Court File and Parties

COURT FILE NO.: CR-14-0027-000 DATE: 2019-06-06

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN R. Kozak, for the Crown

- and -

RICKY KEEWASIN F. Thatcher, for the Accused Accused

HEARD: November 24, 2017, April 30, 2019 at Thunder Bay, Ontario Mr. Justice W. D. Newton

WARNING

AN ORDER RESTRICTING PUBLICATION OF ANY INFORMATION THAT COULD “IDENTIFY” THE COMPLAINANT OR WITNESS HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA

Reasons For Sentence

Overview

[1] I found Mr. Keewasin guilty of aggravated sexual assault contrary to s. 273 of the Criminal Code and sexual interference contrary to s. 151 (R. v. Keewasin, 2016 ONSC 5463). Convictions were entered for offences contrary to ss. 811 and 145(3) of the Criminal Code also.

[2] Subsequently, the Crown brought an application to have Mr. Keewasin declared a dangerous offender.

[3] Following an assessment and testimony from Dr. Pearce, a forensic psychiatrist called by the Crown, the Crown and counsel for Mr. Keewasin propose a joint submission on sentence which is:

(a) eight years imprisonment for the index offences concurrent, less time served at credit at 1.5 days for each day served; (b) thereafter long-term supervision for 10 years; (c) that Mr. Keewasin provide a DNA sample; (d) that Mr. Keewasin comply with the Sex Offender Information Registration Act for life; and, (e) that Mr. Keewasin be prohibited from possessing any weapons pursuant to section 109 of the Criminal Code for life.

[4] What is not agreed is whether Mr. Keewasin should be designated as a “dangerous offender” or a “long-term offender”.

[5] The issues are, therefore:

(a) whether the joint submission with respect to the sentence for the index offence is appropriate; (b) whether the joint submission with respect to the long term supervision order is appropriate; and, (c) whether I should find Mr. Keewasin a “dangerous” or “long-term” offender.

The Facts

[6] The evidence on the sentencing and dangerous offender application consisted of a pre-sentence report, a “Gladue” report, victim impact statements from the victim and her mother and expert opinion evidence by report and testimony from Dr. Mark Pearce, a forensic psychiatrist who assessed Mr. Keewasin.

The Pre-sentence Report

[7] This report was based on interviews with Mr. Keewasin, his mother, half-sister, sister-in-law, niece and records from Correctional Services, Probation and Parole, and Thunder Bay Police.

[8] Mr. Keewasin was raised in Wunnumin Lake, a remote northern community accessible primarily by air. It is noted that Mr. Keewasin began inhaling gasoline as a child and later abused other substances including alcohol.

[9] He resided with his family in Wunnumin Lake until he was charged with assaulting a young family member. For this offence he received a detention order after being found not criminally responsible by reason of mental disorder. Mr. Keewasin was inhaling gasoline frequently around this time. He was detained on the Forensic Unit in hospitals in Thunder Bay for about four years. While hospitalized he violated his curfew and failed to abstain from alcohol and drugs.

[10] In September 2008 the detention order was rescinded. In October 2008, Mr. Keewasin was charged with another serious assault and sentenced in April 2009 to five years imprisonment. It was reported that he was held in custody until his warrant expired on July 7, 2013. He was diagnosed with schizophrenia and assessed as a high risk to commit harm or death to another person. It was identified that Mr. Keewasin was associated with gangs. Corrections records indicate that Mr. Keewasin lacked victim empathy and was poorly motivated to attend programing.

[11] About three months after his release, he was arrested for the charges that proceeded before me. It was noted that he was using alcohol and drugs daily before his arrest.

[12] He was released on bail in January 2015 and it was reported by family members that he did well in his home community until September 2015 when he was arrested. He was released again and initially returned to his home community but was ordered out of the community by a Band Counsel Resolution due to his reputation for violence.

[13] It was reported that Mr. Keewasin has limited education and no formal work history or employment training.

[14] As noted, substance abuse and addiction are problems for Mr. Keewasin. He began inhaling gasoline when he was six and was chronically sniffing gasoline by 14. He has attended substance abuse programs in Thunder Bay, Kenora, and Alberta. According to the author of the report, “Treatment was said to have been ineffective, because he presented with serious cognitive impairment and problematic behaviours or left treatment prematurely”. Records from the National Substance Abuse Program, which Mr. Keewasin attended while he was incarcerated at Stoney Mountain penitentiary, indicate that he “was poorly motivated and made limited gains.” However, his sister-in-law noted that he was able to remain sober while he resided in Wunnumin Lake.

[15] According to family, Mr. Keewasin “can be respectful, helpful and friendly when sober.” However, “they are all aware he can be violent when under the influence of drugs and alcohol”.

[16] His response to community supervision is mixed. While residing with his sister-in-law he was compliant for eight months. However, when released twice since then, he violated his bail conditions by failing to abstain.

[17] The author concluded that Mr. Keewasin “is deemed to be very high risk to reoffend violently when under the influence of intoxicants”. Recommendations were made for programming in federal and provincial institutions.

The “Gladue” Report

[18] The report writer interviewed Mr. Keewasin on five occasions over two months. He also interviewed Mr. Keewasin’s eldest sister, biological father, mother, niece, and another sister.

[19] Mr. Keewasin’s father is a product of the residential school system. He disclosed that he was sexually abused by other students and that this abuse negatively affected all of his relationships which involved alcohol abuse and family dysfunction. Mr. Keewasin’s mother did not attend residential school. She stopped going to school at grade three. Her parents were alcohol abusers. Her relationships with her partners were characterized by alcohol abuse and violence.

[20] Mr. Keewasin disclosed that he was sexually abused at a very young age.

[21] Mr. Keewasin had been diagnosed with schizophrenia but that diagnosis was changed to “inhalant induced psychotic disorder”. He was discharged from hospital in March 2008.

[22] In October 2008, Mr. Keewasin was drinking heavily and was charged after he had stabbed a male friend and a woman. Mr. Keewasin was in pretrial custody for eight or nine months on these charges and eventually sentenced to five years which he served at Stoney Mountain penitentiary. He described getting beaten because he did not want to join the gangs in the penitentiary.

[23] After his release in July 2013 Mr. Keewasin started using drugs and alcohol. He was using drugs and alcohol heavily at the time he was charged with offences in October, 2013.

[24] The report writer notes that family members indicate that Mr. Keewasin “can be a good person when he is sober” and that he does well when he has positive supports in place but relapses. His family believes that he still suffers from mental health issues and should be under medical supervision.

[25] The writer did not make any recommendations.

Victim Impact Statements

[26] Victim impact statements were received from the victim and her mother.

[27] In addition to the physical injuries sustained in the assault the victim suffered emotionally and has required counseling. She is frightened of men because of this incident. She fears for herself and her family if she or they come into contact with Mr. Keewasin.

[28] The victim’s mother is worried about her daughter and feels that she should have protected her daughter that night and therefore blames herself. Like her daughter, she is afraid that Mr. Keewasin will harm them in the future.

Dr. Pearce

[29] Dr. Pearce is a forensic psychiatrist working primarily at the Centre for Addiction and Mental Health in Toronto and The Ontario Shores Centre for Mental Health Sciences in Whitby. About one quarter of his practice is devoted to assessments related to “psycho-legal” issues, i.e. fitness to stand trial, criminal responsibility and the assessment of dangerousness. To date, he has conducted about 60 to 70 dangerous offender application assessments, of which twenty to twenty-five percent were assessments of indigenous persons.

[30] Dr. Pearce prepared a comprehensive report and testified. His evidence was based on two interviews with Mr. Keewasin lasting about four hours, psychometric testing, and review of over 4,000 pages of medical reports, hospital records, and police and correction records. Dr. Pearce acknowledged that the psychometric tools he employed are “moderately successful at predicting risk” but do have some limitations in that they have not been validated with indigenous populations. (See for example Ewert v. Canada, 2018 SCC 30.)

[31] In his opinion, Mr. Keewasin has two diagnoses which are relevant to his current situation and his future risk assessment. The first is a serious substance use disorder which is treatment resistant and the second is anti-social personality disorder. Dr. Pearce stated that both conditions are hard to treat and that “they may improve with treatment or with time, but it is hard to completely eradicate them”.

[32] Aspects of Mr. Keewasin’s history include “serious violence”, a “fairly quick return to violence “following release from custody and a “fairly high density of… violence, given his age and taking into account time spent in custody”. Dr. Pearce concluded that, given Mr. Keewasin’s age (he is now 34), his history, his substance use disorder and personality disorder, Mr. Keewasin is in a “high risk category for future violent and/or sexual re-offence”. He noted that Mr. Keewasin could make gains with a great deal of structure, support and supervision but noted that he “quite quickly returned to substance abuse” and “a violent re-offence” when that structure and supervision ended.

[33] According to Dr. Pearce, these three factors, his treatment resistant substance abuse disorder, his personality disorder, and his current age, will make reintegration into the community and reduction in violence difficult. Dr. Pearce noted that, typically, there is a reduction in violence or the risk of sexual assault when the offender reaches their 40s or 50s.

[34] Should a long-term supervision order be made, Dr. Pearce had recommendations for treatment.

The Law

Joint Submissions

[35] There is a joint submission for the sentences of the index offences and the imposition of a long-term supervision order.

[36] In R. v. Anthony-Cook, 2016 SCC 43, Moldaver J., at para. 42, stressed the importance of trial judges “exhibiting restraint, rejecting joint submissions only were the proposed sentence would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system”. He described the rationale for such restraint as follows:

44 Finally, I note that a high threshold for departing from joint submissions is not only necessary to obtain all the benefits of joint submissions, it is appropriate. Crown and defence counsel are well placed to arrive at a joint submission that reflects the interests of both the public and the accused (Martin Committee Report, at p. 287). As a rule, they will be highly knowledgeable about the circumstances of the offender and the offence and the strengths and weaknesses of their respective positions. The Crown is charged with representing the community's interest in seeing that justice is done (R. v. Power, 1994 SCC 126, [1994] 1 S.C.R. 601, at p. 616). Defence counsel is required to act in the accused's best interests, which includes ensuring that the accused's plea is voluntary and informed (see, for example, Law Society of British Columbia, Code of Professional Conduct for British Columbia (online), rule 5.1-8). And both counsel are bound professionally and ethically not to mislead the court (ibid., rule 2.1-2(c)). In short, they are entirely capable of arriving at resolutions that are fair and consistent with the public interest (Martin Committee Report, at p. 287).

Purpose and Principles of Sentencing

[37] The Criminal Code provides:

Purpose

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

Fundamental principle

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[38] 718.2(e) of the Criminal Code requires that sentencing determinations take into account the unique circumstances of aboriginal peoples. (R. v. Gladue, 1999 SCC 679, [1999] 1 S.C.R. 688 at para. 75)

[39] In R. v. F.H.L., 2018 ONCA 83, Epstein J.A. described the correct approach to applying s. 718.2(e) as follows:

The correct approach may be articulated as follows. For an offender’s Aboriginal background to influence his or her ultimate sentence, the systemic and background factors affecting Aboriginal people in Canadian society must have impacted the offender’s life in a way that (1) bears on moral blameworthiness, or (2) indicates which types of sentencing objectives should be prioritized in the offender’s case. This approach finds support both in Ipeelee and decisions of this court.

Dangerous Offender Designation

[40] The following Criminal Code provisions are relevant:

Application for finding that an offender is a dangerous offender

753 (1) On application made under this Part after an assessment report is filed under subsection 752.1(2) of the Criminal Code, 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 of the Criminal Code 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;

[41] The leading case on dangerous offenders is: R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936.

[42] Côté J. in Boutilier, at paras. 17-18 and 26-27 and 35, explains how the designation is arrived at:

17 The Crown must demonstrate two elements to obtain a designation of dangerousness resulting from violent behaviour. First, the offence for which the offender has been convicted must be "a serious personal injury offence": s. 753(1)(a). This first criterion is objective. There is no room for judicial discretion, since s. 752 defines the list of serious personal injury offences.

18 Second, the offender must represent "a threat to the life, safety or physical or mental well-being of other persons". This second element, the requisite threat level, requires that the judge evaluate the threat posed by the offender on the basis of evidence establishing one of the following three violent patterns of conduct:

(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;

26 In Lyons, Justice La Forest read the objective element of the designation — the requirement that the predicate offence be a "serious personal injury offence" — together with the subjective element — the "threat" assessment — and concluded that four criteria were "explicit" from the language of s. 753(1): (1) the offender has been convicted of, and has to be sentenced for, a "serious personal injury offence"; (2) this predicate offence is part of a broader pattern of violence; (3) there is a high likelihood of harmful recidivism; and (4) the violent conduct is intractable (p. 338). The last three criteria are part of the assessment of the "threat" posed by the offender. The last two of these are future-oriented, and Justice La Forest explained them as follows:

Thirdly, it must be established that the pattern of conduct is very likely to continue and to result in the kind of suffering against which the section seeks to protect, namely, conduct endangering the life, safety or physical well-being of others or, in the case of sexual offences, conduct causing injury, pain or other evil to other persons. Also explicit in one form or another in each subparagraph of s. [688, now 753] is the requirement that the court must be satisfied that the pattern of conduct is substantially or pathologically intractable.

[Emphasis added; p. 338.]

27 The language of s. 753(1), which led Justice La Forest to develop the four criteria outlined above, has never been amended since its enactment in 1977. Before designating a dangerous offender, a sentencing judge must still be satisfied on the evidence that the offender poses a high likelihood of harmful recidivism and that his or her conduct is intractable. I understand "intractable" conduct as meaning behaviour that the offender is unable to surmount. Through these two criteria, Parliament requires sentencing judges to conduct a prospective assessment of dangerousness.

35 Determining whether or not a high risk of recidivism and intractability are present necessarily involves a prospective inquiry into whether an offender will continue to be, in Justice Dickson’s words (as he then was), “a real and present danger to life or limb”. R. v. Hatchwell, 1974 SCC 203, [1976] 1 S.C.R. 39 (S.C.C.), at p. 43.

Positions of the Parties

[43] With respect to the dangerous offender designation, the Crown argues that Mr. Keewasin has been convicted of a serious personal injury offence as described in the Criminal Code and that Mr. Keewasin constitutes a threat to the life, safety or physical well-being of other persons both under subsection (i) and (ii) of s. 753(1) of the Criminal Code. The Crown relies upon the conclusions of Dr. Pearce as set out above.

[44] The Crown argues that the proposed joint sentence is well within the range of appropriate sentences for offences of this nature and having taken into account Mr. Keewasin’s personal circumstances including the Gladue factors which the Crown acknowledges are present. Counsel for Mr. Keewasin joins in this submission.

[45] However, counsel for Mr. Keewasin submits that I should find Mr. Keewasin to be a long-term offender rather than a dangerous offender. He submits that the tests used to predict the likelihood of reoffending have not been validated with indigenous populations and, therefore, Dr. Pearce’s conclusions cannot be accepted. Further, as Mr. Keewasin has not offended while closely supervised and has been compliant with abstinence in the past, he argues that future programming, particularly as it relates to substance abuse, will reduce the likelihood of violent behaviour in the future.

Analysis and Disposition

[46] I begin my analysis with the issue of whether I am satisfied that Mr. Keewasin should be found a dangerous offender or a long-term offender. Then I will consider whether I should accept the joint submission.

[47] It is not disputed that Mr. Keewasin has been convicted of a serious personal injury offence. I am satisfied, beyond a reasonable doubt on the evidence, that Mr. Keewasin does constitute a threat to the life, safety or physical well-being of other persons on the basis of evidence establishing that his behaviour is as set out in s. 753(1)(i) of the Criminal Code that is:

(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.

[48] In so concluding I place significant weight on Mr. Keewasin’s history of past and current offences which includes, as noted, “serious violence”, “fairly quick return to violence” following release from custody, and “fairly high density of… violence” and his poor prognosis given, as Dr. Pearce notes, Mr. Keewasin’s treatment resistance substance abuse disorder, his personality disorder and his current age. I interpret Dr. Pearce’s conclusions to be based on these factors primarily and not the impugned tests. In the words of La Forest J., I am satisfied Mr. Keewasin’s pattern of conduct “is very likely to continue” and that his pattern of conduct is “substantially or pathologically intractable” even after further treatment. Dr. Pearce described both the substance abuse disorder and antisocial personality disorder as hard to treat. I note Mr. Keewasin has been substantially unable to address his addictions notwithstanding treatment programs but for one period in Wunnumin Lake. I am satisfied that most, if not all of Mr. Keewasin’s prior convictions occurred when he was abusing gasoline, alcohol and drugs and acknowledge that Gladue factors will have played a role in his substance abuse and addictions. I note also that upon his release, Mr. Keewasin will be in his mid-30s, not an age when the tendency towards violence abates.

[49] I am also satisfied that both the proposed sentence and long term supervision order are reasonable in the circumstances including the Gladue factors.

[50] Therefore, Mr. Keewasin is designated as a dangerous offender.

[51] I sentence Mr. Keewasin to a term of imprisonment of eight years less credit for pre-sentence custody at a 1.5 per day served for the offence of aggravated assault and sentence Mr. Keewasin to a sentence of eight years less credit for pre-sentence custody at 1.5 per day served for the offence of sexual interference to be served concurrently. On the convictions contrary to ss. 811 and 145(3) of the Criminal Code Mr. Keewasin is sentenced to 30 days for each offence also to be served concurrently.

[52] Taking into account the time in custody to the date of the sentencing hearing and to today the total credit for presentence custody is 2,480 days and therefore the net or effective sentence is an additional 440 days in custody.

[53] I agree with the recommendation made in the pre-sentence report and the suggestion from counsel for Mr. Keewasin that Mr. Keewasin may benefit from programming at the Algoma Treatment and Remand Centre to be completed before his release.

[54] This period of custody is to be followed by a long term supervision for the period of 10 years. Dr. Pearce made eight recommendations for a treatment plan should Mr. Keewasin be found suitable for a long-term supervision order and I encourage Corrections to consider these recommendations found at page 37 and 38 of his report which will be appended to my reasons.

[55] With respect to ancillary orders, Mr. Keewasin is to provide a DNA sample, comply with the Sex Offender Information Registration Act for life and be prohibited from possessing any weapon pursuant to s. 109 of the Criminal Code for life.

[56] I wish to thank counsel for their assistance in this matter.

“Original signed by”

The Hon. Mr. Justice W.D. Newton

Released: June 6, 2019