COURT OF APPEAL FOR BRITISH
COLUMBIA

Citation:

R. v. McDonald,

2018 BCCA 42

Date: 20180206

Docket: CA43325

Between:

Regina

Respondent

And

Thomas Anthony
McDonald

Appellant

Restriction on Publication: A publication ban has been
imposed pursuant to the inherent jurisdiction of the court restricting the
publication, broadcasting, or transmission in any way of the identity, and any
information that could disclose the identity, of any of the undercover police
officers referred to herein. This publication ban applies indefinitely, unless
otherwise ordered.

Before:

The Honourable Madam Justice Kirkpatrick

The Honourable Mr. Justice Savage

The Honourable Madam Justice Dickson

On appeal from:  An
order of the Supreme Court of British Columbia,
dated November 20, 2015 (sentence) (
R. v. McDonald
, Dawson Creek Registry
Docket Number 30925).

Counsel for the Appellant:

T.C. Boyar

S. Arrandale

Counsel for the Respondent:

C. Lusk

Place and Date of Hearing:

Vancouver, British
  Columbia

November 29, 2017

Place and Date of Judgment:

Vancouver, British
  Columbia

February 6, 2018

Written Reasons by:

The Honourable Madam Justice Kirkpatrick

Concurred in by:

The Honourable Mr. Justice Savage

The Honourable Madam Justice Dickson

Summary:

The appellant appeals his
designation as a dangerous offender. He says that the judge erred in his
approach to certain Mr. Big evidence, and that the judge reached unreasonable
conclusions regarding the criteria under ss. 753(1) and 753.1 of the Criminal
Code
.

Held: appeal dismissed. The
judge did not err in his approach to the Mr. Big evidence. He carefully took
into account the potential risks that evidence raised, and appropriately
attenuated them by considering only sufficiently reliable evidence and limiting
the use to which he put that evidence. The judges findings that the appellant
was likely to commit a future violent offence and that there was no reasonable
prospect of the appellants control in the community were not unreasonable.

Reasons for Judgment of the Honourable
Madam Justice Kirkpatrick:

[1]

The principal issue in this appeal is the extent to which character
evidence from a Mr. Big operation can be used to establish that the statutory
criteria for a dangerous offender designation have been met. A secondary issue
concerns the finding that there was no reasonable prospect of controlling Mr.
McDonalds risk in the community in the face of his age and the chance that he
will benefit from treatment in a federal penitentiary.

BACKGROUND

[2]

Thomas Anthony McDonald, now aged 66 years, has been convicted of two
manslaughters. The predicate offence occurred on September 26, 1981, but Mr.

McDonald was not convicted until April 4, 2014.

[3]

The circumstances of the offence can be briefly stated. Mr.

McDonald had been drinking and socializing at the
Windsor Hotel in Dawson Creek, British Columbia. He had a late-night scuffle
with the victim, Earl Dean Jones, during which Mr.

Jones
slapped Mr. McDonald. Mr. McDonald was angered and humiliated by being slapped
in front of the other patrons of the bar. He waited for Mr. Jones and his wife
to leave the bar, followed them in his truck to the outskirts of town, and
fired a single round from a .30

.30
rifle at the vehicle in which Mr.

Jones was
traveling. The bullet hit Mr. Jones in the head, killing him instantly. Mr.

McDonald was 30 years of age at the time of the
offence.

[4]

Mr. McDonald was living in the United States at the time of the
predicate offence but was in Dawson Creek for work-related reasons. He abruptly
left Canada the morning after killing Mr. Jones. He lived and worked in the
United States from approximately 1980 to 2002, during which time he committed a
number of petty crimes.

[5]

In 2002, Mr. McDonald was deported from the United States. He spent some
time in South Africa before traveling to England on July 19, 2003.

[6]

Mr. McDonald met Roger Wilton when he arrived in London. They began
rooming together. Mr.

McDonald paid for the
accommodation. He understood Mr.

Wilton
would find work for them.

[7]

On August 4, 2003, at the age of 52 years, Mr. McDonald killed Mr.
Wilton with a 14-pound sledgehammer in the course of an altercation triggered
by Mr.

McDonalds anger toward Mr. Wilton
due to his failure to find work for them.

[8]

Mr. McDonald found Mr. Wilton rifling through his belongings and smoking,
which he had asked Mr. Wilton not to do. After Mr. Wilton left the room, Mr.

McDonald felt angrier and angrier. He followed
Mr. Wilton downstairs and confronted him. An altercation ensued. It ended in
Mr. McDonald killing Mr. Wilton by blows with a sledgehammer. Mr. Wilton
sustained numerous devastating injuries. The pathologist who examined the body
described the injuries as as bad as it gets; this was consistent with Mr.
McDonalds acknowledgement that he set out to destroy [Mr. Wilton] with
repeated sledgehammer blows.

[9]

Mr. McDonald was charged with murder but was convicted by a jury of
manslaughter. The U.K. sentencing judge found that given the brutal attack, the
jury could not realistically have accepted that Mr. McDonald did not intend to
kill Mr.

Wilton and must have found
provocation.

[10]

Mr. McDonald was sentenced to six years imprisonment on the basis of
the assessments and an apparent absence of a prior history of violence. His
responsibility for the killing of Mr. Jones was not known to the psychologist
or probation officer who prepared reports in 2004 for his sentencing on the
Wilton manslaughter.

[11]

Mr. McDonald was released in the U.K. in August 2007. He violated the
terms of his parole, fled the U.K., and entered Canada surreptitiously sometime
between August 2007 and 2009.

[12]

The R.C.M.P. came to be aware of Mr. McDonalds whereabouts. He had been
the primary suspect in the killing of Mr. Jones early in the police investigation
but there was insufficient evidence connecting him to the crime. In December
2010, the R.C.M.P. commenced the Mr. Big investigation.

[13]

A third, uncharged altercation occurred near the end of May 2011 while
the Mr. Big investigation was ongoing but before it had entered the evidence-gathering
stage. The altercation occurred outside the context of the investigation and
was not anticipated by the police.

[14]

The altercation occurred when Mohammed Taati, for whom Mr. McDonald had
performed welding work, refused to pay Mr. McDonald because his bill exceeded
his estimate. Mr. McDonald left Mr. Taatis office but returned carrying a
pickaxe above his head. He shook the pickaxe at Mr. Taati and demanded his
money. He threatened to kill Mr. Taati if the bill was not paid in full. He
left when Mr.

Taati ordered him from his
office.

[15]

As is customary in Mr. Big investigations, numerous scenarios were
constructed by the police with the objective of gradually drawing Mr. McDonald
into the activities of a fictitious criminal organization. The judge reviewed
in great detail the Mr. Big investigation in his ruling on a
voir dire
held to decide the admissibility of Mr. McDonalds pre- and post-arrest
statements to the police (
R. v. McDonald
, 2013 BCSC 2344 (Statements
Ruling). Those reasons describe each of the 86 scenarios and illustrate the
careful cultivation of the relationship between the primary Mr. Big
investigator (the primary) and Mr.

McDonald.

[16]

One scenario in particular features in this appeal. It concerned a series
of events orchestrated to reflect the response of the fictitious criminal
organization to a borrowers default on a $400,000 loan. Mr. McDonald was
engaged by the primary to look for the debtor.

[17]

On September 9, 2011, Mr. McDonald was led to believe the debtor had
been located at a motel. Cameo operators eventually pretended to abduct the
debtor from the motel and took him to a warehouse. There, the primary pretended
to be enraged and threatened the debtor with extreme violence while Mr.
McDonald observed. One of the operators testified that Mr. McDonald appeared
calm throughout the encounter. The primary similarly testified that Mr.
McDonald seemed perfectly calm, conversational and on a pretty even keel when
they left the warehouse (Statements Ruling at para. 142). At that time, the
primary testified that Mr. McDonald made a number of graphic, violent
statements, including: saying he would like to hear the fucker squeal;
suggesting using a castrating implement to hang  that fucker on his balls;
and suggesting turning a pit bull loose on the debtor while he was hog-tied to
a chair (Statements Ruling at para. 142).

[18]

Of relevance in this appeal is that at the end of the day of the
scenario on September 9, 2011, but unrelated to it, Mr. McDonald called his
brother, Jeremiah. Jeremiah was his brothers close confidante and was aware
that his brother had killed Mr. Jones. The call was intercepted and ultimately
admitted into evidence. The relevant portion was described by the judge in the Statements
Ruling as follows:

[145]     Mr. McDonald
advised Jeremiah that they had a fierce day and that the fucker  hes in
one place I wouldnt wanna be tonight.  Mr. McDonald laughed and told
Jeremiah the debtor would be down on his knees tonight and praying and that
there would be five guys with him all night. The team commander testified
there was nothing in the phone call between the brothers that suggested
Mr. McDonald was frightened or traumatized by what had happened, or that
he had any concerns about the primary.

[19]

On September 20, 2011, Mr. McDonald admitted to the primary that he shot
Mr. Jones and provided details of the offence. On September 24, 2011, Mr.

McDonald participated in a re-enactment of the
killing in Dawson Creek in the presence of the primary and a secondary operator,
which was audio-recorded. Mr.

McDonald was
arrested on October 14, 2011.

[20]

As noted, before Mr. McDonalds trial a lengthy
voir dire
was
held,
inter alia
, to determine the admissibility of Mr. McDonalds
pre-arrest statements made to the undercover police officers. In comprehensive
reasons handed down on December 20, 2013 (indexed as
R. v. McDonald
, 2013
BCSC 2344), the judge dismissed Mr.

McDonalds
application to exclude the inculpatory statements he made during the course of
the Mr. Big operation.

[21]

Mr. McDonald was tried by judge alone in February 2014.

[22]

In detailed reasons delivered on April 4, 2014 (indexed as
R. v.
McDonald
, 2014 BCSC 477), the judge found that Mr.

McDonald
caused the death of Mr. Jones by means of an unlawful act. However, the judge
was not satisfied beyond a reasonable doubt that he did so with murderous
intent. Mr. McDonald was acquitted of first-degree murder but convicted of the
included offence of manslaughter.

THE DANGEROUS OFFENDER PROCEEDINGS

[23]

Before addressing the proceedings in this case, I consider it helpful to
set out the relevant statutory requirements for designating someone to be a
dangerous offender that were in effect prior to the amendments in 2008.

The Legislative Framework

[24]

Part XXIV of the
Criminal Code
, R.S.C. 1985, c. C-46 (the
Code
)
deals with dangerous offenders and long-term offenders.

[25]

Section 752.1(1) provides that when an offender is convicted of a
serious personal injury offence, and before sentence is imposed, the
prosecution may apply to have the offender remanded for the purposes of assessment,
or to have an assessment performed by an expert. That assessment is used as
evidence in an application made under ss. 753 or 753.1, discussed below.

[26]

The type of serious personal injury offence relevant here is described
in paragraph (a) of the definition of that expression in s. 752 of the
Code
:

serious personal injury offence
means

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

(i)
the use or attempted use of violence
against another person, or

(ii)
conduct endangering or likely to endanger the life or safety of another person
or inflicting or likely to inflict severe psychological damage upon another
person,

and for which the offender may be sentenced to imprisonment
for ten years or more

[27]

The relevant grounds on which an offender will be found to be a
dangerous offender are set out in s. 753 of the
Code
:

753(1)
The court may, on application made under this
Part following the filing of an assessment report under subsection 752.1(2),
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

(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 offenders behaviour in the future is unlikely to be inhibited by
normal standards of behavioural restraint; or

(4)
If
the court finds an offender to be a dangerous offender, it shall impose a
sentence of detention in a penitentiary for an indeterminate period.

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

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

(b)
the court may impose
sentence for the offence for which the offender has been convicted.

[28]

The grounds on which an offender may be found to be a long-term offender
are set out under s. 753.1 of the
Code
:

753.1(1)
The court may, on application made under this
Part following the filing of an assessment report under subsection 752.1(2),
find an offender to be a long-term offender if it is satisfied that

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

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

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

(3)
Subject to subsections (3.1), (4) and (5), if the
court finds an offender to be a long-term offender, it shall

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

(b)
order the offender to be supervised in the community, for a period not
exceeding ten years, in accordance with section 753.2 and the
Corrections
and Conditional Release Act
.

(6)
If the court does not
find an offender to be a long-term offender, the court shall impose sentence
for the offence for which the offender has been convicted, 1997, c. 17, s. 4;
2002, c. 13, s. 76.

[29]

In addition to Part XXIV, the sentencing judge must have regard to the
general purpose and principles of sentencing set out in Part XXIII of the
Code
,
particularly ss. 718, 718.1 and 718.2.

[30]

With the foregoing framework in mind, I turn to review the dangerous
offender proceedings in the case at bar.

Pre-Hearing Proceedings

[31]

On June 6, 2014, the Crown appeared on an application under s. 752.1 of
the
Criminal Code
filed on May 6, 2014, for a psychiatric assessment.
Mr. McDonalds counsel took no position on the application. During the course
of his submissions, Crown counsel referred to the Mr. Big evidence admitted at
trial, which he submitted would support an ultimate finding of a pattern of
repetitive behaviour under s.

753(1)(a) of
the
Code
.

[32]

In remarks that presaged the issue before us on appeal, the judge said:

THE COURT:   But I am
troubled by the notion that the court ought to consider, on a 752.1
application, even having regard to the law, that the threshold test is low, to
have regard to a targets contact -- conduct, rather, in the context of a
police-created Mr. Big scenario to form part of the background that justifies
the 752.1 order, because its the police that have created that environment.
And I think that subject to your further submissions on the point, Im troubled
that the reliance on that body of evidence is unfair to an accused person.

[33]

In oral reasons allowing the Crowns application for an assessment
report (indexed as
R. v. McDonald
, 2014 BCSC 2652), the judge referred
to the Mr. Big investigation:

[20]      The Crown also relies
on Mr. McDonalds behaviour in and reactions to some of the more violent
scenarios constructed by the police in the course of the Mr. Big
investigation. The Crown says this demonstrates Mr. McDonalds failure
to restrain his behaviour and his indifference to the reasonably foreseeable
consequences his behaviour would have on others. The Crown says this
behaviour may properly be considered not only on the s. 752.1 application
but, should the Crown be so minded, on any dangerous offender or long-term
offender application that might be brought hereafter. I need not resolve
on this application the question of whether it is appropriate for the court to
have regard to this body of evidence, and I decline to do so. I expect this
will be a live issue should the application proceed at a subsequent date.

[34]

Following the delivery of those reasons, the judge alluded to the
potential problem posed by the Crowns reliance on the Mr. Big evidence:

THE COURT:   I wanted to raise another issue with
counsel. Its just a musing. It is usual for counsel to agree, as I understand
it, on the content of a binder that will be supplied to the Forensic
Psychiatric Services Commission to do the s. 752.1 order once it has been ordered.
This is a bit of an unusual situation, and oftentimes, defence counsel seeks
the opportunity to place additional information before the assessor. Have
counsel discussed that? I raise this issue not because it just arises in most
cases of its kind, but because of the unusual feature of this case, that the
Crown may be relying on things Mr. McDonald said or did in the course of the
Mr. Big investigation and the contextual knowledge that the assessor may
require to understand the dynamic of that encounter in preparing an assessment
report. Have counsel given consideration to that issue?

THE COURT:   my preference
would be that counsel canvass the issue now. If the defence wished to provide
materials additional to those that are presently included in the binder, or any
letter contextualizing the Mr. Big undercover operation, I think the fairest
way of doing that, subject to the views of counsel, would be for the defence to
supply a draft to the Crown to ensure that the Crown is comfortable with the
material being provided to the assessor, in addition to what is currently in
the binder, as well as any characterization of the Mr. Big investigation, to
give the assessor the fullest possible context to do the assessment report
were asking him or her to do.

[35]

Dr. Anton Schweighofer, a registered psychologist, was appointed as the
assessor pursuant to s. 752.1 of the
Code
. He filed his psychological
risk assessment report on November 13, 2014.

[36]

The information sources provided to Dr. Schweighofer included transcriptions
of the surreptitious recordings of Mr. McDonald while he was subject to the Mr.
Big investigation and documents related to that investigation.

[37]

Mr. McDonald declined to be interviewed for the purposes of the
assessment.

[38]

In February 2015, prior to the commencement of the dangerous offender
hearing, Mr. McDonald applied to exclude evidence obtained from him in the
course of the Mr. Big investigation in the dangerous offender proceedings. In
reasons indexed as
R. v. McDonald
, 2015 BCSC 256, the judge described
the particular evidence at issue:

[2]        The evidence at issue
includes statements made by the offender about past criminal acts for which he
was never charged, and statements made by him to undercover police officers
that, on their face, suggest he has a propensity to commit violent acts, is
comfortable operating in a violent criminal milieu, and was generally unfazed
by the simulated violence he was exposed to in the course of the Mr. Big
investigation.

[39]

The judge also observed that counsel had chosen not to accept his
earlier invitation to address the information to be sent to the assessor:

[12]

Following
Mr. McDonald's conviction for manslaughter, I made an assessment order
pursuant to s. 752.1 of the
Criminal Code
, R.S.C. 1985, c. C-46.
When the order was granted, I invited counsel to collaborate on the information
that would be provided to the assigned assessor, including the unique
investigative context in which the statements and reactions that are the
subject of this application were made.  In the event of disagreement, I
left with counsel the option of moving for directions respecting the precise
information to be supplied the assessor.
I am not, of course, privy to
the discussions counsel had following the making of this order, but no
application for directions respecting the material to be sent to the forensic
psychologist assigned to undertake the assessment was made.
[Emphasis
added.]

[40]

This issue notwithstanding, Mr. McDonald contended the evidence was
presumptively inadmissible and, before being received on the dangerous offender
application, it had to meet the test in
R. v. Hart
, 2014 SCC 52. That
position was abandoned at the conclusion of the dangerous offender hearing as
was a third ground based on abuse of process. For the purposes of this appeal,
I need only review Mr. McDonalds argument that the evidence be excluded
because its prejudicial effect outweighed its probative value.

[41]

As to this balance, the judge said that the probative value would likely
turn on the reliability of the evidence and the use the Crown proposed to make
of it. He noted the reliability would obviously figure prominently (at para.
37). He said the prejudicial effect was the risk that reliance would be placed
on evidence gathered in an unusual investigative context; in other words, that
it was unreliable.

[42]

However, noting that the impact of the evidence on the fairness of the
hearing would turn on the extent to which the assessor made use of the
evidence, the judge concluded that it was premature to rule on this issue. The
question of the extent of use could only be explored in cross-examination
during the hearing. Finally, the judge alerted the parties that they should be
prepared to make informed submissions on the evidentiary points in issue at
that time.

[43]

On March 27, 2015, Dr. Shabehram Lohrasbe provided to the Crown a
psychiatric assessment of Mr. McDonald. That report focused on issues relevant
to risk assessment, treatability, and risk management.

The Dangerous Offender Hearing

[44]

The dangerous offender application was heard over 12 days in May, June
and September 2015. The judge handed down comprehensive reasons (indexed as
R.
v. McDonald
, 2015 BCSC 2088) on November 20, 2015.

[45]

The Crown and defence agreed that the legislative framework governing
the application was the regime that came into effect on August 1, 1997, as it
was judicially interpreted in
R. v. Johnson
, 2003 SCC 46, and not the
more restrictive framework following amendments that came into effect in 2008. The
1997 amendments introduced the long-term offender designation. At para. 26, the
judge explained this meant that he could not declare Mr. McDonald to be a
dangerous offender if a lesser sentence (e.g. a long-term offender designation)
would sufficiently reduce his threat to an acceptable level.

[46]

To succeed in its application to designate Mr. McDonald a dangerous
offender, the Crown had the burden of demonstrating that the criteria of ss.

753(1)(a)(i), (ii), and/or (iii) of the
Code
were
established beyond a reasonable doubt. The judge set out the Crown arguments at
para. 28, which were essentially that the evidence established:

·

a pattern of repetitive behaviour by him,
of which the 1981 killing of Mr. Jones forms a part, showing a failure to
restrain his behaviour and the 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 behaviour [s. 753(1)(a)(i)];

·

a pattern of persistent aggressive
behaviour by him, of which the 1981 killing of Mr. Jones forms a part,
showing a substantial degree of indifference on his part respecting the
reasonably foreseeable consequences to other persons of his behaviour [s. 753(1)(a)(ii)];
and/or

·

behaviour by Mr. McDonald associated
with the predicate offence that is of such a brutal nature as to compel the
conclusion that his behaviour in the future is unlikely to be inhibited by
normal standards of behavioural restraint [s. 753(1)(a)(iii)].

[47]

The Crown conceded that it did not seek to use any of the evidence from
the Mr. Big investigation to establish the requisite pattern of behaviour
contemplated under either ss.

753(1)(a)(i)
or (ii).

[48]

However, the Crown maintained its position that Mr.

McDonalds
participation in the Mr.

Big investigation,
his callous reaction to the scenarios involving simulated violence, and his
claims that he had committed previous violent and antisocial acts were,
notwithstanding the reliability concerns inherent in Mr. Big investigations,
relevant and admissible because they illuminated his present character and
attitudes. In support, the Crown relied on s. 757 of the
Code
, which
provides that evidence of character and repute may be admitted on the question
of whether an offender is or is not a dangerous offender or a long-term
offender.

[49]

Mr. McDonald submitted that the Crown failed to establish beyond a
reasonable doubt that he met the criteria in ss. 753(1)(a)(ii) or (iii) for
designation as a dangerous offender. In particular, Mr. McDonald argued that no
use should be made of the Mr. Big evidence because the investigation offered
inducements to model violent behaviour. He said the evidence was not a reliable
indicator of his character, attitude towards violence, or likelihood of
reoffending violently.

[50]

Mr. McDonald also objected to the inclusion of the Taati incident as a
proper factor to be considered in the pattern analysis, notwithstanding his
concessions that the evidence of the two homicides established beyond a
reasonable doubt that the predicate offence was part of a pattern of behaviour contemplated
by s. 753(1)(a)(i). The judge did not agree, and Mr. McDonald does not appeal
that finding. Accordingly, I say no more about it.

[51]

The judge dealt first with the Mr. Big evidence. He treated this
evidence in the manner agreed to by Mr. McDonalds counsel in closing
submissions. At that time, counsel stated:

we are very comfortable with
Your Lordship dealing with the Mr. Big evidence in the way thats described in
your reasons from February of 2015, and -- and just dealing with it as a matter
of what use can be made by the court of -- of that evidence, rather than dealing
with it as an objection and -- and an application to exclude.

[52]

Accordingly, rather than approach the issue as an application to
exclude, the judge considered the use, if any, that [could] be made of the
impugned evidence before allowing the Crown to introduce it pursuant to s. 757
of the
Code
. He held that if the evidence was relevant and sufficiently
reliable then it should be available for certain uses; its weight was a
separate consideration.

[53]

In taking this approach, the judge adverted to two policy goals he saw
as animating sentencing proceedings. First, he recognized that sentencing
courts should be given access to the widest possible range of information to
determine the acceptability of an offenders risk  a concern of particular import
in dangerous offender proceedings. Second, he appreciated that the court should
only act on reliable evidence.

[54]

The judge also set out three advantages of his approach:

[258]

First,
it recognizes that the impugned evidence has already been admitted at trial,
albeit for a limited purpose. The evidence was admitted not for its truth but
to contextualize assessment of the reliability of Mr. McDonald's
confession to the police that he was the Dawson Creek shooter. The
reliability of Mr. McDonald's confessions to the primary could not fully
be assessed without looking at the trust relationship that developed between
them, and the sort of confidences that were shared in the context of that
relationship. Approaching the issue as a question of use, not
admissibility, avoids the need for separate admissibility determinations with
respect to the same body of evidence for trial and sentencing purposes.

[259]

Second,
it recognizes that there is little practical difference, from an offender's
perspective, between a determination that evidence may not be used for a
particular purpose on sentencing, and a determination that evidence may not be
admitted on sentencing.

[260]

Third, the potential for
prejudice in a sentencing context can more readily be managed by judicial
determination to ignore certain evidence, or to use it only for a limited
purpose.

[55]

Applying this approach to Mr. McDonalds case, the judge concluded
no
use
could be made of the Mr. Big evidence on the issue of whether Mr.
McDonald met the criteria for being designated as a dangerous offender. The
context of the Mr. Big investigation, in the absence of any independent
confirmatory evidence, and together with Mr. McDonalds tendency to embellish,
rendered the claims he made during that time unreliable.

[56]

Accordingly, the judge did not consider any of the Mr. Big evidence in
his determinations under s. 753(1). He particularly noted that he made no use
of claims Mr. McDonald related to the primary about unproven past acts of violent
or antisocial character, nor of the unproven information regarding his assault
of his ex-wife.

[57]

The judge appreciated that this ruling would have an impact on the
weight to be given to expert evidence of Dr. Schweighofer and the Crowns
expert psychiatrist, Dr.

Lohrasbe. Both
experts submitted reports that, in varying degrees, referred to and relied on
the information garnered in the Mr. Big operation. The experts were
cross-examined at length. They were asked, often by the court, to eliminate the
Mr.

Big evidence from their consideration
and say how their opinions changed as a result. I review the outcome of these
inquiries below.

[58]

The judge did find that
limited use
could be made of the evidence
if
Mr.

McDonald met the criteria for
designation as a dangerous offender
.
At that point, it could be used for
the restricted purpose of determining whether there was a reasonable
possibility of eventual control of Mr. McDonalds risk in the community (i.e.
whether a long-term offender designation was sufficient).

[59]

The judge was alive to the difficulties inherent in coming to this
conclusion. He stated:

[268]

Whether
any use can properly be made of Mr. McDonald's participation in and
conduct during the Mr. Big investigation, even on the narrow issue
identified (future management of risk) raises complex questions that pull the
analysis in different directions. On the one hand, it is remarkable that
Mr. McDonald, knowing that he had already taken two lives, would align
himself with an organization he believed wholeheartedly endorsed the use of
violence. The evidence, if reliable, suggests an entrenchment of antisocial values,
operative in the present. The persistence of those personality traits may be
relevant to treatability and management of risk in the community. On the other
hand, Mr. McDonald had to be encouraged to join the activities of the
organization over an extended period during which the financial incentives to
participate increased. The scenarios in which Mr. McDonald participated
were rich with inducements and his participation, standing alone, demands close
scrutiny on the issue of whether it is a reliable measure of his current
character, habits of mind or amenability to change through treatment
intervention.

[60]

The judge was careful to explain that his conclusions were not statements
of general application; rather, the determination of the proper uses of Mr. Big
evidence had to be made on a case-by-case basis, in order to determine the
extent to which the context in which the information was gathered affected its
reliability (at para. 272).

[61]

In this case, the judge found that two incidents, both external to the
police-constructed Mr. Big scenarios, buttressed the reliability of the Mr. Big
evidence. These were (i) Mr. McDonalds conversation with his brother,
Jeremiah, following the abduction scenario and (ii) Mr. McDonalds encounter
with Mr. Taati.

[62]

With respect to (i), the judge said:

[274]    Jeremiah is
Mr. McDonalds closest confidant. Mr. McDonald had no reason to
misrepresent his state of mind to Jeremiah following the abduction scenario.
The conversation reflects that Mr. McDonald was completely unfazed by what
he had witnessed. He chuckled about the plight of the supposed debtor whom he
thought would be tortured, and told Jeremiah he would be part of the mopping
up the next day.
The conversation is significant because it
demonstrates a continuity of character outside of the Mr. Big scenarios,
and supports an inference that Mr. McDonalds conduct within the
investigation is an accurate reflection and reliable measure of who he is.
This, in turn, suggests that Mr. McDonalds disposition to violence is an
enduring personality trait  one that will likely be less susceptible to
treatment intervention and the community-based management of risk. [Emphasis
added.]

[63]

With respect to (ii), the judge noted that this encounter was also outside
the Mr. Big scenario, and suggested a present and enduring disposition to
violence that was relevant to Mr. McDonalds treatment prospects and the
management of his risk (at para. 275). However, the judge made no use of Mr.
McDonalds statement to the primary that he would have nailed Mr. Taati with
the pickaxe because it lacked sufficient reliability; the fact Mr. McDonald
made the statement to the primary raised the concerns discussed in the judges
para. 268.

[64]

The judge held that, taking these two factors into account, Mr.
McDonalds conduct during the investigation had sufficient reliability to be
considered in assessing his present character, attitudes, and treatability.

[65]

The judge summarized his entire approach to the Mr. Big evidence as
follows:

[278]    I wish to emphasize the
limited use I propose making of this evidence. The evidence is not relevant to
the pattern analysis. In addition, I take no account of it in determining
whether Mr. McDonald has been shown to constitute a threat within the
meaning of s. 753(1). That issue falls to be determined solely on the
basis of evidence of a pattern of behaviour established by the Crown under
ss. (i) or (ii). The evidence is, however, relevant to the question of
treatability should Mr. McDonald be found to meet the criteria for
designation as a dangerous offender. That Mr. McDonald, at the age of
60, continued to hold antisocial views, and act on them, is relevant to the
question of the impact, if any, the aging process is having on him and whether
his risk can be reduced to an acceptable level through the imposition of
community supervision terms to come into effect on his release from custody.

[66]

Finally, the judge noted that his conclusion would have been the same
had he approached the issue as one of admissibility, that is, whether he should
have excluded it because its prejudicial effect outweighed its probative value.
In his view, the evidence was probative of an important issue (future
management of risk) and was sufficiently reliable. He would have attenuated the
risk of prejudice by confining the use of the evidence in the manner described
above.

[67]

With these conclusions and cautions in mind, the judge considered
whether the Crown had established beyond a reasonable doubt that Mr. McDonald
met the criteria set out in ss. 753(1)(a)(i) and/or (ii).

[68]

This determination required the judge to assess the opinion evidence of
both experts. He acknowledged that the expert evidence relied on unproven or
unreliable foundational facts. He explained his approach this way:

[297]    Dr. Schweighofer relied, to some extent, on
past acts of violence Mr. McDonald told the primary he had committed.
Although there is conflicting evidence on this point, I am satisfied that
Dr. Schweighofer also relied on the fact that Mr. McDonald told the
primary he would have nailed Mr. Taati with the pickaxe had Mr. Taati
made a move towards him. Finally, Dr. Schweighofer placed at least
cautious reliance on the fact that Mr. McDonald has been involved in
several altercations while on remand. I am not prepared to make any use of this
evidence for sentencing purposes. I am, as a consequence, obliged to
assess the impact of this determination on the weight I am prepared to give his
opinion.

[298]    Dr. Lohrasbe ignored Mr. McDonalds claim
to have committed past acts of violence in formulating his opinion on risk,
treatability and risk management. It is also apparent that
Dr. Lohrasbes opinion was uninfluenced by the negative aspects of
Mr. McDonald's behaviour while on remand.

[299]    It is clear that both Dr. Schweighofer and
Dr. Lohrasbe relied on Mr. McDonalds participation and conduct
within and during the Mr. Big investigation to inform their assessment of
the likelihood that Mr. McDonald would re-offend violently in the future.
As I have determined to make no use of this evidence in determining whether
Mr. McDonald is likely to reoffend, I am obliged to carefully assess the
extent to which reliance by the assessors on this evidence in formulating their
opinions on this issue affects the weight that can be assigned to their
testimony.

[300]    I am also cognizant that Dr. Lohrasbe
considered that the degree of harm Mr. McDonald is likely to cause in the
future justified elevating his risk assessment into the high category. The
Crown did not, as a matter of law, seek to support Dr. Lohrasbes approach
to this issue. While I do not doubt, from a psychiatric perspective, the
legitimacy of analyzing the issue this way, I am not prepared (in the absence
of full argument on the point) to rely on Dr. Lohrasbes approach as
justifying, in law, a quantitative elevation in the risk Mr. McDonald
poses. Accordingly, I take no account of his evidence on this point and am
obliged to carefully assess the extent to which this impacts the weight I can
assign to his threat assessment opinion.

[301]    Finally, some care has
to be taken in approaching the results of actuarial measures for offenders who
are outliers and may not share the personality characteristics or attributes
of the cohort group. Having said that, the Court has the benefit of three
generations of risk assessment approaches. Each of them has advantages and
disadvantages, both generally and in terms of their application to this case.

[69]

The judge summarized his reasons for finding that Mr. McDonald met the
criteria under s. 753(1)(a)(i) as follows at para. 303:

·

Mr. McDonalds score on the VRAG
puts him at the 75
th
percentile.  This score corresponds to a
45% rate of recidivism at 5 years and a 69% rate of recidivism at 12
years. Dr. Schweighofer testified this likely puts Mr. McDonald
in the moderate high to perhaps high risk to re-offend violently. Further,
Dr. Schweighofer explained why the VRAG score likely represents an
underestimation of the risk Mr. McDonald poses. I accept Dr. Schweighofers
observation on this point;

·

Mr. McDonalds PCL-R scores place
him in the moderate risk category for future violence and general reoffending;

·

While neither assessor purports to
formally diagnose Mr. McDonald in the absence of a clinical interview, both
testified he is socially deviant and has personality characteristics consistent
with an Antisocial Personality Disorder diagnosis; characteristics relevant to
the likelihood that he will commit future acts of violence;

·

Both Dr. Lohrasbe and
Dr. Schweighofer utilized the HCR-20 as a risk predictor.
Dr. Schweighofer concluded on this basis that Mr. McDonalds future
risk for violence or general recidivism is in the moderate to moderate/high
range. Although Dr. Lohrasbe was less inclined to attach a label
quantifying the risk of re-offence, he noted that, in terms of risk assessment,
his overall rating utilizing the HCR-20 was not dissimilar to that reported by
Dr. Schweighofer;

·

Both assessors were of the opinion that
Mr. McDonald likely needs little provocation to precipitate a future
violent act. The context of daily living is such that the potential
sources of such provocation are, to use Dr. Lohrasbes term, endless;

·

Dr. Schweighofer testified that
excising information sourced in Mr. McDonalds participation in the
Mr. Big investigation (including his claims to have committed past violent
acts) would not impact his scoring of the VRAG, HCR-20, or (with one fairly
minor exception) the PCL-R. He also testified that his overall assessment of future
risk would not vary substantially even if he disregarded the entirety of the
evidence sourced in the Mr. Big investigation. While this would
result in a thinner factual foundation for the opinion, it would not change
his opinion of future risk;

·

Dr. Lohrasbe
said in his report:

Regarding ongoing risk for
violence, that history indicates that many factors that drive his violence are
well-established. His lack of self-control appears to have emotional
(impulsivity; rage; extreme reactivity) and cognitive/attitudinal
(justifications that fly in the face of the magnitude gap between a perceived
provocation and the extreme response; continuing disrespect and demeaning of
his victim; lack of remorse or caring of impact on others; willingness to
participate in violent criminal organizations) components. There are no
indications of a significant (and expected) improvement of self-control with
age. There are no indications that the forces that have driven his serious
violence are significantly in decline. That combination of factors that drove
his past violence continues to be active. The issue then arises as to whether
we are in a position to effectively address them.

SUMMARY

Having considered all
available information, my opinion is that at present and in the foreseeable
future:

1.         Mr. McDonald
poses a high risk for future acts of violence.

·
Having made allowance for how
disregarding the Mr. Big evidence affects Dr. Lohrasbes opinion (see
paras. 170

171 and
299) and the weight I am prepared to attach to it (see para. 300), I
remain satisfied beyond a reasonable doubt that the evidence as a whole
establishes the likelihood that Mr. McDonald will cause death or injury to
other persons through failure in the future to restrain his behaviour;

·

The Taati incident confirms that the
antisocial personality characteristics and triggers motivating
Mr. McDonalds violent behaviour remain operative, at least as of 2011;
and

·

There
is no evidence the aging process is disabling Mr. McDonald in
risk-relevant ways. Quite apart from the Taati incident, he committed his
second homicide at the age of 52.

[70]

The judge recognized that the finding of a pattern of repetitive failure
to restrain behaviour in the manner described in s. 753(1)(a) would, as a
practical matter, make it relatively easier for the Crown to show the offender
is a threat within the meaning of s. 753(1)(a) (which results in a dangerous
offender designation).

[71]

The judge diligently addressed s. 753(1)(a)(ii) as well. He summarized
his conclusions on both sections as follows:

[314]    With respect to s. 753(1)(a)(i),
Mr. McDonald has displayed a long-standing and entrenched pattern of
repetitive behaviour showing a failure of behavioural restraint and a
likelihood that he will act similarly in the future such as to constitute a
threat to the life, safety or physical well-being of others. Actuarial and
clinical risk measures put him in the moderate or moderate/high risk of
re-offence. Mr. McDonalds capacity and preparedness to respond with
violence to stressors that are likely to arise again is not something in the
distant past. In 2003, he committed an offence of brutal violence involving use
of the sledgehammer that took the life of Mr. Wilton. In 2011, he armed
himself with a pickaxe and threatened to kill Mr. Taati. His antisocial
attitudes continue as evidenced by his conversation with Jeremiah. The threat
Mr. McDonald poses is not only current; there is no evidence it is abating
with age.

[315]    With respect to
s. 753(1)(a)(ii), the two homicides forming the pattern both demonstrate a
substantial degree of indifference on Mr. McDonalds part to the
reasonably foreseeable consequences to others of his conduct. The behaviour,
and the indifference to life that characterizes it, is enduring. The same indifference
to human life emerged 22 years after the predicate offence. It is
remarkable that, knowing he had already killed one person, Mr. McDonald
intentionally killed a second person and displayed no appreciation of, or
remorse for, what he had done. As reflected in the expert evidence before me,
his risk factors are well-entrenched and he likely needs little provocation to
commit a future violent act. Even weighing the expert evidence in a way
that takes account of the considerations set out in paras. 296

303, I am satisfied the evidence
establishes that the risk of him doing so is, by both clinical and actuarial
measures, in the moderate to moderate/high range. In short, I have before me a
person who has displayed persistent disregard for human life. The 2003 homicide
establishes that Mr. McDonalds capacity for violence has not diminished
with age. His risk factors are enduring, untreated, and, on the evidence before
me, likely to be acted on in the future.

[72]

In coming to those conclusions, the judge again confirmed that he made
no use of the Mr. Big evidence.

[73]

The final question was straightforward

whether the sentencing sanctions available pursuant to the long-term offender
provisions were sufficient to reduce the threat Mr. McDonald posed to an
acceptable level.

[74]

The judge first instructed himself as to the requisite analysis, which
was summarized in
R. v. Allan
, 2009 BCSC 1245, affd 2015 BCCA 229. In
that decision, MacKenzie J. (as she then was) drew on Southin J.A.s conclusion
in
R. v. Wormell
, 2005 BCCA 328 to hold:

[242]
Thus, the Court must
satisfy itself that there is a reasonable possibility of eventual control of
the risk in the community
, having regard to the whole of the evidence
before it:
Wormell
at para. 61.  In doing so, the Court
must consider the need for resources to control the appellant or to make it
reasonably possible for him to control himself, both during and after long-term
supervision, without imposing on either side the burden of establishing that
such resources would or would not be available:
T.R.S.
at
para. 25.

[243]
That said, a reasonable possibility does not mean
an absolute certainty
:
R. v. G.L.
, 2007 ONCA 548, 87 O.R. (3d)
683 at para. 39, leave to appeal refd [2008] S.C.C.A. No. 39.

[Emphasis added.]

[75]

The judge weighed the evidence with the qualifiers he expressed at
paras. 296

303 firmly in
mind (at para. 321). He concluded that he was not satisfied that there was a
reasonable possibility of eventual control in the community. In other words, he
found the threat Mr. McDonald posed could not be reduced to an acceptable level
through the imposition of a long-term offender sentence. His reasons for that
conclusion were based on a non-exhaustive list of considerations (at para. 323):

·

Mr. McDonalds risk factors are entrenched,
and his predisposition to violent behavioural acts is enduring. As Dr. Schweighofer
put it, Mr. McDonalds dynamic risk factors are not likely to change
simply due to good wishes but will require significant and sustained effort on
his part;

·

As Dr. Lohrasbe noted, simply
plugging Mr. McDonald into available programs (described by
Ms. Harbour and Mr. Stratford) cannot be relied on to reduce risk;

·

Mr. McDonalds history is, in any
event, markedly lacking any indication that he is at all motivated to change
his behaviour;

·

Despite having taken two lives,
Mr. McDonald made no efforts to obtain any treatment to address his
violent behaviour until 2014.  Even then, his motivation for doing so is
suspect at best. In addition, I have very little evidence about the nature of the
violence prevention program Mr. McDonald participated in while on remand,
and no evidence as to whether he derived any benefit from it;

·

On all the evidence before me, I agree
with Dr. Lohrasbes observation that it is difficult to imagine the
emergence, in middle age, of a sustained motivation on Mr. McDonalds part
to participate in treatment programs and transform himself on the multiple
levels that would be required to reduce his risk to an acceptable level;

·

The evidence of Dr. Schweighofer
that, even if Mr. McDonald engages in a treatment regime, his high Factor
1 score on the PCL-R and interpersonal style will likely operate to undermine
the chances of a successful outcome;

·

Mr. McDonalds generally poor
response to previous periods of community supervision;

·

The fact that very little is known about
Mr. McDonalds criminogenic factors. Unless Mr. McDonald
determines to meaningfully engage with a treatment team, it is difficult to
envision how those charged with supervising him in the community would be in a
position to identify the re-emergence of risk factors enabling an intervention
prior to the commission of a further offence;

·

The absence of evidence that
Mr. McDonalds antisocial attitudes or violent behaviour are diminishing
with age. He killed Mr. Wilton when he was 52 years of age. He threatened
Mr. Taati with a pickaxe when he was 60 years of age. The persistence
of Mr. McDonalds comfort level with violence is revealed in the
conversation he had with Jeremiah the evening of the abduction scenario. It is
also demonstrated by Mr. McDonalds conduct within the Mr. Big
investigation;

·

Although Mr. McDonald appears to be
physically diminished, I have no evidence that the aging process is disabling
him in risk-relevant ways. I note, in this regard, Mr. McDonalds use
of weapons in the past and his physical capabilities as demonstrated by the
Taati incident;

·

I
have closely examined Dr. Schweighofers opinion that Mr. McDonald is
at least moderately likely to engage in and benefit from treatment, together
with his related opinion that the possibility of controlling his risk in the
community is moderate. Some of the evidence upon which that opinion is based is
set out in para. 212. Collectively, that evidence goes no further than justifying
some reason for hope that if a number of contingencies are met and
Mr. McDonald takes the right fork in the road at each critical juncture,
his risk can be reduced to an acceptable level. Given the scant evidentiary
foundation upon which Dr. Schweighofers more optimistic appraisal of
treatment prospects rests, I am not able to give his evidence any weight on
this point. I accept the opinion of Dr. Lohrasbe that, there are no good
reasons to conclude that there is a realistic possibility that available
treatment programs can lower his risk to an acceptable level (that is, to the
point that risk can be managed in the community) in the foreseeable future.

[76]

The judge finally noted:

[324]    Given the strength of
the evidence that Mr. McDonalds predisposition to violence has not been
impacted by the aging process (he killed Mr. Wilton with a sledgehammer at the
age of 52 and threated to kill Mr. Taati with a pickaxe at the age of 60) I
would have come to the same conclusion on this point without placing any
reliance on Mr. McDonalds participation in or conduct during the
Mr. Big scenarios.

[77]

In the result, the judge declared Mr. McDonald to be a dangerous
offender and sentenced him to detention in a penitentiary for an indeterminate
period.

ON APPEAL

[78]

Mr. McDonald alleges three errors:

(a)      the
judge erred in his approach to the Mr. Big evidence and in dismissing his
preliminary objection to the admissibility of that evidence;

(b)      the
judge erred in finding that Mr. McDonald was likely to commit a future violent
offence; and

(c)      the
judge erred in finding that there was no reasonable prospect of control in the
community.

[79]

Mr. McDonald seeks a new dangerous offender hearing.

[80]

Before addressing the alleged errors, I observe that the standard of
review as to whether the appellant met the definition of dangerous offender is
the standard of reasonableness. I acknowledge that the scope of appellate
review for a dangerous offender application is broader and more robust than the
standard applied to sentencing generally:
R. v. Sipos
, 2014 SCC 47. Nevertheless,
as expressed in
R. v. Currie
, [1997] 2 SCR 260 at 44:

[44]       absent an error of
law, of which there was none, the dangerous offender determination is a finding
of fact that is almost always based upon the competing credibility of expert
witnesses. As such, it is a decision which should not be lightly disturbed.

A.       Use of the Mr. Big
Evidence

[81]

Mr. McDonald submits the judge erred in admitting the Mr. Big evidence
in its entirety and by focusing on the use that could be made of the evidence.
In particular, Mr. McDonald notes that thousands of pages of transcripts and
other evidence from the Mr. Big investigation were given to the experts with no
instruction as to the use that could be made of it. Both experts relied on this
evidence to greater or lesser degrees.

[82]

Mr. McDonald contends the judge should have determined whether the
evidence was sufficiently reliable to be admitted for all purposes in order to
decide the issue of its admissibility.

[83]

I am not persuaded by this submission.

[84]

At the outset, I do not accept the appellants characterization that the
judge admit[ed] the evidence in its entirety. The judge focused on the use
that could be made of the evidence, rather than whether it was admissible or
not. The question of permissible use turned on an examination of relevance to
each of the Crowns proposed uses and whether the evidence was sufficiently
reliable.

[85]

Further, the judge noted that his approach was designed to avoid the
exact issue the appellant raises. The judge was well aware that admitting the
evidence in its entirety was not an option, as described above. Thus, at para.
258, he said, Approaching the issue as a question of use, not admissibility,
avoids the need for separate admissibility determinations with respect to the
same body of evidence for trial and sentencing purposes.

[86]

This approach is the basis upon which the judge made no use of the Mr.
Big evidence to establish patterns of behaviour. The judge also found (at para.
262) that the Mr. Big evidence was not relevant to the threat assessment. The
judge was clear:

[264]    Applying these
principles to the case at bar, I make no use, for any purpose, of Mr.
McDonalds claims that he committed past acts involving violent or antisocial
behaviour. Further, I make no use of the unproven information contained in the
RTCC that he assaulted his ex-wife. That Mr.

McDonald
committed the uncharged violent or antisocial acts he related to the primary
has not been proven beyond a reasonable doubt. These past acts are unconfirmed
by any independent evidence and Mr. McDonalds claims, standing alone, are
unreliable because of the context in which they were made and his pronounced
tendency to embellishment.

[87]

The judge instead used the evidence for the following limited purpose:

[278]     The evidence is,
however, relevant to the question of treatability should Mr. McDonald be
found to meet the criteria for designation as a dangerous offender.  That
Mr. McDonald, at the age of 60, continued to hold antisocial views, and
act on them, is relevant to the question of the impact, if any, the aging
process is having on him and whether his risk can be reduced to an acceptable
level through the imposition of community supervision terms to come into effect
on his release from custody.

[88]

It is clear from the judges reasons (at paras. 272

277) that he examined in detail
Mr. McDonalds conduct during the Mr. Big operation and found it to be reliable
and relevant to the question of whether there was a reasonable possibility of
eventual control in the community. It was also confirmed by evidence from two
events independent of the investigation. The judges examination focused on the
context in which the evidence was gathered, and was done with great caution and
care.

[89]

I find no error in the judges approach, and further add that the
appellants submission is problematic for at least two more reasons.

[90]

First, as I have noted, at the conclusion of the dangerous offender
hearing, counsel for Mr. McDonald agreed the judge should determine the use
that could be made of the Mr. Big evidence, rather than treat it as a question
of admissibility. I reproduce counsels statement again for convenience:

we are very comfortable with
Your Lordship dealing with the Mr. Big evidence in the way thats described in
your reasons from February of 2015, and --
and just dealing with it as a
matter of what use can be made by the court of -- of that evidence, rather than
dealing with it as an objection and -- and an application to exclude
.

[Emphasis
added.]

[91]

Second, in his reasons indexed as 2015 BCSC 256 at para. 35, the judge
noted that the parties agreed that the assessment reports were admissible on
the dangerous offender hearing. They did so having been made aware of the
judges concerns about the information to be sent to the assessor, and having
declined his invitation to request directions before that information was sent.
The judge acknowledged that it was nonetheless his responsibility to make:

[35]       all requisite
findings of fact, including those regarding the conduct upon which the assessor
bases his opinion. It is trite that an opinion is not evidence
of
the facts upon which it is based. If I am not independently satisfied as to the
truth of facts relied on by the assessor, the weight I am able to assign his
opinion is correspondingly diminished: see, for example,
R. v. Pike
,
2010 BCCA 401 at paras. 61

73.

[92]

Having agreed that the assessment reports were admissible (subject to
the judges assessment of the reliability of the evidence), it is difficult to
accept the appellants argument that the judge erred in admitting the evidence.

[93]

I would not give effect to this ground of appeal.

B.       Likely to Commit a
Future Violent Offence

[94]

Mr. McDonald concedes that two of the three criteria that must be
satisfied before an offender can be designated a dangerous offender are met in
this case

the predicate
offence is a serious personal injury offence, and Mr. McDonald has engaged in a
pattern of conduct that demonstrates a failure to restrain his behaviour.

[95]

The third criterion is not conceded

whether Mr. McDonald is likely to commit a future violent offence in accordance
with the pattern of conduct established under the second criterion.

[96]

Mr. McDonald submits that the evidence must establish that his
committing a future violent offence is so likely that it can quite confidently
be expected (
R. v. Lyons
, [1987] 2 S.C.R. 309 at 329). He contends that
the expert evidence on this issue (likelihood) was equivocal and
insufficiently clear and cogent to meet this threshold. In his submission, the
evidence as to the likelihood of re-offending lacks the requisite strength and
quality necessary to ground an indeterminate sentence.

[97]

The focus of Mr. McDonalds argument is on the expert opinions of Dr.

Lohrasbe and Dr. Schweighofer. He raises five
specific areas of complaint regarding their opinions. He describes these as:
(i) the equivocal nature of the expert evidence; (ii) the unreliability of Dr.
Lohrasbes opinion; (iii) the doubtful validity of Dr.

Schweighofers
evidence; (iv) the effect of aging; and (v) the impact of treatment on
recidivism.

(i)  The Equivocal Nature of the Expert Evidence

[98]

To show that the expert evidence was equivocal, Mr. McDonald points to
various statements from both doctors acknowledging that their assessments were
not unassailable.

[99]

In my view, Mr. McDonalds submission amounts to a general attack on
expert psychiatric evidence and those experts who responsibly admit they cannot
predict the future with absolute certainty. As Justice La Forest, writing for the
majority, stated in
Lyons
at 365366:

This is hardly a revelation. Indeed,
the psychiatrists who testified at the hearing in the present case expressly
disavowed any such claim.

It seems to me
that the answer to this argument can be briefly stated. The test for
admissibility is relevance, not infallibility. Judges at Part XXI hearings do
not assume that psychiatrists can accurately predict the future; however,
psychiatric evidence is clearly relevant to the issue whether a person is
likely to behave in a certain way and, indeed, is probably relatively superior
in this regard to the evidence of other clinicians and lay persons [citation
omitted].

[100]

Here, both
experts acknowledged the imperfection in their respective approaches to risk
assessment. Dr. Lohrasbe conceded that risk assessments deal with
probabilities and assessments. Dr. Schweighofer agreed the instruments he
used were only a moderately good predictor of risk. Both experts did not have
the benefit of an interview with Mr. McDonald, which, according to the
evidence, necessarily limited the confidence expressed in their opinions.

[101]

I find the
judge took these concerns into his account in his reasons. He reviewed the
qualifications and reservations each expert made at paras. 296303, and
adjusted the weight he gave their opinions accordingly.

(ii)  The Unreliability of Dr. Lohrasbes Opinion

[102]

Mr.
McDonald takes special aim at Dr. Lohrasbes clinical formulation of risk
approach which, in the appellants view, is no better than guesswork as it is
not tied to any empirical data and has been criticized for over-prediction of risk.
Mr.

McDonalds counsel went so far as to
submit that we should say that this approach has no place in dangerous offender
hearings.

[103]

I am not persuaded that Dr.

Lohrasbes
approach is deserving of such condemnation. His report, and his testimony at
the hearing, demonstrate that he was applying his undeniable skill to a
difficult question. Indeed, he was candid as to the imperfections in his
approach. In his report, Dr. Lohrasbe described his clinical method in this
way:

The
method
with the
longest history is a
clinical formulation
of risk

(also termed case formulation). This
approach allows the assessor to evaluate all historical and clinical findings
relevant to risk in a free-ranging manner, a
nd the
process of decision-making is without explicit rules. A clinical formulation
offers hypotheses of the antecedents and kind of risk in the specific case at
hand based on theoretical concepts and clinical experience. Unstructured
clinical judgment is only as good as the training, knowledge, skills, and
experience of the assessor, and therefore runs the risk of being subjective and
arbitrary. The main advantages of this approach is its flexibility, and
its ability to isolate and
explore specific issues that may be of major or even overwhelming importance in
any given case. Unstructured clinical judgment is an
idiographic
approach to
risk assessment, emphasizing the
unique
features of the
particular
case and the s
pecific behaviours of concern, rather
than applying group data or broad generalizations.
[Emphasis added.]

[104]

As the
judge noted, he had the benefit of three generations of risk assessment, and
acknowledged the advantages and disadvantages of each. Dr.

Lohrasbes
evidence being admissible, the appellants concerns go to its weight. I find
the judge did not err in that regard.

(iii)  The Validity of Dr. Schweighofers Evidence

[105]

As for Dr. Schweighofer, the appellant contends that the actuarial
measures performed are of doubtful validity because Mr. McDonald is considered
an outlier. Dr. Lohrasbe explained:

Q         For an individual you describe as an outlier,
in your opinion, does that make a difference in regards to the usefulness of
actuarial instruments?

A          Oh, it should because, I mean, let me just
illustrate the point. If I use an instrument that has none or few -- let me
back up. All actuarial instruments are based on data collected typically from
thousands of offenders; okay? I believe the common one like the VRAG would be
based on, like, 5,000 people or something like that.

Now, without knowing whether
in that pool there are people that have a violent history that is in any way
comparable to Mr. McDonalds, it is hard to know how useful that information,
purely statistical information, is in making decisions to do with Mr. McDonald.
So when you have an outlier, that makes the use of actuarials especially
problematic.

And just one last point. I
really dont want to prolong this because there are counterarguments that
people who love actuarials will make. But it is important that I can make this,
that actuarial instruments only address one facet of risk, which is likelihood.
And typically the measure is the likelihood of someone being arrested or
convicted of a violent offence, any violence offence. It doesnt tell us about
what kind violent offence. So everything from common assault to a homicide is
captured in that. Again I dont find that especially helpful.

[Emphasis
added.]

[106]

Further,
Mr. McDonald suggests the judge misapprehended some of the evidence relating to
the scoring of the risk assessment tests. Several tests were employed.

Psychopathy
Checklist

Revised (PCL-R)

[107]

Under this
measure, Mr. McDonald was assigned a score of 23, placing him in the 52
nd
percentile of male federal offenders. Dr. Schweighofers ultimate conclusion as
to the import of the PCL-R score was:

The overall
PCL-R score I obtained for Mr. McDonald places him at the 52.4th percentile
relative to a sample of male federal offenders. In other words, approximately
48% percent of male federal offenders score higher. Taking the standard error
of measurement (SEM) into account, his percentile score could range from 39.7
to 67.2. His raw score of 23, when considered in light of the SEM, suggests
that his true score could range from 20 to 26. Some research tends to place
individuals in a high risk range when their scores are 25 or above and
certainly when 30 or above. Mr. McDonalds percentile rankings on Factor 1 and
2 are 82.7, and 36.4, respectively

illustrating the presence of significant Factor 1 traits. Mr. McDonalds
total score places him in the moderate risk category for future violence and
general offending. If one considers the standard error of measurement the upper
limit of his score suggests me may fall in the high risk range relative to
other male offenders. His relatively high Factor 1 score does raise increased
concern regarding the risk for instrumental violence. Mr. McDonalds PCL-R also
indicates that he poses a moderate risk for failure on conditional release.

[108]

The
appellant raises two concerns about the PCL-R assessment.

[109]

First, the
appellant emphasizes that in one study, the risk of recidivism associated with
scores of 25 or below is 21%, while in another study those who score 24 or
below were found to have a recidivism rate of 2.7%.

[110]

However,
although Dr. Schweighofer cited the study in question, he nonetheless went on
to opine that Mr. McDonalds total score placed him in the moderate risk
category for future violence and general offending. After considering the
standard error of measurement, the upper limit of Mr. McDonalds score
suggested that he could fall into the high-risk range relative to other male
offenders.

[111]

Second,
the appellant says that while Mr. McDonalds Factor 1 score is high, his Factor
2 score is the relevant metric. He says that Factor 2 traits, which according
to Dr. Schweighofer are associated with increased risk of reactive violence,
relate to the type of violence at issue in this case. By contrast, Factor 1
traits measure risk of instrumental violence, which Dr. Schweighofer defined as
violence that isnt necessarily in the heat of the moment but there is an
objective the person is attending to meet

a settling of the score.

[112]

I do not
accept the appellants emphasis of Factor 2 traits as dispositive of the type
of violence used in this case. The judge found that the two homicides and the
Taati incident were
not
purely impulsive (at paras. 230, 288).

[113]

Moreover,
Dr. Schweighofer testified that the two factors are not mutually exclusive. Dr.
Schweighofer was unable to opine, without an interview of Mr.

McDonald, as to whether future violence would be
relatively impulsive, and could not rule out instrumental violence.

[114]

In any event, the judge only cited Mr. McDonalds overall PCL-R moderate
risk rating when explaining his conclusion on s. 753(1)(a)(i) at para. 303. He
did not rely on Mr. McDonalds high Factor 1 score, in which the appellant
scored in the 82.7 percentile, or on his Factor 2 score. In that same
paragraph, the judge also adverted to Dr. Schweighofers evidence in
cross-examination, wherein he testified to the effect that disregarding the Mr.
Big evidence would have had on the analysis. He accurately summarized Dr.
Schweighofers findings on this point as follows:

[188]    Dr. Schweighofer was cross-examined on his
scoring of the PCL-R. For a variety of the personality traits that comprise the
PCL-R, he was asked to factor out behaviour rooted in the Mr. Big
investigation. With one small exception, he testified that doing so did not change
how he would score that particular component of the PCL-R. For example, on
the question of whether Mr. McDonald was lacking in remorse,
Dr. Schweighofer was asked to re-assess his scoring of this issue after
factoring out statements made by Mr. McDonald in the course of the
investigation with respect to past criminal acts, and factoring in that
Mr. McDonald completed a violence prevention program while on
remand. Having done so, Dr. Schweighofer testified that proceeding on
this basis would not change his scoring on this personality trait. He made
these observations:

Throughout the records I had available to me I mean, two very significant life
events. He takes the life of a man in 1981. He absconds. No apparent concern
for how that might impact the victims family. Its clearly a self-interested
act. When the police interview him in California, clearly theres no
indications there of remorse. He's still intent on evading detection.

With
the2003killing of Mr. Wilton, again here, theres no marked indications
that he felt particularly remorseful for that. I mean, these are two major
events, the most extreme harm that someone can do to another individual and
you really dont see any marked expressions or indications that there was a
deep felt remorse or guilt about those events.

And theres additional
informationIf you think of the attack on Mr. Taati, there is no
indication that he felt any remorse for that that I could see in the record.

[115]

In my
opinion, the judge did not misapprehend the PCL-R evidence.

Violence Risk Appraisal Guide

Revised (VRAG-R)

[116]

The VRAG-R
measures the likelihood of recidivism as of the 1981 offence (the index
offence). The circumstances surrounding that offence (e.g., the offenders age
at the time, violent offences prior to the offence) factor into the analysis.
On that basis, Mr. McDonalds likelihood to violently reoffend was at the 75
th
percentile, which placed him in the category of moderate high to perhaps high
risk.

[117]

Mr.
McDonald complains that a number of factors should have been taken into account
by Dr. Schweighofer, which would have reduced Mr. McDonalds score substantially.
Those factors included elementary school maladjustment and factors associated
with drug and alcohol problems before the age of 18.

[118]

The judge was
alive to Dr. Schweighofers decision to omit these factors from his analysis. Dr.
Schweighofer himself provided an explanation for both. He excluded elementary
school maladjustment because of a lack of information. His reasons for omitting
the risk factors related to drugs and alcohol included his doubts about the
sincerity of the appellants self-reported substance use. On this point, I note
again Dr. Schweighofers acknowledgement of the fact that he had not had an
opportunity to interview Mr. McDonald and the corresponding effect that had on
his evidence.

[119]

Regardless,
the appellants submission ignores a more significant omission from Dr.
Schweighofers analysis  the manslaughter of Mr. Wilton. In his testimony, Dr.
Schweighofer explained that the VRAG-R does not take into account offences
subsequent to the index offence. Dr. Schweighofer observed, and the judge
accepted, that it should also be acknowledged that by dint of his 2003 manslaughter
he has already met the criteria for recidivism. As such, his VRAG-R score
represents a likely underestimate of risk.

[120]

I am
unable to conclude that the judge misapprehended this evidence.

HCR-20

[121]

The HCR-20
is a structured professional judgment that considers 20 risk factors related to
violent behaviour and general criminality.

[122]

On this
measure, Dr. Schweighofer concluded that Mr. McDonalds future risk for
violence or general recidivism was in the moderate to moderate/high range.

[123]

Mr. McDonald submits that Dr. Schweighofers analysis was tainted by
reference to uncharged and unproven conduct, including:

(a)        A
reference in a police report that he would sometimes slap around his ex-wife
when he had been drinking;

(b)        His
claim during the Mr. Big operation that he once hit a man with a 2x4 when he witnessed
the man vandalizing a vehicle;

(c)        His
various claims about assaulting prostitutes which were made to impress Mr. Big;

(d)        His
claim during the Mr. Big operation that he once slashed the tires of a vehicle
in order to get back at someone;

(e)        His
claim during the Mr. Big operation that he set a car on fire; and

(f)         His statements to Mr. Big
concerning the Taati incident.

[124]

The judge was acutely aware of Mr. McDonalds criticisms. He observed:

[224]    Dr. Schweighofer
was also closely cross-examined on how excluding information sourced in the
Mr. Big investigation might change his assessment of the historical,
clinical and risk factors addressed by the HCR-20. I have been unable to
identify an occasion on which Dr. Schweighofer testified that his
assessment of the risk factors encompassed by the HCR-20 would substantially
change as a consequence of the exclusion of information sourced in the
Mr. Big investigation.

[125]

In my
opinion, this evidence, taken together with the evidence as a whole, supported
a finding of likelihood of future harm and present threat. I would not
interfere with the weight the judge accorded to it.

(iv)  The Effect of Aging

[126]

Mr. McDonald contends the judge erred in finding there was no evidence
that the aging process was having an effect on his risk of re-offending. He
points to the evidence of Dr. Schweighofer, who stated that the appellants age
and health issues were mitigating factors with respect to the risk of
re-offending, and that there was a decreased risk after the age of 60.

[127]

Mr. McDonald emphasizes the evidence of Dr. Lohrasbe, who was asked in
cross-examination if his opinion that Mr. McDonald poses a high-risk for future
acts of violence and, in particular, the effect of aging, would change if the
Mr. Big evidence were removed from consideration:

Q         And then, just to be clear with respect to --
Im not asking you to remove the incident involving Mr. Taati from your
opinion. Im asking you to remove from your opinion the Mr. Big operation, and
well include in that His Lordships comments as referenced in your report.

A          So remove it?

Q         Yes.

A          And then, again, just to clarify, because the
Mr. Taati incident comes up only in the context of this hearing and the
findings of His Lordship, so what other facts I should assume regarding Mr.
Taati? Should I include it as found by the court?

Q         Yes.

A          With that, I would say, yes, my opinion has
changed. It would be weaker in terms of what it tells us about the impact of
the aging process on Mr. McDonald, because the last then known act of physical
violence would be when he was 52, and then we have this single incident of a
threat, which was not carried through and was not even severe enough, at least
in the way it played out, to lead to criminal charges. Im having some
difficulty wrapping my head around that part.
But it would be an opinion
that would be less emphatic that the process of aging has not had the impact on
Mr. McDonald as one would have expected just during the normal course of aging
for most people. I dont know if thats a clear enough answer, but my opinion
would change.

[Emphasis added.]

[128]

In follow-up questions from the Court, Dr. Lohrasbe testified:

Q         You were asked in cross-examination to exclude
from the factual foundation underlying your opinion the Mr. Big operation --

A          Yes.

Q         -- and the courts findings in relation to it
as they are set out in your report.

A          Yes.

Q         Did you understand that question to be a
request to exclude, as well, consideration of private conversations Mr.
McDonald had with his brother while the Mr. Big operation was ongoing?

A          I did not actually think about that. Do you
want me now to think about that, My Lord? Id just taken hocus bolus everything
to do with the Mr. Big, but I hadnt separ -- pieced out the conversation with
the brother.

Q         If you assume for the moment -- I'll ask you
to make this assumption -- that the dynamics of a private conversation between
Mr. McDonald and his brother Jeremiah lies outside the inducements to, as you
put it, amp up criminal propensity in the context of the Mr. Big, while in
the presence of the undercover officers, if you assume that, then does the
inclusion of this intercept as part of the factual matrix underlying your
opinion change your opinion from what you testified to either earlier today or
in your report?

A          Just one point of clarification. I should
also assume the Taati incident several months earlier did occur, even though no
charges were forthcoming?

Q         I would ask you to make that assumption as
well.

A          Right. Then, the best way I can answer it is
-- is my opinion is affected somewhere half way between my original testimony
and before I was asked in cross-examination to exclude the Mr. Big.
When I
say half way, in terms of diminishing the confidence regarding the effects of
time and age on Mr. McDonald and his personality, because now Id have removed
your comments, but I would have this information, that is this phone call, that
does at least provide some information of the continuity of antisocial
attitudes, in [indiscernible] with violence, at the time when he was making
this phone call. Without an interview to explore the details, the context, its
very difficult for me to say much more than that.

[Emphasis
added.]

[129]

The judge assessed the issue of Mr. McDonalds age in the context of the
pattern of repetitive behaviour:

[314]    With respect to s. 753(1)(a)(i),
Mr. McDonald has displayed a long-standing and entrenched pattern of
repetitive behaviour showing a failure of behavioural restraint and a
likelihood that he will act similarly in the future such as to constitute a
threat to the life, safety or physical well-being of others.  Actuarial
and clinical risk measures put him in the moderate or moderate/high risk of
re-offence.  Mr. McDonalds capacity and preparedness to respond with
violence to stressors that are likely to arise again is not something in the
distant past.  In 2003, he committed an offence of brutal violence
involving use of the sledgehammer that took the life of Mr. Wilton.
 In 2011, he armed himself with a pickaxe and threatened to kill
Mr. Taati.  His antisocial attitudes continue as evidenced by his
conversation with Jeremiah.
The threat Mr. McDonald poses is not
only current; there is no evidence it is abating with age
.

[315]    With respect to s. 753(1)(a)(ii), the two
homicides forming the pattern both demonstrate a substantial degree of
indifference on Mr. McDonalds part to the reasonably foreseeable
consequences to others of his conduct.  The behaviour, and the
indifference to life that characterizes it, is enduring.  The same
indifference to human life emerged 22 years after the predicate offence.
 It is remarkable that, knowing he had already killed one person,
Mr. McDonald intentionally killed a second person and displayed no
appreciation of, or remorse for, what he had done.  As reflected in the
expert evidence before me, his risk factors are well-entrenched and he likely
needs little provocation to commit a future violent act.  Even weighing the
expert evidence in a way that takes account of the considerations set out in
paras. 296

303, I am
satisfied the evidence establishes that the risk of him doing so is, by both
clinical and actuarial measures, in the moderate to moderate/high range.
 In short, I have before me a person who has displayed persistent
disregard for human life.
The 2003 homicide establishes that
Mr. McDonalds capacity for violence has not diminished with age.
 His risk factors are enduring, untreated, and, on the evidence before me,
likely to be acted on in the future.

[Emphasis added.]

[130]

In my
opinion, the judge did not err in his conclusions that age was not reducing Mr.
McDonalds likelihood of re-offending and his capacity for future violence. The
judge heard days of testimony from the experts. To varying degrees, both
experts considered Mr.

McDonald to be a meaningful
risk for future offending despite his age, his time in custody and his need for
treatment. The judge was, in my view, entitled to conclude as he did.

(v)  Lower Risk for Offenders Post-Treatment

[131]

Finally,
the appellant says that recidivism rates are significantly lower for offenders
who engage in treatment during custodial sentences. He points to statements
from each doctor that suggest, in general terms, that completion of violent
offender programming can reduce the risk of recidivism for offenders.

[132]

I note
that while the appellant advances this argument as it relates to his larger
point that the dangerous offender designation was not reasonably supported by
the evidence, the judge addressed the substance of this argument in his
discussion of whether there was a reasonable possibility of eventual control of
risk in the community (see paras. 317323). This makes sense; the appellants
submission focuses on how treatment affects risk.

[133]

In my
view, the general statements to which Mr. McDonald refers do not aid him. The
question before the judge was whether
Mr. McDonald
was likely to
reoffend in a manner consistent with the patterns set out in ss. 753(a)(1)(i)
and (ii). In this regard, the weight of the evidence bore against the
conclusion Mr. McDonald urges on this court.

[134]

I conclude
that, in light of the specificity of the question before the judge, the
generality of the appellants submission results in two fatal deficiencies, one
related to each doctor.

[135]

Dr.
Lohrasbes agreement in cross-examination that treatment could reduce Mr.
McDonalds risk was expressly contingent upon proof that the effects of aging
further diminished other relevant risk factors and Mr. McDonalds genuine
participation in the programs. He had neither. I have already addressed the judges
findings with aging above and found them to be without error.

[136]

With
respect to the genuine participation, the judge specifically acknowledged Dr.
Lohrasbes observation that it was difficult to imagine that Mr. McDonald, in
middle age, had become motivated to participate in treatment and effect the
transformation required to reduce his risk. Dr. Lohrasbes report stated that the
kind of effort that would be required from Mr. McDonald meant that simply plugging
him into available programs could not be relied upon to reduce risk.

[137]

Dr. Lohrasbe concluded, and the judge accepted, that:

[323]     [T]here are no good
reasons to conclude that there is a realistic possibility that available
treatment programs can lower his risk to an acceptable level (that is, to the
point that risk can be managed in the community) in the foreseeable
future".

[138]

Turning
now to Dr. Schweighofers evidence, I observe that in relying on his statement
that some violent offender programming has been shown to reduce risk in some
individuals, the appellant ignores the more specific statements the doctor made
about Mr. McDonald. These include: that Mr. McDonalds dynamic risk factors
were unlikely to change simply due to good wishes, but rather require
significant and sustained effort; that his history was markedly lacking in
indication he is motivated; and that his high Factor 1 score on the PCL-R and
interpersonal style would likely undermine the chances of successful
treatment.

[139]

The judge summarized his evaluation of the version of Dr. Schweighofers
evidence that was most favourable to the appellant at para. 323:

I have closely examined
Dr. Schweighofer's opinion that Mr. McDonald is at least moderately
likely to engage in and benefit from treatment, together with his related
opinion that the possibility of controlling his risk in the community is
moderate.  Some of the evidence upon which that opinion is based is set
out in para. 212. Collectively, that evidence goes no further than
justifying some reason for hope that if a number of contingencies are met and
Mr. McDonald takes the right fork in the road at each critical juncture,
his risk can be reduced to an acceptable level.  Given the scant
evidentiary foundation upon which Dr. Schweighofer's more optimistic
appraisal of treatment prospects rests, I am not able to give his evidence any
weight on this point.

[140]

These observations,
together with the judge general recognition of Mr.

McDonalds
generally poor response to previous periods of community supervision and the
lack of evidence surrounding his motivation to participate at all, lead me to
conclude the appellant has not demonstrated error on the judges part.

[141]

In
conclusion, I would not accede to this ground of appeal.

C.       No Reasonable Possibility of Eventual Control of Risk in the
Community

[142]

Mr. McDonald contends the judge erred in four ways in finding that there
was no reasonable prospect of managing his risk in the community (in addition
to alleging again the error in respect of the effects of aging):

(1)      by relying on the Mr.
Big evidence to assess treatment prospects;

(2)      by
relying on Dr. Lohrasbes opinion with respect to Mr. McDonalds motivation to
participate in treatment;

(3)      contrary
to the judges finding that little is known about Mr. McDonalds criminogenic
risk factors, both Dr. Schweighofer and Dr. Lohrasbe analyzed the crime cycle
and risk factors; and

(4)      by
relying on Mr. McDonalds poor response to previous periods of community
supervision.

[143]

In my
opinion, the appellants arguments under this ground of appeal amount to an
invitation for this Court to re-examine and re-weigh the evidence before the
judge and come to a different conclusion.

[144]

As to the
alleged improper use of the Mr. Big evidence it is, as the Crown submits, an
attack on the judges finding of fact that the evidence of the appellants
participation in and conduct during the Mr. Big operation was reliable. The
passages I have earlier referred to demonstrate that the judge was alive to the
fact that Mr.

McDonald is an embellisher
and known to invent stories about his past. Furthermore, the judge was acutely
aware of the unique context of Mr. Big investigations and obvious concerns
about the reliability of evidence elicited in such operations.

[145]

It is
clear the judge treated the Mr. Big evidence with great caution. Significantly,
he considered the confirmatory effect of character displayed by Mr.

McDonald in his conversation with his brother Jeremiah
(in the absence of the Mr.

Big operators)
following the abduction of the fictional debtor, and Mr. McDonalds attitude
toward violence as displayed in the incident involving Mr. Taati (also outside
the ambit of the Mr. Big operation).

[146]

In my
opinion, the judge did not err in finding the limited Mr. Big evidence to be a
reliable indicator of Mr. McDonalds treatment prospects. He closely examined
the evidence in the context of the evidence as a whole to determine its
reliability. He made no use of the evidence, for any purpose that adverted to
past acts involving violent or antisocial behaviour, or to unproven information,
or to uncharged acts Mr.

McDonald related
to the primary. In short, the judge was alive to the inherent dangers of the
Mr. Big evidence, and submitted it to a thorough reliability examination. To
the extent it was prejudicial, it was nonetheless highly probative of the
question of the risk Mr. McDonald poses to the community.

[147]

I also note
the judge would have come to the same conclusion on this point without placing
any reliance on any of the Mr. Big evidence (at para. 324).

[148]

Mr.
McDonald next criticizes the judge for relying on Dr. Lohrasbes opinion that
it was difficult to imagine the emergence, in middle age, of a sustained
motivation on Mr. McDonalds part to participate in treatment programs and
transform himself on the multiple levels that would be required to reduce his
risk to an acceptable level.

[149]

Mr.
McDonald contends the judge should have accepted Dr. Schweighofers evidence
that offenders often have limited motivation at the outset of incarceration but
that issues such as motivation can be addressed in the treatment process. Dr.

Schweighofer nonetheless expressed the view that,
in Mr. McDonalds case, lack of motivation is a real concern.

[150]

It was
open to the judge to prefer the evidence of Dr. Lohrasbe on this issue. In the
context of this offender, who had demonstrated no real acceptance of
responsibility or motivation to change despite two homicides, the judges
conclusion was not unreasonable.

[151]

As to Mr.
McDonalds criminogenic risk factors, I find no error in the judges statement
that little was known about them. It is true that both Dr.

Lohrasbe
and Dr.

Schweighofer examined them.
However, Dr. Lohrasbe was unable to find a crime cycle. There was a common
triggering feature of frustration in both killings but Dr. Lohrasbe said that meant
little in terms of crime cycle. Dr.

Schweighofer
did find some evidence of offence dynamics in the three offences, but without
an interview of Mr.

McDonald, he could not
say what exactly fuels Mr. McDonalds anger.

[152]

Lastly,
Mr. McDonald says the judge relied on his poor response to previous periods of
community supervision. Mr. McDonald contends that Dr. Schweighofers opinion about
the realistic chance of managing that poor response in treatment is inconsistent
with that conclusion. Once again, however, the judge was entitled to give that
evidence the weight it deserved, especially in light of the contingent nature
of Dr. Schweighofers conclusion and the scant evidentiary foundation upon
which it rested.

[153]

In my
view, this ground of appeal does not warrant appellate intervention.

CONCLUSION

[154]

From all
of the foregoing, it is clear that, from the very outset of this dangerous
offender proceeding, the judge was acutely aware of the potential risks that
the Mr. Big evidence might have on the fashioning of the appropriate sentence.

[155]

Part of the
complexity of this case arises from counsels mutual decision  despite being
made aware of those risks  not to accept the judges invitation to apply for
directions regarding the information to be provided to the assessors. In the
future, I would encourage counsel to diligently avail themselves of the courts
guidance should they find themselves in a similar situation.

[156]

In my
opinion, the judge conducted his analysis with extreme care and caution. I can
see no error in his approach. Indeed, I consider his decision to be entirely
reasonable.

[157]

It follows that I would dismiss the appeal from the designation of Mr.

McDonald as a dangerous offender subject to an
indeterminate sentence.

The Honourable Madam Justice Kirkpatrick

I AGREE:

The
Honourable Mr. Justice Savage

I AGREE:

The Honourable Madam Justice
Dickson