COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Awasis,

2020 BCCA 23

Date: 20200124

Docket: CA44011

Between:

Regina

Respondent

And

Johnny Wilfred
Troy Awasis

Appellant

Restriction
on publication:  A publication ban has been imposed under
ss. 486.4(1) and 486.4(2) of the
Criminal Code
restricting
publication, broadcasting
or transmission in any way of any information that could identify the
complainants
or a witness. This publication ban applies indefinitely unless otherwise
ordered.

Before:

The Honourable Mr. Justice Groberman

The Honourable Madam Justice Fisher

The Honourable Mr. Justice Abrioux

On appeal from:  An
order of the Provincial Court of British Columbia, dated
June 30, 2016 (
R. v. Awasis
, Vancouver Docket 221359).

Counsel for the Appellant:

H. Patey

Counsel for the Respondent:

S.E. Elliott

Place and Date of Hearing:

Vancouver, British
  Columbia

October 2, 2019

Place and Date of Judgment:

Vancouver, British
  Columbia

January 24, 2020

Written Reasons by:

The Honourable Madam Justice Fisher

Concurred in by:

The Honourable Mr. Justice Groberman

The Honourable Mr. Justice Abrioux

Table of Contents

Paragraph

The index offences

[4]

The appellants background

[7]

Family
  and social history

[7]

Criminal history

[14]

Psychological assessments and treatment history

[23]

Current psychological assessments

[29]

Dr. Rakesh
  Lamba

[29]

Dr. Todd Tomita

[44]

Gladue report

[57]

The dangerous offender proceedings

[61]

The dangerous offender statutory regime

[65]

Designation

[67]

Sentencing

[71]

Standard of review

[74]

Grounds of Appeal

[77]

Application to admit fresh evidence

[79]

The test

[82]

The fresh evidence

[84]

Discussion

[87]

The decision below

[92]

Analysis

[104]

1.
  Did the judge fail to take into account evidence of the appellants
  treatability?

[104]

Designation

[107]

Sentencing

[113]

2. Did the judge fail to give tangible effect to Gladue factors in
  determining sentence?

[120]

3. Is the indeterminate sentence manifestly unfit?

[136]

Disposition

[137]

Summary:

The appellant
was designated a dangerous offender and sentenced to an indeterminate term of
imprisonment after convictions for two sexual offences. He appeals his
designation and sentence on the basis that the judge (1) failed to take into
account evidence of his treatability at both the designation and sentencing stages
of the dangerous offender proceedings, and (2) failed to give tangible effect
to his Gladue factors in determining his sentence. He contends that these
failures resulted in an erroneous elevation of his moral culpability and a
disproportionate sentence. He seeks to adduce fresh evidence to support his
grounds of appeal.

Held: Appeal
dismissed. While it is not clear that the appellants treatability was
considered at the designation stage, a finding of dangerousness was inevitable.
In determining sentence, it was open to the judge to conclude that the
appellants risk could not be managed in the community so as to adequately
protect the public. Similarly, her determination that public protection was
paramount despite the appellants Gladue factors, which reduced his moral
blameworthiness, was supported by the evidence. The fresh evidence cannot
reasonably be expected to have affected the result and is inadmissible.

Reasons for Judgment of the Honourable
Madam Justice Fisher:

[1]

The appellant, Johnny Awasis, was designated a dangerous offender and
sentenced to an indeterminate term of imprisonment after convictions for two
sexual offences. In this appeal, he seeks to set aside this designation and sentence
and replace the indeterminate term with a fixed term of ten years, or
alternatively, a fixed term of ten years to be followed by a period of long-term
supervision. He submits that an indeterminate sentence is grossly
disproportionate to his moral culpability and manifestly unfit.

[2]

The appellant is a 38-year-old Aboriginal offender with an unfortunate,
tragic background. His involvement with the criminal justice system began at
age 13 and has continued unabated, with repetitive violent and sexual
reoffending while in the community. He has severe addictions to alcohol and
drugs, has suffered trauma that includes sexual abuse, and has been diagnosed
with severe personality disorder, all of which have contributed to the risk he
poses to public safety.

[3]

Despite the tragedy of the appellants circumstances, it is my view that
the sentencing judges determinations in this case were reasonable, and for the
reasons that follow, I would dismiss the appeal.

The index
offences

[4]

The appellant was charged with two sexual offences that took place
within a short period of time in August 2011. He was convicted of both offences
on December 20, 2012 after a trial in Provincial Court.

[5]

The first charge was sexual assault arising from an incident in the
early morning hours of August 9, 2011 involving a sex trade worker, T.L. The
appellant hired T.L. to perform a sexual service for him and they went into an
alley. When T.L. asked for money, the appellant put one hand over her mouth,
the other on the back of her head, and threatened to kill her if she made any
noise. He told her to lie down in the alley but T.L. convinced him to allow her
to fellate him, which she did. The appellant stopped before he ejaculated and
walked away.

[6]

The second charge was sexual assault with a weapon arising from an
incident on August 31, 2011. The victim, D.B., was also a sex trade worker but
she was not working on the night of the incident. At about 2:00 a.m., D.B. went
into an alley to urinate. She stood up to find the appellant in front of her
with his penis exposed, sheathed in a condom. He called her names and demanded
that she fellate him. As she was about to comply, the appellant said, Im
going to turn you around, pull your pants down and fuck you up the ass, then
Im going to cut your throat. He produced a 10-inch knife and held it against
her throat. D.B. saw the lights of a van in the lane and tried to wave and yell
for help but the appellant attacked her with the knife. Fortunately, she
managed to escape to the van and was assisted by its occupants.

The appellants background

Family and social history

[7]

The appellants background can be gleaned from the reasons for sentence
and various reports, including a
Gladue
report, which were before the
sentencing judge.

[8]

The appellant is an Indigenous man with a very unfortunate background.
He was 35 years old when he was sentenced in June 2016, and is now 38 years
old. His parents and grandparents were survivors of the residential school
system.

[9]

His mother, Bertha Johnny, is a member of the Anaham First Nation. She
was sexually assaulted by a priest at residential school and became pregnant,
giving birth to a child at the age of 13. The child was eventually surrendered
to social services and Ms. Johnny left her community for Vancouver. There,
she had two more children, each with different fathers. Ms. Johnny was addicted
to alcohol and lived on the street. In that context she met Wilfred Awasis, who
she described as a violent alcoholic, and had four children with him. The
appellant is the second born of those children. Wilfred Awasis was a member of
the Thunderchild Cree First Nation in Saskatchewan.

[10]

The appellants childhood was marked by terrible instability as a result
of his parents substance abuse, neglect and violence. The family lived for a
time in British Columbia on the Anaham Reserve and then in Saskatchewan on the
Thunderchild Reserve, but the appellant grew up primarily in the Downtown
Eastside of Vancouver with little awareness of his Indigenous culture. Due to
his parents alcoholism, he and his siblings were often left alone for days or
weeks at a time. When the appellant was six years old, his father was incarcerated
and his mother decided to return to British Columbia from Saskatchewan, leaving
the appellant in the care of an aunt. When his mother did not return to
retrieve him after about a month, the aunt took the appellant to a residential
school where he stayed for approximately seven months. While the appellant was
at the school, he was emotionally, physically and sexually abused.

[11]

The appellant would have been seven years old when his mother took him
out of the residential school and back to Vancouver. Unfortunately, the pattern
of neglect continued. The appellant and his siblings were repeatedly
apprehended by the Ministry of Children and Family Development of the time. The
appellant was returned to his mother on numerous occasions but finally left on
his own at age 18. He had difficulties in school due to this instability as
well as some learning disabilities, but he did manage to advance in alternative
programs until approximately grade eight.

[12]

The appellant began using alcohol and other drugs at an early age,
consuming marijuana at age 10 and alcohol and cocaine at age 12. He entered the
youth criminal justice system at age 13. By age 18, he was living in a drug
house and supporting his cocaine consumption by dealing drugs and breaking and
entering vehicles. This pattern continued into adulthood and he had almost no
legitimate employment history. As an adult, his drug use also included heroin,
crystal methamphetamine and psilocybin mushrooms.

[13]

The appellant fathered a child in 2005 with a partner who also struggled
with addiction, and the child was taken into care at a very early age. The
appellant was convicted of assaulting his partner in 2005.

Criminal history

[14]

The appellant has a serious, long-term criminal history.

[15]

His youth record began in 1994 at age 13, as indicated above, with
convictions for serious offences: assault and extortion (1994); robbery and
theft under $5,000 (1995); escape lawful custody (1996); break and enter,
attempted theft over $5,000, unlawfully at large and theft under $5,000 (1997);
and mischief and assaulting a peace officer (1998). During this time, the
appellant was offered numerous opportunities to participate in community-based
programs, wilderness camps and group homes, some Aboriginal-based, but in each
case he either failed to show up or simply left after a short period of time.

[16]

His adult record began in 2001 and continued into 2011, interrupted by
periods of incarceration. His offences include: possession of a scheduled
substance, theft under $5,000, robbery and possession of a scheduled substance
for the purpose of trafficking (2001); robbery, possession of a weapon and failure
to attend court (2003); assault (x3), mischief, breach of probation (x2),
possession of a scheduled substance and theft under $5,000 (2005); theft under
$5,000 and sexual assault (2006); breaches of probation and theft under $5,000 (2007);
breach of probation and robbery (2009); and unlawfully at large and uttering
threats (2011).

[17]

The sexual assault conviction in 2006 was a serious offence. The
appellant, then 24 years old, met the 15-year-old victim with a group of
friends. Both were intoxicated. The appellant followed the victim home,
eventually taking her into an alley and dragging her into a carport. He told
her he had a knife (but did not produce one), covered her face with his hand
and choked her. He threatened Im going to fuck you in the ass and as she
struggled, he punched her several times. The attack ended when police arrived,
having responded to a 911 call from a neighbour. The victim was physically
injured and the event was terrifying.

[18]

The appellant pleaded guilty to this offence and in December 2006 received
a sentence of 19 months (which amounted to time served plus one day at the time
of sentence) and two years probation. By this time, he had accrued 16
convictions as an adult, and his criminal conduct continued. In two years of
probation, he breached the probation order seven times by either consuming
intoxicants or failing to report. He was also convicted of theft under $5,000
and of breaching court orders. His pattern throughout this period involved days
or weeks in custody between committing new offences.

[19]

The robbery offence, for which the appellant received his first federal
sentence, was committed in April 2009 after he had been out of jail for only a
week and subject to a probation order. He was sentenced in July 2009 to two
years (in addition to pre-sentence custody of 3.5 months). The judge
acknowledged the appellants stated wish to address his criminality and attend
a First Nations facility but noted that he had expressed the same wishes after
his 2006 conviction and taken no treatment or counselling. His appeal from that
sentence was dismissed (indexed as 2010 BCCA 213), with this court observing (at
para. 11) that the appellant had never made any genuine attempt at
treatment for his substance abuse problems and his actions in committing this
offence showed a high degree of awareness and deliberateness that could not be
attributed solely to drunkenness.

[20]

In November 2010, the appellant was released on parole to the Circle of
Eagles, a halfway house in Vancouver that focuses on Indigenous culture and
provides spiritual counselling by Elders. However, his parole was almost
immediately revoked when he left the halfway house within an hour of his
arrival. His parole was revoked or suspended again after a second release to
Belkin House in May 2011 and a third release back to Circle of Eagles in June
2011. In the latter two suspensions, the appellant was found intoxicated at the
time of his arrest. He was finally released at the end of July 2011 at his
warrant expiry.

[21]

On August 8, 2011, within ten days of this release, the appellant
threatened a female employee at a social services office after being told that
he would not be able to complete a full intake meeting.

[22]

The first index offence was committed the following day, August 9, 2011,
and the second on August 31, 2011. The appellant was arrested for these
offences on September 3, 2011 and has remained in custody since.

Psychological
assessments and treatment history

[23]

The appellant was first assessed by a psychologist in October 1994 after
his initial entry into the youth system at age 13. In a November 1994 report, Dr. Louise
Sturgess described the appellant as presenting with borderline intellectual
functioning, poor reading skills, moderate to severe conduct disorder, a severe
problem with substance abuse, and an entrenched pattern of antisocial
behaviours. She stated a concern that the appellants aggressivity seemed to
be escalating, he was out of control and gave no indication that he was able
to experience empathy for his victims. She described the appellant as a child
who never had a chance.

[24]

Attempts to supervise and assist the appellant in the community over the
following five years were unsuccessful. His pattern was to express interest in
taking advantage of programming offered but would fail to attend on any regular
basis. As described by his youth probation officer during this period, he just
couldnt follow through with anything. By 2006, despite what appeared to have
been earnest intentions to address his substance abuse and attend sex offender
treatment, the appellant did not do well while under supervision following his
sexual assault conviction, as I have described above.

[25]

The appellant was next assessed in 2009 while serving his first federal
sentence for robbery. By this time, he was 28 years old. Caroline Buckshot, an Aboriginal
Elder employed by Corrections Canada, developed a healing plan, and Dr. Heather
Burke, a psychologist, conducted a sex offender risk assessment.

[26]

Ms. Buckshots healing plan included commitments by the appellant
to abstain from the use of intoxicants, participate in counselling to address
his substance abuse and dysfunctional childhood, maintain a connection with his
Indigenous heritage, upgrade his education, accept responsibility for his
criminal behaviour, and be honest with his case management team. Before the
appellant committed to this healing plan, Ms. Buckshot warned him of the
potential negative consequences for his parole if he failed to follow it.

[27]

Dr. Burke assessed the appellant at a high risk for sexual and
violent recidivism, including spousal violence, and recommended high intensity sex
offender programming as well as programming for violence and substance abuse.

[28]

During his time in federal custody, the appellant did not participate in
any treatment, including sex offender treatment, but he did pursue education
and skills training. He was out of custody for only a month before he was
arrested on September 3, 2011 for the index offences.

Current psychological
assessments

Dr. Rakesh Lamba

[29]

In August and September 2013, Dr. Rakesh Lamba conducted a court
ordered assessment of the appellant pursuant to s. 752.1(1) of the
Criminal
Code
.

[30]

In conducting his assessment, Dr. Lamba reviewed a voluminous
amount of material, interviewed the appellant extensively, and administered
various risk assessment instruments.

[31]

Dr. Lamba did not find that the appellant met the full criteria for
any major mental disorder but recognized by the appellants self report that he
had some features of post-traumatic stress disorder (PTSD) related to traumatic
events in his life. The self report included disclosure, apparently for the
first time, that the appellant had been sexually victimized as a child while at
residential school.

[32]

Dr. Lamba did find that the appellant met the criteria for
poly-substance abuse and dependence that included the use of cocaine, crystal
methamphetamine and alcohol.

[33]

With respect to the appellants intellectual functioning, Dr. Lamba
noted in his report that tests done in the appellants youth estimated his
intelligence at a borderline functioning level, with a mid-school or lower
level of achievement at different times. At the onset of his sentence, the
appellant was noted to have a possible learning disability as well, but was
nonetheless able to successfully complete without much difficulty a GED with
one course short of a Dogwood high school diploma. As to the source of these
cognitive difficulties, Dr. Lamba stated:

He also has a self-reported
problem with attention deficit hyperactivity both as a child and as an adult.
It is not clear whether the borderline intellectual development, possible
learning disorder and attention deficit hyperactivity problems are all features
encompassing the complex behavioral/cognitive syndrome associated with in-utero
exposure to alcohol. Such a cluster of problems however is not uncommon simply
with severe anti-social personality disorder. His reports of his mother having
consumed alcohol in her pregnancy for him are unconfirmed. A diagnosis of Fetal
Alcohol Syndrome or Fetal Alcohol Effect can be considered by [
sic
] not
made confidently (due to overlapping manifestations with other conditions and
similar co-morbidities as well as secondary effects).

[34]

His primary diagnosis for the appellant was severe anti-social
personality disorder, which began with his persistent conduct disorder from an
early age of development. In his testimony, he explained why he preferred a
diagnosis of anti-social personality disorder over fetal alcohol spectrum
disorder or effect syndrome (FASD) as follows:

In some
ways its quite academic. What we have is  what we have is a  not all
situations but this is  well, we can call it fetal alcohol effect syndrome and
note that this person is impulsive, prone to boredom, needs stimulation,
involved with the law and et [
sic
] cetera. Or we can say this  by the
time these individuals have grown up and shown this pattern for [
sic
]
lifetime or substantial portions of their life, that this is now a personality
disorder

Fifty, 60,
70 percent of fetal alcohol syndrome children will have been diagnosed as
conduct disorder which is a precursor to the antisocial personality disorder.

[35]

Dr. Lamba acknowledged that the appellant had a probable FASD
diagnosis, but maintained his view that there were significant overlapping manifestations
between FASD and anti-social personality disorder.

[36]

Dr. Lamba assessed the appellant at a moderate to high risk for
violent and sexual recidivism. He noted that psychopathy is strongly related to
future violent behaviour, and that the appellant possessed a significantly high
number of psychopathic traits. His opinion was that the appellants risk was
strongly tied in with his anti-social personality, anti-social lifestyle and
associates, and drug and alcohol use. It was not clear to him that the
appellant suffered from a deviant sexual arousal pattern, and he saw the
appellants sexual violence as part of a general pattern of anti-sociality and
violence that was so characteristic of him, in all spheres of his interpersonal
interactions.

[37]

Regarding future risk, Dr. Lamba opined:

In terms of future risk, I would
suggest that the risk scenarios are likely to be similar to the past; he is
likely to very quickly return to his life style of being on the streets,
downtown Vancouver, using drugs and selling/steering drugs. In this context he
is likely at high risk for physical violence, both because of the direct result
of the stimulant drugs he tends to abuse, and the context, activities as well
as the associates he is likely to be involved with. Also under such
circumstances, he is likely to target a vulnerable woman, sex trade worker or
otherwise, in an opportunistic manner, for sexual gratification.

[38]

Dr. Lamba also opined that the appellants anti-social personality
and drug abuse/dependence were the primary criminogenic factors for both non-sexual
and sexual violent recidivism and that he may have other as yet
unknown/unexplored cognitive distortions that promote sexual offending in the
way of non-consensual sex. He did not believe that mood fluctuations, day to
day stressors and anxiety symptoms, including PTSD symptoms, were criminogenic
factors but were indirectly relevant to the extent that they may contribute to
substance abuse. Similarly, he did not believe that a history of sexual abuse
was a criminogenic factor, insofar as it related to sexual recidivism.

[39]

Regarding treatment, Dr. Lamba was of the view that the appellant
needed treatment in the areas of substance abuse, violent offending and sexual
offending. He did not think the appellant had learning or attention problems
that could impede his ability to learn and participate but was uncertain if he
could apply the teachings to his life and overcome his entrenched anti-social
personality traits and drug abuse behaviours. He stated that treatment programs
for personality disorder are at best modestly helpful in certain individuals
to diminish and contain their behaviours and [t]he best that can be said
after decades of research on sex offender treatment programs is that they may
have a modest trend in the positive direction, noting that [t]here is no
good evidence to show clear effectiveness of cognitive‑behavioral/ relapse
prevention based treatment.

[40]

Dr. Lamba was asked about the appellants treatment prognosis and
ability to manage his risk to reoffend if he were to complete the Integrated
Correctional Program Modules offered in federal custody. He said the
appellants personality disorder was quite entrenched, quite longstanding,
adding:

In fact,
he hasnt had a significant period of pro-social functioning in his lifeHe
hasnt shown a high degree of cooperation with treatment programs in the past.
He hasnt shown motivation to participate in the programs in the past. Now he
says he is motivated and wants to complete. He has, in the past, said so as
well but not followed up. So it really remains to be seen if he does
participate, does complete, participate in a way that is conducive to his
learning, and then to see whether these  what changes he does make are
enduring.

[41]

He agreed that the appellants treatment prognosis was not very good considering
his historical case-specific factors and the general ineffectiveness of treating
severe personality disorders.

[42]

Given the appellants dismal record on community supervision, Dr. Lamba
was of the view that it was unlikely his entrenched lifelong pattern would
change in the foreseeable future. He found the number of times the appellant
had not taken treatment that was offered or required to be significant as a
repeated pattern that showed a lack of motivation. That said, he found that the
appellant had some insight and may have honestly wanted to change his lifestyle
but concluded that it would be very hard for him to actually do it in light of
the fact that he was so entrenched in the opposite pattern.

[43]

Dr. Lamba was not confident that the appellants risk could be
mitigated by a geographical transplant. He agreed that releasing the
appellant to the Downtown Eastside in Vancouver, where he had a pre-existing
antisocial peer group, made him more readily a risk. However, his view was that
it would not be an easy, direct, simple correlation to move the appellant
somewhere else and expect a reduction in his risk of reoffending given his
personality and the extent of his substance abuse problems:

It might be a
question of time, that he is drawn to the antisocial peer group in a new
community. It may just be a question of time. It may not be the matter of less
or more likelihood. It may be a matter of sooner or later.

Dr. Todd Tomita

[44]

In June 2014, Dr. Todd Tomita assessed the appellant at the request
of the defence. His opinion differed little from that of Dr. Lamba, save
for his opinion about the appellants motivation to take and complete treatment
programs.

[45]

Dr. Tomita was of the view that the appellants primary
risk-relevant psychiatric problems related to an anti-social personality
disorder (with a high level of psychopathic features) and addiction to alcohol,
cocaine and methamphetamine. While the appellant also had difficulties as a
result of his past traumatic history that included sexual victimization, it was
unclear how these experiences were relevant to his risk. He agreed with Dr. Lamba
that the appellants anti-social personality, rather than sexual deviance,
appeared to be the main driver of his sexual offending.

[46]

Dr. Tomita noted that the appellant may have problems related to fetal
alcohol effects that include attention deficit and other cognitive
difficulties but thought that they were likely mild in degree given his
successful completion of his GED. Assuming this was accurate, he thought that
the appellant would be able to participate in regular correctional programming
even if fetal alcohol effects were present. However, Dr. Tomita described
a two-fold challenge for the appellant:

He needs to learn how to contain
the maladaptive aspects of his personality disorder and how to control his
alcohol and drug addiction. This is likely to be challenging as he has
experienced problems related to both conditions across developmental periods
beginning in childhood and adolescence and continuing into adulthood up to the
present. Rather than a need for rehabilitation back to a stable baseline, Mr. Awasis
needs to create and maintain a new prosocial baseline. Given his history to
date, it is unlikely he will be able [
sic
] achieve this absent
professional supports and legal supervision. The difficult question is
forecasting the likelihood of achieving this with the realistically available
professional supports and legal supervision that is likely to be available.

[47]

Dr. Tomita assessed the appellant at a high risk for future
non-sexual and sexual violence. He thought both forms of violence would most
likely occur in a similar scenario as the appellants past offending, in the
midst of an unstable lifestyle marked by alcohol and drug use, involvement in
the drug trade, and contact with other substance users.

[48]

Regarding treatability, Dr. Tomita was somewhat more optimistic
than Dr. Lamba. It was his impression that the appellant had become more
accepting of his need to address his addictions and make changes to his
lifestyle in order to avoid future crime. The challenge was trying to gauge the
appellants degree of internal motivation given his history of presenting in a
similar fashion and failing to follow through. Dr. Tomita had some degree
of confidence about the appellants positive motivation, for the following
reasons:

It appears that what is
significantly different this time is the severity of possible sanctions. In the
past, Mr. Awasis was sentenced to relatively short custodial sentences and
now faces the prospect of an indeterminate sentence. While the [
sic
] a
skeptic might conclude that Mr. Awasis is once again presenting with motivation
for treatment to avoid the most severe sanctions, it also appears that the
Dangerous Offender application has provided a clarity of purpose regarding what
he needs to do to avoid spending his adulthood in the penitentiary. Because of
this context, I would have a greater degree of confidence that his positive
motivation will be durable beyond the sentencing stage.

[49]

However, in his testimony, Dr. Tomita agreed that the appellant was
not stopped by the many life-threatening situations he faced in his past. He
also acknowledged that once the severity of the indeterminate sanction was
removed, there would be a reasonable likelihood that the appellant would go
back to where hes always been. That stated, he recognized that the true
measure of benefit would be changes in the appellants behaviour that would reduce
his risk, such as avoiding substance use and associating with peers who
reinforce his antisocial attitudes, and that this would be a difficult task for
him.

[50]

Dr. Tomita recommended high intensity sex offender treatment as
offered in the federal prison system, but was not able to forecast the
potential impact of this on the appellants future risk. He also recommended
substance abuse treatment and engagement in building a durable recovery plan.
He thought that successfully addressing the appellants addiction problem would
likely have a significant impact on reducing his risk since this was the linchpin
of the lifestyle that places him at the highest risk levels.

[51]

Dr. Tomita described the appellant as presenting with a moderate
level of treatability for his addiction problems and a lower level of
treatability for his sex offending. He testified that a number of factors were
to be considered regarding treatability for sex offending:

whether or
not someone will entertain the idea and be motivated to enter, whether they can
enter the program and actually finish it without being kicked out or evicted
and then, finally, whether theyre going to get benefit and benefit in a way
thats going to generalize and be meaningful with respect to risk.

[52]

Dr. Tomita thought that the appellant recognized that sex offender treatment
was something he needed to do and that he would likely enter a program. He also
thought that there was a reasonable possibility that the appellant would complete
a program. However, he did not know whether it would

make a meaningful difference in terms of the
impact generally and for that reason he was a bit cautious in saying high
level of treatability in this case.

[53]

According to Dr. Tomita, there would be no possibility of
successful community supervision unless the appellants positive motivation
endured and he had at least some degree of success managing his addiction
problems:

If he reverts back to his
antisocial and addiction oriented attitudes and lifestyle in prison and then in
the community, his risk will be unmanageable within the context of federal
parole resources even with special conditions in place. If his positive
motivation endures then one can assume some degree of positive treatment gain
and have more optimism regarding community supervision.

[54]

Dr. Tomita was realistic in describing how the appellants ability
to manage would likely fluctuate with relapses:

Even if he has some degree of
success in managing his addiction problems, Mr. Awasis is still likely to
have some degree of instability in the context of a federal parole release.
Given the severity of his addiction problems, it is readily foreseeable that he
is likely to shift between recovery and lapses back to alcohol and drug use. In
the context of federal parole supervision, he is likely to repeat the pattern
of community release followed by suspensions for drug and alcohol use. It is
unlikely that such brief usage will lead to the demoralized state where he is
most at risk of offending, particularly if he is making overall progress
towards positive goals.

[55]

This last comment was the subject of numerous questions in cross‑examination.
The essence of Dr. Tomitas opinion was that it was unlikely the appellant
would be problem free if released but he could be managed in the community
through supervision and inevitable suspensions. He said, with some back and
forth on a very long-term order, there may be a reality to eventual
stabilization because he will be supervised in a way where the sanctions
immediate. However, he also agreed that the appellants history suggested he
would almost certainly breach a long-term supervision order by drinking alcohol,
and that when he starts drinking, he reoffends very quickly, violently and
sexually.

[56]

Dr. Tomita described an optimistic scenario to be where
eventually the potential losses of gains will outweigh the immediate benefits
of consuming alcohol and drugs, and the pessimistic scenario to be simply
another repeated series of unsuccessful parole releases due to alcohol and drug
use. If release was considered, he opined that the best risk management
approach would be a long‑term supervision order of maximum duration. He
considered this to be a necessary measure to maintain control of the appellants
risk in the community.

Gladue
report

[57]

The sentencing judge had before her a
Gladue
report prepared by
Stuart Cadwallader in February 2013, which was updated in a report dated
February 14, 2015. The original report outlined the appellants very unfortunate
background, much of which I have referred to above. It also outlined
Gladue
considerations related to the people of the Tsilhqotin National Government (of
which his mothers First Nation, Anaham, is a part), including the legacy of
the residential school system and its intergenerational effects.

[58]

The reports noted that the appellant, not having been raised within his
First Nations culture, had little awareness of the language, culture or
traditional values of either the Tsilhqotin or the Thunderchild Cree First
Nation, and had few community supports. They provided a list of community and
institutional resources for the court to consider in addressing the appellants
needs and risk to the community, which included a community-based residential
facility and residential treatment programs for alcohol and drug addiction, all
based on Aboriginal principles.

[59]

Mr. Cadwallader suggested a type of release plan that would start
with the appellant participating in a number of Aboriginal community-based residential
treatment programs, first to connect him with Aboriginal values and
spirituality, and then to address his addictions and trauma, and would continue
with the appellant acquiring a trade. Mr. Cadwallader testified that it
was his profound hope that the appellant had the opportunity to participate
meaningfully with sex offender treatment offered both inside and outside the
institutional setting before being reintegrated into a community. He considered
the first step, in a camp situated north of Prince George, to be a stepping
stone that would allow the appellant to either succeed or fail, and the last
step to be a way to support himself in a meaningful way and to have some
successes in his life.

[60]

Mr. Cadwallader was aware that the appellant had not participated
in sex offender treatment offered to him in the past, despite appearing to be
initially motivated to do so, but he was not aware of the number of times the
appellant had failed to take advantage of programsmany Aboriginal-focusedthroughout
his youth and early adult life. He agreed that the appellant was not someone
who had fallen through the cracks in the system but had been offered many
resources in efforts to assist him to embrace traditional Aboriginal practices
and values.

The dangerous
offender proceedings

[61]

Following the appellants conviction of the index offences, the Crown
applied under s. 753(1)(a)(i) and (ii) and s. 753(1)(b) of the
Criminal
Code
to have him designated as a dangerous offender and sentenced to
indeterminate incarceration.

[62]

The appellant opposed the application on several grounds. While
he agreed that the index offences were serious personal injury offences
within the meaning of s. 752, he submitted that the Crown did not prove a
pattern of behaviour or a substantial degree of indifference as required by
s. 753(1)(a)(i) and (ii) or a failure to control his sexual impulses as
required by s. 753(1)(b).

[63]

The appellant sought a long-term offender declaration, a sentence
of eight to nine years (less time served), and a ten-year long-term supervision
order. His position was that the evidence demonstrated his treatability within
that period of time.

[64]

The dangerous offender proceedings occupied 15 days
between February 2, 2015 and June 1, 2016. The evidentiary record
before the court was extensive and included testimony from 14 witnesses. The
sentencing judge ultimately designated the appellant as a dangerous offender under
both s. 753(1)(a) and (b), and sentenced him to indeterminate incarceration.
Her assessment of the evidence is reviewed later in these reasons.

The dangerous
offender statutory regime

[65]

Part XXIV of the
Criminal Code
deals with dangerous and long-term
offenders. In order to be declared a dangerous offender, a person must be convicted
of a serious personal injury offence, defined in s. 752 as including:

(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
on another person,

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

(b)
an offence
or attempt to commit an offence mentioned in section 271 (sexual assault), 272
(sexual assault with a weapon, threats to a third party or causing bodily harm)
or 273 (aggravated sexual assault).

[66]

The dangerous offender scheme provides for a two-stage process. At the
first stage, the sentencing judge determines if the statutory criteria for a
dangerous offender designation have been satisfied. If they have, the judge
must make the designation. At the second stage, the judge determines whether to
impose an indeterminate sentence, a sentence of at least two years and a
long-term supervision order, or a sentence for the offence. Here, the judge has
discretion and must apply the principles of sentencing in ss. 753(4),
(4.1) and 718718.2 to impose a fit sentence:
R. v. Boutilier
, 2017 SCC
64 at para. 53.

Designation

[67]

Section 753(1) contemplates dangerousness from either violent or sexual
behaviour:

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

(a) that
the offence for which the offender has been convicted is a serious personal
injury offence described in paragraph (a) of the definition of that expression
in section 752 and the offender constitutes a threat to the life, safety or
physical or mental well-being of other persons on the basis of evidence
establishing

(i) a
pattern of repetitive behaviour by the offender, of which the offence for which
he or she has been convicted forms a part, showing a failure to restrain his or
her behaviour and a likelihood of causing death or injury to other persons, or
inflicting severe psychological damage on other persons, through failure in the
future to restrain his or her behaviour,

(ii) a
pattern of persistent aggressive behaviour by the offender, of which the
offence for which he or she has been convicted forms a part, showing a
substantial degree of indifference on the part of the offender respecting the
reasonably foreseeable consequences to other persons of his or her behaviour,
or

(iii)
any behaviour by the offender, associated with the offences 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

(b) that
the offence for which the offender has been convicted is a serious personal
injury offence described in paragraph (b) of the definition of that expression
in section 752 and the offender, by his or her conduct in any sexual matter
including that involved in the commission of the offence for which he or she
has been convicted, has shown a failure to control his or her sexual impulses
and a likelihood of causing injury, pain or other evil to other persons through
failure in the future to control his or her sexual impulses.

[68]

To obtain a designation of dangerousness resulting
from violent behaviour, the Crown must establish that the offender (1)
has been convicted of a serious personal injury offence, and (2)

represents a threat to the life, safety or
physical or mental well-being of other persons, based on evidence establishing
one of the violent patterns of conduct enumerated in s. 753(1)(a)(i), (ii),
or (iii):
Boutilier
at paras. 1719;
R. v. Malakpour
, 2018 BCCA 254 at para. 39
.
Under s. 753(1)(a)(i) and (ii)relied on by the Crown in this case
the Crown must establish
a pattern of repetitive behaviour by the appellant, of
which the index offences form a part, showing either (i) a failure to restrain his
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 behaviour, or (ii) a substantial degree of indifference by
the appellant respecting the reasonably foreseeable consequences to other
persons of his behaviour.

[69]

Similarly, to obtain a designation of dangerousness
resulting from sexual behaviour under s. 753(1)(b), the Crown must establish
that the offender (1) has been convicted of a serious personal injury offence,
and (2) has shown a failure to control his sexual impulses and a likelihood of
causing injury, pain or other evil to other persons through his failure in the
future to control his sexual impulses:
R. v. Currie
, [1997] 2
S.C.R. 260 at para. 20.

[70]

Integral to the designation stage is an assessment
of future risk. As the Supreme Court of Canada confirmed in
Boutilier
,
an offender cannot be designated as dangerous unless he is shown to present a
high likelihood of harmful recidivism and that his violent conduct is
intractable. Accordingly, a judge must conduct a prospective assessment of
dangerousnesswhich necessarily involves the consideration of future treatment
prospectsbefore designating an offender as dangerous:
Boutilier
at paras. 4546.
This requirement applies with equal force to designations under both s. 753(1)(a)
and (b):
R. v. Skookum
, 2018 YKCA 2 at para. 57.

Sentencing

[71]

Once an offender is designated a dangerous offender, the
proceedings move to the sentencing stage. The relevant provisions are ss. 753(4)
and (4.1):

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

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

(b) impose a
sentence for the offence for which the offender has been convicted  which must
be a minimum punishment of imprisonment for a term of two years  and order
that the offender be subject to long-term supervision for a period that does
not exceed 10 years; or

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

(4.1) The court shall impose a
sentence of detention in a penitentiary for an indeterminate period unless it
is satisfied by the evidence adduced during the hearing of the application that
there is a reasonable expectation that the lesser measure under paragraph 4(b)
or (c) will adequately protect the public against the commission by the offender
of murder or a serious personal injury offence.

[72]

Section 753(4.1) does not impose an onus, a rebuttable
presumption, or mandatory sentencing. Rather, indeterminate detention is one
sentencing option among others available under s. 753(4), limited to habitual
criminals who pose a tremendous risk to public safety:
Boutilier
at paras. 34,
58, 71 and 77. To properly exercise discretion under s. 753(4), the judge
must impose the least intrusive sentence required to reduce the public threat
posed by the offender
to an acceptable level:
Boutilier
at paras. 60 and 70. In doing so, the judge must
conduct
an individualized assessment of all relevant circumstances, and consider

the sentencing objectives and principles
set out in ss. 753(4), (4.1) and 718718.2, which include those developed
for Indigenous offenders:

Boutilier
at paras. 53, 63 and 71;
Malakpour
at para. 37;
R. v. Shanoss
, 2019 BCCA 249 at para. 30 [
Shanoss BCCA
]
.

[73]

At this stage, prospective evidence of treatability is
highly relevant. Evidence of treatability must be more than speculative hope and
must indicate that the offender can be treated within an ascertainable period
of time:
R. v. Little
, 2007 ONCA 548 at para. 42, leave to appeal
refd, [2008] S.C.C.A. No. 39. In the current scheme, the judge must be
satisfied that there is a reasonable expectation that the offenders risk can
be managed to an acceptable level in the community so as to protect the public.
Reasonable expectation refers to a belief that risk
will
be managed to
an acceptable level, as opposed to the mere possibility:
R. v. D.J.S.
,
2015 BCCA 111 at para. 30.

Standard of
review

[74]

An offender who is found to be a dangerous offender has the right to
appeal his designation and sentence
on any ground of law or
fact or mixed law and fact
: s. 759(1) of the
Criminal Code
;
R. v. Bragg
, 2015 BCCA 498 at para. 21. Absent any material error
of law, a dangerous offender designation is a question of fact and an appellate
court is to determine whether the designation was reasonable:
Boutilier
at
para. 85. Similarly, a determination as to risk and manageability in the
community is a question of fact to which deference is owed:
Boutilier
at
paras. 8688;
R. v. R.M.
,

2007 ONCA 872
at para. 53, leave to appeal refd, [2008] S.C.C.A. No. 91.

[75]

The standard of review was summarized by this court in
Malakpour
:

[47]      Appellate
review in this context is concerned with legal errors and whether the dangerous
offender designation was reasonable:
R. v. Currie
, [1997] 2
S.C.R. 260 at para. 33;
R. v. Sipos
, 2014 SCC
47 at para. 23;
Boutilier
at para. 85.
Appellate review of a dangerous offender designation is somewhat more robust
than regular appellate review of a sentence, but the appellate court must
still give deference to the sentencing judges findings of fact and
credibility. Thus, the standard of review for errors of law is correctness and
for errors of fact, reasonableness:
Sipos
at para. 26;
Boutilier
at
para. 81;
Bragg
at para. 22;
R. v. Walsh
, 2017
BCCA 195 at para. 23.

[76]

See also
R. v. Garnot
,
2019 BCCA 404 at para. 47.

Grounds of
Appeal

[77]

The appellant contends that the sentencing judge erred by (1) failing to
take into account evidence of a reasonable expectation of treatability at
either the designation or sentencing stage of the proceedings; (2) failing to
give any tangible effect to
Gladue
factors in determining sentence; and
(3) imposing a sentence that was manifestly unfit, being disproportionate to
the gravity of the offences and the moral culpability of the appellant.

[78]

In his factum, the appellant challenges only the imposition of an
indeterminate sentence, and while he focused on this in his oral submissions,
he submits that the issue of treatability is relevant to both the designation
of dangerous offender and the indeterminate sentence.

Application to
admit fresh evidence

[79]

In support of his appeal, the appellant applies to adduce fresh evidence
in the form of expert opinion from Dr. Roderick James Densmore. Dr. Densmores
report relates to the effect of a possible diagnosis of FASD on the appellants
ability to participate in treatment programs. The report attaches documents
reviewed by Dr. Densmore that include a decision pertaining to the
appellant under the Independent Assessment Process of the Indian Residential
Schools Adjudication Secretariat (IRSAS), a psychological assessment of the
appellant provided for the IRSAS Process, and a program performance report
pertaining to Mr. Awasis participation in federal Corrections programming
in recent years.

[80]

The appellant seeks to admit only Dr. Densmores report and the
IRSAS decision. He submits that both Dr. Lamba and Dr. Tomita were
misinformed about FASD and Dr. Densmores report sheds more light on the
issue of treatability. He also submits that the IRSAS decision is important
because it is not clear if the sentencing judge accepted his residential school
experiences.

[81]

The Crown objects to the admission of this evidence on the basis that Dr. Densmores
report is inadmissible as expert opinion and that none of the criteria required
for the admission of fresh evidence have been satisfied.

The test

[82]

The test to admit fresh evidence on appeal is well-established and set
out in
Palmer v. The Queen
(1979), [1980] 1 S.C.R. 759 at 775:

(1) The evidence should generally not be admitted if,
by due diligence, it could have been adduced at trial provided that this
general principle will not be applied as strictly in a criminal case as in
civil cases

(2) The evidence must be relevant in the sense that it
bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it
is reasonably capable of belief, and

(4) It must be such that if believed it could
reasonably, when taken with the other evidence adduced at trial, be expected to
have affected the result.

[83]

The overriding consideration is whether it is in the interests of
justice to receive the fresh evidence.

The fresh
evidence

[84]

Dr. Densmore conducted several tests on the appellant and diagnosed
him with a number of conditions, including PTSD, polysubstance/alcohol abuse
and dependence, depression and ADHD. He could not definitively diagnose the
appellant with FASD because he found significant impairment in only two (of
three required) domains of brain functioning. Despite the lack of a formal
diagnosis of FASD, Dr. Densmore opines that FASD-specific educational
adaptations would increase the appellants ability to learn from various
programs offered to him in prison. Using the acronym NURMU (non-compliant,
uncooperative, resistant, manipulative, unmotivated) to describe how people
with FASD are often viewed by others, he states that the appearance of such
behaviours tends to diminish or go away when accommodations are made for issues
such as impaired attention, suggestibility, sensory processing difficulties,
learning disabilities and attachment problems.

[85]

Dr. Densmore also opines that
treatment for the appellants PTSD and other mental health conditions would
improve his ability to benefit from institutional programs.

[86]

In the IRSAS decision, the adjudicator found that the appellant was
sexually assaulted by two adult employees and two older male students while
attending residential school and awarded compensation payable at a substantial
level.

Discussion

[87]

I would not admit the fresh evidence. In my view, Dr. Densmores
report is not sufficiently credible and neither the report nor the IRSAS
decision can reasonably be expected to have affected the result.

[88]

First, Dr. Densmores report does not acknowledge, nor does it
demonstrate, the authors duty to provide independent and impartial opinion.
From my reading of the report, this problem stems primarily from the facts that
form the basis for the opinion. I agree with the Crowns submission that Dr. Densmores
methodology was flawed. His opinion is based on representations of the
appellant, some that are inconsistent with the evidence at sentencing, as well
as a selective review of the documentary record. He also provides no references
to support a general scientific acceptance of the concept of NURMU and his
reliance on it.

[89]

Second, Dr. Densmores report does not add anything material to the
evidence regarding a possible FASD diagnosis for the appellant. This
information was before the court and considered by both Dr. Lamba and Dr. Tomita.
Dr. Lamba acknowledged that the appellant had a
probable
FASD
diagnosis but considered that there were significant overlapping manifestations
between FASD and anti-social personality disorder. Dr. Tomita also
acknowledged that the appellant may have had problems related to fetal alcohol
effects but thought that they were likely mild in degree given his successful
completion of his GED. The general information about FASD outlined in Dr. Densmores
report does not address in any meaningful way the question of the appellants
treatability or intractability as a result of his other significant problems,
most notably his anti-social personality disorder and substance abuse.

[90]

The IRSAS decision similarly does not add anything material to the
evidence, as the sentencing judge accepted that the appellant attended
residential school and suffered the indignities and abuses that came with it.
She also found that his experiences as an Aboriginal person contributed to his
personality and tendencies, such that his moral blameworthiness for the
criminal offences was diminished.

[91]

Accordingly, I am of the view that it is not in the interests of justice
to admit the fresh evidence. I would dismiss the application.

The decision
below

[92]

The reasons for sentence were issued June 30, 2016, before the Supreme
Court of Canada released
Boutilier
. Thus, the sentencing judge applied
the law as it stood at the time, as set out in this courts decisions in
R.
v. Boutilier
, 2016 BCCA 235 and
R. v. Pike
, 2010 BCCA 401, and
considered treatability to be relevant only at the sentencing stage. She
reviewed the required elements to establish a designation of dangerousness
under s. 753(1)(a)(i), (ii) and (b) and then turned to discuss what
constitutes a reasonable expectation that a measure less than an
indeterminate sentence will adequately protect the public:

[161]    A reasonable expectation is defined in
Regina
v. Taylor,
2012 ONSC 1025, at paragraph 356, as a confident belief for
good and sufficient reason based on the evidence. The Court must examine the
offenders treatability in determining this issue, which requires consideration
of both the offenders willingness to undertake treatment, and the prospects
otherwise of the success of that treatment in reducing the risk posed by the
offender to a manageable level.

[162]    Evidence of the treatability
of the offender must be more than an expression of hope and that indicates
that the specific offender can be treated within a definite period of time
(Regina
v. McCallum,
2005 O.J. No. 1178).

[93]

The judge referred to this courts decision in
Boutilier
, which
discussed the 2008 amendments to the dangerous and long-term offender
provisions, and referred (at para. 27) to the 2008 terminology of
presumptively requiring the imposition of an indeterminate sentence unless
there is a reasonable expectation that a lesser measure would adequately
protect the public. She also quoted rather extensively from
R. v. Haley
,
2016 BCSC 1144, which reviewed the principles then applicable to the
designation and sentencing stages of the process.

[94]

Additionally, the sentencing judge held that the principles in
R. v.
Gladue
, [1999] 1 S.C.R. 688 and
R. v. Ipeelee
, 2012 SCC 13 apply to
dangerous offender proceedings. She took guidance from the decision of Bruce J.
in
R. v. Shanoss
, 2013 BCSC 2335 [
Shanoss BCSC
], (affd in
Shanoss
BCCA
), which stated:

[164]    In my view, it would be
an error to limit the application of the
Gladue
factors in a dangerous
offender proceeding in order to prioritize protection of the public as a
sentencing objective. The unique circumstances of the Aboriginal offender must
be given careful consideration in every sentencing. The fundamental principles
of sentencing in s. 718.1 and s. 718.2 apply with equal force to a
dangerous offender proceeding. The moral blameworthiness of the offender is a
fundamental consideration and the Aboriginal heritage of an offender often has
a direct and substantial impact on their moral culpability for the offence. A
person who grows up in a culture of alcohol and drug abuse is less blameworthy
than a person who commits a crime despite a positive childhood and upbringing.

[95]

The judge recognized, however, that despite the influence of
Gladue
factors, the need to protect the public may be paramount in certain cases (as
it was in
Shanoss BCSC
).

[96]

With respect to the evidence, the sentencing judge reviewed the extensive
record before her in relation to the appellants background, his youth and
adult criminal history, his behaviour while in custody and his efforts to
participate in treatment programs, his performance while on probation, a
previous psychological assessment and Elder review, the
Gladue
reports
and the evidence of Mr. Cadwallader, and the assessments of Dr. Lamba
and Dr. Tomita, all of which is outlined to some extent above. The judge also
reviewed written comments provided by the appellant, expressing remorse and a
changed attitude.

[97]

The judge considered some of the community options and release plans
outlined by Mr. Cadwallader to be unsuitable for the appellant, primarily
due to the complete unknown regarding his motivation to take the steps
necessary to live a crime-free life.

[98]

The judge referred to the appellants
dismal record of behaviour during his years of incarceration, describing him
for the most part as
a
problem inmate, disrespectful, disobedient, dishonest,

aggressive,
guilty of possession of contraband, including homemade alcohol, and so on. She
also noted a recent improvement in his behaviour and his participation in
programs, and agreed with Dr. Tomitas observation that the appellant was
trying a little bit harder to avoid problems and follow the rules. The judge
was skeptical, however, that
the appellants written comments demonstrated
real insight into his behaviour due to the delayed timing of his expressions of
remorse and the many inconsistencies in his evidence.

[99]

The sentencing judge considered the 2006 sexual assault and the
two index offences to be serious offences that involved attacks on vulnerable
women in secluded places, using physical restraint and threats of death or
other bodily harm, motivated by a desire for sexual gratification. She found
that the evidence established beyond a reasonable doubt
a
pattern of repetitive behaviour by the appellant as enumerated in s. 753(1)(a)(i)
and (ii), as well as
a failure to control his sexual
impulses as set out in s. 753(1)(b).

[100]

The judge found the evidence that the appellant was
likely in the future to repeat this behaviour to be overwhelming. She
considered that his history was the best indicator of his likely future
conduct and she relied on the opinions of Dr. Lamba and Dr. Tomita.
Finding that the appellant constitutes a threat to the life, safety or
physical or mental well-being of other persons, the judge designated him a
dangerous offender.

[101]

In assessing an appropriate sentence, the judge took into account the
following evidence:

·

some positive signs in the 18 months prior to
sentencing, in that the appellant had recently been more compliant with
expectations respecting his conduct while in custody and had
provided written comments indicative of some
increased insight into the causes, the triggers, and the consequences for other
persons, of his criminal acts;

·

Dr. Tomitas
evidence that it was a reasonable likelihood that once the sanction of an indeterminate
sentence was removed, the appellant would return to his more familiar attitudes
and patterns of behaviour; and

·

the appellants
experiences as an Aboriginal person that had contributed to his present
personality and tendencies such that he must by law be considered to be less
morally blameworthy for his criminal acts than if he did not have those
antecedents.

[102]

However, she concluded that the appellant remains
a threat to the life, safety, or physical or mental well-being of other persons
in spite of his slightly improved behaviour during the last 18 months, and in
spite of what he said in his written comments to the Court. She also concluded
that the appellant:

[181]    is who
he is now not only because of his antecedents, but because he has declined to
deal in any focused, positive way with the issues that he has known of and
recognized as contributors to his misconduct for almost two decades. He has
been offered or required to engage in appropriate treatment for all of that time.
He has almost never been both out of custody and not supervised by a youth
worker, a probation officer or a parole officer. In spite of long stretches of
time in custody, and all of those years of community supervision, he remains an
untreated sex offender because he declined to engage in treatment. In spite of
having taken some treatment to address his other violent offending, he has
repeatedly very quickly reoffended after being released from custody.

[103]

The judge found that an indeterminate sentence was necessary given
the appellants

severe antisocial personality disorder,
psychopathic traits, and longstanding and severe addiction to alcohol and other
drugs, questions about the sincerity of his motivation or capacity to change,
and the complete lack of any evidence that his level of risk might be
sufficiently reduced within a definite period of time regardless of any treatment
he undertakes.

Analysis

1.        Did the judge
fail to take into account evidence of the appellants treatability?

[104]

As discussed above,
Boutilier
confirmed that a designation as
dangerous cannot be made unless the offender is shown to present a high
likelihood of harmful recidivism and that his violent conduct is intractable,
and an indeterminate sentence cannot be imposed unless it is shown to be the
only measure to adequately manage the offenders risk of harming the public. Therefore,
consideration of an offenders treatability is relevant at both stages of the
process but for different purposes:

[
44
]

Given
that a dangerous offender application is typically conducted in one hearing, it
would be artificial to distinguish evidence that should be considered to
designate an offender as dangerous from evidence that should be considered to
determine the appropriate sentence. All of the evidence adduced during a
dangerous offender hearing must be considered at both stages of the sentencing
judges analysis, though for the purpose of making different findings related
to different legal criteria. During the application hearing, the Crown or the
accused must present any prospective evidence concerning risk, intractability,
or treatment programs, including the required assessment report addressing
prospective treatment options. Many aspects of clinical evaluations provide
evidence going to both the assessment of the offenders future risk and the
sentence necessary to manage this risk:

Clinical evaluations identifying
the presence of enduring mental illnesses and their treatability, presence of
deeply ingrained personality traits or personality disorders that are likely to
persist with time, sexual deviations, and substance-use disorders all
become
relevant in understanding the meaning of repetitive behaviours, persistent
aggressive behaviours, and their relationship to the predicate offence/offences
.
The presence of impulsivity, lack of empathy, and need for immediate
gratification at the expense of others will assist the court
in
examining whether the risk assessment and management of risk factors are
related to the statutory tests concerned
. [Emphasis added; footnotes
omitted.]

(Neuberger, at p. 2-37)

[
45
]

The
same prospective evidence of treatability plays a different role at the
different stages of the judges decision-making process.
At the designation
stage, treatability informs the decision on the threat posed by an offender,
whereas at the penalty stage, it helps determine the appropriate sentence to
manage this threat
. Thus, offenders will not be designated as dangerous if
their treatment prospects are so compelling that the sentencing judge cannot
conclude beyond a reasonable doubt that they present a high likelihood of
harmful recidivism or that their violent pattern is intractable: see Neuberger,
at p. 7-1, by M. Henschel. However, even where the treatment prospects are
not compelling enough to affect the judges conclusion on dangerousness, they
will still be relevant in choosing the sentence required to adequately protect
the public.

[Emphasis added.]

[105]

The
appellant submits that the sentencing judge failed to consider treatability at
the designation stage, which constitutes a reversible error. He also submits
that the judge failed to take into account the evidence of Dr. Tomita regarding
his treatability at the sentencing stage, as she failed to address why his
evidence did not demonstrate that a lesser measure than an indeterminate
sentence would adequately protect the public.

[106]

The Crown
submits that the judge did, in fact, consider treatability at the designation
stage of her analysis, and carefully analyzed and accepted Dr. Tomitas
evidence in assessing an appropriate sentence.

Designation

[107]

There is
no question that a failure to consider treatability at the designation stage
constitutes an error of law:
Boutilier
at para. 82;
Skookum
at paras. 5758;
Malakpour
at paras. 9293. However, where
there is no reasonable possibility that the finding of dangerousness would have
been different had the judge considered this question, the error will result in
no substantial wrong or miscarriage of justice:
Boutilier
at paras. 8283;
Malakpour
at paras. 9498.

[108]

Given the uncertainty regarding the law pending the release of
Boutilier
in the Supreme Court of Canada, the Crown took the position before the
sentencing judge that she should consider the appellants treatability at the
designation stage. The Crown says that the following remarks of the sentencing
judge demonstrate that she took this issue into account:

[177]    The
evidence is overwhelming that Mr. Awasis is likely in the future to repeat
this behaviour. In this regard his history is perhaps the best indicator of his
likely future conduct, but in addition, the Court has the opinions of Dr. Lamba
and Dr. Tomita to consider.

[109]

By
reference to the expert opinions, the Crown submits that the judge would have
taken into account intractability as both opinions were geared towards
treatment options and their efficacy.

[110]

In my
view, it is not at all clear that the sentencing judge considered treatability
at the designation stage. The above paragraph in the reasons follows a brief
analysis of the
evidence establishing the violent patterns of
conduct enumerated in s. 753(1)(a)(i) and (ii) and the failure to control sexual
impulses in s. 753(1)(b). Subsections 753(1)(a)(i) and (b) require a
failure
in the future
to restrain
violent behaviour or sexual impulses. The judges language tracks these
requirements, and is consistent with her summary of the applicable law, which
did not include consideration of treatability.

[111]

That said,
I agree with the Crowns alternative submission that the judges factual
findings on the appellants treatment prospects would have made a finding of
dangerousness inevitable. Dr. Lamba and Dr. Tomita each diagnosed the
appellant with severe personality disorder and poly-substance abuse, both being
primary criminogenic factors and neither being very amenable to treatment. Although
Dr. Tomita considered that the appellant presented with a moderate level
of treatability for his addiction problems and a lower level of treatability
for his sex offending, he agreed that success would require an enduring,
positive motivation to change and some degree of success managing the
appellants addiction problems. The judge was not satisfied, based on the
appellants history, that his motivation to change was sincere, or that he had
the capacity to change, which were findings open to her on the evidence.

[112]

I would
therefore not interfere with the judges designation of the appellant as a
dangerous offender.

Sentencing

[113]

The
appellant submits that Dr. Tomitas evidence demonstrated that a lesser
measure than indefinite incarceration would have sufficiently protected the
public. He says that the judges reference to a complete lack of evidence
that his risk could be reduced to a manageable level shows that she did not
take Dr. Tomitas evidence on this point into account. He contends that Dr. Tomita
never resiled from his opinion that, although the appellant would likely repeat
a pattern of community release followed by substance use, it was unlikely that
such brief usage would lead to the demoralized state where he is most at risk
of offending.

[114]

In my
view, the appellants submission on this point takes aspects of Dr. Tomitas
evidence out of context. It is true that Dr. Tomita did not consider a
repeated pattern of community release followed by substance use to be
unmanageable
per se
. However, he considered the appellants substance
abuse to be a significant factor leading to instability and acknowledged that his
optimistic view was based on an assumption that the appellant would have an
enduring motivation to address his addictions and make changes to his lifestyle
to the point where he achieved some stability, such as having a place to live and
positive social connections. He agreed that the appellant would likely commit
offences pretty quickly if this assumption was incorrect and that his history
of breaching release conditions by drinking suggested that he reoffended very
quickly, violently and sexually.

[115]

Dr. Tomita
considered that the appellant was motivated as a result of the severity of the
sanction being proposed, but acknowledged that if the possibility of such a
sanction were removed, there was a reasonable likelihood that he would go back
to where hes always been. He was not able to opine on the length of time it
would take to successfully treat the appellants antisocial personality
disorder, substance abuse and trauma issues. He said that the appellant would
need to at least enter a program to gauge how much treatment is going to be
required.

[116]

Ultimately, the judge had to be satisfied that there existed a
reasonable expectation, grounded in the evidence, that some measure less than
an indeterminate sentence would adequately protect the public. In this regard,
she was not satisfied:

[182]    In
view of Mr. Awasis severe antisocial personality disorder, his
psychopathic traits, and his longstanding and severe addiction to alcohol and
other drugs, in view of the questions that remain about the sincerity of his
motivation to change, and about his capacity to change even if highly motivated
to do so, in view of the complete lack of any evidence that Mr. Awasis
level of risk might be sufficiently reduced within a definite period of time so
that the risk he poses would be manageable in the community, regardless of the
treatment he undertakes, I conclude that the necessary sentence here is a
period of incarceration for an indeterminate period.

[183]    I have concluded on all
of the evidence that the risk that Mr. Awasis will commit further violent
and sexual offences cannot be managed so as to adequately protect the public
with any sanction other than an indeterminate sentence. There is no sentencing
measure less than an indeterminate sentence of incarceration that will
adequately protect the public.

[117]

In my
view, the judges findings are supported by the evidence, including the
evidence of Dr. Tomita. She did not find a complete lack of evidence that
the appellants risk could be reduced to a manageable level, as he submits,
but rather a complete lack of evidence that the appellants risk might be
sufficiently reduced within a definite period of time so that his risk would
be manageable in the community, a distinction of some importance. As noted
above, Dr. Tomita did not know how long it would take to successfully
treat the appellants antisocial personality disorder, substance abuse and
trauma issues, as he had not yet been in a high-intensity program to gauge what
treatment was actually needed. In light of this evidence, it was open to the
judge to conclude, as she did, that the appellants risk could not be managed
in the community so as to adequately protect the public.

[118]

It is not
a function of this court to re-weigh the evidence of Dr. Tomita. Deference
is owed to the judges findings of fact and credibility with respect to the question
of whether an offenders risk would be manageable in the community:
Currie
at para. 38;
Malakpour
at para. 54.

[119]

I would
not give effect to this ground of appeal.

2.        Did
the judge fail to give tangible effect to Gladue factors in determining
sentence?

[120]

The
appellant submits that the sentencing judge failed to give tangible effect to
the
Gladue
factors that affected him, resulting in an erroneous
elevation of his moral culpability and a disproportionate sentence. Although
the judge described in some detail his history, the appellant says that she
failed to consider how that history ought to impact his sentence, which is
contrary to
Ipeelee
.

[121]

The Crown
submits that the appellants assertion finds no support in the judges reasons,
as she detailed his antecedents, early life, the
Gladue
reports and the
evidence of Mr. Cadwallader in some detail, and recognized that
Gladue
principles apply to dangerous offender proceedings. The Crown also submits that
characteristics which mitigate an offenders moral blameworthiness have lesser
impact in dangerous offender proceedings, citing
R. v. Jennings
, 2016
BCCA 127 and
R. v. Smarch
, 2015 YKCA 13.

[122]

It is beyond dispute that judges have a duty to
consider
Gladue
factors in determining a just and appropriate sentence
in
any
case involving an Aboriginal offender, including dangerous and
long-term offender proceedings:
Ipeelee
at para. 87;
Boutilier
at paras. 53

54 and 63;
Shanoss
BCCA
at para. 24;
R. v.
Fontaine
, 2014 BCCA 1 at para. 33
.

Even so, applying
Gladue

factors
is not an easy task when sentencing a dangerous offender.

[123]

Section 718.2(e) of the
Criminal Code
directs
sentencing judges to give particular attention to the circumstances of
Aboriginal offenders when considering all available sanctions, other than
imprisonment, that are reasonable in the circumstances and consistent with the
harm done to victims or to the community. Given that
public protection
is the primary objective of the dangerous offender scheme, and the available
sanctions are limited to sentences of imprisonment as set out in s. 753(4),
this court has noted that the application of
Gladue
factors in this
context may be limited:

Garnot
at para. 66;
Jennings
at para. 37;
see also
Smarch
at para. 47, citing
R.
v. Ominayak
, 2012 ABCA 337 at para. 41;
R. v. Standingwater
,
2013 SKCA 78 at para. 49; and
contra Shanoss BCSC
.

[124]

In
Boutilier
, the majority confirmed that public protection as an
enhanced sentencing objective for dangerous offenders does not operate to
exclude other objectives:

[56]      It is permissible for
Parliament to guide the courts to emphasize certain sentencing principles in
certain circumstance without curtailing their ability to look at the whole
picture. Emphasis on the public safety component is consistent with the fact
that public protection is the general purpose of Part XXIV of the
Code

[125]

The
ability to look at the whole picture then, which of course includes
Gladue
considerations, will necessarily be constrained to some extent in a dangerous
offender proceeding due to the emphasis on public safety and the narrower
options available to a sentencing judge. However, as Bennett J.A. noted in
R.
v. Ladue
,
2011 BCCA 101
at para. 53 (
affd in
Ipeelee
),

the
choice for the sentencing judge is not simply custody or not custody, but
rather the possibility of reducing a sentence to accommodate subsequent
probation, or in this case, long-term supervision. Rehabilitation remains an
important sentencing principle for dangerous offenders, as the question of
whether a sentence less than an indeterminate period is appropriate will depend
on the offenders prospects for addressing the issues that contribute to his or
her risk. That said, the court in both
Gladue
and
Ipeelee
emphasized that s. 718.2(e) can be seen as Parliaments direction to
judges to inquire into the causes of the problem of the drastic
overrepresentation of Aboriginal people in the prison population and criminal
justice system,
and
to endeavour to remedy it,
to the extent that a remedy is possible through
the sentencing process
:
Gladue
at para. 64;
Ipeelee
at para. 68
(emphasis added).

[126]

In
Ipeelee
and its companion case,
Ladue
, relied on by the appellant,
the court noted that it was not enough for sentencing judges

to acknowledge an offenders Aboriginal status;
they must consider how it ought to impact their sentencing decisions. Those
cases involved
sentences for breaches of long-term supervision orders,
where the protection of the public was considered by the majority to be an
important, but not paramount, sentencing objective, along with rehabilitation.
In both cases, the majority concluded that the sentencing judges had not put
sufficient emphasis on rehabilitation due to the unique circumstances of the
Aboriginal offenders.

[127]

Earlier
jurisprudence noted that dangerous and long-term offender designations, while
both contributing to assuring public safety, have different objectives, in that
dangerous offenders are kept in prison to separate them from society, while
long-term offenders will eventually be under supervision in the community for
the purpose of assisting in their rehabilitation:
R. v. L.M.
, 2008 SCC
31 at para. 42. This distinction has been attenuated in the 2008
amendments to Part XXIV of the
Criminal Code
, as a designated dangerous
offender is no longer automatically sentenced to indeterminate detention.
Gladue
factors are clearly important considerations for a sentencing judge when
determining the least intrusive sentence required to achieve the primary
purpose of public protection, per
Boutilier
at para. 60. While it
may seem counterintuitive to suggest that
Gladue
factors could overcome
findings of dangerousness, a high risk of recidivism and intractabilitythey
could, for example, provide a basis for assessing the viability of traditional
Aboriginal-focused treatment options aimed at addressing the issues that
contribute to or aggravate an offenders risk. If such resources are available
and considered appropriate, they could provide a basis for finding that a
lesser sentence will adequately protect the public. In this regard, see the
comments of Caldwell J.A. in
Standingwater
at para. 51.

[128]

The sentencing
judges assessment of the appellants
Gladue
factors was briefly
summarized in the concluding section of her reasons:

[181]    It is clear to me that Mr. Awasis
experiences
as an Aboriginal person have contributed to his present personality and
tendencies such that he must by law be considered to be less morally
blameworthy for his criminal acts than if he did not have those antecedents.
Nevertheless, Mr. Awasis
is who he is now, not only
because of his antecedents, but because he has declined to deal in any focused,
positive way with the issues that he has known of and recognized as
contributors to his misconduct for almost two decades. He has been offered or
required to engage in appropriate treatment for all of that time. He has almost
never been both out of custody and not supervised by a youth worker, a
probation officer or a parole officer. In spite of long stretches of time in
custody, and all of those years of community supervision, he remains an
untreated sex offender because he declined to engage in treatment. In spite of
having taken some treatment to address his other violent offending, he has
repeatedly very quickly reoffended after being released from custody.

[129]

This
passage demonstrates that the judge accepted that the appellants
Gladue
factors reduced his moral blameworthiness, but she considered his repeated
history of reoffending and his long-standing failure to address the issues that
contributed to his criminal conduct to be so entrenched that the need to
protect the public had to be paramount. Although she did not articulate in any
detail the unique systemic and background factors that may have played a part
in bringing the appellant before the court, she did address the need to
consider these factors and she reviewed much of the appellants background
earlier in her reasons.

[130]

The judge
expressly accepted that
Gladue
principles applied in dangerous offender
proceedings and drew guidance from
Shanoss BCSC
(where Bruce J. took a
broader approach to the application of
Gladue
in this context). She reviewed
in some detail the appellants very difficult background and early life, which
included the intergenerational effects of residential schools, the
Gladue
reports, and the evidence of Mr. Cadwallader. She accepted that the
appellants life was marked by loss and tragedy, that he grew up in
circumstances marked by the effects of poverty and alcoholism, and that he was sexually,
physically and emotionally abused while he was at residential school (at paras. 17
and 148).

[131]

Along with
this background, however, the judge also reviewed the considerable evidence
about the appellants long-standing failures to participate in sex offender
treatment in custody, to address his addiction problems, to participate in
Aboriginal-focused programs in the community, and to abide by conditions when
released into the community. She also considered evidence of improved behaviour
in the previous 18 months, in which the appellant had been more compliant with
expectations respecting his conduct while in custody and had indicated in his
written comments to the court some increased insight into the causes of his
criminal conduct. The judge reviewed all of that history, along with the evidence
of Mr. Cadwallader, Dr. Lamba and Dr. Tomita, noting in
particular Dr. Tomitas acknowledgment that once the sanction of an
indeterminate sentence was removed, there was a reasonable likelihood that the
appellant would return to his more familiar attitudes and patterns of
behaviour. Ultimately, the judge was not satisfied that the appellant had the motivation
or capability to meaningfully participate in treatment or address his addiction
problems such that he could be managed in the community to an acceptable level.

[132]

I do not
accept the appellants submission that he was blamed and made to bear sole
responsibility for aspects of his criminal conduct that resulted from his
experiences as an Aboriginal offender. In the context of a dangerous offender
proceeding, it does not necessarily follow that a determination that public
protection must be paramount demonstrates a failure to give
Gladue
factors tangible consideration. While the appellants lack of motivation and
capacity undoubtedly stem largely from his tragic background, the judge was
unable to remedy this complex problem through the sentencing process. Mr. Cadwalladers
recommendation regarding community-based programs was predicated upon the
appellant first having the opportunity to meaningfully participate in sex
offender treatment before being reintegrated into the community, but at the
time of sentencing, the appellant remained an untreated sex offender. And
because the appellant had not yet been in a high-intensity program, Dr. Tomita
was unable to say how long it would take to successfully treat his underlying
issues.

[133]

In my
view, this was a difficult case. As I stated earlier in these reasons, indeterminate
detention is intended to be limited to habitual criminals who pose a tremendous
risk to public safety (
Boutilier
at paras. 34 and 77), yet the
appellants antecedents as an Indigenous person that have contributed to his
risk are unfortunately not unique. It is for this reason that judges must
remain vigilant in exercising restraint and proportionality in respect of an
Aboriginal offender in assessing whether there is a reasonable expectation
that a lesser measure will adequately protect the public against the
commission by the offender of a serious personal injury offence under s. 753(4.1)
of the
Criminal Code
.

[134]

While the
judge in this case ought to have articulated more precisely how she considered
the appellants
Gladue
factors, when her reasons are read as a whole and
in conjunction with the evidence, I cannot conclude that she did not adequately
consider them. Her determination that public protection was paramount despite
the appellants reduced moral blameworthiness is supported by the evidence. Her
findings are entitled to deference and it is not the function of this court to
re-weigh that evidence.

[135]

Therefore,
I would not give effect to this ground of appeal.

3.        Is
the indeterminate sentence manifestly unfit?

[136]

The
appellants final submission, that the indeterminate sentence is grossly
disproportionate to his moral culpability, relies on the first two grounds of
appeal. Given my conclusions on those grounds, there is no basis to conclude
that the indeterminate sentence imposed is manifestly unfit.

Disposition

[137]

I would dismiss the appeal.

The
Honourable Madam Justice Fisher

I AGREE:

The
Honourable Mr. Justice Groberman

I AGREE:

The Honourable Mr. Justice
Abrioux


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Chappell,

2020 BCCA 38

Date: 20200124

Docket: CA46104

Between:

Regina

Respondent

And

David Lee Chappell

Appellant

Before:

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Fitch

The Honourable Mr. Justice Butler

On appeal from:  An
order of the Supreme Court of British Columbia, dated
March 15, 2019 (
R. v. Chappell
, 2019 BCSC 644,
Kamloops Dockets
104963‑2; 105153‑1‑T; 105153‑2‑T;
105154‑1‑T; 105154‑2‑T; 105155‑1‑T; and
105155‑2‑T
).

Oral Reasons for Judgment

Counsel for the Appellant:

C.E. Johnson

Counsel for the Respondent:

M.G. Scott

Place and Date of Hearing:

Vancouver, British
  Columbia

January 24, 2020

Place and Date of Judgment:

Vancouver, British
  Columbia

January 24, 2020

Summary:

Held: Appeal allowed. A
restitution order requiring the appellant to pay in excess of $200,000 to
redress damage cased to a tractor‑trailer and cargo in the course of a
drug‑fueled crime spree is set aside. The order was made without enquiry
into his ability to pay the amount, and appears to be based on the remote
possibility of a windfall. R. v. Dunn, 2010 BCCA 22 applied. A restitution
order in the amount of $6,500 in favour of the owner of the unit is issued in
place of the one set aside.

[1]

SAUNDERS J.A.
: David Lee Chappell seeks leave to appeal sentence
and if leave be granted, appeals from a restitution order in the amount of
$201,613.37 made on March 15, 2019, as part of the sentence for a
number of offences that took place over six months. The spree culminated in an
incident on November 6, 2017, when, attempting to evade arrest, he
seized a tractor‑trailer, kidnapped the driver at the point of an
imitation firearm, and when the driver escaped, attempted to drive the vehicle
himself, rolling it down an embankment on the side of a highway. Mr. Chappell
had been using crystal methamphetamine at the time of this offence and the
sentencing judge described all of the offences as drug fuelled. Mr. Chappell
pleaded guilty.

[2]

At the sentencing hearing, some information was provided to the judge as
to Mr. Chappells past earning history, which was significant, in the oil
and gas industry in Alberta. He had left that industry by the time of the
offences. Most of the sentencing hearing concerned the length of the custodial
sentence that should be imposed. The Crown sought a global sentence of seven
years and seven months for all of his offences. Mr. Chappell sought a
sentence of two years less a day after taking into account time served.

[3]

Also at the sentencing hearing, the Crown sought restitution orders in
favour of his former intimate partner whose windshield he had broken, and the
insurer of the tractor‑trailer, in the amounts of $449.01 and $201,613.37
respectively. In asking for them the Crown explained that they would be stand‑alone
and not form part of the sentences, but would be out there in the event that Mr. Chappell
ever wins the lottery. I understand that by saying they would not form part of
the sentence Crown counsel was saying in a colloquial way that the restitution
orders would not have penal consequences. The restitution orders, of course,
are part of the sentence imposed and give rise to a sentence appeal:
R. v. Nanos
,
2013 BCCA 339.

[4]

There was some discussion between counsel for Mr. Chappell and the
judge concerning the restitution order in relation to the windshield ($449.01)
but through some mistake, no discussion at all with counsel about the
restitution order in favour of the insurer. Apart from the assumption, implicit
in the Crowns suggestion that the restitution orders were there in the event Mr. Chappell
had a windfall so that it was unlikely Mr. Chappell could satisfy the
restitution orders, there was no discussion of the ability of Mr. Chappell
to satisfy the orders.

[5]

The judge imposed a global sentence of five years and six months for the
offences, reflecting a reduction in consideration of the totality principle.
She then made both restitution orders sought by the Crown pursuant to s. 738
of the
Criminal Code
, R.S.C. 1985, c. C‑46, and did so
without referring to Mr. Chappells capacity to pay.

[6]

Mr. Chappell does not contest the order he pay restitution to his
former partner in the amount of $449.01. He appeals only the restitution order
aimed at the damage he caused to the tractor‑trailer, equipment and
cargo. He contends that the court erred in failing to consider his ability to
pay the restitution order, both present and future, in accordance with the
decision in
R. v. Yates
, 2002 BCCA 583 para. 17.
He acknowledges, as he must, that his counsel did not protest the order at the
sentencing hearing, but says that the Crown failed to lay the groundwork for
the order by establishing in some fashion that payment was more than a pipe‑dream.
Mr. Chappell refers us to
R. v. Heathcliff
,
2015 YKCA 15 at paras. 713, wherein the Yukon Court of Appeal
reduced the amount of a restitution order when the sentencing judge ignored the
offenders ability to pay.

[7]

We can approach the question before us by asking whether the judge made
an error in principle, or whether the sentence is demonstrably unfit. I prefer
to address the appeal on the latter question, as it is clear to me that the restitution
order imposed is excessive in the context of the information before the judge,
so as to render it unfit in the circumstances. I conclude that on the record
before us, it is most unlikely that Mr. Chappell will be able to make any
meaningful dent in the amount owed,

[8]

In
R. v. Dunn
, 2010 BCCA 22, the judge had referred to
the capacity of the offender to pay the restitution order by saying as to the
likelihood of recovering the money: Well, if he wins the lottery, I guess so.
Mr. Justice Donald observed that there had been no real inquiry into the
capacity to pay the order and, in setting it aside, said:

[12]      I am unable to say that
any useful purpose would be served by a restitution order where the likelihood
of compliance is as remote as the judge said. The order was an afterthought
made without the benefit of full argument and is unlikely to provide any
tangible benefit to the victim.

[9]

There is no evidence, or even information, before us of prejudice from
reliance on the restitution order. On the other hand, we do know that by
s. 178(1) of the
Bankruptcy and Insolvency Act
, R.S.C. 1983,
c. B‑3, a discharge from bankruptcy would not discharge Mr. Chappell
from the restitution order. In other words, this order is likely to burden him
indefinitely, and will make more difficult his rehabilitation as a fully
participating member of the community, upon release from custody.

[10]

I consider that the restitution order in its current amount should be
set aside. The question then is whether any order directed to the damage he did
to the truck and cargo should be substituted.

[11]

Mr. Chappell proposes as an alternative to the order appealed, an
order in the amount of $6,500 in favour of the owner of the vehicle, being the
amount it paid as the deductible. That is not an insignificant sum, but is an
amount that Mr. Chappell should be able to satisfy within some reasonable
time after release from custody, given his employment history in the past.
Accordingly, I would grant leave to appeal sentence, allow the appeal, set
aside the restitution order in the amount of $201,613.37, and order that Mr. Chappell
make restitution to 1434179 Alberta Ltd. of Grande Cache, Alberta in the amount
of $6,500.

[12]

FITCH J.A.
: I agree.

[13]

BUTLER J.A.
: I agree.

[14]

SAUNDERS J.A.
: Leave to appeal sentence is granted, the appeal is
allowed, the restitution order in the amount of $201,613.37 is set aside, and an
is order made that Mr. Chappell make restitution to 1434179 Alberta Ltd.
of Grande Cache, Alberta in the amount of $6,500.

The
Honourable Madam Justice Saunders