Subsequently, Crown counsel brought an application pursuant to ss. 754(1)(b) and 753.1(1) of the Criminal Code seeking (1) a long-term offender (LTO) declaration against Mr. Bluecloud, and (2) a long-term sentencing order (LTSO) for a period of ten (10) years.

[3] The Crown also seeks a sentence of four (4) years, over and above Mr. Blueclouds’s pre-sentence custody of 4.5 years.

[4] Ms. Salih, counsel for Mr. Bluecloud, concedes that he should be declared an LTO but seeks a further low reformatory sentence and a 5-year LTSO.

B. THE LTO STATUTORY FRAMEWORK

[5] Even though the parties agree that Mr. Bluecloud should be designated a long-term offender, it is worth setting out the statutory framework.

[6] Section 753.1 of the Criminal Code states:

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 re-offend; and

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

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

(a) the offender has been convicted of an offence under section… or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and

(b) the offender

(i) has shown a pattern of repetitive behaviour, of which the offence for which he has been convicted forms a part, that shows a likelihood of the offender's causing death or injury to the other persons or inflicting severe psychological damage on other persons, or

(ii) by conduct in any sexual matter including that involved in the commission of an offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.

[7] The onus is on the Crown to prove beyond a reasonable doubt that there is a substantial risk that the offender will reoffend. R. v. F.E.D., 2007 ONCA 246, [2007] O.J. No. 1278 (C.A.) at para 52

[8] There are two ways the Crown can establish substantial risk. The first is by relying on the statutory presumption set out in s. 753.1(2) of the Code which states that the court shall be satisfied that there is a substantial risk of re-offence if the offender has been convicted of an enumerated offence under s. 753.1(2)(a) and has either:

• shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons; or
• by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.

[9] The court is not confined to the section 753.1(2) route to the finding of a substantial risk of reoffence. Where the presumption is not available, the Crown can establish substantial risk based on the available evidence. R. v. McLeod 1999 BCCA 347; R. v. McLean, 2009 NSCA 1.

C. THE PREDICATE OFFENCES

[10] The specifics of the four bank robberies, associated offences and failures to comply can be found in the trial judgment, R. v. Bluecloud, 2021 ONCJ 349, supra. In summary, over the course of one day in November 2019 and 10 days in April 2020 Mr. Bluecloud, wearing rudimentary disguises, entered several banks and showed tellers notes indicating he had a gun while demanding money. He also committed a robbery at a grocery store while wielding a knife. (The guilty plea).

[11] Ms. Jacek, in her factum, accurately summarizes the predicate offences as follows:

1. Robbery x 2, disguise with intent x 2 The first two robberies on November 18, 2019, occurred minutes apart. Mr. Bluecloud departed from all crime scenes in a taxi. After these two robberies, he asked that the taxi take him to an LCBO. No weapon was used in the robberies, but his face was covered. Violence was threatened in all robberies. He was familiar with bait bills and/or dye packs. The first of the two robberies took place at the Bank of Montreal located at 120 Bloor Street East in the City of Toronto at 11:17:41 AM. Mr. Bluecloud entered the main doors of the branch and immediately approached the teller's counter, where the victim was working. He shouted"the weather is a motherfucker today" and then put both arms on the counter and told the teller that this is a robbery, he has a gun with him, and to give him $5000". Mr. Bluecloud then gestured to his left side with his left hand, indicating that he had a gun with him. The teller did not have $5000. Mr. Bluecloud then demanded that the teller hand over everything and get more money from the back. The teller did not have access and would need to get his assistant branch manager. He was allowed to tell the assistant branch manager of the situation. They returned to speak with Mr. Bluecloud who told the assistant branch manager that she needs to make it happen and if not, she will be a hostage. He reached into his pocket to suggest that he a gun with him. He went behind the wicket area and fiddled with the drawers to look for money. Mr. Bluecloud eventually left the branch when he could not find anything more. The second robbery that day took place at the Scotiabank located at 555 Yonge Street in the City of Toronto at 11:30:58 AM. Mr. Bluecloud entered the Scotiabank with his face covered by a scarf and glasses. He approached the teller's counter and said"Give me all your money." The teller proceeded to hand $250 and a GPS bundle in a Ziploc bag to Mr. Bluecloud. He opened the Ziploc bag, discarded the GPS bundle, and stated to the teller"I need more money." The teller obtained another $250 from a nearby wicket, placed it in a Ziploc bag with another GPS bundle, and handed to Mr. Bluecloud. Mr. Bluecloud again discarded the GPS bundle and concealed the money on his person before fleeing the bank.

2. Robbery, disguise with intent, fail to comply with probation, fail to comply with release order The next robbery took place on April 9, 2020, at the Scotiabank located at 649 Danforth in the City of Toronto at 1:47pm. While Mr. Bluecloud was released on a recognizance from the above robberies, he entered the bank, walked up to a teller, and stated"Give me all the cash. This is a robbery. Give me the money. I have a gun. I will kill everybody." The teller complied and provided approximately $550 and a GPS pack. Mr. Bluecloud took the money and fled the bank. Mr. Bluecloud wore a surgical mask and gloves to conceal his identity.

3. Robbery, disguise with intent, fail to comply with probation, fail to comply with release order This robbery took place on April 17, 2020, at the TD Bank located at 580 Sheppard Avenue. Prior to entering the bank Mr. Bluecloud stood in line in the exterior plaza before entering at 2:37 pm. Mr. Bluecloud, while covering his face with a surgical mask, sunglasses, a baseball cap pulled down low and wearing socks on his hands entered the bank. He circumvented the queue and approached the customer service counter. He threw a handwritten hold up note at the teller which said"this is a robbery I want 2000$ I will blow your fuckin head off!!!" Mr. Bluecloud kept his right hand in his pocket during this interaction, giving the teller the impression that he was armed. No weapon was seen. The teller gathered a quantity of money and a GPS bundle. Mr. Bluecloud told the teller, “No bag". He then took the cash and said"more". The teller obtained additional cash, handed it to Mr. Bluecloud who once again said"more". For a third time, the teller obtained more cash and handed it over to Mr. Bluecloud. He found and removed the GPS tracking devices before fleeing the bank. In this last robbery, he presented a “hold-up” note that was very similar to the 2017 robbery (admitted as similar fact evidence at trial). The “hold-up” note for the prior 2017 conviction read: “This is a bank robbery I want all the money you have 100’s 50’s 20’s fan the money out on the counter I HAVE A GUN”.

4. Armed Robbery – Guilty Plea Mr. Bluecloud pleaded guilty and admitted to a robbery at a Metro grocery store located at 1411 Lawrence Avenue West in Toronto at around 11:00 on April 18, 2020. Mr. Bluecloud admitted entering the Metro wearing a black mask and armed with a knife. He approached two cashiers, pointing a knife at them while making demands for money. He was unable to obtain any money from the cash registers and, subsequently, fled the store. While leaving the store, Mr. Bluecloud approached a female shopper, Liberata Bruno, who was waiting in line. He made a demand for her wallet. He shoved her to the ground, grabbed her wallet and then fled. A store employee followed Mr. Bluecloud and was violently pushed twice to the ground. Officers responded and took Mr. Bluecloud into custody. He was on probation and subjected to terms of recognizance at the time and was to remain in his residence and not possess any weapons. He had also failed to report to the bail program between November 7 and 12, 2019. It was submitted that he was very intoxicated at the time and that he had “cocaine and other drugs” in his system. He was taken to Humber River Regional Hospital following his arrest.

D. CRIMINAL HISTORY

[12] The following is Ms. Jacek’s accurate summary of Mr. Bluecloud’s past convictions and criminal behaviour: Mr. Bluecloud began offending when he was 15 years old and compiled a lengthy criminal record which includes 10 prior convictions for Robbery and one prior conviction for Armed Robbery. The following is a summary of Mr. Bluecloud’s 84 convictions spanning from 2000-2021 (this accounting includes the index offence):

Breakdown of Youth Convictions:

1. Break and Enter and Theft X 6
2. Break and Enter with Intent X 3
3. Escape Lawful Custody
4. Fail to Comply with Disposition (YCJA) X 5
5. Fail to Attend Court
6. Fail to Comply with Recognizance X 2
7. Mischief Under
8. Possession of Property Obtained by Crime Under X 3
9. Theft Under X 3
10. Obstruct Peace Officer X 2
11. Fraud Under X 3

Breakdown of Adult Convictions (2003 and after):

1. Theft Under X 9
2. Fail to Comply with Disposition (YCJA) X 3
3. Obstruct Peace Officer X 3
4. Possession of Property Obtained by Crime Under X 3
5. Possession of Property Obtained by Crime Over
6. Fail to Comply Probation X 4
7. Fail to Comply with Undertaking X 3
8. Fail to Comply with Recognizance X 3
9. Fail to Attend Court
10. Possession of a Weapon X 2
11. Robbery X 10
12. Disguise with Intent X 4
13. Armed Robbery
14. Assault with a Weapon
15. Carry Concealed Weapon X 5
16. Attempt Escape Lawful Custody

Convictions Outlined by Offence Type:

Violence/Aggression – 16 total:

• Robbery x 10
• Disguise with intent X 4
• Armed robbery x 1
• Assault with a weapon x 1
• Carry concealed weapon x 5
• Possession of a weapon for a dangerous purpose x 2

Administration of Justice – 31 total + statutory release violator:

• Failure to comply with bail (undertaking or recognizance) x 8
• Failure to comply with probation x 4
• Failure to comply with Youth Criminal Justice Act disposition x 8
• Failure to attend court x 2
• Obstruct peace officer x 5
• Escape/Attempt Escape lawful custody x 2
• Statutory release violator and recommitted to the penitentiary in 2007, 2012, and twice in 2013

Property – 14 total:

• Break and enter x 9
• Possession of property obtained by crime over $5000 x 1
• Possession of property obtained by crime under $5000 x 6
• Mischief under $5000 x 1
• Theft under $5000 x 12
• Fraud under $5000 x 3

Mr. Bluecloud’s violent record began in 2000, and his record for repetitive violence began in 2003:

• Robbery: On May 7, 2003, Mr. Bluecloud robbed a Robin’s Donuts clerk. On this same day, he was in possession of a stolen vehicle, and he did not abide by a 23:00 curfew. Mr. Bluecloud entered the Robin’s Donut, armed with a knife or a screwdriver, and demanded money. He was agitated at the clerk’s pace and decided to remove the drawer from the cash register. He also procured the drawer from another cash register. He poked one of the clerks with the weapon, underneath her breast. He covered his face partially during the robbery. About $250 was taken.
• Robbery x 2: These robberies occurred on December 16, 2004, soon after Mr. Bluecloud was released from his sentence for the 2003 conviction. He and his accomplices entered a Subway restaurant with a knife in his hand. He wore a bandana tied over his face and his cap was pulled down. He waved the knife in the air and advanced towards the female victim. The employee picked up the phone and dialed 911. He took some $5 bills and loose change and asked for money from the safe. While this occurred, two other accomplices approached the convenience store’s counter and grabbed cigarettes and money from the register. The trio left by taxi and were tracked by a police dog. Mr. Bluecloud had been released from custody on other charges, one to two weeks prior.
• Armed robbery, assault with a weapon, two counts of carry concealed weapon, robbery, two counts of possession of a weapon: On July 2, 2008, Mr. Bluecloud attended at an inn in Martensville, Saskatchewan. He asked the clerk for a manager and then took a can of bear spray out from under his shirt. He demanded money and said he would “fucking kill” the victim if he didn’t comply. The victim then placed money from the cash register into a paper bag. Mr. Bluecloud took the bag (containing about $850) and sprayed the victim in the face with the bear spray. He fled in a stolen vehicle. The victim smelled alcohol on him. About 10 hours later in Saskatoon, on July 3, 2008, Mr. Bluecloud and a co-accused drove up to a gas station. He entered the store and pushed the female clerk into a corner and robbed her. She noted that he was in possession of a knife, and he brandished the weapon and said he was “not afraid to use it.” He demanded cigarettes and money and was provided with same. Mr. Bluecloud and a co-accused fled from police in their stolen vehicle. The car crashed into an officer’s marked police car and continued on. Mr. Bluecloud was not the driver. The police pursuit resulted in the car running head-on into another vehicle on the freeway.
• Carry concealed weapon: On February 18, 2009, Mr. Bluecloud was incarcerated at a Provincial Correctional Center in Saskatoon. He was found to be in possession of a homemade sharp metal object concealed in a towel.
• Carry concealed weapon, possession of a weapon: On April 12, 2015, Mr. Bluecloud was in a stolen vehicle with at least two other individuals in Saskatoon. The manner the vehicle was operated attracted police attention. A high-speed pursuit ensued when the stolen vehicle refused to stop for police. Officers had to abort the pursuit when it became too dangerous as the stolen vehicle was hitting numerous objects and travelling on the wrong side of the road at high speeds. Police ultimately used spike strips to disable the vehicle and brought it to a stop. Mr. Bluecloud and his accomplices refused to get out of the vehicle and made further attempts to drive away. However, the vehicle did not move. Mr. Bluecloud was the first person to exit the vehicle and he emerged from the passenger side. He was walking towards officers while holding a knife. Mr. Bluecloud was told by officers to drop the knife, but he did not comply. Two “tasers” were fired at him but had no effect. A police dog brought Mr. Bluecloud to the ground, and he was arrested.
• Robbery: On June 2, 2017, Mr. Bluecloud approached a Scotiabank clerk and passed her a note that read, “This is a bank robbery. I want all you have, hundreds, fifties, twenties. Fan the money out on the counter. I have a gun.” The victim said she did not have any money in her drawer and Mr. Bluecloud fled. He was arrested about half an hour later, wearing the same clothes he had worn during the robbery. He was still in possession of the hold-up note.
• Robbery, disguise with intent x2: November 18th, 2019 – Predicate Offences. Facts outlined above.
• Robbery, disguise with intent: April 9th, 2020 – Predicate Offence. Facts outlined above.
• Robbery, disguise with intent: April 17th, 2020 – Predicate Offence. Facts outlined above.
• Robbery with a knife, carry concealed weapon - April 18th, 2020 -- Predicate Offence. Facts outlined above.

E. MR. BLUECLOUD’S BACKGROUND

[13] Again, I begin by borrowing from Ms. Jacek’s factum.

[14] Mr. Bluecloud is a 39-year-old Indigenous man with a traumatic childhood history coupled with problematic foster care placements. He has been incarcerated on these index offences since April 18th, 2020.

[15] Mr. Bluecloud was born in Saskatoon, reportedly to a drug addicted mother who periodically abandoned him resulting in him being placed in foster care. Reports indicate that he was apparently unkempt and medically neglected and there is a suggestion he was diagnosed with Fetal Alcohol Syndrome as a child. There are multiple reports of Mr. Bluecloud being sexually abused as a child, which occurred while on family visitations before his mother’s death. She reportedly died of a drug overdose when Mr. Bluecloud was about five years of age. His father’s death followed months later resulting in Mr. Bluecloud becoming a ward of the state and placed in multiple foster homes. At one foster home, he alleges he was sexually abused as a child. Eventually his foster parents were unable to control him, and he was placed in a group home.

[16] In his Assessment, Dr. Pearce noted that Mr. Bluecloud “likely suffered from severe emotional, physical and sexual abuse throughout his formative year; these adverse childhood experiences prevented the development of a stable sense of self.” (Dr. Pearce’s s. 752.1 Psychiatric Assessment p. 59)

[17] Mr. Bluecloud performed poorly in school and by 11 years of age was reportedly diagnosed with ADHD and oppositional defiant disorder and placed in a psychiatric unit. He did not graduate high school as a teen but received his Grade 12 diploma while incarcerated. Finally, there were gang affiliations (the Indian Posse) as early as age 17 or 18.

[18] Mr. Bluecloud’s first criminal conviction was at 15 years of age for Break and Enter and since that time he has amassed a total of 84 convictions over 21 years. Of note, he has a long-standing pattern of failing to restrain his behaviour. This is demonstrated by the 31 convictions for Administration of Justice offences (20 fail to comply convictions) including three parole violations. In addition, Mr. Bluecloud has accumulated over 70 institutional misconducts between 2005 and 2020, 11 of which were for violent or aggressive conduct and one resulting in a criminal charge.

[19] Since being incarcerated at age 15, Mr. Bluecloud has spent the bulk of his adult life incarcerated. Dr Pearce noted:

As an adult, Mr. Bluecloud has spent more days in custody than out. He has amassed a lengthy and concerning criminal record and he has evidenced criminal versatility. He has offended within custodial settings and has repeatedly failed to abide by terms imposed on him. He has lived an unstable, vagabond existence. He has rarely maintained gainful employment or any meaningful relationships. Interpersonally, he can present as impulsive, volatile, and angry. He has been irresponsible and manipulative. (Dr. Pearce’s s. 752.1 Psychiatric Assessment p. 60)

F. THE GLADUE REPORTS

[20] Two Gladue reports were prepared for Mr. Bluecloud. The first was in 2018 and the second in 2021.

[21] The 2018 Gladue Report indicates that he was born at home while his mother was “sniffed up.” She walked to a payphone and called an ambulance. His mother left him alone for a week at a time and he was locked in the basement. When taken into foster care, it was apparent he was unkempt and had been medically neglected. He had visits with his mother while living with his foster parents and his sister, but his mother was a “broken soul.” She died when Mr. Bluecloud was about 5 years old, of a drug overdose. His father died half a year later, after he rolled his car. Mr. Bluecloud had “no self-esteem” as a child and he was excluded as the family lived in a small, Mennonite community. He was very needy and craved attention. He fared poorly in public school and was moved to a Christian academy. He had “wild ADHD” and was hearing voices. He was “always odd” and had no friends. His foster mother begged social services for help but was not provided with any assistance. At the age of 12, Mr. Bluecloud “snapped” and tried to attack his foster mother. He began to “really…act out” in his “early teenage years.” He was diagnosed with bipolar disorder, ADHD and oppositional defiant disorder at age 11. He was placed in a psychiatric unit “for a long time” and he was “very angry and broken.” He set fires and stole a starter pistol from a school, which he used to “act like he might rob” a store. He stole. He joined the Indian Posse at age 17 or 18. Another inmate tried to rape him, at the Saskatchewan Penitentiary. He informed he was “in psychosis” when he committed his prior crimes. He ended up robbing a bank “to get more money.” He was not taking his medication and said he had “really bad PTSD and bipolar… I don’t even do meth or nothing.” He was trying to address his needs and was meeting with various supports and taking programming. He was ready to be released and reintegrate back into the community. He was “starting fresh.”

[22] Various recommendations were made. These including accessing:

• Aboriginal Mental Health and Addiction Services Program at Anishnawbe Health.
• Traditional Teachers through Aboriginal Legal Services for one-on-one sessions
• Fetal Alcohol Spectrum Disorder Workers at Aboriginal Legal Services
• Ngwaagan Gaming Recovery Centre at Rainbow Lodge

[23] The June 2021 report, which lists one count of robbery, states that he had a “difficult upbringing” that included physical, psychological, and sexual abuse. He was born with FAS and was exposed to numerous adverse childhood events. He became involved with a gang while incarcerated in Saskatchewan, as he felt a sense of “community or family” with the group. While he had not waited to participate in residential treatment, he had attended detoxification facilities “every couple months” in 2019. He felt he was “on the other side of alcoholism.” A Traditional Teacher, Dorothy Peters, would be available to Mr. Bluecloud, upon his release from custody. He was in contact with Charlotte King, his FAS worker. It was felt that Mr. Bluecloud was remorseful for the “current set of charges.” He was smudging regularly. He had made gains towards becoming a “good man” and his main goal was to secure housing. He had worked with a psychologist at the TSDC and was taking advantage of other help available to him. He was pleased he had been “incident free” since his incarceration in April 2020. In the future, he wanted to address his addiction, in particular in relation to crack cocaine. He hoped to own a small business.

[24] Various recommendations were made. These included accessing:

• The Toronto Council Fire Native Cultural Centre to register with the Kizhaay Anishnaabe Niin [“I Am a Kind Man”] program. This program focuses on Indigenous men understanding how violence negatively affects their communities and provides one-to-one counselling, traditional teachings, and other service navigation, etc.
• In-patient rehabilitation services with Renascent for a psychosocial model of addiction recovery and various trauma-informed approaches.
• Fetal Alcohol Syndrome Workers at Aboriginal Legal Services FASD Worker.

G. MR. BLUECLOUD’S CORRECTIONAL HISTORY

[25] Ms. Jacek’s factum accurately describes Mr. Bluecloud’s correctional history as follows: Between February 2005 and May 12, 2020, Mr. Bluecloud is alleged to have committed at least 70 institutional misconducts. He has been found guilty of many of these misconducts, however, records are unclear as to dispositions. Out of the 70 misconducts alleged, 11 of them were violent or aggressive with one of them resulting in criminal charges. The remainder involved Mr. Bluecloud not complying with orders or disobeying rules and making brew. Therefore, in addition to the 23 incidents of Mr. Bluecloud being violent/aggressive as evidenced by his Criminal Record, he was also responsible for 11 violent or aggressive misconducts while incarcerated, totaling 34 violent or aggressive incidents between his criminal offences and institutional misconducts (since 2005).

Notable incidents include:

a) On June 22, 2005, Mr. Bluecloud was incarcerated. He was told that he could not take a cup of hot water to the exercise yard. In response he raised the cup of hot water at that correctional officer and gestured to suggest that he was going to throw the cup at the officer. b) On February 28, 2005, Mr. Bluecloud was incarcerated. He was directed to stay inside his cell when a correctional officer opened his cell door for a maintenance check. Mr. Bluecloud attempted to push past the officer to go out into the corridor. The officer told him to get back into his cell, but Mr. Bluecloud continued to try to get out. The officer pushed him back into the cell. Mr. Bluecloud pushed the officer back. Mr. Bluecloud then took a fighting stance, raising both hand with clenched fists and stated, “Get out of my cell or I will hit you.” c) On August 13, 2005, while incarcerated at the Saskatchewan Penitentiary, Mr. Bluecloud was being brought in from exercise. He got away from the guards, while handcuffed, and armed with a sharpened toothbrush, and ran after another inmate in an attempt to stab him. d) On November 8, 2008, while incarcerated at the Saskatoon Correctional Centre, Mr. Bluecloud left the exercise yard and climbed a gate to get out of the inner perimeter. When a guard tried to stop him, he threatened the guard with a “shank”. The guard let him go since he did not have adequate force options to deal with Mr. Bluecloud’s weapon. Mr. Bluecloud then climbed over the outer perimeter fence where he was caught by correctional employees. e) On February 18, 2009, while incarcerated at the Saskatoon Correctional Centre, Mr. Bluecloud wanted to grab a rolled-up towel before heading out to the courtyard. Correctional Staff became suspicious of this behaviour and proceeded to search him. A homemade sharpened metal object was found in the pocket of his pants. It appeared to be made from a light switch cover that was bent and sharpened to a point. This incident resulted in a criminal conviction as indicated above. f) On February 25, 2016, while incarcerated at the Regional Psychiatric Centre, Mr. Bluecloud secretly attended at the inmate laundry room. He removed the ceiling tiles at a corner of the room that is not monitored by surveillance cameras. He climbed into the space above the ceiling tiles and “breached” open the wall and gained access to a staff room and a staff lounge. He also stored two club style weapons inside the ceiling tiles. g) On July 11, 2019, while incarcerated in the Toronto South Detention Centre, Mr. Bluecloud assaulted another inmate by putting the inmate in a “rear naked choke”. This is commonly understood to be a technique where the attacker positions himself behind the victim and places his forearm on the front of the victim’s neck. The attacker then attempts to cut off the victim’s airway by applying pressure on his forearm and pulling the victim in.

H. DR. MARK PEARCE’S REPORT

[26] Mr. Bluecloud was assessed by Dr. Pearce pursuant to my assessment order. He generated a report and testified before me.

[27] I again reproduce a somewhat edited version of Ms. Jacek’s summary of Dr. Pearce’s report.

Diagnosis

Dr. Pearce Diagnosed Mr. Bluecloud with the following:

1. Severe Polysubstance Use Disorder
2. Anti-Social Personality Disorder (certain borderline personality traits may be present)
3. Dr. Pearce also noted that he may meet criteria for ADHD, PTSD and/or FASD. (Dr. Pearce’s s. 752.1 Psychiatric Assessment p. 62)

Dr. Pearce assessed the probability of violent recidivism in Mr. Bluecloud as high and specifically noted:

When taking into account periods of time in custody and as he has aged, there have been fewer and fewer gaps in his violent offending and the density of same has increased. He has committed offences while under supervision in the community, very shortly after being released from custody and while involved with professionals attempting to risk-manage him. Overall, this gentleman may re-offend imminently and frequently. In terms of the severity of his offences, in my opinion they have been moderately severe.

(Dr. Pearce’s s. 752.1 Psychiatric Assessment p. 65)

Risk Assessment

Mr. Bluecloud’s risk of violent recidivism is high. Actuarial testing results were as follows:

Dr. Pearce assessed Mr. Bluecloud pursuant to three different tools: the PCL-R, the VRAG and the HCR-20 and also took into account protective factors, using the SAPROF as a guide. Dr. Pearce concluded that Mr. Bluecloud was in a “high risk category for violent recidivism.” (Dr. Pearce’s s. 752.1 Psychiatric Assessment p. 65).

Mr. Bluecloud’s Actuarial Risk Assessment scores suggest that his risk is high. His score on the PCL-R was 28, a “fairly high” score:

• His score places him in the 76th percentile with respect to the development sample of male offenders.
• A score of 28 falls short of that required for a diagnosis of psychopathy (30 or higher) yet is still of significant concern (error margin of 3.5 points in either direction.)
• The PCL-R is comprised of two factors/components – Factor 1 (measuring interpersonal/affective style) and Factor 2 (addressing indicia of behavioural dyscontrol). Mr. Bluecloud’s Factor 2 score was 17 placing him in the 92nd percentile.

Mr. Bluecloud’s total score on the VRAG was +21, placing him in the 8th of 9 ascending risk categories on this instrument. This indicates a high probability of violent recidivism. Similarly scoring individuals recidivated violently at a rate of 82% within 10 years of opportunity.

The results of Mr. Bluecloud’s Dynamic Risk Assessments were as follows:

On the HCR-20 suggests a high likelihood of recidivism

• Scoring 33 out of a possible 40 points.
• This is suggestive of a high risk of future violent behaviour, absent significant interventions.

Protective factors using SAPROF as a guide were considered with Dr. Pearce labelling it as speculative at best that they “may reduce” Mr. Bluecloud’s risk of reoffence to “some extent”. The protective factors -- with the exception of being rated as of at least average intelligence -- is based largely on self-reporting: this includes his reported motivation for treatment and reported life goals while other protective factors are dependent on availability/compliance, medication/treatment and monitoring upon release.

In assessing the likelihood of frequency and severity of reoffence, Dr. Pearce considered Mr. Bluecloud’s offence history of robberies and violence to be a significant indicator citing the following convictions:

• May 2003 (Entry 4). He robbed a clerk at a donut store using a screwdriver.
• December 2004 (Entry 5). He committed two robberies inside one establishment, using a knife.
• July 2008 (Entry 8). He robbed a clerk at an inn and assaulted him with bear spray. He robbed a gas station with a knife.
• April 2015 (Entry 14). While not a violent offence per se, he advanced at police while armed with a knife.
• June 2017 (Entry 15). He robbed a bank teller and claimed he had a firearm on his person.
• January 2019 (not on CPIC). He stole clothing and assaulted a female store clerk.
• November 2019 (index offences). He robbed two banks on the same day.
• April 2020 (index offences). He robbed two banks and while armed with a knife, robbed a grocery store.

(Dr. Pearce’s s. 752.1 Psychiatric Assessment p 64-5)

Suitability for a Long-Term Supervision Order (LTSO)

From a psychiatric perspective, the possibility of “eventual risk control” hinges on the issue of treatability. In evaluating whether Mr. Bluecloud could be considered treatable and whether this treatment could be effective to manage his risk in the community, Dr. Pearce considered both his severe polysubstance use disorder and his personality disorder.

With respect to substance use disorders, Dr. Pearce notes that these disorders are often treatment resistant and have a high relapse rate. Despite the fact Mr. Bluecloud was amenable to treatment and had participated in treatment in the past, he labelled his opinion of the prognosis as very guarded:

“He has not been able to remain sober for very long. He has used substances institutionally and in many different settings, from a maximum secure facility to provincial jails, to a CCC. He last accessed a substance of abuse in December 2022, a day after I finished interviewing him…. Psychosocial and biological therapies are not likely to be particularly effective long-term, given his history and circumstances.”

(Dr. Pearce’s s. 752.1 Psychiatric Assessment pp. 67-8)

Similarly, Dr. Pearce was very guarded about the prognosis for his personality disorder noting that not only are treatments for personality disorders challenging, but that Mr. Bluecloud’s PCL score increases his pessimism pertaining to treatment. He also noted that Mr. Bluecloud has not been able to address it over the last two decades despite treatment. (Dr. Pearce’s s. 752.1 Psychiatric Assessment p. 68)

Dr. Pearce labelled Mr. Bluecloud’s prior response to treatment as a negative prognostic indicator. Despite making some gains through treatment, he repeatedly recidivated: “A multidisciplinary, graduated release strategy did not significantly benefit him and he was quickly returned to custody even when placed in a highly supervised CCC.“ (Dr. Pearce’s s. 752.1 Psychiatric Assessment p. 68)

Most concerning is Mr. Bluecloud’s rate of compliance with previous supervision:

“Mr. Bluecloud has fared poorly while in the community under supervision, as noted; his releases have repeatedly been suspended. He has not complied with provincially imposed or PBC-imposed conditions. He has fled jurisdictions and quickly moved to other provinces. There are few reasons for optimism in this domain. (Dr. Pearce’s s. 752.1 Psychiatric Assessment p.69)

Dr. Pearce’s risk management/treatment recommendations were as follows:

1. Mr. Bluecloud should participate in substance abuse treatment programming, violence prevention programs and programs to target antisocial values and attitudes while federally incarcerated. Longitudinally based “booster” programming in certain domains should continue once he returns to the community, to bolster the effects of institutional programs. He was also interested in trauma-focused therapy and that could assist him as well. Finally, non-stimulant treatment for ADHD could be helpful.
2. Upon his return to the community, Mr. Bluecloud should reside for some time in a CSC-supervised facility. I suggest that he return to a CCC, given the level of supervision and support available there. He should initially only be permitted access to the community for work and treatment programming. While he may have received some compensation, I would not support his initially residing in his own residence. His access to funds may be a risk factor as well, for a return to substance use.
3. When Mr. Bluecloud has access to the community, at least once weekly urine screens should be performed to ensure that he remains abstinent from substances of abuse. He may wish to continue with MMT, to help ensure he avoids illicit opioids. Of note, this gentleman should not be prescribed stimulant medication and great caution should be exercised in providing him with any medication that has an abuse potential. Use of any non-prescribed substance should result in his immediate return to custody.
4. Mr. Bluecloud should be prohibited from having contact with any criminally-oriented peers outside of correctional facilities. He should not attend at any venue where the primary source of revenue is through the sale of alcoholic beverages.
5. Mr. Bluecloud should consider vocational programming and ongoing schooling; this may assist him with his sense of self and help structure his time.
6. Mr. Bluecloud should not be in possession of a weapon.
7. Strong consideration should be given to electronic monitoring, to objectively verify this gentleman’s whereabouts.
8. Mr. Bluecloud should continue with prescribed psychotropic medication. He should have regular contact with a psychiatrist, to allow for monitoring of his mental state.

I. DR. PEARCE’S VIVA VOCE TESTIMONY

[28] Dr. Pearce, whose testimony was not challenged, supplemented his report’s finding with the following observations (largely borrowed from defence counsel’s submissions, as supported by various institutional records and the testimony of Nemke Quarrington):

• Dr. Pearce did not conclude that Mr. Bluecloud suffers from a major mental illness.
• Mr. Bluecloud has been medically stable.
• Mr. Bluecloud has been taking abilify (anti-psychotic injection) and non-stimulant ADHD medication during his time at TSDC.
• He has been compliant with medication.
• He appears to be behaviourally stable on that medication.
• Mr. Bluecloud has spent years pursuing counselling, including cognitive behavioural therapy and psychoeducation in the areas of, inter alia, substance abuse, problem solving, decision making, stress, and anti-social attitudes.
• Mr. Bluecloud has been receiving counselling services since 2018 and has been increasingly developing insight and skills necessary to regulate his behaviour.
• In the last year, he has been pursuing individual counselling through Nemke Quarrington, the NILO worker at the TSDC, who described Mr. Bluecloud as motivated, engaged, and a pleasure to work with.
• Mr. Bluecloud has completed relevant programming such as Addictions Counselling Services focused on substance use, trauma, coping strategies, and emotions management, Changing Habits, Thoughts to Action, Overdose Prevention, Alcoholics Anonymous, Setting up a Budget, It’s a Gamble, Goal Setting, Managing Stress, Understanding Feelings, Use of Leisure Time, Planning for Discharge, Looking for Work, Maintaining Employment, Anger Management
• Mr. Bluecloud has completed relevant education: Addictions Studies at Centennial College (marks in the 90s): Athabasca University business course
• The actuarial assessments are based on estimates derived from measuring groups of individuals. Therefore, they do not directly correspond to the recidivism risk of the individual, and Mr. Bluecloud’s risk can be lower than the estimated probabilities.
• The validity of these tools was never measured against aboriginal groups. Therefore, they are susceptible to cultural bias, may be less accurate for indigenous inmates, and can overestimate the risk posed by indigenous offenders.
• VRAG measures everything from an assault charge to first degree murder in the next ten years.
• It does not account for his indigenous background.
• It does not account for dynamic risk factors.
• It assumes near-immediate release with no controls.
• The score of 82% yet with a margin of error the score can be as low as 55%
• Mr. Bluecloud’s violence is not based on uncontrollable anger or temper; rather, it is instrumental in the pursuit of alcohol and drugs.
• PCL-R score is pushed up by criminal versatility (e.g., breaches and property offences that cause no physical or psychological harm to victims).
• Scoring is in relation to both violent and non-violent recidivism.
• Score of 28 with a margin of error score as low as 24.5
• Mr. Bluecloud’s score is largely driven by Factor 2 (behavioural discontrol). Factor 2 is much more susceptible to burnout, which begins in one’s 40’s and 50’s. Mr. Bluecloud is 39 years old.
• HCR-20:
• Clinical judgment is involved – different psychiatrists may disagree.
• Scored 33 out of 40, but there is a margin of error.
• Mr. Bluecloud has had almost no misconducts in the last four years
• Three violence-related misconducts March, May, August 2020 – none of which suggest that Mr. Bluecloud was the aggressor.
• Three non-violent related misconducts: (1) possible misuse of gabapentin in Sept of 2020 [not in the medical records]; (2) Fentanyl/Methadone overdose in the summer of 2022 – suicide attempt as a result of being in segregation for one year; (3) Dec 10, 2022 – drank hand sanitizer due to attempt at self harm, likely triggered by dark and emotional conversations with Dr. Pearce.
• Even the limited misconducts must be interpreted with caution.
• Mr. Bluecloud has persevered in jail notwithstanding the terrible conditions at the TSDC, especially during the pandemic.
• Mr. Bluecloud has never been known to cause any physical injury to anybody in respect of any offence on his criminal record, and he has only three instances of physically interacting with a victim: (1) May 2003 – screwdriver poke (2) July 2008 - bear spray of male and push of female (3) April 18, 2020 – push of female and of male to the ground

[29] Other positive prognostic factors include:

• Mr. Bluecloud has reconnected to his indigenous routes. He has been open to receiving indigenous supports, including from Nemke Quarrington (NIlO worker).
• He has realistic employment goals of becoming an addiction support counsellor.
• He is financially stable and working with a financial advisor, having received funds from a civil lawsuit, investing in a 6-month GIC and has some savings.
• He shows significant insight:
  • Quite openly and genuinely discussed remorse
  • Felt treated fairly by the system and understands why he is facing an LTO application,
  • Has taken the DO/LTSO process extremely seriously and has done everything he possibly could do to rehabilitate himself.

J. THE TESTIMONY OF ADRIAN ALEXANDER AND BRAD TAMSCU

[30] Mr. Alexander is a parole officer employed by Correctional Service of Canada. Mr. Tamscu is a 34-year veteran of Ontario’s correction services. There was no challenge to the credibility or reliability of their testimony. Together their evidence describes the details of treatment programs offered to offenders sentenced to provincial and federal sentences. They also explain how long-term offenders like Mr. Bluecloud are processed at provincial and federal institutions.

[31] Their testimony leads me to make the following findings of fact:

• Upon admission to the penitentiary system Mr. Bluecloud would almost certainly be classified as a high-risk, high needs offender and would be offered the high-intensity program for Indigenous offenders.
• This program is comprehensive and would address all his needs and could be completed within a 2-year sentence, although a 4-year sentence would be ideal in terms of making sure that Mr. Bluecloud’s programming and treatment needs are met.
• A reformatory sentence requires a more compressed and less ideal intake into the ultimate LTSO.
• As concerns the length of an LTSO, Mr. Alexander has seen long-term offenders become jaded and lose hope when facing a 10-year LTSO. In his opinion, too long an LTSO can be counterproductive.
• Access to Mr. Bluecloud by federal parole board officials would be more difficult if he were in a reformatory.
• A short reformatory sentence does, however allow for (1) further institutional programming and (2) a comprehensive LTSO plan to be put in place prior to release.
• Intensive treatment and programming for substance use, anger management, and emotional regulation can be pursued at the Ontario Correctional Institute (OCI) and the Algoma Correctional Institute, both of which are provincial correctional facilities.
• Life skills and rehabilitation programming can be pursued at Maplehurst or the Central North Correctional Centre (CNCC).
• All facilities have access to structured indigenous programming, though Turning Full Circle, the most comprehensive indigenous program, would likely only be available at Algoma and CNCC.
• Mr. Bluecloud will be more likely to access programming in the reformatory context than the penitentiary due to segregation issues: in the penitentiary, segregated inmates do not get access to programming.
• In the reformatory context, every effort is made to facilitate programming for segregated inmates, and inmates in “protective custody” have equal access to programming as those in segregation.

K. THE TESTIMONY OF NEMKE QUARRINGTON

[32] While incarcerated at the Toronto South Detention Centre Mr. Bluecloud has been receiving indigenous support from Mr. Quarrington who has found Mr. Bluecloud to be enthusiastic and a pleasure to work with.

[33] A native residence called “Sagatay” has met with Mr. Bluecloud and have found him to be acceptable to their residence where Mr. Bluecloud could successfully reside while serving his LTSO. Sagatay would assist Mr. Bluecloud in finding employment and counselling.

L. THE POSITIONS OF THE PARTIES

[34] Ms. Jacek argues that only the penitentiary can provide the kind of counselling and treatment that Mr. Bluecloud needs given Dr. Pearce’s guarded prognosis for him. She also argues that Mr. Bluecloud’s substance abuse disorder will require a full 10-year LTSO for it to be properly addressed. She reminds me that public safety concerns must trump any concerns regarding the length of sentence imposed.

[35] Ms. Salih argues that Dr. Pearce’s assessment is less pessimistic than Ms. Jacek suggests, and she reminds me that the psychological tests administered to Mr. Bluecloud suffer from significant reliability issues given Mr. Bluecloud’s indigeneity. She further points out that since no programming will be available to Mr. Bluecloud should he be in segregation in the federal system, a federal sentence is counterproductive. She also points out the degree of progress Mr. Bluecloud has made at the Toronto South Detention Centre in the last four years.

M. ANALYSIS

(a) Introduction

[36] In addressing the dangerous offender/long-term offender regime in the Criminal Code, the Court of Appeal for Ontario in R. v. G.L. clarified the approach to the balancing exercise between the state’s and the offender’s interests in the following manner:

… the overriding purpose of the dangerous and long-term offender regimes is the protection of the public. Thus, ‘real world’ resourcing limitations cannot be ignored or minimized where to do so would endanger public safety. The court is required on a dangerous offender application to balance the liberty interests of an accused with the risk to public safety that will arise on the release of the accused into the community. That balancing exercise is informed by this fundamental principle: in a contest between an individual offender’s interest in invoking the long-term offender provisions of the Code and the protection of the public, the latter must prevail. [emphasis added]

R. v. G.L., 2007 ONCA 548, [2007] O.J. No. 2935 (C.A.) at para 70; leave to appeal denied [2008] S.C.C.A. No. 39

[37] The Federal Court in Deacon v. Canada, 2006 FCA 265, [2006] F.C.J. No. 1153 at para 36 said this:

In my view, the purpose of the long-term offender provisions is therefore clear. An offender whose conduct or behaviour is not "pathologically intractable", in that there is a reasonable possibility that the offender can eventually reach a stage where, although not curable, his or her risk can be controlled in the community, will now qualify for long-term offender status. Under the former provisions, such an offender -- for example, a repeat sexual offender -- might have been found to be a dangerous offender. Long-term supervision orders thus pursue two main objects: first, protecting society, and second, enhancing the social reintegration of long-term offenders, whenever possible, by granting release under the least restrictive conditions consistent with the protection of society.

[38] The case law emphasizes that a long-term supervision order is not to be viewed by the courts as a punitive measure. Rather, its focus is to address the needs of the offender in the least restrictive and most comprehensive manner without sacrificing its main objective, the safety of society. R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163 at para 45-50; R. v. Archer, [2005] O.J. No. 241 at para 20-22.

[39] I must not lose sight of the importance of rehabilitation and reintegration of Mr. Bluecloud, particularly considering his indigeneity. R. v. Ipeelee, 2012 SCC 13 at paras. 48 and 50. Ipeelee at paras. 59-87 also teaches that I must carefully consider Mr. Bluecloud’s indigeneity and his unique personal history when deciding on the appropriate sentence and length of the LTSO.

(b) Where Should Mr. Bluecloud Serve His Sentence and What is the Appropriate Length of Sentence.

[40] As concerns the appropriate sentence for the offences committed, the focus must be on public safety and rehabilitation, even at the expense of imposing a sentence that is outside the normal range of sentence. It is not uncommon in LTO proceedings for a penitentiary sentence to be imposed because of the more intensive programming available there and the need to create a smooth transition into the LTSO, even when, in the absence of the LTSO, because of a long period of pre-sentence custody, a reformatory sentence, or a non-custodial sentence would be appropriate. R. v. Spilman, 2018 ONCA 551; R. v. Pinck, 2022 ONSC 4101.

[41] All the witnesses agree that the ideal program for Mr. Bluecloud would be the high-intensity Indigenous program available in the penitentiary. I agree. The further advantage of a penitentiary sentence would be that it would place Mr. Bluecloud under the immediate auspices of the federal parole board, making preparation for the eventual LTSO smoother and more seamless.

[42] However, the evidence is clear that should Mr. Bluecloud go into segregation in the penitentiary, neither this program nor any others will be available to him. I must thus first determine the likelihood that Mr. Bluecloud will end up in segregation if sent to the penitentiary.

[43] Mr. Bluecloud has a long history of asking for and being granted segregation for his own safety. There is no evidence that his past requests for segregation have been driven by anything other than a sincere fear of genuine threats to his well being in the general population. He has been stabbed three times. There is every reason to expect these threats to continue. It is thus highly likely that Mr. Bluecloud will end up in segregation if sentenced to a penitentiary term, thus frustrating his need for programming prior to the start of his LTSO.

[44] On the other hand, while I find that the programming available in the provincial reformatory system is not as well suited to Mr. Bluecloud’s situation, there is nonetheless quality programming available to him there, even if he is in segregation.

[45] Because I must focus on public safety through rehabilitation, I find that in Mr. Bluecloud’s circumstances a reformatory sentence is appropriate. That Mr. Bluecloud has spent so much time in presentence custody, under extremely stressful conditions, makes it relatively easy to reconcile a reformatory sentence with the sentencing range for his index offences.

[46] In my view, a reformatory sentence is called for and it should be one that makes admission to programming at Algoma, OCI, or Maplehurst a reasonable possibility. I impose a further sentence of 15 months.

[47] As concerns Mr. Bluecloud’s pre-sentence custody it should be noted on the information as 53 months, the Summers equivalent of 79.5 months.

[48] Considering 11.5 months’ credit for a miserable experience in pre-sentence custody as set out clearly in the materials (often referred to as Duncan credit), the notional sentence for Mr. Bluecloud is 106 months, or 8 years and 10 months.

[49] This is the sentence to be imposed on all the robberies and other robbery-related offences, concurrent to each other. The various breaches will be sentenced at 6 months concurrent to each other and concurrent to the 106 month sentences.

(c) The Length of the LTSO

[50] Mr. Bluecloud has been making significant progress. I don’t want that progress to be thwarted by an LTSO that is so long that he despairs and loses his way. I impose a 7-year LTSO.

(d) Suggested LTSO Conditions

[51] I urge the parole board to incorporate these conditions into Mr. Bluecloud’s LTSO:

1. Reside at an address approved of by CSC. Particular consideration should be given to Sagatay house.
2. Complete substance-abuse programming, violence prevention programming, and programs to target anti-social values and attitudes. Particular consideration should be given to (1) the Ngwaagan Gaming Recovery Centre (Rainbow Lodge); (2) Renascent; and (3) the Addiction Support and Wellness Circle with Aboriginal Legal Services (in partnership with the Native Canadian Centre of Toronto).
3. Pursue individual counselling to enhance life skills, emotional regulation, and problem solving. Particular consideration should be given to accessing the services of a traditional teacher with (1) Aboriginal Legal Services; (2) Enhaahtig North Healing Lodge; and (3) the Toronto Council Fire Native Cultural Centre.
4. Comply with weekly urine screening.
5. Comply with medication as directed by any treating psychiatrist. Stimulant medication should be avoided. Particular consideration should be given to connecting Mr. Bluecloud with a psychiatrist associated with Anishnwabe Health Toronto.
6. Do not attend at any venue where the primary source of revenue is through the sale of alcoholic beverages.
7. Pursue education and employment Particular consideration should be given to connecting with Mr. Bluecloud with the support of Miziwe Biik – Aboriginal Employment & Training.
8. Do not possess any weapons.
9. Consideration should be given to ensuring that Mr. Bluecloud is connected with an FASD worker through Aboriginal Legal Services.

L. CONCLUSION

[52] All the statutory criteria for a long-term offender designation have been met. I hereby designate Mr. Bluecloud a long-term offender pursuant to s. 753.1 and order that:

• he serve a further sentence of 15 months; and
• he be subject to long-term supervision for a period of 7 years with the aforementioned suggested conditions.

[53] I will hear from counsel regarding ancillary orders.

Released on May 15, 2024 Justice Russell Silverstein