R. v. Casemore (D.R.),

• Jurisdiction: Saskatchewan
• Judge: Ottenbreit, J.
• Neutral Citation: 2009 SKQB 306
• Citation: 2009 SKQB 306,(2009), 336 Sask.R. 110 (QB),[2009] SJ No 440 (QL),336 Sask R 110,(2009), 336 SaskR 110 (QB),336 Sask.R. 110,[2009] S.J. No 440 (QL),336 SaskR 110
• Date: 22 July 2009
• Court: Court of Queen's Bench of Saskatchewan (Canada)

R. v. Casemore (D.R.) (2009), 336 Sask.R. 110 (QB)

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. JL.094

Her Majesty The Queen v. David Roy Casemore

(2007 N.J. No. 12; 2009 SKQB 306)

Indexed As: R. v. Casemore (D.R.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Ottenbreit, J.

July 22, 2009.

Summary:

The accused was convicted of aggravated assault by wounding. The Crown applied under s. 753 of the Criminal Code to have the accused to be declared to be a dangerous offender on the basis of a pattern of repetitive behaviour showing a lack of restraint and the likelihood of causing death or injury (s. 753(1)(a)(i)), a pattern of persistent aggressive behaviour showing a substantial degree of indifference respecting the reasonably foreseeable consequences to others (s. 753(1)(a)(ii)) or behaviour of such a brutal nature as to conclude that the accused's future behaviour was unlikely to be inhibited by normal standards of behavioural restraint (s. 753(1)(a)(iii)).

The Saskatchewan Court of Queen's Bench declared the accused to be a dangerous offender and sentenced him to an indeterminate period of detention.

Criminal Law - Topic 6503

Dangerous or long-term offenders - Detention - General - Dangerous offender - Defined - In 2006, the 40 year old accused, without provocation, repeatedly kicked a woman in the face, causing serious injuries - He was convicted of aggravated assault by wounding - The Crown brought a dangerous offender application (Criminal Code, s. 753) - The accused had 80 convictions since age 16, including impaired driving, property offences, violent offences and breaching court orders - He also committed numerous disciplinary offences while incarcerated - From 1983 to 2009, the longest period that the accused was not incarcerated, on parole, released on bail or on probation was six months - The accused repeated a cycle of offending, doing his time while unmotivated to take programming to deal with his problems, and re-offending upon his release - While incarcerated, the accused was unmotivated to deal with his substance abuse and violent behaviour - The accused was diagnosed as having a well-entrenched anti-personality disorder - Although not a psychopath, he possessed some psychopathic features - The risk of future violence was high and the range of potential victims was large - The accused had never lived independently and his conduct was found to be "substantially intractable" - The Saskatchewan Court of Queen's Bench declared the accused to be a dangerous offender on the basis of a pattern of repetitive behaviour showing a lack of restraint and the likelihood of causing death or injury (s. 753(1)(a)(i)) and a pattern of persistent aggressive behaviour showing a substantial degree of indifference respecting the reasonably foreseeable consequences to others (s. 753(1)(a)(ii)) - The mere possibility of the accused succeeding in needed high intensity programmes, if he was finally motivated to change, was not sufficient to constitute a reasonable possibility of eventually controlling the risk presented by the accused in the community - A long-term offender designation and determinate sentence would not allow sufficient time to reduce the risk to an acceptable level - See paragraphs 29 to 274.

Criminal Law - Topic 6503.1

Dangerous or long-term offenders - Detention - General - Long-term offender - Defined - The Saskatchewan Court of Queen's Bench stated that "if the sentencing judge is satisfied that the sentencing options under the long-term offender provisions are sufficient to reduce the risk of offending to an 'acceptable level', the judge cannot properly impose an indeterminate sentence, even if the criteria under s. 753(1) are satisfied. ... It does not fall to the Crown to prove beyond a reasonable doubt that some possibility of future treatment does not exist. The Crown does not have to prove that the offender will never be treatable in his lifetime. Courts have held that the Crown must prove that the offender's condition is substantially or pathologically intractable, but not absolutely intractable. ... Factors the courts have considered in determining if behaviour is intractable and unlikely to be treatable include the following: (a) deeply ingrained personality disorders that are resistant to change; (b) a lack of available and appropriate treatment facilities; (c) a poor outlook for improvement even where facilities exist; (d) inability to estimate or predict a time frame for improvement; (e) some, but very little hope for treatment some time in the future; (f) treatment that will be long and difficult because the offender has more than one disorder and a limited capacity to learn. ... The facts surrounding a dangerous offender application can provide evidence that an offender's risk to the community cannot reasonably be managed. The failure of an accused to benefit from past rehabilitative efforts can provide evidence that there is no reasonable possibility of controlling the risk inherent with having the offender in the community. And, any person who requires 24 hour a day supervision for the indefinite future cannot be said to be reasonably likely to be controlled in the community. ... Where massive, wholesale changes need to be made, and sustained, by the offender in question, and there is little to no evidence to suggest that such a thing is realistic or likely, then it cannot be said that there is a reasonable possibility of eventual control of the risk in the community." - See paragraphs 13 to 15, 18.

Criminal Law - Topic 6503.2

Dangerous or long-term offenders - Detention - General - Dangerous offender and long-term offender distinguished - The Saskatchewan Court of Queen's Bench stated that an accused could not be declared a dangerous offender and sentenced to an indeterminate sentence unless the court first considered whether there was a reasonable possibility of eventually controlling the risk in the community (long-term offender) - The Criminal Code's sentencing principles applied to the determination of whether to declare an accused a dangerous offender - The court stated that "the dangerous offender provisions must be interpreted in light of the sentencing provisions in ss. 718 to 718.2 of the Criminal Code. When exercising discretion under s. 753, a sentencing judge must consider whether the objective of public protection can be achieved through the long-term offender provisions. The principles of restraint set out in s. 718.2(d) and (e) must be applied in this context." - See paragraphs 6 to 7.

Criminal Law - Topic 6552

Dangerous or long-term offenders - Detention - Protection of the public - Pattern of repetitive behaviour - Section 753(1)(a)(i) of the Criminal Code provided for declaring an accused to be a dangerous offender based on a "pattern" of repetitive behaviour showing a failure to restrain his behaviour and a likelihood of injury to others resulting from a future failure to restrain his behaviour - The Saskatchewan Court of Queen's Bench stated that "a 'pattern' does not need to equate to similar fact evidence, general similarity is sufficient. There need not be a lengthy history of violence or aggression for a pattern to be found, so long as there are sufficient elements of similarity in the offender's behaviour. The pattern must contain an element that the dangerous behaviour was not restrained in the past, and there must be a likelihood that the same behaviour in the future will not be restrained ..." - See paragraph 9.

Criminal Law - Topic 6552

Dangerous or long-term offenders - Detention - Protection of the public - Pattern of repetitive behaviour - [See Criminal Law - Topic 6503 ].

Criminal Law - Topic 6562

Dangerous or long-term offenders - Detention - Protection of the public - Persistent aggressive behaviour - [See Criminal Law - Topic 6503 ].

Cases Noticed:

R. v. Johnson (J.J.), [2003] 2 S.C.R. 357; 308 N.R. 333; 186 B.C.A.C. 161; 306 W.A.C. 161; 2003 SCC 46, refd to. [para. 6].

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 8].

R. v. Langevin (1984), 3 O.A.C. 110; 11 C.C.C.(3d) 336 (C.A.), refd to. [para. 9].

R. v. Ominayak (R.D.) (2007), 443 A.R. 1; 2007 ABQB 442, refd to. [para. 9].

R. v. Poole (S.) (2000), 142 B.C.A.C. 151; 233 W.A.C. 151 (C.A.), refd to. [para. 9].

R. v. Dow (D.R.) (1999), 120 B.C.A.C. 16; 196 W.A.C. 16; 134 C.C.C.(3d) 323 (C.A.), leave to appeal denied (1999), 248 N.R. 406; 135 B.C.A.C. 319; 221 W.A.C. 319 (S.C.C.), refd to. [para. 9].

R. v. Green (J.L.A.), [2005] 2 W.W.R. 20; 254 Sask.R. 276; 336 W.A.C. 276; 2004 SKCA 126, refd to. [para. 10].

R. v. Lemaigre (G.L.), [2005] 7 W.W.R. 52; 254 Sask.R. 255; 336 W.A.C. 255; 189 C.C.C.(3d) 492; 2004 SKCA 125, refd to. [para. 10].

R. v. K.R.S., [2005] 5 W.W.R. 82; 254 Sask.R. 221; 336 W.A.C. 221; 2004 SKCA 127, refd to. [para. 10].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 11].

R. v. Laprise (R.H.), 2005 SKPC 9, leave to appeal refused (2006), 354 N.R. 199; 289 Sask.R. 164; 382 W.A.C. 164 (S.C.C.), refd to. [para. 12].

R. v. Pedden (B.A.) (2005), 208 B.C.A.C. 303; 344 W.A.C. 303; 194 C.C.C.(3d) 476 (C.A.), refd to. [para. 13].

R. v. F.E.D. (2007), 222 O.A.C. 253; 222 C.C.C.(3d) 373; 2007 ONCA 246, refd to. [para. 13].

R. v. Goforth (M.A.) (2007), 302 Sask.R. 265; 411 W.A.C. 265 (C.A.), refd to. [para. 13].

R. v. Otto (M.E.) (2006), 279 Sask.R. 182; 372 W.A.C. 182; 2006 SKCA 52, refd to. [para. 15].

R. v. Burgmann (R.S.) (2008), 309 Sask.R. 202 (Q.B.), refd to. [para. 15].

R. v. Wright (M.G.) (2008), 317 Sask.R. 267 (Q.B.), refd to. [para. 15].

R. v. Watetch (W.E.) (2006), 288 Sask.R. 1 (Q.B.), refd to. [para. 15].

R. v. Little (G.) (2007), 226 O.A.C. 148; 225 C.C.C.(3d) 20 (C.A.), refd to. [para. 17].

R. v. Zonta (R.) (2009), 333 Sask.R. 21; 2009 SKQB 157, refd to. [para. 18].

R. v. Daniels (D.) (2008), 321 Sask.R. 40 (Q.B.), refd to. [para. 18].

R. v. Peters (D.W.A.), [2006] B.C.T.C. Uned. 672; 2006 BCSC 1288, refd to. [para. 19].

R. v. Higginbottom (C.) (2001), 150 O.A.C. 79; 156 C.C.C.(3d) 178 (C.A.), refd to. [para. 20].

R. v. Haug (D.W.) (2008), 307 Sask.R. 1; 417 W.A.C. 1 (C.A.), refd to. [para. 20].

R. v. McCallum (N.J.) (2005), 196 O.A.C. 101; 201 C.C.C.(3d) 541 (C.A.), refd to. [para. 21].

R. v. Johnson (A.P.) (2008), 253 B.C.A.C. 278; 425 W.A.C. 278; 2008 BCCA 149, refd to. [para. 23].

R. v. Moosomin (L.W.), [2009] 1 W.W.R. 608; 320 Sask.R. 100; 444 W.A.C. 100; 2008 SKCA 169, refd to. [para. 26].

R. v. Pontello (1978), 38 C.C.C.(2d) 262 (Ont. C.A.), refd to. [para. 27].

R. v. Carleton, [1981] 6 W.W.R. 148; 32 A.R. 181; 69 C.C.C.(2d) 1 (C.A.), affd. [1983] 2 S.C.R. 58; 47 A.R. 160; 52 N.R. 293; 6 C.C.C.(3d) 480, refd to. [para. 28].

R. v. Goforth (E.R.) (2005), 257 Sask.R. 123; 342 W.A.C. 123; 193 C.C.C.(3d) 354 (C.A.), refd to. [para. 237].

Counsel:

Jeff Kalmakoff, for the Crown;

Darren Armitage, for David Roy Casemore.

This application was heard before Ottenbreit, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on July 22, 2009.