COURT FILE NO.: CR-20-0210-00 DATE: 2023-08-10

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING P. Keen, for the Crown

- and -

PATRICK KANATE K. Matthews and R. Habjan, for the Defendant

HEARD: March 27, 29, 30 2023, at Thunder Bay, Ontario

Mr. Justice W.D. Newton

Decision on Sentence

Overview

1The Crown seeks to have Patrick Kanate declared a dangerous offender and sentenced to an indeterminate sentence.

2Mr. Kanate pleaded guilty to a number of offences committed while detained at the Kenora District Jail on September 14, 2018: hostage taking (correctional officer); assaulting a peace officer with a weapon (sharp object); disarming a peace officer; uttering threats; assault with a weapon (pepper spray); and assault with a weapon (hot water).

3Based on Mr. Kanate’s prior criminal record and these most recent convictions, the Crown sought and obtained the consent of the Attorney General to seek a dangerous offender designation.

4Dr. Philip Klassen, a forensic psychiatrist, conducted a psychiatric assessment of Mr. Kanate pursuant to section 752.1 of the Criminal Code. Dr. Klassen prepared a report dated October 4, 2021 and testified on this hearing on March 27, 2023.

5On this application the Crown filed seven volumes of material including agreed statement of facts and transcripts from sentencing hearings for prior offences, victim impact statements from prior offences and the index offences, Correctional Service of Canada records, and records of occurrences while in custody in provincial institutions. Pre-sentence and Gladue reports were also prepared.

6The Crown also called Ian Gill, a local parole officer supervisor, to testify about the intake process and programming offered by Correctional Services of Canada.

Summary of Convictions and Behaviour While in Custody

7Mr. Kanate is now 32, born June 5, 1991. He is Indigenous and his family was originally from Weagamow Lake First Nation (also known as North Caribou Lake or Round Lake First Nation).

8As stated in the Crown’s factum, in the last 12 years, Mr. Kanate has been released from custody on eight occasions. The longest period of time he has spent in the community before being rearrested for a violent offence or for breaching his manslaughter parole, was four months. The following summary is not contested except as stated.

9His first conviction as a youth was for assault causing bodily harm to his father on September 30, 2007. According to Mr. Kanate, he intended to cut his father’s throat, but his father moved and, instead, received a laceration to the top of his head which required 15 stitches. Mr. Kanate acknowledged that he wanted to kill his father as he was tired of his father’s abuse both to himself and to his mother. Mr. Kanate was ordered to attend and complete a substance abuse assessment and to attend programming as directed.

10Three years later, on September 14, 2010, while intoxicated, Mr. Kanate stabbed his cousin in the arm following a confrontation. Unfortunately, the wound severed an artery and, while a third cousin ran for help, the victim bled to death. Mr. Kanate was charged with second-degree murder but pleaded guilty to manslaughter and received a seven-year sentence.

11Mr. Kanate was in custody awaiting conviction for this offence until January 7, 2011, when he was released on bail. He was to reside with his surety in Weagamow Lake and abide by a curfew. He failed to abide by the curfew and committed a new offence, mischief. He and other youths attempted to break into the local school. Mr. Kanate was returned to custody until he was sentenced on December 5, 2011, with an effective sentence of six years and three months in addition to pre-sentence custody.

12Prior to being sentenced for this manslaughter, Mr. Kanate underwent an inpatient mental health assessment. While hospitalized he threatened to kill other patients and had to be placed in locked segregation before being returned to jail.

13While on remand in provincial institutions, Mr. Kanate was fighting with other inmates. When he was assessed when transferred to the penitentiary, it was noted that he thought of assaulting correctional officers. It was recommended that he be placed in maximum security.

14While in the penitentiary, on December 27, 2016, Mr. Kanate was convicted of possessing a weapon dangerous to the public peace (a “shank”). He received a 10-day jail sentence consecutive to the manslaughter sentence.

15Mr. Kanate completed programming aimed at reducing the likelihood of recidivism, including the Indigenous focused program, “In Search of Your Warrior”, in June 2014. It was noted that he was improving in managing anger. He also completed the National Substance Abuse Program in November 2014. He also completed grade eight and 38 credits towards his high school equivalency diploma.

16According to penitentiary records, Mr. Kanate was charged with 31 institutional violations during his first 18 months in custody, including fighting with staff and other inmates. He was segregated repeatedly. After completing his programming in 2014, little improvement was noted. He committed assaults and was the victim of assaults. He was segregated eight times for a total of 479 days.

17Mr. Kanate did not receive day or full parole until his statutory release date of February 2019. However, his statutory release was suspended four months later in June 2017, after alcohol and cocaine were found in his system.

18He was released again on August 9, 2017, but his release was suspended again within a few weeks after he assaulted someone. By decision dated November 1, 2017, the National Parole Board imposed a residency condition on Mr. Kanate noting that his use of violence strongly suggested an inability to manage his anger. The Board noted: “You present as highly impulsive in using weapons, acting out violently and making decisions that escalate your risk.”

19Mr. Kanate’s third statutory release was on January 4, 2018, and on February 23, 2018 a warrant was issued for his arrest and his statutory release was suspended because Mr. Kanate failed to return to the community correctional Centre. He was at large for about 20 days.

20On April 18, 2018, after having been released for 34 days, he was convicted of two assaults, both on Indigenous women. He grabbed one of the victims by the throat. He pulled the victim’s hair and yanked her to the floor. About 20 minutes later, he attacked the same victim when she tried to break up a fight, punching her in the face. He pushed her to the floor and kicked her in the jaw. With respect to the second victim, he kicked her in the head multiple times. In imposing a sentence of eight months, the judge noted that: “Mr. Kanate’s alcoholism and severe anger are now well-established as a pattern and a true risk for reoffending in violent ways.”

21While on remand for these offences, on July 22, 2018, Mr. Kanate, along with others, assaulted another inmate at the Kenora District Jail. The joint submission on the sentence was custody for 12 months.

22On September 5, 2018, about one week after being released from custody, Mr. Kanate committed another assault on an Indigenous woman. He struck that woman, who was pregnant, on the arm. The joint submission was for a four month jail sentence.

23Nine days later, on September 14, 2018, Mr. Kanate committed the index offences. An agreed statement of facts filed as an exhibit at the time of Mr. Kanate’s guilty plea is attached as Schedule 1 to these reasons. The agreed statement of facts was based on video surveillance, audio recordings, and witness statements from correctional officers.

24It is agreed that the hostage taking was pre-planned and that Mr. Kanate and three others were all principals in the hostage taking. On September 14, 2018, at about 1:00 p.m., Correctional Officer John Tsentouros was on duty and in the process of placing Mr. Kanate and another inmate, Garnet Sumner, in their cells. Officer Tsentouros was alone with the inmates but observed by his partner who was outside the cell block, observing through the bars.

25Mr. Kanate and Mr. Sumner were at opposite ends of the cell range, with Officer Tsentouros between them. Mr. Kanate and Mr. Sumner rushed Officer Tsentouros and began punching him, knocking him to the floor where the assault continued. Officer Tsentouros’s cell keys, handcuffs and pepper spray were taken from him.

26Mr. Kanate dragged Officer Tsentouros into cell 3 where he held Officer Tsentouros captive, holding a “shank” against Officer Tsentouros’s neck. Mr. Sumner locked the door to cell 3. Mr. Kanate forced Officer Tsentouros to handcuff himself to the bed in the cell.

27Mr. Sumner unlocked the rest of the cells in the block and inmates covered the door with sheets and mattresses so that officers outside the cell block could not see what was being done to Officer Tsentouros.

28The inmates made demands and their spokesperson stated that Officer Tsentouros had a weapon held on him by Mr. Kanate, and that Mr. Kanate had a prior conviction for murder and would have no problem killing again. Correctional staff were told that Officer Tsentouros would be killed if the jail’s crisis intervention team was deployed into the cell block. The spokesperson also shouted that Officer Tsentouros would be killed if their demands were not met by a deadline.

29Within cell 3, Mr. Kanate held his “shank” to the back of Officer Tsentouros’ neck and told him he would kill him if he moved. Mr. Kanate stated: “I’ll fucking kill you.”, “I am a murderer, this doesn’t bug me.”, “It ain’t no fucking thing to kill you”. Threats like this were repeated during the hostage taking. Mr. Kanate told Officer Tsentouros that he knew “how to do it so he wouldn’t die right away.” Near the end of the hostage taking Mr. Kanate said to Officer Tsentouros: “I am always going to be with you now Johnny”, which Officer Tsentouros understood as a statement that Mr. Kanate knew of the psychological consequences that this incident would have on Officer Tsentouros. Officer Tsentouros was held hostage for 3 hours and 12 minutes and was released through negotiation.

30Officer Tsentouros gave a victim impact statement. He stated that, prior to this incident, he had no history of anxiety or panic attacks but, since then, he has suffered from attacks that have ranged from minor to severely crippling. At times, the sense of danger and doom is overwhelming. He has suffered a significant loss of income as he has been deemed psychologically unfit to work at the jail which has impacted his health care benefits and any future pension contributions. He finds the process of finding employment frustrating. He has difficulty feeling safe in large crowds and is hypervigilant. At times, he does not feel safe in his own house because he is fearful that someone will break in and do harm to his family. He constantly checks windows, doors, locks, and any other points of entry. He said that the relationship with his family has been the most difficult as he is irritable and can become very agitated with his wife and daughters. He purposely seeks solitude to withdraw himself from everyone so that he can “recharge”.

31Since the hostage taking, Mr. Kanate has committed other offences.

32On September 21, 2020, while being held in the Toronto South Detention Centre, Mr. Kanate assaulted another inmate, punching him in the face and upper body approximately 30 times. The victim required stitches. Mr. Kanate pleaded guilty.

33In February 2021, while being held in the Toronto South Detention Centre, Mr. Kanate was found with improvised weapons on two occasions. He pleaded guilty to this offence at the same time he pleaded guilty to the assault on the other inmate. He received the equivalent of a five-month sentence for both offences.

34Since the index offence, Mr. Kanate has made, and threatened to make, improvised weapons while in custody and has threatened to kill correctional officers. Charges have been laid with matters still before the provincial court.

35A further exhibit, filed on consent, summarizes uncharged misconduct between May 2022 to March 2023 while Mr. Kanate was on remand at the Thunder Bay District Jail. The conduct included throwing things at staff and yelling at staff, saying “I will show you what a dangerous offender does” and “you don’t know who I am - I can ruin your day.” Mr. Kanate received eight institutional misconducts. It was noted that his behaviour has improved since November 2022 with no further misconducts.

Pre-Sentence and Gladue Reports

36The record includes a pre-sentence report and Gladue report, both from October 2011, filed on Mr. Kanate’s manslaughter sentencing and another Gladue report, dated March 6, 2023, prepared for this sentencing.

37The pre-sentence report from 2011 summarizes Mr. Kanate’s background to that date at age 20. The report writer was unable to have any meaningful communication with Mr. Kanate’s parents. Mr. Kanate described his father as a heavy drinker who was verbally abusive towards him at times. He reported that his life improved when he moved to Thunder Bay. After his arrest, his family moved back to their home community.

38At the time of his arrest, Mr. Kanate described his peer group as substance abusers. He denied being involved in any organized gang. He acknowledged that he was supporting himself largely from drug dealing.

39Suicide attempts were noted in approximately 2007 and in 2010. Testing at the Regional Hospital noted that Mr. Kanate had difficulty managing his anger.

40The report writer assesses Mr. Kanate as follows:

The subject presents with a number of criminogenic factors seen to elevate the risk of recidivism. He has limited work history and typically meets his financial needs largely by illegitimate means, namely drug dealing. He has limited ties to conventional settings, school or employment for example. He has strong ties to the criminal element, although he denies being an organized gang member. He has shown disregard for court ordered release conditions placed on him. The subject appears to have difficulty controlling explosive and unpredictable outbursts of anger….

The subject will likely continue to have a high risk potential for recidivism until he has some recognition of problems facing him.

41Mr. Kanate was not seen as a suitable candidate for community supervision.

42The 2011 Gladue report writer was able to interview Mr. Kanate’s parents.

43It was reported that Mr. Kanate was teased in school in Weagamow Lake and at Dennis Franklin Cromarty High School in Thunder Bay. He started selling drugs in grade 9 and said that both of his parents were also drug dealing.

44It was noted that he had issues with the anger management. Treatment recommendations included the Algoma Treatment and Remand Centre if he was sentenced to a provincial facility, and then follow up with the alcohol and drug treatment program with the Thunder Bay Indigenous Friendship Centre.

45The Gladue report prepared for this sentencing hearing updated the prior Gladue report. The writer was unable to contact Mr. Kanate’s mother or sister. Mr. Kanate’s father was not contacted.

46Mr. Kanate was noted as being exactly the type of youth that is either recruited or victimized by institutional gangs in prison. Mr. Kanate stated:

The gang involvement started in 2018 because my uncle asked me to join up and I said I was gonna do my own thing but ended up back in the gang… I do crazy things like alcohol or drugs, I did methamphetamine while I was out. That was only the nine days I was out. It got bad for me. But then. Now I am here.

When I first got picked up in September 2010, I was pretty overweight and then I already knew about jail and how it was around there, so I had to adapt to the environment as quickly as I could, and I adapted to it and went to the penitentiary for 7.5 years and was basically adapting to an environment that is not very nice.

47Mr. Kanate acknowledged that he could not likely access healing lodges within the custodial system because of his high risk classification and that being classified as a dangerous offender would only be a more significant barrier to accessing healing lodges. He said that when he is transferred now it is with the “jail SWAT team”.

48The report writer noted:

Patrick is a 30-year-old man now, he is no longer a youth or adolescent but he spent the entirety of his developmental years experiencing or witnessing trauma, then his behaviours and actions placed him in custody where he was exposed to more experiences of violent and trauma. Patrick has had little to no time for safe healing and behaviour modification from his experiences including his own early childhood.

Patrick described his experience in jail, “Pretty much a downward spiral. Just how the environment has been, every jail I have been to.” He feels that violence and aggression did not get bad for him until 2019, after he was significantly beaten, “I read articles about the frontal lobe being damaged, it causes more anger and more aggression but it also comes from going into stuff that happened to me when I was a kid. When I was younger [I was bullied], I don’t feel like being bullied anymore, so I usually act out. He believes that, “If I hadn’t been in jail, I would have lived an opposite life I have lived. I wouldn’t be using violence.”

49He said that he has been through multiple stabbings in the penitentiary. “I was stabbed six times, but I was always ahead of the person that was planning to stab me, I was ahead of them with body armor like magazines.” He said that he had a head injury while in custody and was told, in 2019, that he could be suffering a brain injury.

50Mr. Kanate said that he is ready to leave violence and substance abuse. He “figured if I can try to stop drinking and doing drugs, I can get an honest job. If I can’t then I will be living a rough life.”

51Recommendations included urging Mr. Kanate to work within the correctional system to reduce his classification for transfer to allow him to access healing lodges, cultural programming, and counselling. The report writer noted:

In the event he became eligible to apply for reconsideration for release, it would be prudent that Patrick have been offered and utilized as many supports and services while in custody to support him to be eligible for release and he can work to show he is not a continued risk for recidivism.

Psychiatric Assessment by Dr. Klassen

52Dr. Philip Klassen is forensic psychiatrist who undertook a risk assessment of Mr. Kanate. Dr. Klassen prepared a report dated October 4, 2021 and testified before me on March 27, 2023.

53On consent, Dr. Klassen was presented as an expert in the area of forensic psychiatry to give opinion evidence regarding psychiatric diagnoses and risk assessment. He has conducted hundreds of assessments. He has provided both general and forensic psychiatry services to Indigenous persons in Northwestern Ontario and, particularly, in the Kenora-Rainy River District. Mr. Kanate’s community is within the Kenora District. I am satisfied that Dr. Klassen is qualified to give opinion evidence regarding psychiatric diagnoses and risk assessment.

54Dr. Klassen met with Mr. Kanate on four occasions by video conference for a total interview time of approximately 6.5 hours. While Dr. Klassen would have preferred to conduct the assessment in person, that was not possible due to the COVID-19 pandemic. Dr. Klassen reviewed the extensive background material provided by the Crown which included Correctional Services Canada records, information about Mr. Kanate’s criminal convictions and various presentence and Gladue reports. He also tried unsuccessfully to contact Mr. Kanate’s mother and sister who reside in Weagamow Lake First Nation.

55Dr. Klassen obtained a personal history from Mr. Kanate which was supplemented by the records. Dr. Klassen noted that Mr. Kanate was raised in his home community of Weagamow Lake First Nation until about age 10 when the family moved to Thunder Bay.

56Both of his parents are residential school survivors. His parents separated when he was 18. Mr. Kanate has not been close to his father since 2015. He feels close to his mother and his sister whom he describes as “my rock”. Growing up, he witnessed intimate partner violence at home.

57At about age nine, Mr. Kanate was sexually abused by a priest who attempted digital penetration. Mr. Kanate said that he hit the priest and ran away. He said that this incident changed him “dramatically” causing “pent-up rage” and “sadness”. Mr. Kanate has not received any treatment for sexual abuse.

58After moving to Thunder Bay, Mr. Kanate enjoyed school and did well up until about age 16 when his girlfriend died as a result of choking on her own vomit while intoxicated. He said that he then became a “recluse”, quit school, and “partied”.

59He admitted that he started a gang at about age 15 which committed minor crimes initially then progressed into “turf wars”. Mr. Kanate also sold drugs. He has never been employed as an adult but did odd jobs at his First Nation.

60He described his good friends in the community as either having a criminal record or difficulty with substance misuse, or both. Mr. Kanate believes his main risk factor is alcohol.

61Mr. Kanate admitted to selling drugs in Thunder Bay and Weagamow Lake and said that he earned $15,000 to $20,000 per week. He denied selling drugs while in the penitentiary. He stated that he did not have the patience for a nine to five job and did not want to obtain money in any other way other than selling drugs or through social assistance. He still has gang affiliations and stated that he finds it harder to break away from the gang in custody and that it would be easier to do so in his home community.

62Mr. Kanate stated that triggers to his anger include the presence of authority and being told what to do. He acknowledged that his anger was something that he might change.

63Dr. Klassen diagnosed Mr. Kanate as suffering from antisocial personality disorder although this personality disorder appears to have been coloured by complex trauma. He also observed that Mr. Kanate appeared to suffer from one or more substance use disorders, perhaps more prominently alcohol use disorder.

64Dr. Klassen used actuarial methods to determine Mr. Kanate’s risk assessment and it was his opinion with respect to risk management (treatment) that:

In terms of pathways to reoffending, Mr. Kanate is not grounded or tethered in a community of prosocial peers, nor does he have the hope or aspiration that may come from conventional employment, or satisfying intimate interpersonal relationships. Rather, Mr. Kanate likely derives, variously, a “rush”, respect, or a sense of place from antisocial/gang affiliations and related activities. In that context, he’s prone to substance sales and misuse. He’s also given to carriage and use of weapons, which are risk enhancing in terms of the severity of potential aggressive behaviour.

To the undersigned, it appears that Mr. Kanate remains gang-involved. He variously indicated that he might again sell drugs, at such time as he may return to the community, and/or may be supported by ODSP; in the absence of focused work or education efforts. I would submit that ODSP support would leave this gentleman with a great deal of unstructured time and would simply be a platform for a lifestyle very similar to that which has been seen previously. Mr. Kanate presented as equivocal about treatment, for anger and addictions (with the undersigned). This may be a reflection of Mr. Kanate’s ambivalence about leaving a gang of lifestyle, or may be in part a reflection of Mr. Kanate’s difficulties with vulnerability (which treatment necessarily entails); in the CSC notes it’s mentioned that Mr. Kanate at time struggled with emotionality and efforts to address past issues, and also has greater difficulties in group (as opposed to individual) treatment. I might parenthetically add that Mr. Kanate’s recall of the principles of treatment (as would’ve been addressed in In Search of Your Warrior and NSAP) is relatively minimal.

65Dr. Klassen noted that Mr. Kanate described himself as “unhappy with the restrictions of an LTSO”.

66Dr. Klassen made a number of recommendations from a risk management perspective which included support in severing gang associations, further treatment for his aggressive behaviour, medication to prevent return to alcohol use, encouragement to secure employment, disassociation with his former peer group, and release under the auspices of a Community Correctional Centre or Community Release facility.

67Dr. Klassen concluded:

From a purely psychiatric perspective, the answers to the question(s) of “reasonable expectation that a lesser measure”, and “reasonable possibility of eventual control of the risk in the community” will be contingent on Mr. Kanate addressing all the risk factors indicated above.

68In his testimony, Dr. Klassen stated that he thought that Mr. Kanate was “ambivalent about changing his lifestyle”. He did not think that Mr. Kanate lacked insight and that he had the tools to effect change. The issue was motivation to change.

69He described Mr. Kanate’s out of custody offences as being impulsive, with alcohol playing a role. Some of the in custody offences were described as more premeditated.

70Absent external controls or treatment, Dr. Klassen thought that Mr. Kanate’s aggressive behaviour would lessen, on average, somewhere in the range of 45 to 50 years of age.

Ian Gill, Parole Officer Supervisor

71Mr. Gill is the parole officer supervisor at the Thunder Bay parole office. He was one of the sources for the 2011 pre-sentence report. For 15 years prior to his appointment as supervisor, he was a front-line parole officer. He has some experience supervising long-term offenders.

72He described the intake process for persons entering the penitentiary system and outlined the current programming available for inmates in the federal correction system. He testified that involvement in programming is the primary means for Corrections Canada to target a person’s risk factors. During programming an individual’s level of motivation to address those issues can be quite apparent.

73Individuals incarcerated in Federal penitentiaries are classified as appropriately managed in a minimum, medium, or maximum security environment. Upon assessment previously, Mr. Kanate was classified as maximum-security.

74Mr. Gill testified that programming is available for all offenders, regardless of the nature of their sentence. Prisoners placed in maximum-security will not have access to all programs. There are specialized “Healing Lodges” for Indigenous inmates, but those institutions are minimum security facilities. In cross-examination, he testified that the transition from maximum to minimum security would “realistically” take years, one to two years at a minimum.

75Mr. Gill testified that an inmate serving an indeterminate sentence bears the onus of demonstrating that they have mitigated the risk factors sufficiently, so they no longer present a risk to the public if released. These individuals are eligible for day parole four years from the date of their arrest and three years after that for full parole. To be released, the case management team in the institution and the Parole Board must determine that the offender’s risk is manageable. An inmate who serves a determined or fixed sentence will not be detained past their warrant expiry date even if they pose a high risk of violent re-offence. For a person who receives a fixed sentence and a long term supervision order, the supervision order would commence upon the warrant expiry date.

Positions of the Parties

The Crown

76The Crown seeks an order under s. 753(1)(a)(i) or (ii) declaring Mr. Kanate a dangerous offender and imposing an indeterminate sentence under s. 753(4) of the Criminal Code.

77The Crown begins its argument by noting that in the last 12 years, Mr. Kanate has been released from custody on eight occasions and that the longest period of time spent in the community before being rearrested for a violent offence, or for breaching his manslaughter parole, was four months.

78The designation phase under s. 753(1) has two elements: that the offender must have committed a serious personal injury offence and that the offender must present a threat to the life, safety or physical or mental well-being of other persons.

79It is not disputed, and Mr. Kanate concedes, that hostage taking and assaulting a police officer with a weapon are serious personal injury offences.

80With respect to the second element, threat to the life, safety or physical or mental well-being of other persons, the Crown submits that the evidence establishes both a pattern of repetitive behaviour by Mr. Kanate which shows a failure to restrain his behaviour and a likelihood of causing death or injury or severe psychological damage on other persons through failure in the future to restrain his behaviour (the test under s. 753(1)(a)(i) of the Criminal Code), and a pattern of persistent aggressive behaviour by Mr. Kanate showing a substantial degree of indifference on his part respecting the reasonably foreseeable consequences to other persons of his behaviour (the test under s. 753(1)(a)(ii) of the Criminal Code).

81With respect to the first test, the Crown submits that there is ample evidence of the necessary pattern in this case: numerous violent offences, including convictions for hostage taking, assaults, manslaughter, weapons offences and institutional behaviour demonstrating that violence is an ingrained feature of Mr. Kanate’s personality. In addition, the Crown relies upon Dr. Klassen’s opinion that Mr. Kanate is at a high risk of violent recidivism.

82With respect to the second test, the Crown submits that over 10 convictions for assaultive behaviour, weapons offences, manslaughter, and hostage taking demonstrate a pattern of persistent aggressive behaviour.

83With respect to penalty, the Crown submits that an indeterminate sentence is required in this case. The Crown submits that the index offence, the hostage taking, would normally attract a sentence of imprisonment for eight years. The Crown submits that neither a determinative sentence of eight years nor a determinant sentence of eight years plus a long-term supervision order would adequately protect the public. The Crown submits that the substantial number of violent actions committed by Mr. Kanate, both in and out of custody, demonstrate that he is often uncontrollable, even in the tightly controlled environment of jail. Each time he has been released he has offended violently and returned to custody.

84In addition to the declaration of dangerous offender and the imposition of an indeterminate sentence, the Crown seeks a weapons prohibition for life under s. 109(1)(a), a DNA order under s. 487.051, and an order that Mr. Kanate not communicate, directly or indirectly, with John Tsentouros under s. 743.21.

Mr. Kanate

85Counsel for Mr. Kanate accurately describes a dangerous offender designation as a drastic sentence that has profoundly devastating consequences on individuals. Counsel for Mr. Kanate further submits that an indeterminate period of imprisonment pursuant to a dangerous offender designation would be unduly harsh and inconsistent with Gladue principles.

86He reminds me that I must consider the systemic and background factors of Indigenous offenders and find a sanction that is appropriate in the circumstances. He submits that the evidence demonstrates that Mr. Kanate and his home community have been devastated by colonialism and that Mr. Kanate has been directly and indirectly impacted by the intergenerational trauma of residential schools and the reserve system. Mr. Kanate has been the victim of violence and sexual assault. His parents were drug dealers. A young girlfriend died tragically. Consequently, he abused alcohol and drugs. He has spent the majority of his adult life incarcerated and has been the victim of assaults while incarcerated and has acted violently in self defence.

87Counsel for Mr. Kanate notes that Mr. Kanate has been in jail for over three years even after deducting sentences for other offences. Much of his presentence custody has been served at the Thunder Bay District Jail which is an antiquated facility with inadequate space and resources. An exhibit filed on consent illustrates the dearth of programming available to Mr. Kanate while detained in the remand facilities.

88I am reminded that predicting future behaviour is not an exact science and that I should be careful when I consider how much weight to attribute to Dr. Klassen’s opinion given that the predictive tools have not been validated for use with Indigenous persons.

89Counsel submits that an appropriate sentence would be a further period of four to six years incarceration which would allow Mr. Kanate access to programming. This further period of incarceration would address protection of the public and rehabilitation and reintegration of Mr. Kanate back into his community. Alternatively, a determinative sentence plus a long-term supervision order would also address those goals should I consider that a determinant sentence alone is insufficient.

90Counsel reminds me that the Crown must “demonstrate, beyond a reasonable doubt, a high likelihood of harmful recidivism and the intractability of the violent pattern of conduct.” R. v. Boutilier, 2017 SCC 64 at para. 46.

91Counsel submits that the evidence from Dr. Klassen discloses that Mr. Kanate does have the tools to allow him to change his behaviour and those tools, together with the programming available to him while in custody, would not lead to the conclusion that his behaviour is intractable. Therefore, an indeterminate sentence should not be imposed. If, in my opinion, a determinant sentence alone is insufficient to protect the public, then I am urged to sentence Mr. Kanate to a determinant sentence and impose a long-term supervision order for 10 years.

The Law and Analysis

92Dangerous offender applications demand a two-stage process: first, the designation stage and second, the penalty stage. The designation stage is concerned with the future threat posed by the offender. The penalty stage is concerned with the necessary sentence to manage the established threat. All the evidence adduced at a dangerous offender hearing must be considered at both stages. Boutilier at paras. 31 and 44.

93As with any sentencing hearing, hearsay evidence is admissible so long as it is found to be “credible and trustworthy”. This common law principle is codified in s. 723(5) of the Criminal Code. Character evidence is also specifically admissible in a dangerous offender proceeding pursuant to s. 757 of the Criminal Code. R. v. Williams, 2018 ONCA 437 at para. 49.

94At the application hearing, the Crown and defence must present any prospective evidence concerning “risk, intractability, or treatment programs, including the required assessment report addressing prospective treatment options.” Boutilier at para. 44.

The Designation Stage

95Section 753 of the Criminal Code of Canada establishes several grounds upon which a person may be designated a dangerous offender. In this case, I need only consider the three grounds contemplated by s. 753(1)(a)(i), (ii) and (iii). Only one of the pathways must be established in order to designate an offender as dangerous. The relevant provisions are the following:

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;…

96At the designation stage, the Crown must prove beyond a reasonable doubt that the predicate offence is a serious personal injury offence as defined by s. 752. It is conceded that the index offences are serious personal injury offences.

97Next, the Crown must prove beyond a reasonable doubt that the offender represents a threat to the life, safety, or physical or mental well-being of other persons on the basis of evidence establishing a pattern of conduct as contemplated by ss. 753(1)(a)(i), (ii) or (iii). R. v. Spilman, 2018 ONCA 551 at para. 26; Boutilier at paras. 17-18.

98The assessment of the threat posed by the offender is prospective and must therefore account for the offender’s future treatment prospects. Offenders will not be designated as dangerous if “their treatment prospects are so compelling that the sentencing judge cannot conclude beyond a reasonable doubt that they present a high likelihood of harmful recidivism or that their violent pattern is intractable.” Boutilier at para. 45.

99Intractable conduct is behaviour that an offender is unable to surmount. Boutilier at para. 27.

100It is incumbent upon the Crown to prove, beyond a reasonable doubt, “a high likelihood of harmful recidivism and the intractability of the violent pattern of conduct”. This prospective approach ensures that only offenders who represent a “tremendous future risk” are designated as dangerous. Boutilier at para. 46.

101At the first stage, I find that the Crown has proved the requisite elements of both ss. 753(1)(a)(i), (ii) and (iii) beyond a reasonable doubt. Mr. Kanate must, therefore, be declared a dangerous offender.

102In support of these findings, I note the violent pattern of conduct commencing in 2007 and continuing to the present. His victims have included family members, his father and his cousin, Indigenous women, and other inmates. This pattern of violence has occurred in and out of custody. The conduct has escalated after his release from custody in 2018. In the six months prior to the hostage taking, he had committed four assaults, three as noted upon Indigenous women. He has a history of manufacturing and using manufactured “shanks”, both before the index offences and after. He has violently assaulted an inmate after. His threats to correctional officers have continued. These same occurrences also support a finding of a pattern of persistent aggressive behaviour showing a substantial indifference to the consequences of his behaviour to other persons.

103I accept the opinion of Dr. Klassen that Mr. Kanate presents as being “of high risk of violent re-offence”. I find that this pattern of conduct is, at this point, intractable and that past attempts at reducing risk have not been successful. I note Dr. Klassen’s observation that Mr. Kanate had retained little from his prior programming. As Dr. Klassen stated, Mr. Kanate is ambivalent about changing. Because of this attitude, I cannot conclude that future treatment is so compelling as to reduce risk. I am satisfied, beyond a reasonable doubt, that Mr. Kanate is a “tremendous future risk” justifying the dangerous offender designation.

The Penalty Stage

104Having found Mr. Kanate to be a dangerous offender, I turn now to the penalty stage outlined in s. 753(4) and (4.1).

105Sections 753(4) and (4.1) provide that

Sentence for dangerous offender

(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 of imprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or

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

Sentence of indeterminate detention

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced 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.

106Upon designating a person as a dangerous offender, a sentencing judge may impose an indeterminate sentence (s. 753(4(a)), a fixed sentence of at least two years followed by a long-term supervision order (s. 753(4)(b)), or a fixed sentence (s. 753(4)(c)). Section 753(4.1) requires the sentencing judge to determine whether there is a “reasonable expectation” that a lesser sentence than indeterminate detention will adequately protect the public from the offender committing a murder or serious personal injury offence. The least coercive sentencing options to address the offender’s risk must be exhausted first. An indeterminate period of detention is only considered as the last option. Boutilier at para. 69.

107More specifically, an indeterminate sentence is reserved for “habitual criminals who pose a tremendous risk to public safety.” Boutilier at para. 77.

108I note that I am not restricted from imposing a fixed term of imprisonment which is lengthier than what would be appropriate outside the dangerous offender context. Spilman at para. 32.

109To determine the appropriate sentence to manage the threat posed by the offender, the sentencing judge may consider evidence of the offender’s treatability. In doing so, the sentencing judge may consider evidence such as “treatment avoidance, failure to respond to treatment, breaches of court orders, lack of motivation, continued involvement in high-risk conduct, serious personality disorder and elevated likelihood of violent recidivism.” R. v. K.P., 2020 ONCA 534 at para. 13.

110As in all sentencing proceedings, the penalty stage of the dangerous offender regime requires a sentencing judge to apply the principles outlined in ss. 718 - 718.2 of the Criminal Code. Spilman at para. 28; citing Boutilier at paras. 53, 61 and 63.

Gladue Principles

111In 1996, Parliament enacted Bill C-41, which provided significant changes to the law of sentencing in Canada. Section 718.2(e) of the Criminal Code directs judges to consider alternatives to incarceration for all offenders, with particular attention to the circumstances of Aboriginal offenders.

112A sentencing judge must apply Gladue principles in every case involving an Aboriginal offender. In doing so, a judge must consider the following:

i) The unique systemic or background factors which may have played a part in bringing the Aboriginal offender before the court; and

ii) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage and connection. See Boutilier at para. 108, citing R. v. Gladue, [1999] 1 S.C.R. 688 at para. 66; R. v. Ipeelee, 2012 SCC 13 at para. 59.

113In cases where Gladue factors point to alternative Aboriginal-focused means to address the risk of re-offence, a sentencing judge must refer to them. The Ontario Court of Appeal in R. v. Radcliffe, 2017 ONCA 176 at para. 58, cited by Boutilier at para. 119, discussed the principles relevant to sentencing Aboriginal offenders. In determining whether a lesser measure than an indeterminate sentence will protect the public, there must be evidence before the court that,

the dangerous offender can be safely released into the community. Mere hope, even a judicial assumption about the existence of community programs or other necessary resources, is inadequate to the task of addressing the reasonable expectation of protection of the public. Evidence of the existence and availability of community resources that will provide the essential level of extra-custodial supervision to adequately protect the public is necessary: R. v. Smarch, 2015 YKCA 13, 374 B.C.A.C. 291, at para. 48.

Sentence

114I have carefully considered that Gladue factors present in this case, and I am very aware that the criminal justice system, which placed a 20-year-old Indigenous man in a Federal penitentiary, has had a role in creating the behavioral problems and the attitude of Mr. Kanate. I am also mindful that s. 753(4.1) requires me to determine whether there is a “reasonable expectation” that a lesser sentence than indeterminate detention will adequately protect the public.

115Having considered all the circumstances of this case, including the Gladue factors, I have concluded that a determinate sentence will not adequately protect the public.

116I have considered whether a lengthy determinate sentence plus a long term supervision order might adequately protect the public and I note Dr. Klassen’s opinion that, generally, the risk for violent re-offending attenuates at about age 45 to 50. That would require a lengthy determinate sentence followed by long term supervision. Mr. Kanate has a poor history of compliance with release conditions and, absent his motivation to change, long term supervision is unlikely to be successful in adequately protecting the public.

117Dr. Klassen concluded that Mr. Kanate has the tools to change but was ambivalent about changing his behaviour. If Mr. Kanate develops the motivation to change, his journey to be released will be a long one. To access Indigenous Healing Lodges he must be assessed as suitable for a minimum security placement. No doubt, given the dangerous offender designation and the hostage taking of a correctional officer, it will be challenging for him to seek a minimum security placement. I conclude, reluctantly but upon the evidence that the only sentence that will adequately protect the public is an indeterminate sentence. In this case, Correctional Services and the Parole Board will be in the best position to determine when it is safe for the public to release Mr. Kanate and how he is to be released. When that will be will depend, to a large extent, on Mr. Kanate and how he progresses during his programming while incarcerated.

118Mr. Kanate, having determined that you are a dangerous offender pursuant to s. 753(1)(a)(i), I sentence you to an indeterminate sentence to be served in a Federal penitentiary. Further, I order that you are prohibited from possessing any weapon as defined in the Criminal Code for life under s. 109(1)(a), that you provide a DNA sample under s. 487.051, and that you not communicate, directly or indirectly, with John Tsentouros under s. 743.21.

119Counsel, I thank you for your helpful submissions in this difficult case.