This week’s top three summaries: R v T.S., 2025 BCCA 25: #consent & role play, R v Khamvongsa, 2025 BCCA 33: 24(2) on s.8 breach and R v Stevenson, 2025 SKCA 13: DO #sentencing
R v T.S., 2025 BCCA 25
[January 31, 2025] Sexual Assault: Role Play and Consent [Reasons by Horsman J.A. with Fenton and Iyer JJ.A. concurring]
AUTHOR’S NOTE: Sexual role play involving a lack of consent as part of the act presents complex legal challenges. Under Canadian law, broad advance consent is prohibited—only consent given at the time of the specific sexual activity is valid. In this case, the planned activity was a “rape fantasy,” with key evidence being prior sexual discussions between the parties. The trial judge excluded this evidence, deeming it insufficiently specific. However, the Court of Appeal overturned that decision, ruling that the prior discussions provided essential context for later disputed conversations about the role play. This ruling on prior sexual history was pivotal in both the trial and appeal outcomes.
[1] The appellant appeals his conviction on a charge of sexual assault contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46 [Code]. His primary ground of appeal is that the trial judge erred in ruling that messages between the appellant and the complainant sent via Facebook Messenger the day before the assault did not meet the conditions for admissibility under s. 278.92 of the Code. More specifically, the appellant says the trial judge erred in law in concluding that the messages were not relevant to an issue at trial.
[3] There was no question that sexual activity occurred between the appellant and the complainant at her house on the day in question. There was also no significant dispute about the nature of the sexual activity, or the fact that the appellant did not take steps to ensure the complainant consented to the activity at the time it occurred. The issues at trial were consent, and whether the appellant had an honest but mistaken belief in communicated consent. The appellant testified that the complainant had agreed to participate in, and indeed had instigated, a “rape roleplay” scenario, which explained his failure to ascertain the complainant’s consent during the sexual encounter. The complainant denied this.
[4] The appellant sought to introduce messages he exchanged with the complainant on the evening before the offence on the ground that they were relevant to the issue of consent. These messages were of a sexual nature on the topic of rape role-play. The appellant testified that these messages were followed by a more specific discussion of a planned rape role-play scenario when he arrived at the complainant’s home the following day.
[5] In a pre-trial ruling, the trial judge held that the messages exchanged between the parties the day before the offence were not relevant, and were therefore not admissible in evidence. In her reasons for conviction, the trial judge accepted the complainant’s evidence that there was no discussion about sexual activity between her and the appellant on the day of the offence, including any form of role-play. The judge found that the complainant had not consented to the sexual activity, and she rejected the appellant’s defence of honest but mistaken belief in communicated consent.
[6] For the reasons that follow, it is my view that the trial judge erred in law in finding that the messages exchanged between the parties on the day before the offence were not relevant. The messages were relevant to the issues of consent and honest but mistaken belief in communicated consent, particularly given their timing and asserted connection to the conversation the appellant testified occurred the next day. This is not an appropriate case for the application of the curative proviso. Therefore, I would allow the appeal, set aside the conviction, and order a new trial.
Proceedings at trial
The s. 278.92 application
[10] The appellant filed an affidavit on the application, and he was cross-examined on his affidavit by the Crown. The November Texts were contained in a seven-page exhibit appended to the appellant’s affidavit. Some of these pages were out of order, and others were duplicates. It is common ground that the November Texts, in chronological order and without duplication, recorded the following exchange:
The complainant sent the appellant two “GIFs” (short video images) of a sexual nature.
The complainant sent the appellant a GIF containing the sentence “Reblog if you’re into Rape Play”, followed by this exchange:
Appellant: I’d love to…Just not sure how to pull that off with you fully
Complainant: I got lots of fantasy’s like [8 words of sexual communication removed]
Appellant: [7 words of sexual communication removed]
Complainant: No when you said you wanna sneak in here when I’m sleeping still can’t get it outta my head
Appellant: Oh and then [2 words of sexual communication removed] Got it
Complainant: Yup
Appellant: Hot Keep sending, I’m enjoying your finds
Complainant: I know the door just opened and [12 words of sexual communication removed]
Appellant: Yum You [8 words of sexual communication removed]?
Complainant: When [name removed] walked in
Appellant: Damn that’s some good shit then [2 words of sexual communication removed] I take it? [PJM Emphasis]
[11] The appellant’s evidence on the application was that he and the children arrived at the complainant’s residence the morning of November 18, 2019, the day after the November Texts were exchanged. The complainant greeted him in a robe and told him that she was “naked underneath”. The complainant offered him a coffee and then “flashed” him in the kitchen. The appellant and the complainant then had a conversation that I will refer to in these reasons as the “Kitchen Conversation”. The appellant said that during the Kitchen Conversation, the complainant told him that once the children were settled she would go into the bedroom, and that he should come in and they “would start role playing from there”. The complainant told him she would pretend to be asleep, and that he would have sex with her and pretend to be a stranger. The appellant testified that he thought in light of the November Texts, “it seemed that that’s what we were planning on doing” when he and the children visited the complainant on November 18, 2019.
[12] The appellant estimated that the Kitchen Conversation occurred about one to one and a half hours before the sexual activity. During this interval, there was a verbal altercation between the complainant and her daughter, K.M. The appellant intervened and told the complainant she should not be discussing certain matters with K.M. The appellant said that the complainant did not appear to him to be upset at the time of this exchange. The complainant started to watch a show in the living room. She then got up and went to her bedroom. The appellant said that he peeked in on her two times, and each time she had her “butt exposed”. The appellant then entered the room and engaged in sexual activity with the complainant.
[13] The appellant testified on the application that the sexual activity consisted of vaginal penetration, oral sex, and digital penetration (fingering and “fisting”). The appellant stated his belief that the sexual activity was intended to be “rape role-play”, as he and the complainant had planned.
[16] The appellant argued that the November Texts, along with other evidence he sought to adduce on the s. 278.92 application, “will be used to assess consent, and [to] explore the defence of mistaken belief in consent”. He stated that crossexamining the complainant on the messages would assist the Court “in determining how the complainant and the Accused communicated consent”.
The trial judge’s ruling on the application (the “Admissibility Ruling”)
[20] The issue in relation to the Kitchen Conversation was whether it was evidence of sexual activity “other than the sexual activity that forms the subjectmatter of the charge” within the meaning of s. 276(2) of the Code. The answer to this question determined whether the admissibility of the evidence was governed by the s. 276 framework. In addressing this issue, the judge noted the challenges presented in this case to the concepts of consent and communicated consent:
[17]….If the “script” for the rôle-play is created in advance of the role-playing, then the creation of the script itself and the consent to the script must be examined to determine if there is actual communicated consent. To hold otherwise would be to mean that a person cannot possibly consent to sex in the context of rôle-play feigned sleep and/or “rape”.
[21] In this context, the trial judge concluded that the Kitchen Conversation was “an integral part of the sexual activity that forms the subject-matter of the charge”: Admissibility Ruling at para. 18. This was because the Kitchen Conversation did not simply relate to the complainant’s state of mind at the time of the conversation, but rather “specifically reaches forward in time to set the parameters of the rôle play”: Admissibility Ruling at para. 18. Accordingly, evidence about the Kitchen Conversation was considered admissible without going through the s. 276 framework.
[22] The trial judge then turned to the admissibility of the November Texts. Because the November Texts were evidence of other sexual activity, their admissibility had to be assessed under s. 276(2):…
[23] The trial judge observed that the November Texts did not contain any discussion of the “basic elements of the script” for the role-play: Admissibility Ruling at para. 42. The judge found that the GIFs were of no assistance in filling in the details, because only a screenshot (and not the actual video) was available. The judge found that the conversation in the November Texts was in the nature of “sexting” in which the complainant told the appellant about her fantasy and shared sexual images: Admissibility Ruling at para. 42. The judge found that, standing on their own, the November Texts did not disclose any consent to specific sexual acts. The crux of the trial judge’s analysis is set out in these passages:
[43]…Based on the Accused’s testimony and more particularly the content of the November Texts, the November Texts are not incorporated by reference into the Kitchen Conversations or the specific plans for the sexual encounter on November 18. In short, the November Texts are not the script for the rôle-play.
[44] If the November Texts are not the script for the rôle-play, they are not relevant to the issue of actual consent. Given the paucity of detail, they do not amount to evidence of communicated consent. A fantasy expressed is different from consent. Consent requires clear parameters and cannot be vague and broad. A fantasy can be entirely in the mind of the holder. Communicated consent cannot. Accordingly, the November Texts are not relevant to the issue of communicated consent either…. [Emphasis by PJM]
[24] By contrast, the judge found that the December Texts were admissible, as they contained communications that were of direct relevance to the alleged sexual assault, did not invoke twin-myth reasoning, and had a probative value which was not outweighed by any potential prejudice: Admissibility Ruling at para. 45.
[29] There was no dispute that there was sexual activity between the appellant and the complainant in her bedroom, nor over which sexual activities took place. The contentious issue was consent. The appellant testified that he and the complainant were engaged in a rape role-play, as they had agreed to during the Kitchen Conversation. The appellant said that when the sexual acts commenced, he assumed the complainant would engage in the role-playing they had discussed in the kitchen, and that if she did not want to engage in the rape role-play fantasy, she would tell him so.
[30] The complainant said that after entering her bedroom, the appellant had put his penis in her vagina without warning. He then put her in different sexual positions while she stared at the wall or ceiling in an attempt to “not be in [her] body”. At one point, the appellant wanted the complainant to perform oral sex on him, and he grabbed her head to pull it towards his penis. The complainant did not want to do this, and said she offered for him to put his finger in her anus to end the sexual activity sooner.
[31] After closing submissions, the appellant sought a mistrial, although he did not renew his s. 278.92 application. One basis for the mistrial application was that the complainant’s denial of any conversation about a role-play in the kitchen on the day of the offence highlighted the significance of the November Texts….
The judge’s reasons for judgment (the “Conviction Reasons”)
[32] In the judge’s Conviction Reasons, issued on January 27, 2023, she accepted the complainant’s evidence that she never discussed sexual activities or a sexual role-play with the appellant in the kitchen on the day of the offence….
….The judge found that the complainant prepared snacks and coffee in the kitchen, but did not engage in any discussion about proposed sexual acts with the appellant, and did not “‘flash’ him her naked body or whisper to him on arrival that she was naked under her housecoat”: Conviction Reasons at para. 32. Given the complainant’s lack of certainty on whether other events occurred in the kitchen, the judge was not satisfied that the appellant and the complainant did not grab each other’s buttocks, that the complainant did not push up against the appellant, or that she did not put the appellant’s hand on her crotch.
[33] The judge was satisfied beyond a reasonable doubt that the appellant inserted his penis, his tongue, his fingers and his fist into the complainant’s vagina, and that she did not consent to any of these acts. The judge found the complainant’s evidence that she did not consent to be believable and unshaken….
[34]….She found the complainant did not give verbal consent to any sexual act other than the digital penetration of her anus. The judge rejected the appellant’s defence of honest but mistaken belief in communicated consent. In reaching this determination, the judge considered, among other things, that there was “no discussion about the specific sexual acts to be performed” and that the appellant “did not discuss the sex acts that he proposed to engage in”: Conviction Reasons at para. 63.
[35] The judge found the appellant guilty of sexual assault.
Analysis
Did the judge err in finding that the November Texts were not relevant?
The s. 276 regime
[40] The prohibited inferences in s. 276(1) are that by reason of the sexual nature of the activity, the complainant: “(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or (b) is less worthy of belief”. These are the “twin myths”….
[41] Generally speaking, the threshold for evidentiary relevance is low. To be logically relevant, an item of evidence does not have to “firmly establish…the truth or falsity of a fact in issue”, but must simply tend to “increase or decrease the probability of a fact at issue”: Schneider at para. 39; R. v. Arp, [1998] 3 S.C.R. 339, 1998 CanLII 769 at para. 38; R. v. C.I., 2023 ONCA 576 at para. 96. A determination of relevance does not involve consideration of concepts such as ultimate reliability, believability, and probative weight: Schneider at para. 39.
[42] The question of relevance may present greater difficulty in the context of a s. 276 application where an accused maintains the evidence is admissible for a permissible purpose, but the evidence could also support impermissible twin-myth reasoning. On these kinds of applications, the accused must identify in a detailed manner how the evidence relates to a permissible use that does not rely on twin-myth reasoning:R. v. Goldfinch, 2019 SCC 38 at para. 51; T.W.W. at paras. 27 and 36. The “relevant issue” to which the evidence is said to relate cannot be one of the twin-myths prohibited by s. 276(1). In addition, bare assertions that the evidence is relevant to context, narrative, or credibility cannot satisfy s. 276(2). Any argument based on context must be scrutinized to ensure context is not a disguised myth: Goldfinch at para. 56.
[43]….. Evidence of consent need not be contemporaneous in order to be relevant. It may consist of circumstantial evidence, including evidence of “the complainant’s words and actions, before and during the incident”: Ewanchuk at para. 29.
[44] Evidence of how consent to sexual activity was communicated in the past may be relevant to the issue of consent and whether the accused had an honest but mistaken belief in communicated consent. For example, prior sexual activities between an accused and the complainant may establish “legitimate expectations” about how consent is communicated between the parties: R. v. Barton, 2019 SCC 33 at para. 93. As explained by the Supreme Court in Barton:
[93] …American scholar Michelle Anderson puts it this way: “… prior negotiations between the complainant and the defendant regarding the specific acts at issue or customs and practices about those acts should be admissible. These negotiations, customs, and practices between the parties reveal their legitimate expectations on the incident in question” [citation omitted].
[45] However, such “negotiations” cannot be predicated on broad advance consent to all sexual activity. The definition of “consent” under s. 273.1(1) of the Code “suggests that the consent of the complainant must be specifically directed to each and every sexual act, negating the argument that broad advance consent is what Parliament had in mind”: Barton at para. 99, quoting R. v. J.A., 2011 SCC 28 at para. 34. Furthermore, the complainant must consent to the sexual activity at the time it occurs. Therefore, an accused’s belief that a complainant “gave broad advance consent to sexual activity of an undefined scope” is premised on a mistake of law: Barton at para. 99.
[46] Once evidence of other specific sexual activity is found to be relevant to a permissible use, the balancing of the probative value and prejudicial effect required by s. 276(2)(d) of the Code is engaged. The requirement that the evidence must have “significant probative value” serves to exclude evidence “of trifling relevance that, even though not used to support the two forbidden inferences, would still endanger the ‘proper administration of justice’”: R. v. Darrach, 2000 SCC 46 at para. 41….
Discussion
[47] There was no controversy in this case that the November Texts were evidence of sexual activity other than sexual activity that forms the subject matter of the charge, and thus subject to the s. 276 regime.
[49] The appellant says that, given the importance of prior conversations between him and the complainant, the November Texts were clearly relevant to issues at trial; namely, consent and honest but mistaken belief in communicated consent. The issues around consent turned on the factual question of whether the appellant and the complainant communicated in advance about a rape role-play that would involve the complainant feigning sleep. There was, the appellant says, a cogent connection between the November Texts, which were sent on the evening of November 17, 2019, and the Kitchen Conversation, which the appellant said occurred on the morning of November 18, 2019. At the time the November Texts were exchanged, the appellant and the complainant both anticipated that the appellant would be bringing the children for a supervised visit the next day. The appellant testified that in light of the November Texts, “it seemed that that’s what we were planning on doing” during the visit.
[50] Viewed in this context, I agree with the appellant that the trial judge erred in her assessment of the relevance of the November Texts. The trial judge found that because the November Texts did not contain a detailed script for the role-play, they were not relevant to the issues of consent or mistaken belief in communicated consent. However, it was wrong for the judge to view the November Texts in isolation. The question of relevance did not turn on whether the November Texts, standing alone, established that the complainant had consented to the activity. The question was, simply, whether the November Texts were logically probative of a fact that was in issue at trial. Here, the key fact in issue was what discussion (if any) took place prior to the sexual activity about a rape role-play. [PJM Emphasis]
[51] I also agree that the judge erred in failing to consider the relevance of the November Texts in light of their asserted connection to the Kitchen Conversation. The appellant testified that the Kitchen Conversation represented a continuation of the one that occurred the prior day. The November Texts were prior communications that related to the complainant’s interest in engaging in the very specific type of roleplay that the appellant says was then discussed the next morning in the Kitchen Conversation and carried out a short time later. Without the November Texts for context, the appellant was left to testify, in effect, that the Kitchen Conversation occurred out of the blue, rather than as a follow-up to a discussion that the complainant initiated and participated in.
[52] The issue of relevance did not turn on whether or not the appellant would actually succeed on any of his defences at the conclusion of trial. Evidence does not have to establish a fact to be relevant, nor does it need to be determinative. Whether the appellant and the complainant communicated in advance about a sexual roleplay that would involve a stranger rape and feigned sleep was directly relevant to the issues of whether the complainant consented to the sexual activity and whether the appellant had an honest but mistaken belief in communicated consent. Indeed, whether such communication occurred was the critical factual issue at trial. The trial judge correctly accepted that evidence of the Kitchen Conversation was relevant for a purpose (ascertaining consent) that did not involve twin-myth reasoning. However, she erred in failing to carry this analysis through to the November Texts.
[57] I conclude, therefore, that the trial judge made a wrong decision on a question of law in finding that the November Texts were not relevant, which invokes this Court’s remedial jurisdiction under s. 686(1)(a)(ii) of the Code….
Disposition
[62] I would allow the appeal, set aside the appellant’s conviction, and order a new trial.
R v Khamvongsa, 2025 BCCA 33
[February 5, 2025] Charter s.24(2) – The Seriousness of s.8 Violations in Obtaining a Search Warrant [Reasons by DeWitt-Van Oosten J.A. with Harris and Iyer JJ.A. concurring]
AUTHOR’S NOTE: The trial decision in this case followed a flawed logic that could undermine accountability for negligent and intentional misrepresentations in search warrant applications. The trial judge improperly shifted the focus from these misrepresentations to the mere fact that police sought a warrant, which risks rendering Charter protections under s.8 meaningless for those whose rights are violated. The Court of Appeal rejected this approach, emphasizing that misleading statements and overreaching opinions by the affiant require careful judicial scrutiny and can justify the exclusion of evidence. In this case, the affiant’s exaggerated claims—such as interpreting surveillance as clear evidence of drug transactions—aggravated the seriousness of the Charter breaches. As a result, the Court of Appeal ordered a retrial.
Introduction
[1] Following a trial in the Provincial Court, the appellant, Khamphou Khamvongsa, was convicted of thirteen drug, firearms, and weapons offences.
[2] Charges were laid after the police executed a search warrant at the appellant’s residence. Items seized from his bedroom included: 56.33 grams of cocaine; $28,410 in currency; drug trafficking paraphernalia; trafficking ledgers; two prohibited weapons (nunchaku and butterfly knife); a Glock nine-millimetre handgun; a loaded Glock ten-millimetre handgun; two Glock magazines with ammunition; and a Remington shotgun.
[3] The warrant was obtained under s. 11 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 [CDSA]. The appellant challenged the validity of the warrant at trial and the judge concluded there were insufficient grounds for the warrant to issue. As a result, the search and seizure were held to be unreasonable under s. 8 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 [Charter].
[4] Notwithstanding the constitutional violation, the judge admitted all of the contested evidence under s. 24(2) of the Charter on the basis that doing so would not bring the administration of justice into disrepute….
Findings on the section 8 voir dire
[11] The grounds offered in support of the warrant used to search the appellant’s apartment consisted primarily of information provided by the three confidential informers and observations made during police surveillance. In the s. 8 voir dire, the judge reviewed the ITO underlying the warrant and concluded that:
the ITO contained “no direct evidence from anybody” that evidence of a drug offence would be found in the appellant’s apartment (at para. 13);
in 2019, informer A told the VPD that the appellant was selling drugs from two of three specified apartment buildings, and lived in the third building (at para. 20);
informer B told the VPD that the appellant was selling drugs from two of the specified apartment buildings, with one of those buildings being his residence (at para. 21);
informer C described the appellant as a drug dealer, but did not identify any place from which he was selling drugs (at para. 22);
the ITO provided “little” to go on in assessing the credibility and reliability of the confidential informers (at paras. 16, 19);
the ITO did not indicate whether any of the informers had criminal records; nor did it state whether informer B or C provided information in the past that resulted in successful seizures or prosecutions (at para. 16);
the ITO did not indicate when informers B and C provided their information to the VPD, or how current it was (at para. 24);
for all three informers, the ITO did not explain how they came to know of the information they provided to the police. Instead, it simply relayed the information in the form of “bald conclusory statements”. The ITO did not set out the “source of the [informers’] knowledge” (at para. 25);
the ITO included information about surveillance conducted by the VPD on four separate dates (at para. 27);
the factual description of observations made on the first date corroborated information from two of the informers that the appellant lived at a particular address. He was seen to enter that building (at para. 27);
the ITO also stated that on the first date of surveillance, an unknown male was seen to “provide fabric (appeared to be a fabric bag or something wrapped in fabric)”, to a female who was standing outside one of the three trafficking locations. The female was one of the people alleged to be involved in drug trafficking with the appellant. The affiant opined that the observed behaviour was “consistent with a hand-to-hand street-level drug transaction” (at paras. 40–41);
the judge found that the way the affiant described this interaction was both “erroneous and misleading”. He found that “[n]either the officer who made [this] observation nor the officer that prepared the surveillance report describe[d] the fabric as a fabric bag or something wrapped in fabric”. Consequently, there was “… no evidentiary basis for the [affiant’s stated] conclusion that the item was drugs or contained drugs …”. Given its misleading nature, the factual representation of a “fabric bag” or “something wrapped in fabric” was excised from the ITO for purposes of assessing whether there were sufficient grounds for the warrant (at paras. 41–42, emphasis added);
the ITO’s description of surveillance conducted on the second date had the appellant leaving one of the buildings at which drug trafficking was said to occur. He was seen to re-enter that same building approximately one minute later. The judge found that these observations “establishe[d] a connection between [the appellant] and that building” (at para. 28);
the ITO stated that on this same date, the appellant subsequently left the building “holding a large plastic bag”. He met two people, pulled something from one of his pant pockets, and handed it to a female (at paras. 29–30);
according to the ITO, the female involved in this interaction was seen to “immediately smoke up after receiving” something from the appellant. The judge found there was “… no information of whether the item [the appellant] gave her is what she was smoking …” (at para. 30). However, he rejected the defence submission that the ITO’s description of this event was misleading. It was “not an inaccurate statement when read literally”. From the judge’s perspective, this part of the ITO did not require excision (at paras. 43–45);
the ITO stated that on the third surveillance date, the appellant was seen at one of the buildings from which drug trafficking was said to occur (at para. 31);
a description of observations made on the final surveillance date had the appellant exiting one of the three alleged trafficking locations with a white plastic bag. He then entered the building in which his residence was located. Approximately 14 minutes later, he exited the latter building without a bag, walked up to a vehicle in front of the building, put his hand into the front passenger window, and then re-entered the building after approximately 30 seconds (at para. 32);
the judge found the ITO contained no evidence of “anything seen” in the appellant’s hand as he approached the vehicle. There was no evidence of him “receiving anything” as he approached the vehicle. There was no evidence of how long the car had been there or whether it stayed or left after the appellant was no longer interacting with it. There was no evidence of someone being in the car, or that the appellant was interacting with a person. It was “… unclear whether [the appellant] reached in with his hand or simply was in a position where his hand happened to be protruding through the window” (at para. 34). The judge found an “… absence of compelling information from which one could easily draw the conclusion [offered in the ITO] that there was a hand-to-hand exchange …” (at para. 36);
the ITO contained information about the appellant’s criminal background, with his last conviction occurring in 2010. There were “no known drug trafficking files [for the appellant]” in the police database (at para. 37); and
the ITO referred to an incident involving the appellant in October 2018 in which it was alleged he had a knife and engaged in a dispute with someone carrying a firearm (at para. 37). The judge was “somewhat skeptical” that this information supported the inference sought to be drawn by the affiant, namely, that because there was a violent incident and no one was cooperative, the people involved (including the appellant), were more likely to be drug traffickers (at para. 39).
[R. v. Khamvongsa (26 January 2023), Vancouver 255078-2 (B.C.P.C.) (“voir dire #1”).]
[12] After making these findings, the judge decided the warrant did not survive scrutiny under s. 8 of the Charter:
[50] It comes down, again, to looking at the totality of the information as it links to [address redacted]. As mentioned, there may be suspicion, but it does not amount to a credibly-based probability and, consequently, I find there were insufficient grounds for the issuance of the search warrant at that location and, consequently, the defence has discharged the onus upon it to establish a s. 8 Charter breach of Mr. Khamvongsa’s right to be secure against unreasonable search and seizure.
[voir dire #1.]
Findings on the section 24(2) voir dire
[15] Under the first step of the Grant analysis (seriousness of the Charterinfringing conduct), the judge stated that his finding about insufficient grounds for the warrant was “primarily based on a facial assessment” of the ITO: voir dire #2 at para. 10. He found the warrant invalid because the information from the “three confidential informers and four days of surveillance”, in its cumulative effect, did not establish a credibly-based probability there would be evidence of drug trafficking found in the appellant’s residence: at para. 12.
[16] The judge then said:
[13] My concern with respect to the conduct of the affiant is less the facts that were stated and more the conclusions that the affiant asked the judicial justice of the peace to draw…
[14]….in these opinions where I see an attempt to influence the authorizing judicial justice of the peace to draw unsupported inferences
[16] Here, I did not find, and I do not find, that the affiant … made deliberate factual or even careless factual misrepresentations that affected [the appellant] and the search of his residence. It is more his opinions were an overreach, and I acknowledge that his opinions were designed to influence the judicial justice of the peace, that is what I found more concerning….
…. that is the concern.
[20]….a finding of an attempt to influence through an overreach of opinion stated about the significance of those facts…
…. I do not find there was good faith, nor do I find there was bad faith … I do not find that this factor weighs in favour of exclusion in and of itself.
[17] After deciding the issue of seriousness, the judge turned to the second step of the Grant analysis (impact on the appellant’s Charter-protected interests). He noted that this was an “intrusive search” of the appellant’s apartment that interfered with a significant privacy interest: at paras. 22–23. He found that the degree of the impact weighed in favour of exclusion: at para. 24. On appeal, the Crown does not take issue with this conclusion.
[18] Under the third step of the Grant analysis (societal interest in an adjudication on the merits), the judge noted that the contested evidence was “highly reliable” and existed independent of the Charter violation: at para. 27. It was also “essential to the Crown’s case”: at para. 28. He decided that the third line of inquiry weighed in favour of admission: at para. 33.
[19] The judge proceeded to balance the results of his analysis. Ultimately, he admitted the seized items into evidence:
[35] In the end, the police took steps to obtain a warrant. Those steps are open to criticism in terms of the details behind what was written in the ITO and how the ITO was written, but nevertheless, they followed the process of investigating, putting the details in the ITO, submitting the ITO. The affiant had a belief that there were grounds, or at least there is nothing to suggest that the affiant did not have a subjective belief. A warrant was issued. They acted in accordance with presumptively a valid warrant. The investigation uncovered evidence of serious offending.
[36] The impact of the Charter breach on Mr. Khamvongsa’s privacy interest was very significant, but in view of the nature of the breach, the police conduct, the reliability of the evidence, the importance of the evidence, and the toll that excluding the evidence would take on the truth-seeking function of the trial, I conclude that admission of the evidence would not bring the administration of justice into disrepute. Consequently, the evidence will not be excluded.
[voir dire #2.]
Standard of Review
[24] Section 24(2) rulings attract deference on appeal: “Where a trial judge has considered the proper factors and has not made any unreasonable finding, his or her determination [under s. 24(2)] is owed considerable deference …”: R. v. Côté, 2011 SCC 46 at para. 44, citing Grant at para. 86, R. v. Beaulieu, 2010 SCC 7 at para. 5. See also R. v. Mian, 2014 SCC 54 at para. 77.
Discussion
[26] I do not consider it necessary to address each of the appellant’s grounds of appeal or their related sub-issues. That is because, in my view, the appellant has established an error in principle under the first step of the Grant analysis that was material to the judge’s s. 24(2) ruling, and requires a new assessment of admissibility.
Parties’ submissions on the first step
[27] The appellant says the judge’s application of the first of the Grant steps is legally flawed. Among other things, he limited his analysis of the seriousness of the Charter-infringing conduct to the content of the ITO after excision, and without substantive consideration of his conclusion on voir dire #1 that excision was necessary because the affiant made a factual statement in the ITO that was both “erroneous and misleading”: at para. 42, emphasis added.
[28] The appellant says the judge’s statement that he did not find “deliberate factual or even careless factual misrepresentations” (voir dire #2 at para. 16), does not accurately reflect the conclusions reached on the s. 8 voir dire and, in particular, a critical finding about the misleading manner in which at least one part of the ITO was drafted….
Legal principles
[32] The appellant’s first ground of appeal alleges that the assessment of seriousness was too narrow in scope and, as a result, failed to account for relevant factors that realistically should have made a material difference to the outcome.
[33] In addressing this assertion, I have found three of the authorities cited by the parties particularly instructive on the proper approach to the first step of the Grant analysis, in the context of a case in which a warrant is found to lack reasonable grounds.
[34]….R. v. Morelli, 2010 SCC 8.
[40]….R. v. Rocha, 2012 ONCA 707….
[43]…. R. v. Booth, 2019 ONCA 970….
[45] What general principles emerge from these cases?
[46] First, when assessing the seriousness of Charter-infringing conduct in the context of a s. 8 violation based on insufficient grounds for a warrant, the fact that the impugned search was conducted relying on prior judicial authorization will be attenuating. However, this factor is not determinative and its mitigating effect may be outweighed or significantly diminished by countervailing factors unique to the case that also impact the assessment of seriousness. For example, incorporating false or deliberately misleading information in the ITO, or other identified drafting problems that individually or in their cumulative effect subvert the warrant process. [PJM Emphasis]
[47] Second, the assessment of seriousness is fact-intensive, determined caseby-case, and contextually informed. As such, consistent with the wording of s. 24(2) itself, “all the circumstances” surrounding the Charter-infringing conduct must be considered, including all of the reasons underlying a found violation. (See also R. v. Zacharias, 2023 SCC 30 at para. 66.) It is not just the outcome of the s. 8 voir dire that informs the analysis, or particular aspects of the impugned state conduct. Rather, all material findings made in the s. 8 voir dire are relevant to the assessment of seriousness, including, in my view, findings that necessitated the excision of information from the ITO.
[48] Finally, although a finding of an intent to mislead is likely to result in Charterinfringing conduct landing at the top end of the culpability ladder, that is not the only route to getting there. The fact that an ITO is factually misleading (irrespective of intent), and/or suffers from other drafting issues that either individually or in their cumulative effect realistically subvert the warrant process, can also move the state conduct to the more serious end of the spectrum. It depends on the nature and number of the errors, in the context of the particular circumstances of the case. Those circumstances necessarily include the nature of the privacy interest at stake and the significance of the state intrusion enabled by the warrant: R. v. Voong, 2013 BCCA 527 at para. 97. [PJM Emphasis]
Application of legal principles
[49] I appreciate that s. 24(2) rulings attract considerable deference. However, applying the principles discussed in Morelli, Rocha, and Booth, I have concluded that the ruling in this case must be set aside. I am satisfied the judge committed a material error in principle by adopting too narrow of a focus in assessing seriousness under the first step of the Grant analysis. This allowed the fact that the police obtained a warrant before conducting their search to overwhelm the assessment and, ultimately, the final balancing under s. 24(2).
[54] I agree with the appellant that the judge’s assessment of seriousness was too narrow and therefore incomplete. The first step of the Grant analysis is properly informed by all of the conduct that is found to have contributed towards the s. 8 violation. In Reilly, the Supreme Court of Canada noted that “[t]rial judges cannot choose which relevant Charter-infringing state conduct to consider” in assessing seriousness: at para. 3. This comment was directed to ensuring that all Charter violations found to exist in a given case are considered and accounted for under the first step. However, I am of the view the principle is equally applicable to individual aspects of the Charter-infringing conduct that underlie a violation. A court’s analysis of seriousness must consider every part of the relevant state conduct, not just some parts, and this includes conduct that necessitated excision in the s. 8 voir dire. [PJM Emphasis]
[55]….I agree with the appellant that on a fair reading of the s. 24(2) ruling, it does appear that the judge either did not consider, or failed to adequately consider, the whole of his findings under s. 8 that were logically informative of the assessment of seriousness.
[57]…there were a number of findings in the s. 8 voir dire that were also relevant to the assessment of seriousness and the s. 24(2) ruling contains no substantive analysis of their impact. These include the findings that:
the ITO offered “very little” for purposes of assessing the credibility and reliability of the information provided by the confidential informers, which formed an integral part of the ITO (voir dire #1 at paras. 16, 19). As one example, for all three informers, the ITO provided no information about the source of their knowledge. Instead, the information attributed to them was conveyed in “bald conclusory statements” (at para. 25);
the affiant’s factual statement about certain observations made on the first day of police surveillance was “written to be erroneous and misleading” and because of that fact, necessitated excision (at para. 42);
based on his description of these observations, the affiant offered an opinion that what was observed was consistent with a hand-to-hand drug transaction. This opinion overreached because there was “no evidentiary basis” for it (at para. 41, emphasis added);
this same type of finding was made in respect of the factual descriptions of observations from the fourth day of surveillance (interacting with a car parked in front of the appellant’s building). The affiant opined that the appellant’s behaviour, as described, was consistent with a hand-to-hand drug transaction and using a designated residence as a stash house. The judge found there was “an absence of compelling information from which one could easily draw [that] conclusion …” (at para. 36); and
the ITO factually described the appellant’s involvement in a physical altercation in October 2018 that the affiant then opined was the type of dispute commonly associated with disputes between street-level traffickers. The judge was “skeptical” that the factual information actually supported this conclusion and, as a result, he considered it appropriate to give the opinion no weight (at para. 39).
[58] These were important findings to consider under s. 24(2), as well as the specific bases for them, and the judge did not do so, raising a serious question about the completeness of the determination specific to the first step of the Grant analysis.
[59] First, these findings call into question the accuracy of the judge’s statement in the s. 24(2) ruling that the ITO contained no “deliberate factual or even careless factual misrepresentations”: voir dire #2 at para. 16. It is difficult to reconcile this statement with the finding in the s. 8 voir dire that at least one of the factual statements was “written to be erroneous and misleading”: voir dire #1 at para. 42, emphasis added. Respectfully, it is unclear to me how a statement that is written in an erroneous and misleading manner does not amount, at the very least, to a “careless factual misrepresentation”….
[60] Second, in his ruling, the judge found that some of the affiant’s opinions in the ITO “overreach[ed]” and were “designed to influence the judicial justice of the peace”: voir dire #2 at para. 16, emphasis added. In other words, they were included in the ITO with a conscious and specific objective in mind, namely, to have the issuing justice draw certain inferences from the factual representations and reach a conclusion in support of reasonable grounds. In the s. 8 voir dire, the judge found that at least one of the affiant’s opinions had no evidentiary support, he was “skeptical” of another, and yet another of the opinions was based on “an absence of compelling information”: at paras. 36, 39, 41.
[61] When these findings are combined with the judge’s conclusion that a factual representation in the ITO was both erroneous and misleading (necessitating excision), it is difficult to understand the conclusion of no intention to mislead or, at the very least, no careless drafting. I agree with the appellant that had the judge given the cumulative effect of the overreaching opinions and the misleading factual misrepresentation proper attention, it may well have pushed the Charter-infringing conduct further up the culpability ladder. This is important because as observed by Justice Fitch, writing for this Court in R. v. Pawar, 2020 BCCA 251, a “… serious breach that has a serious impact on the rights of a Charter-claimant” (a finding made here), generally “pulls the analysis” towards exclusion: at para. 44.
[62] Third, there is no analysis in the s. 24(2) ruling of the numerous deficiencies found to exist in the presentation of the confidential informer information. The law has long been clear that if the police seek to rely upon confidential informer information in support of a warrant, they need to ensure that the ITO provides a sufficient evidentiary foundation from which the authorizing justice can properly assess the reliability of that information….
[63] Without an assessment under the first Grant step that considered and accounted for the full scope of the conduct that led to the s. 8 breach, the analysis was incomplete. Consequently, there is a serious risk that the fact the police obtained a warrant before searching the apartment carried greater mitigating effect than it appropriately should have, and relevant countervailing factors were not given sufficient consideration. The end result, in my view, was an irreparably flawed assessment of where the Charter-infringing conduct properly lay on the culpability spectrum and, importantly, whether it weighed in favour of exclusion or admission. As the latter determination necessarily affects the final balancing of the three Grant lines of inquiry, I consider the judge to have committed a material error in principle.
Remedy
[64] Given the nature of that error, I am of the view the appropriate remedy in the particular circumstances of this case is to set aside the s. 24(2) ruling, quash the convictions, and order a new trial.
R v Stevenson, 2025 SKCA 13
[February 5, 2025] Dangerous Offender Sentencing: Judicial Analysis Independent of Experts [Reasons by Drennan J.A. with Barrington-Foote and Kalmakoff JJ.A. concurring]
AUTHOR’S NOTE: This case emphasizes that the Dangerous Offender designation is separate from the sentencing stage, which may involve an indeterminate prison sentence. The sentencing judge must independently assess whether an indeterminate sentence is necessary, rather than relying solely on expert opinions about the accused’s behavioral intractability. Additionally, the judge must meaningfully consider all alternatives to indefinite incarceration, including Long-Term Supervision Orders (up to 10 years) and fixed-term imprisonment. There is no automatic presumption that a Dangerous Offender must receive an indeterminate sentence if treatment potential is uncertain. Here, however, the trial judge improperly relied on expert uncertainty about treatment success to justify an indeterminate sentence.
I. INTRODUCTION
[1] On November 19, 2018, Nathan Stevenson pled guilty in the Court of Queen’s Bench to an aggravated assault on J.P. contrary to s. 268(1) of the Criminal Code.
[2] Thereafter, in contemplation of a potential dangerous offender application pursuant to Part XXIV of the Criminal Code, the Crown sought and obtained an order to have Mr. Stevenson assessed by forensic psychiatrist Dr. Shabehram Lohrasbe pursuant to s. 752.1. After receipt of this assessment, the Crown applied formally to have Mr. Stevenson declared a dangerous offender. Following a hearing, on October 8, 2021, a sentencing judge designated Mr. Stevenson as a dangerous offender pursuant to s. 753(1) and imposed an indeterminate sentence pursuant to s. 753(4.1).
[3] Mr. Stevenson does not take issue with his designation as a dangerous offender, but appeals from the indeterminate sentence imposed pursuant to s. 759(1) of the Criminal Code. He asserts that the sentencing judge did not consider the least intrusive sanction necessary to protect the public and manage his risk. Specifically, he alleges that the sentencing judge erred by failing to: (a) follow the approach to sentencing a dangerous offender as prescribed by R v Boutilier, 2017 SCC 64, [2017] 2 SCR 936; (b) consider prospective treatment options in the penalty stage distinct from the designation stage of the proceeding; and (c) apply s. 718.1 and s. 718.2 sentencing principles, including a consideration of R v Gladue, [1999] 1 SCR 688, and alternative sanctions for Indigenous offenders….
B. Mr. Stevenson’s criminal past
[12] Mr. Stevenson’s criminal record reflects 54 convictions…
….However, it is his record for violence that is most relevant to the dangerous offender proceedings. It is set out as follows:
| 2006-01-20
Prince Albert, SK |
(3) s. 266, assault
(12) s. 266, assault |
(1-4) 6 months conditional sentence order on each charge, concurrent (97 days presentence custody)(9-12) 6 months conditional sentence order on each charge, concurrent |
| 2008-05-29
Regina, SK |
(1) s. 267(b), assault causing bodily harm |
(1-3) 1 year, 6 months probation, and mandatory weapons prohibition |
| 2009-01-14
Broadview, SK |
(1) s. 266, assault | (1-3) 1 month on each charge, concurrent but consecutive to sentence serving |
| 2013-01-29
North Battleford, SK |
(3) s. 266, assault (2 charges) | (1-7) 5 months on each charge, concurrent |
| 2015-04-02
Saskatoon, SK |
(1) s. 266, assault | (1) 12 months probation (107 days pre-sentence custody) |
| 2015-10-07
Saskatoon, SK |
(2) s. 270(1)(a), assault a peace officer |
(2) 5 months concurrent (6 days pre-sentence custody) |
[13] Approximately ten years prior to the offence on J.P., on December 1, 2007, Mr. Stevenson assaulted another child, then 3 years of age, causing her bodily harm. The child was that of a common-law partner of his at the time (not J.P.’s mother). The assault left the child bloodied, with her eyes nearly swollen shut, a swollen nose, swollen lips, and bruising throughout her body. Mr. Stevenson pled guilty to this offence and received a sentence of 12 months custody.
[14] Mr. Stevenson’s record also includes five assaults on female partners. For each of these offences, he received provincial custodial terms, the longest of which was six months. Mr. Stevenson had not received a penitentiary term for any offence prior to the predicate offence.
2. Evidence of Dr. Lohrasbe
[23] While Mr. Stevenson had not had the benefit of federal high intensity programming, he had participated in an Anger Management and Non-Violent Crisis Resolution Program in 2009 and a Violence Prevention Program in 2014. Despite this, Dr. Lohrasbe testified that Mr. Stevenson had still not taken moral and psychological responsibility for his actions but, instead, continued to project responsibility elsewhere, failed to see the connection between the two assaults on his child victims, and minimized the offences.
[24] Mr. Stevenson acknowledged that substance use was a driving factor in his offending behaviour, including the predicate offence, but he persistently and often significantly relapsed. Ms. Cote disclosed to Dr. Lohrasbe that Mr. Stevenson had abused solvents as a child. Dr. Lohrasbe opined that this had an impact on cognitive capacity and deficits in impulse control for Mr. Stevenson.
[27] Dr. Lohrasbe concluded that Mr. Stevenson was suffering from substance use disorder, which played a role in precipitating his violence, including the predicate offence. This stemmed from his childhood abuse of solvents. He confirmed diagnoses as well for Mr. Stevenson of BPD and Antisocial Personality Disorder. Dr. Lohrasbe attributed the onset of Mr. Stevenson’s BPD to his history of childhood trauma, which included physical and sexual abuse, and commented that the diagnosis occurred late for Mr. Stevenson due to a variety of factors. Dr. Lohrasbe also described him as an outlier in terms of the physical abuse and childhood trauma he had endured.
[28] Dr. Lohrasbe noted that because of the lack of data about “men who violently assault children in multiple ways over extended periods of time”, his risk assessment had to be based on the data for more typical offenders that may not be relevant for Mr. Stevenson. He explained that the severity facets of the risk for violence – the risk of causing damage to victims beyond that of typical violence – were present, which reinforced his conclusion that Mr. Stevenson is high risk (Lohrasbe Report at 48–49).
[29] As to mitigation of risk through treatment, Dr. Lohrasbe noted that because of the lack of data about offenders with a history of prolonged assaults on children, “we cannot assume that treatment methods that may reduce risk in… (…any other kind of violent offenders) will be effective with Mr. Stevenson”. Despite that, he stated that he was “not opining that Mr. Stevenson [was] ‘untreatable’; only that treatability in a man whose offenses are so uncommon is necessarily an unknown” (Lohrasbe Report at 51). In his view, Mr. Stevenson presented a high risk for violence for the “foreseeable future”. He noted that Mr. Stevenson had not yet participated in some intensive programs in federal facilities, and that it was therefore possible that the Aboriginal MultiTarget High Intensity Program and gradual, step-wise follow-up might assist him to keep away from alcohol and drugs. Dr. Lohrasbe also noted that Dialectical Behavioural Therapy may be beneficial to treat his BPD, and that medication had the potential to play a small role. He opined as well that Mr. Stevenson’s symptoms of BPD may decrease with age but be still engaged in periods of stress and dysfunction. [Emphasis by PJM]
[31] Finally, at the close of his report, Dr. Lohrasbe wrote as follows:
c) It is unclear if his risk can be reduced with available treatment programs to the point where he can be managed in the community, but all appropriate programs should be made available to him.
e) In the longer term, his risk may decline with age.
F. The penalty decision
[44] After having designated Mr. Stevenson as a dangerous offender, the sentencing judge went on to consider the appropriate penalty….
….He cited R v Pelly, 2021 SKCA 50 at para 35, 403 CCC (3d) 127, for the proposition that a “reasonable expectation” that a lesser sentence will suffice suggests a likelihood, a belief that something will happen, a confident belief, for good and sufficient reasons. He acknowledged the relevance of Gladue to “determining if there is a reasonable expectation that a lesser measure will adequately protect the public” (at para 71).
[45] The sentencing judge then explained why he had concluded that an indeterminate sentence was required:
[75] But, Dr. Lohrasbe’s consideration of the Gladue factors that have affected the Offender and the manner in which they informed possible treatments did not change his opinion that “… it would be hazardous to assume the treatment [of the Offender] would be effective”, Transcript Vol 3. page 458.
[76] Again, I accept Dr. Lohrasbe’s opinions and find that they also answer the question of whether there is something less then an indeterminant [sic] sentence that will adequately protect the public.
[77] The only adequate protection for the public is an indeterminant [sic] sentence. It must be left to the further assessments of the Offender after he has taken the programming suggested by Dr. Lohrasbe at pages 50-51 to determine if the Offender’s risk of recidivism has been reduced and he has gained an ability to control his behavior. Thereafter it will be for the Parole Board to fairly and faithfully discharge its statutory obligations and determine if the Offender can be released into the community, R v Peekeekoot, 2014 SKCA 97 at para 125.
IV. ANALYSIS
A. Did the sentencing judge fail to consider the least restrictive sanction necessary to protect the public?
1. Failure to “exhaust” lesser sentencing options as required by Boutilier
[51] First, the sentencing judge did not follow the approach prescribed by Boutilier to consider lesser sentences pursuant to ss. 753(4) and (4.1). Those sections are as follows:
Sentence of indeterminate detention
(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.
(Emphasis added)
[52] Boutilier clarified that s. 753(4.1) does not create a presumption of indeterminate sentences for those declared dangerous offenders. The proper approach to that sentencing exercise was stated in this way:
[70] The framework a sentencing judge should adopt in exercising his or her discretion under s. 753(4.1) has been aptly explained by Justice Tuck-Jackson of the Ontario Court of Justice: R. v. Crowe, No. 10-10013990, March 22, 2017. First, if the court is satisfied that a conventional sentence, which may include a period of probation, if available in law, will adequately protect the public against the commission of murder or a serious personal injury offence, then that sentence must be imposed. If the court is not satisfied that this is the case, then it must proceed to a second assessment and determine whether it is satisfied that a conventional sentence of a minimum of 2 years of imprisonment, followed by a long-term supervision order for a period that does not exceed 10 years, will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. If the answer is “yes”, then that sentence must be imposed. If the answer is “no”, then the court must proceed to the third step and impose a detention in a penitentiary for an indeterminate period of time. Section 753(4.1) reflects the fact that, just as nothing less than a sentence reducing the risk to an acceptable level is required for a dangerous offender, so too is nothing more required.
(Emphasis added)
[53] It follows that it was only once the sentencing judge had “exhausted the least coercive sentencing options to address the question of risk”, that could he impose an indeterminate sentence (Boutilier at para 69). As articulated by Kalmakoff J.A. in R v Napope, 2023 SKCA 1 at para 22, 421 CCC (3d) 447, “[m]aking this call requires sentencing judges to address head-on the question of whether something less than an indeterminate sentence can adequately protect the public. This necessitates an individualized assessment of all relevant factors and circumstances, and a thorough inquiry on the part of a sentencing judge into the prospect of control in the community” (citing Pelly at para 23, Boutilier at paras 68 and 71).
[54] While I do not wish to be taken as saying the record before the sentencing judge could not have resulted in a conclusion that there was no reasonable expectation that a lesser sentence could adequately protect the public – here, the sentencing judge did not conduct a “head on” analysis of alternatives to an indeterminate sentence. His reasons lack any consideration of a conventional sentence. More importantly in light of the facts, they do not address a determinate term plus a LTSO for Mr. Stevenson – despite defence counsel having proposed both this and a conventional sentence as alternatives. There is further no consideration or mention by the sentencing judge of the evidence that relates to that submission, including the evidence of corrections officials respecting provincial and community programming, the family and community supports and connections of Mr. Stevenson, nor Dr. Lohrasbe’s evidence regarding lesser sentences and recommendations for risk management.
[55] While Dr. Lohrasbe could not opine that treatment alone would get Mr. Stevenson to a point where his risk would be manageable in the community, he agreed that the close supervision provided under the auspices of a LTSO could be a valuable tool in any risk management strategy. In that regard, Dr. Lohrasbe testified that the rate of reoffending for offenders on long-term supervision was “very low”, as they were “watched much, much more carefully than someone on a regular parole”. He also noted that, in Mr. Stevenson’s case, any successful community risk management strategy would require a multi-faceted approach, including the following (Lohrasbe Report at 53):
i. Close monitoring is critical. Mr. Stevenson’s return to old habits have been rapid (especially substance abuse and unstable relationships). He needs frequent appointments and reminders of concrete expectations while in the community. Home visits by a parole officer are essential.
ii. Close supervision is also of importance, with restrictions on residence, travel, and mandatory reporting of dating/intimate relationships.
iii. Ongoing Treatment will depend on his progress especially in the realms of substance abuse, mood regulation, and interpersonal relationship, but may also include educational, vocational, and social skills programs.
iv. Victim safety planning is also a critical aspect of risk management, given the persistent foci of his violence. It is mandatory that any future intimate partner be made aware of his history and brought into the circle of support and care. Mr. Stevenson should have no unsupervised contact with female children.
v. Indigenous identity should be supported by giving Mr. Stevenson access to cultural and spiritual guidance and activities. [PJM Emphasis]
[56] All of this, in my view, was relevant to the question of whether the risk Mr. Stevenson posed to the public could be addressed by a lesser sentence than indeterminate imprisonment. However, the sentencing judge did not engage in or even articulate the possibility and potential of those dispositions on the evidence – or make the necessary findings as to why lesser sentences were precluded on the evidence. Instead, the sentencing judge concluded that Dr. Lohrasbe’s opinion completely “answer[ed] the question” of whether something less than an indeterminate sentence would protect the public (at para 76). In substance, the sentencing judge, having accepted Dr. Lohrasbe’s opinion as to treatability, proceeded as if he was not required to address the question of manageability in the community in determining the appropriate penalty. As I will explain below, that is the second flaw in the sentencing judge’s reasoning.
2. Failure to conduct a distinct analysis of the prospective evidence of treatability and risk management at the penalty stage
[57] The second and related flaw in the sentencing judge’s reasoning involves his failure to properly consider “all retrospective and prospective evidence relating to the continuing nature of [Mr. Stevenson’s] risk, including future treatment prospects” at the penalty stage (Boutilier at para 45).
[58] Evidence of treatability is relevant at both the designation stage and the sentencing stage (Boutilier at paras 43–45; see also R v Toulejour, 2022 SKCA 20 at para 36; R v Piche, 2019 SKCA 54 at paras 76, 77 and 84, [2020] 2 WWR 240; R v Parfitt, 2019 SKCA 55 at paras 59 and 66, 378 CCC (3d) 490; R v Starblanket, 2019 SKCA 130 at paras 71, 74 and 81, [2020] 6 WWR 288; R v Awasis, 2020 BCCA 23 at para 73, 385 CCC (3d) 369; R v Radcliffe, 2017 ONCA 176 at para 58, 347 CCC (3d) 3; and R v Bragg, 2015 BCCA 498, 332 CCC (3d) 145). That said, Boutilier directs judges to conduct the sentencing analysis at the penalty stage as separate and distinct, without importing findings made on dangerousness at the designation stage. “At the designation stage, the purpose of prospective evidence is to assess an offender’s future threat or risk to the safety of the public. On the other hand, the sentencing stage is concerned with ‘imposing the appropriate sentence to manage the established threat’” (R v Tynes, 2022 ONCA 866 at para 85, 165 OR (3d) 321, citing Boutilier at para 31).
[59] “[E]ven where the treatment prospects are not compelling enough to affect the judge’s conclusion on dangerousness, they will still be relevant in choosing the sentence required to adequately protect the public” (Boutilier at para 45). Management of risk, rather than eliminating the “tremendous future risk” that must be found to exist before an offender is designated as dangerous, is therefore the focus, requiring a consideration of the mechanisms that may control risk (Pelly at para 26, citing R v S.P.C., 2018 SKCA 94 at paras 41–44; see also R v Spilman, 2018 ONCA 551 at para 30, 362 CCC (3d) 415; R v Daniels, 2011 SKCA 67 at para 25, 271 CCC (3d) 339; and Napope at para 22). That calls for consideration of the particular risk presented by the offender, and the extent it could be managed through appropriate conditions in a LTSO or a conventional sentence…. [Emphasis by PJM]
[60] The reasons of the sentencing judge blur and, to an extent, appear to conflate the opinion of Dr. Lohrasbe as to risk management at the penalty stage with risk assessment at the designation stage. Importantly, there was far more to Dr. Lohrasbe’s evidence on prospective treatability and mechanisms for community control than his summation of Mr. Stevenson’s Gladue factors and interest in cultural programming. While Dr. Lohrasbe did opine that treatment was an unknown, and that Mr. Stevenson was at present not manageable in the community – he did not conclude that he was untreatable….
[61] Dr. Lohrasbe also gave the following evidence as to the possibilities for risk management associated with long-term community supervision:
…. It could be Mr. Stevenson, it could be virtually anyone in this situation. And my generic response as a psychiatrist is that for the well-being of individuals, balancing that with the need for protecting the public, virtually every case that comes to this level, my preference as a psychiatrist is the shortest possible time in custody and the longest possible time of supervision because you need — if you — again, I’m speaking as a psychiatrist. The — the risk with lengthy sentences, aside from the issue of institutionalization that we discussed yesterday, is a kind of hopelessness that comes in with lengthy periods of sentencing. On the other hand, you need enough time to deliver all the programs that a man can benefit from. So from a psychiatric point of view, anything more than that is — is sort of not particularly helpful.
But by the time an offender has got to these proceedings, the need for supervision is really indefinite, and ideally I would like the shortest period of incarceration, the longest period of supervision.
Now, that being said, the need for supervision — or rather I should say the intensity of supervision inevitably is fine-tuned. So if a guy is doing very well in the community, then it goes from seeing him, you know, twice a week to twice a month to twice a year sometimes. So I’ve had individuals — in fact, my very first testimony in a dangerous offender hearing, he’s been out in the community for years and comes voluntarily, literally, to see me up until a few years ago.
[63] While all of this may not have been sufficient in the designation stage to ameliorate a finding of dangerousness, it did not automatically compel the conclusion that an indeterminate sentence was called for. The sentencing judge was required at the penalty stage to consider lesser sentences and their potential for management of Mr. Stevenson’s risk in the community. This meant he had to take into account what the whole of the evidence as to Mr. Stevenson’s risk management, including that of the expert, corrections officials and Mr. Stevenson’s family, said about not only his treatability but also the likely effectiveness of any available risk management measures when considering the appropriateness of other lesser sentences pursuant to s. 753(4.1). In my view, the sentencing judge’s failure to independently consider prospective treatment and supervision options in the penalty context constitutes an error in law (see Ross at para 75).
3. Failure to apply sentencing principles and to consider Gladue and the s. 718.2(e) inquiry
a. Failure to apply sentencing principles
[64] Finally, s. 753(4) requires a consideration of s. 718.1 and s. 718.2 sentencing principles in order to impose a fit sentence – including those focused on the circumstances of Indigenous offenders (Boutilier at paras 60–62). “[A]n offender’s moral culpability, the seriousness of the offence, mitigating factors, and principles developed for Indigenous offenders are each part of the sentencing process under the dangerous offender scheme. Each of these considerations is relevant to deciding whether or not a lesser sentence would sufficiently protect the public” (Boutilier at para 63; see also Pelly at para 27).
[65] While the sentencing judge instructed himself on the applicability of s. 718.1 and s. 718.2 sentencing principles, I agree with Mr. Stevenson that his reasons do not demonstrate an application of those principles. There is no analysis surrounding Mr. Stevenson’s moral culpability, proportionality, or the principle of restraint – all of which remain necessary considerations at the penalty stage, even in an application under Part XXIV….
b. Failure to consider Gladue and apply s. 718.2(e)
[67] While Mr. Stevenson says that the sentencing judge failed to apply sentencing principles generally, his major complaint is with the sentencing judge’s alleged failure to meaningfully consider Gladue and s. 718.2(e). He says that the sentencing judge improperly deferred to Dr. Lohrasbe’s comments on Gladue as determinative of what alternative sanctions were available to manage his risk. He submits that, as a result, there was inadequate information before the sentencing judge to fulfil his obligations pursuant to s. 718.2(e).
[68] I agree with Mr. Stevenson’s submission. Section 718.2(e) requires a sentencing judge in a dangerous offender proceeding to consider (a) the unique and systemic or background factors which may have played a part in bringing a particular Indigenous offender before the court, and (b) the types of sentencing and sanctions which may be appropriate due to the offender’s heritage (Boutilier at para 108, per Karakatsanis J., dissenting in part, but not on this point, citing Gladue at para 66, and at para 109, citing R v Johnson, 2003 SCC 46 at para 29, [2003] 2 SCR 357; see also R v Ipeelee, 2012 SCC 13 at paras 84 and 87, [2012] 1 SCR 433). This is so despite the tempering of Gladue by virtue of the paramount public protection objective of Part XXIV.
[69]….In this appeal, we are, of course, concerned only with the penalty stage, given that Mr. Stevenson has not challenged his designation as a dangerous offender. Evidence pertaining to Gladue considerations is squarely relevant at the penalty stage, as it helps to inform whether there is a reasonable expectation that something short of an indeterminate sentence will adequately protect the public by speaking to such matters as the moral culpability of the offender, management of future risk, and a consideration of the least intrusive sentence required to achieve public protection (Boutilier at paras 45, 60 and 63; Pelly at paras 49–51; Napope at para 26; R v Bourdon, 2024 ONCA 8 at para 25, 95 CR (7th) 219; R v Standingwater, 2013 SKCA 78 at para 49, [2013] 10 WWR 277; Awasis at para 123; see also: Radcliffe at para 64; R v Moise, 2015 SKCA 39 at paras 27, 28 and 30; R v Peekeekoot, 2014 SKCA 97 at paras 61–62, 446 Sask R 22; Standingwater at paras 50– 52)….
[70] Gladue factors allow a sentencing judge to assess “the viability of traditional Aboriginalfocused treatment options aimed at addressing the issues that contribute to or aggravate an offender’s 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” (Awasis at paras 127 and 133). In Ballantyne, this Court stated that a “consideration of treatment necessarily includes Gladue factors and culturally specific programming”, which in turn relates to risk management (at para 23, emphasis added).
[71] It follows that it is an error in principle for a sentencing judge not to consider Gladue at the penalty stage (Ballantyne at para 23; Ipeelee at para 87; Ralston, The Gladue Principles at 329, citing Wolfleg at para 127). In Moise, this Court overturned a dangerous offender designation and indeterminate sentence for the failure of a judge to consider Gladue, holding that “culturally sensitive programming and supports may make a difference to the offender’s rehabilitation and management, within the community, of his or her risk to reoffend” (at para 24, citing Standingwater at paras 49–53 and Peekeekoot at para 58; see also Clayton C. Ruby, Sentencing, 10th ed (Toronto: LexisNexis Canada Inc., 2020) at §17.66 [Ruby], citing R v Bird, 2015 SKCA 134 at para 69; R v Montgrand, 2014 SKCA 31 at paras 16–17, 433 Sask R 248; Standingwater; see also Radcliffe at para 57 and R v Laprise, 2022 SKCA 77, [2022] 9 WWR 191).
[72] As to what constitutes a sufficient Gladue and s. 718.2(e) analysis, this Court in Moise also said that s. 718.2(e) in the Part XXIV context requires a “meaningful evaluation” of alternatives to incarceration – something more than “lip service” or a summary review of an offender’s personal circumstances:
[74]….I am of the view that the sentencing judge erred in his treatment of Gladue and the s. 718.2(e) inquiry in several respects.
c. Failure to conduct the s. 718.2(e) inquiry independently from the expert
[75] To begin, the sentencing judge did not independently consider, as was his statutory obligation, Mr. Stevenson’s background factors with a view to what cultural programming could ameliorate his risk and involve alternative sanctions. Instead, he summarized Dr. Lohrasbe’s consideration of Gladue factors…
[76] Nowhere in the analysis did the sentencing judge independently consider how Mr. Stevenson’s Gladue factors related to moral culpability, risk management or the least restrictive sentence. Instead, the sentencing judge concluded that Dr. Lohrasbe’s consideration of Gladue answered the question of reasonable expectation, as well as the s. 718.2(e) analysis.
[77] Notably, the sentencing judge’s recounting of Dr. Lohrasbe’s evidence on Mr. Stevenson’s Gladue factors did not include all evidence on the record relevant to the s. 718.2(e) inquiry. He did not mention or independently consider the evidence of Ms. Cote or Ms. Bellegarde, or the corrections officials who offered evidence as to provincial and community programming. This evidence was nuanced and distinct from that of Dr. Lohrasbe….
[78]….To summarize, it was for the sentencing judge, and not Dr. Lohrasbe, to conduct the requisite Gladue inquiry in determining a fit sentence. In my view, he erred by delegating that inquiry.
d. Failure to obtain information necessary to fulfill the s. 718.2(e) duty
[79] Next and relatedly, it is my view that the sentencing judge, in failing to engage in an independent s. 718.2(e) analysis, failed also to obtain the necessary information to inform other sanctions relevant to Mr. Stevenson’s risk management. As a result, he had inadequate information to engage fully with the s. 718.2(e) inquiry – an essential aspect of determining the sentence that will adequately protect the public, particularly in relation to Indigenous offenders.
[93]….the nature of the record in the lower court does not permit this Court to review the reasonableness of the penalty on this basis alone.
[97] The errors in law here were interrelated and went to the heart of a consideration of lesser sentences that could ameliorate Mr. Stevenson’s risk while protecting the public. As further evidence on the issue of s. 718.2(e) is required, this Court cannot simply substitute its view of the matter, and a new hearing is required. Given that conclusion, as previously noted, it is unnecessary to address Mr. Stevenson’s arguments concerning the reasonableness of his sentence.
VI. CONCLUSION
[98] For the foregoing reasons, I would allow Mr. Stevenson’s appeal, set aside the indeterminate sentence imposed on him, and order that a new hearing be held in the Court of King’s Bench before a sentencing judge assigned by the Chief Justice of that Court, to determine the appropriate penalty.
