R. v. Hamer

2021 BCCA 297 R. v. Hamer

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Hamer, 2021 BCCA 297 Date: 20210803 Docket: CA46265 Between: Regina Respondent And Michael Louis Hamer Appellant Before: The Honourable Madam Justice Bennett The Honourable Mr. Justice Harris The Honourable Mr. Justice Abrioux On appeal from: An order of the Supreme Court of British Columbia, dated March 28, 2018 (R. v. Hamer, 2018 BCSC 783, Victoria Docket 162592-6). Counsel for the Appellant (via teleconference): T.B. Magder Counsel for the Respondent (via teleconference): M. Shah Place and Date of Hearing: Vancouver, British Columbia February 12, 2021 Place and Date of Judgment: Vancouver, British Columbia August 3, 2021 Written Reasons by: The Honourable Madam Justice Bennett Concurred in by: The Honourable Mr. Justice Harris The Honourable Mr. Justice Abrioux Summary: Following a conviction by jury of several offences, including aggravated assault, the appellant was found to be a dangerous offender and was given an indeterminate sentence. The appellant appeals his designation and sentence, arguing that the sentencing judge erred in making findings of fact that were inconsistent with the jury's verdict, impermissibly relied on character evidence, erred in rejecting evidence of defence witnesses, imposed a sentence that violated the parity principle, and failed to consider Gladue principles. The appellant sought to adduce

fresh evidence in the form of a Gladue report. Held: Appeal dismissed; the application to adduce fresh evidence is dismissed. The sentencing judge's conclusions were entirely consistent with the evidence and the verdicts. The judge did not err in her consideration of the evidence, and did not improperly consider either the prior mischief count or the telephone call in concluding that the appellant had engaged in a pattern of behaviour pursuant to s. 753(a)(i). Given the judge's rejection of the appellant's evidence regarding his sincerity for wanting to change, the judge was entitled to afford the defence evidence, which relied directly on the appellant's self-reporting, little weight. The sentence is not "a substantial and marked departure" from sentences normally imposed for offenders in similar circumstances, and thus appellate intervention is not warranted. Finally, there is nothing in the Gladue report to show that systemic or background factors as described in Gladue and Ipeelee operated in any way in the appellant's life or affected his moral culpability for his criminal offending. The application of the Gladue principles in this case would not have affected the result, and therefore the evidence does not meet the fourth criteria in the Palmer test. Table of Contents Paragraph

BACKGROUND [2] Mr. Hamer's criminal history [12] Evidence on the dangerous offender hearing [14]

ISSUES [35]

DISCUSSION [37] Legal framework [37] Standard of review [41] Issue 1: Finding facts after jury verdict [43] The eye wound [44] The self-defence claim [68] Issue 2: Reliance on improper evidence in assessing the pattern of behaviour [71] Mischief offence [80] The telephone call [83] Issue 3: Gladue principles [90] Causal link [98] Issue 4: The evidence of defence witnesses and Mr. Hamer's self-report [119] Issue 5: Parity [137]

CONCLUSION [140] Reasons for Judgment of the Honourable Madam Justice Bennett: [1] Michael Hamer was convicted by a jury of several offences, including the index offence of aggravated assault of Gordon Tyler Rickert. As a result, he was found to be a dangerous offender and given an indefinite sentence. He appeals, and submits that the sentencing judge erred in fact and law. He argues that the judge erred when making findings of fact that were inconsistent with the jury's verdict, by relying on character evidence to establish a pattern of behaviour, by failing to give weight to the evidence of the defence witnesses, and by breaching the parity principle in sentencing. In addition, he files an application to adduce fresh evidence to support the application of the Gladue factors to him.

BACKGROUND [2] In the early morning hours of April 13, 2014, Mr. Hamer, along with his then-wife Tami, was hosting a party at his home in Saanich, B.C. His guests included Zoe Friesen and Colin Wheeler. Mr. Rickert and Jeffrey Michaels were asked to deliver cocaine to the party. They were friends of Ms. Friesen and did not know Mr. Hamer, however, Mr. Hamer invited them into the house. [3] Mr. Rickert testified that when he walked into the living room, the first thing he saw was Mr. Hamer punching Mr. Michaels. Mr. Rickert ran at Mr. Hamer and hit him as hard as he could. He then grabbed Mr. Michaels and tried to run away. He ended up in the "spa area" of the house. Mr. Wheeler pointed a crossbow at him and told him to get on the ground. Mr. Rickert complied. Mr. Hamer entered the room, sat on top of Mr. Rickert, and started punching him. At one point, Mr. Hamer smashed a mirror on his face. The next thing Mr. Rickert remembered was being stabbed in the eye with an object. He pulled the object out, and began bleeding. Mr. Hamer backed off, and corralled Mr. Rickert into the bathroom with Mr. Michaels. In the bathroom, Mr. Hamer lunged at Mr. Rickert with a knife. Mr. Rickert put his hands up, and Mr. Hamer slashed his hands, cutting them. When Mr. Hamer left the bathroom, Mr. Rickert jumped out of the bathroom window, fell to the ground, jumped over a fence, ran to the closest

house, and asked a neighbour to call the police. In cross-examination, Mr. Rickert confirmed that he did not see the first punch that evening, so he did not know how the fight started. [4] Mr. Rickert had cuts and bruising, a concussion, and a laceration in his left eye, which ultimately led to blindness. His hands were scarred to the point that he cannot close them. [5] The medical evidence supported the theory that the injury to the eye was caused by something sharp. [6] Mr. Michaels could not recall anything after entering the house. He acknowledged that he could have thrown the first punch. He suffered from a broken nose, broken orbital bone, a fractured forehead, and a ruptured eardrum. [7] Mr. Hamer testified, and argued self-defence. He said that when Mr. Rickert and Mr. Michaels entered the residence, someone hit him, and he responded by hitting Mr. Michaels. When Mr. Rickert ran away, Mr. Hamer said he followed him into the spa area, tackled him to the ground, and sat on him. Mr. Rickert continued to punch upward, so Mr. Hamer elbowed him in the chin, grabbed Mr. Rickert's wrists, hit Mr. Rickert with Mr. Rickert's own hands, and put pressure on Mr. Rickert's throat. Mr. Rickert then said, "my eye", and went limp. Mr. Hamer testified that he did not know how Mr. Rickert's eye was injured. At the time, he thought he had poked Mr. Rickert in the eye or Mr. Rickert had

poked himself in the eye. But after hearing the evidence at trial, Mr. Hamer opined that Mr. Rickert's eye was cut by Mr. Hamer's watch, a fingernail, or the brass knuckles that Mr. Rickert had brought to the residence. [8] Mr. Hamer testified that Mr. Rickert and Mr. Michaels went to the bathroom to clean up, as they were bleeding. Mr. Hamer then found a knife and brass knuckles, realized they had brought weapons, and confronted them in the bathroom. Mr. Rickert tried to take the knife out of his hands, and Mr. Rickert started bleeding. After Mr. Hamer and Mr. Michaels had left the bathroom, Mr. Rickert left through the bathroom window. [9] On August 18, 2016, a jury found Mr. Hamer guilty of: · Count 1: aggravated assault of Mr. Rickert; · Count 4: assault with a weapon (a knife) of Mr. Rickert; · Count 7: unlawful confinement of Mr. Rickert and Mr. Michaels; · Count 9: obstructing a peace officer (this charge related to Mr. Hamer's refusal to let the police into his residence, after they explained they had reasonable grounds to believe that a serious assault had taken place and there may be an outstanding victim in the residence requiring medical attention); and · Count 10: breach of recognizance. [10] The jury found Mr. Hamer not guilty of the remaining counts on the indictment: aggravated assault of Mr. Michaels (Count 2); assaulting Mr. Rickert with a weapon, specifically

by stabbing Mr. Rickert in the eye with an object (Count 3); assaulting Ms. Friesen (Count 5); robbing Mr. Rickert (Count 6); and uttering threats to Mr. Rickert and Mr. Michaels (Count 8). [11] The sentencing judge concluded that the aggravated assault count related to the events in the spa area, not the bathroom. Mr. Hamer's criminal history [12] Mr. Hamer was born on December 3, 1979. At the time of the dangerous offender hearing, he was 38 years old. He had a difficult upbringing and left home at the age of 14. He spent much of his adult life either in jail or under some form of court-ordered supervision. [13] Mr. Hamer's criminal record is as follows: · 1996 youth conviction: On December 5, 1996, Mr. Hamer was found guilty of assault in Youth Court and received an 18-month period of probation. · 1997 aggravated assault: In August 1997, Mr. Hamer was charged with assaulting an acquaintance, Mr. Forsberg. He was ultimately acquitted of that charge. However, on September 21, 1997, while he was on a recognizance for the previous assault charge against Mr. Forsberg, Mr. Hamer and some friends came across Mr. Forsberg again. They assaulted Mr. Forsberg. As Mr. Forsberg lay on the ground, Mr. Hamer beat him with a wooden board until he was unconscious. Mr. Hamer was sentenced to five years in custody. This was his first federal sentence. · 1997 assault: On December 12, 1997, Mr.

Hamer committed another assault. Mr. Hamer was on bail for the aggravated assault against Mr. Forsberg at the time. His bail was revoked as a result. Mr. Hamer remained in custody until he was ultimately paroled from his sentence for the aggravated assault against Mr. Forsberg. Mr. Hamer breached his parole three times. His parole was ultimately suspended, and he was re-incarcerated. · 2002 peace bond: On November 16, 2002, Mr. Hamer was involved in a fight in downtown Victoria. The victim, Mr. Raymond, did not want to be involved in the fight and called the police. When he did so, Mr. Hamer hit Mr. Raymond on the side of the head and knocked the phone out of his hands. As a result of this incident, Mr. Hamer entered into a s. 810 peace bond. · 2002 assaults and possessing a weapon (knife): Just over one month later, on December 27, 2002, Mr. Hamer was involved in altercations with two separate groups of people during the early morning hours in downtown Victoria (the "December 2002 assaults"). He and his co-accused, Shane Wilson, were described as "quite confrontational" and "looking for a fight". During the course of the first altercation, Mr. Hamer produced a knife from his waistband and brandished it. On February 2, 2004, Mr. Hamer pleaded guilty to assault, assault causing bodily harm, and possessing a weapon for a dangerous purpose. He received a conditional sentence order

and two years' probation (the "2004 CSO"). · 2003 breach of recognizance: On November 4, 2003, while on bail for the December 2002 assaults, Mr. Hamer breached the conditions of his bail by violating his curfew and consuming alcohol. Mr. Hamer pleaded guilty to breaching a recognizance. · 2003 breach of bail and causing a disturbance by fighting: On November 23, 2003, Mr. Hamer was involved in a bar fight. This incident was caught on video and it showed Mr. Hamer punching a man who was trying to back away. He was arrested and remanded in custody. He pleaded guilty to breaching his bail and causing a disturbance by fighting. He was sentenced for these offences at the same time as the December 2002 assaults and these offences were included in the 2004 CSO. · 2004 breach of the CSO: Mr. Hamer breached the 2004 CSO by violating his curfew and no-alcohol condition and by giving the police a false name in order to avoid detection. The CSO was terminated on May 14, 2004. · 2005 breach of probation: Mr. Hamer also breached the probation order that followed the 2004 CSO. The breaches involved failures to report and a failure to notify his probation officer of a change in address. · 2007 Montonen and Torrans assaults (the "2007 assaults"): On January 1, 2007, Mr. Hamer assaulted Adam and Matthew Montonen at a nightclub in Castlegar. The assault rendered Adam Montonen unconscious and left

him with significant injuries, including serious damage to his eye that required surgery. The Montonens were strangers to Mr. Hamer. He was convicted after trial of assault and assault causing bodily harm. On February 4, 2009, Mr. Hamer received a two-year sentence for these assaults. At the time of the sentencing for the Montonen assaults, Mr. Hamer also pleaded guilty to another charge of assault causing bodily harm. This second offence occurred on February 25, 2007. In an unprovoked attack, Mr. Hamer punched Mr. Torrans outside of a nightclub at approximately 2:30 a.m. Mr. Torrans was knocked to the ground. When he stood up, Mr. Hamer struck him again. He received six months' imprisonment for this assault, to be served consecutively to the sentence imposed for the Montonen assaults. · 2009 drug trafficking: In January 2009, the police located cocaine, cash, a replica handgun, and assorted drug paraphernalia in Mr. Hamer's residence. Mr. Hamer pleaded guilty to possession for the purpose of trafficking and received 14 months in jail. At the dangerous offender hearing, he admitted that he was trafficking in cocaine while he was on bail for the 2007 assaults. Again, Mr. Hamer went on to breach his parole. He received a significant amount of marihuana from his ex-wife and his parole was subsequently revoked. · 2014 mischief: On March 2, 2014, Mr. Hamer was seen attempting to

open the door of an apartment building using a crowbar, along with others. He pleaded guilty to mischief. This offence was committed while he was on strict bail conditions in relation to an assault charge that was eventually stayed. · 2014 index offence: Less than one month later, while Mr. Hamer was on bail for the mischief offence, he committed the index offence before this Court. · 2014 possession of narcotics: On September 23, 2014, while in custody for the index offence, Mr. Hamer was found with marihuana in his cell. He was convicted of possession of narcotics and received a 30-day jail sentence. Evidence on the dangerous offender hearing [14] A number of witnesses testified at the dangerous offender hearing, including prison employees, police, the experts and Mr. Hamer. [15] Mr. Todd Peterson, the Acting Deputy Warden at the Vancouver Island Regional Correctional Centre ("VIRCC"), testified that Mr. Hamer was a high influence inmate, who exhibited challenging and bullying behaviour. He testified that Mr. Hamer spent "considerable time" on the Enhanced Supervision Program. [16] Mr. Peterson also identified Mr. Hamer in videos of three fights that occurred while Mr. Hamer was in custody in which he assaulted other inmates: · The first incident took place on January 8, 2015, in the healthcare holding tank at the correctional centre. The video showed Mr. Hamer hitting the

other inmate in an unprovoked assault. Mr. Hamer continued to punch the other inmate even after an officer attempted to separate them. · The second incident took place on July 27, 2015, in the kitchen on Mr. Hamer's unit. The video showed Mr. Hamer and another inmate engaged in a physical altercation. Mr. Hamer was found guilty of fighting as a result of this incident. · The third incident took place on August 28, 2015. The video showed an inmate throwing a hot substance into Mr. Hamer's cell. Mr. Hamer then ran after the inmate and began punching him. Mr. Hamer was also found guilty of fighting as a result of this incident. [17] Mr. Peterson acknowledged that Mr. Hamer had been in the general unit since November 2016, with no charges, and that more recently, he had been a positive influence on the unit. As the unit representative, he reduced the number of incidents on the unit and brought a level of control and consistency to the unit. [18] Sharon Bristow, a probation officer who supervised Mr. Hamer on the 2004 CSO, testified that Mr. Hamer was the kind of person who would say "all the right things", but that his actions did not match his words. She agreed that he appeared to have been fully compliant with his current bail terms for approximately two years. [19] Jennifer Ash, a parole officer supervisor with Correctional Services Canada and Mr. Hamer's parole officer,

testified that Mr. Hamer had "mixed motivation", and that he required continuous supervision in the community. She further testified that Mr. Hamer had "entrenched criminal connections in Victoria", meaning Victoria was not the best place for Mr. Hamer's reintegration. [20] She confirmed that Mr. Hamer had completed a number of programs in the past, including an addiction program in 1999, Cognitive Living Skills, Success for Living, Anger and Emotions, Substance Abuse and the Moderate Intensity Violence Prevention program in 2009. [21] Constable Brad Meyer, a Victoria police officer who has dealt with Mr. Hamer on a couple of occasions, testified to his experiences and interactions with Mr. Hamer, describing Mr. Hamer as "aggressive and anti-authoritative". [22] Sergeant Kristi Ross, a Victoria police officer who has dealt with Mr. Hamer on multiple occasions (at least 10 times), testified to her dealings with Mr. Hamer She testified that she never had negative interactions with Mr. Hamer herself (in fact, only respectful ones), but that he was known to the force as a violent individual. [23] Divjit Malhotra, a corrections officer at VIRCC, testified about an incident on August 11, 2017. Mr. Malhotra testified that while he was dealing with another inmate on Mr. Hamer's unit, Mr. Hamer interjected, told the other inmate they would "check" Mr. Malhotra off, and called Mr.

Malhotra a "goof". Mr. Malhotra explained that "checking him off" meant forcing him off the unit or punching him out and that the term "goof" carries a very insulting meaning. Mr. Malhotra was intimidated by Mr. Hamer's behaviour and requested a transfer to another unit. [24] Mr. Hamer was not institutionally charged with threatening Mr. Malhotra. [25] The judge noted that the incident with Mr. Malhotra occurred after his conviction and just prior to the dangerous offender hearing. [26] Dr. Lindsey Jack, a clinical forensic psychologist, provided the independent assessment report dated February 1, 2017 (updated September 5, 2017), and testified at the hearing. Although her assessment was somewhat hindered as Mr. Hamer declined to meet with her, she felt the information in his file was of a high quality and her assessment was valid. She opined that the information strongly suggested symptoms of Attention Deficit Hyperactivity Disorder ("ADHD") in Mr. Hamer, and that he met the diagnostic criteria for Antisocial Personality Disorder. She described his pattern of offending as emotionally reactive violence, as well as instrumental or planned violence. In her view, Mr. Hamer would require "high levels of intervention" and he was at a high risk of committing future violence if released into the community. [27] Dr. Jack opined that ADHD is risk relevant for Mr. Hamer, and that he

should be afforded treatment for that condition. Treatment could reduce impulsivity, and give a person more time to make better decisions. However, treating ADHD would not address all the other issues that elevate his risk. [28] Dr. Jack said that despite his participation in a number of programs, he has not been able to translate what he learned into his behaviour in the community. [29] Dr. Alexander Levin, a psychiatrist, provided a psychiatric evaluation and risk assessment for the defence. The judge noted that Dr. Levin had never testified at a dangerous offender hearing. Dr. Levin also diagnosed Mr. Hamer with ADHD. Dr. Levin agreed with Dr. Jack's general approach to risk assessment, but disagreed with her conclusion that Mr. Hamer presented a high risk for reoffending. Rather, he concluded that Mr. Hamer presented a moderate risk for violence and aggression, and that his risk would be reduced if his ADHD is treated. [30] John Caulder, a counsellor who worked with Mr. Hamer while he was on remand, testified that Mr. Hamer had a high to very high motivation and that he had seen Mr. Hamer use exercises to regulate his emotions in responding to aggression from other inmates. [31] Dr. Bruce Monkhouse, a psychologist and chief of mental health services at William Head Institution, treated Mr. Hamer in about 22 hours of sessions. He assessed Mr. Hamer's risk of reoffending as

moderate and felt that his risk could be managed through strict parole conditions. In his view, Mr. Hamer's fear of an indeterminate sentence is a significant motivating factor in controlling his behaviour. Dr. Monkhouse specifically noted that while "Dr. Jack's methodology was excellent and that the conclusions she drew from her review of Mr. Hamer's file were well-founded Dr. Jack was at a disadvantage because she was not able to interview Mr. Hamer", which, in his view, deprived her of more recent information. Dr. Monkhouse testified that Mr. Hamer was genuinely remorseful, and that Mr. Hamer has demonstrated that he is able to manage himself. In cross-examination, Dr. Monkhouse agreed that Mr. Hamer's "reported insights" from 2010 in Ms. Friesen's report (Ms. Friesen had conducted psychological tests during Mr. Hamer's incarceration in 2010) were similar to his current insights. Dr. Monkhouse also agreed that Mr. Hamer has Antisocial Personality Disorder, which includes the features of manipulation and deceit. [32] Mr. Asselbora, another officer at VIRCC, testified for the defence. He stated that Mr. Hamer was not a high-profile individual and he was not aware of any concerns regarding Mr. Hamer intimidating staff. However, Mr. Asselbora also confirmed that he did not work on Mr. Hamer's unit and he had no personal knowledge of what was going on in that unit, just what he

gleaned from reading the client logs. Mr. Asselbora was also not present during the incident with Mr. Malhotra. [33] Finally, Mr. Hamer testified. Mr. Hamer testified that he is "working on himself" and is no longer looking for fights or "playing the role of tough guy". He is taking ADHD medication, attending school, is able to stay away from substances, and is beginning to explore spirituality. Mr. Hamer acknowledged his past denial regarding his alcohol use, but said that he is now aware of the situation and makes the choice not to get intoxicated. With respect to the incident with Mr. Malhotra, Mr. Hamer testified that other inmates were considering assaulting Mr. Malhotra because he had been taking their belongings from their cells. Mr. Hamer had been sent to segregation because of the conflict, but was allowed to return and resume his job as a unit representative after providing his version of events. He agreed that in the past, he had made statements about changing his behaviour that he did not mean in order to avoid being sent to jail, and that this is not the first expression of his desire to change. Mr. Hamer testified that he did not feel that his actions (relating to the index offence) were justified. [34] When the Crown cross-examined Mr. Hamer on a phone call between he and his current girlfriend (Danielle Vitale), made from jail, suggesting that he wanted Ms. Vitale to text his mother to see if she could convince Ms. Hamer to testify that she forgot what happened on the night of the offences, he responded that he was "being facetious". He testified that he thought some of the witnesses were lying, and in that conversation he just wanted to convey his desire for Ms. Hamer to tell the truth.

ISSUES [35] The issues on appeal are as follows: 1) Did the sentencing judge err in finding, as an aggravating factor on sentencing, that Mr. Hamer was responsible for Mr. Rickert's eye wound and in concluding that the jury rejected any self-defence claim?

2) Did the sentencing judge err in relying on the mischief conviction and the phone call, which Mr. Hamer argues is impermissible character evidence, in assessing whether there was a "pattern of behaviour" under s. 753(a)(i) and (ii) of the Criminal Code?

3) Did the sentencing judge err in failing to consider Gladue principles?

4) Did the sentencing judge err in rejecting the evidence of the defence witnesses, particularly evidence about Mr. Hamer's recent behaviour in custody and his risk in the community, for the reason that the evidence relied on Mr. Hamer's self-report?

5) Did the sentencing judge err in imposing a sentence that is disproportionate to sentences imposed on similar offenders in similar circumstances? [36] Mr. Hamer filed a Notice of Application to admit fresh evidence on appeal pursuant to s. 687(1) of the Criminal Code. The evidence consists of a Gladue report dated May 24, 2020, and related documents. I will address this application in conjunction with the third issue.

DISCUSSION Legal framework [37] Section 753 of the Criminal Code provides the framework for a dangerous offender hearing: 753 (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied (a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she has

been convicted, that is of such a brutal nature as to compel the conclusion that the offender's behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; ... (1.1) If the court is satisfied that the offence for which the offender is convicted is a primary designated offence for which it would be appropriate to impose a sentence of imprisonment of two years or more and that the offender was convicted previously at least twice of a primary designated offence and was sentenced to at least two years of imprisonment for each of those convictions, the conditions in paragraph (1)(a) or (b), as the case may be, are presumed to have been met unless the contrary is proved on a balance of probabilities. (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 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. (5) If the court does not find an offender to be a dangerous offender, (a) the court may treat the application as an application to find the offender to be a long-term offender, section 753.1 applies to the application and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or (b) the court may impose sentence for the offence for which the offender has been convicted. 753.1 (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that (a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted; (b) there is a substantial risk that the offender will reoffend; and (c) there is a reasonable possibility of eventual control of the risk in the community. (3) If the court finds an offender to be a long-term offender, it shall (a) impose a sentence for the offence for which the offender has been convicted, which must be a minimum punishment of imprisonment for a term of

two years; and (b) order that the offender be subject to long-term supervision for a period that does not exceed 10 years. (6) If the court does not find an offender to be a long-term offender, the court shall impose sentence for the offence for which the offender has been convicted. [38] The dangerous offender proceeding is a two-stage process, the designation stage and the penalty stage. At the designation stage, the Crown must demonstrate two elements under s. 753(1): the offence for which the offender is convicted must be "a serious personal injury offence" (s. 753(1)(a)), as defined in s. 752, and the offender must represent "a threat to the life, safety or physical or mental well-being of other persons". The threat is evaluated on the basis of one of the following, repeated for convenience: (i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting

the reasonably foreseeable consequences to other persons of his or her behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender's behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; [39] These subparagraphs are disjunctive--they provide three standalone grounds for finding that the offender is a "threat" under s. 753(1). If a sentencing judge is satisfied that the statutory criteria have been met, the designation must follow. The analysis assesses a prospective assessment of risk, involving future treatment prospects: R. v. Boutilier, 2017 SCC 64 at para. 23. [40] There is, however, some discretion at the second or penalty stage. Three options exist: i) an indeterminate sentence; ii) a determinate sentence followed by a long-term offender supervision order; or a determinate sentence. Under s. 753(4.1), a sentencing judge must impose an indeterminate sentence on a designated individual unless they are satisfied that there is a reasonable expectation that a lesser measure will adequately protect the public. This section requires the judge to assess whether the offender's risk can be managed outside of the indeterminate sentence, and to impose the least intrusive sentence necessary to reduce the public threat posed by the offender to an acceptable level: Boutilier at paras. 31, 65. Standard of review [41] The appellate review of a dangerous offender designation is "somewhat more robust" than regular appellate review of a sentence: R. v. Sipos, 2014 SCC 47 at para.

26. However, the appellate court must give deference to the findings of the sentencing judge. Errors in law will be reviewed on a correctness standard, whereas errors of fact will be reviewed on a reasonableness standard: Boutilier at para. 81. [42] Absent a material error of law, a dangerous offender designation will be a question of fact, and thus the appellate court must determine if that finding is reasonable: Boutilier at para.

85. Issue 1: Finding facts after jury verdict [43] Mr. Hamer argues on appeal that the sentencing judge erred in finding that Mr. Hamer was responsible for Mr. Rickert's eye wound and in concluding that the jury rejected any self-defence claim. The eye wound [44] The jury convicted Mr. Hamer of four counts, including the predicate or index offence of aggravated assault. It also acquitted him of a number of counts, including Count 3, assault with a weapon, which related to the eye injury that occurred in the spa area. The indictment framed that count as follows: did in committing an assault upon Gordon Tyler Rickert, use a weapon, to wit: a[n] [sharp] object used to stab his eye [45] The indictment had been amended by the trial judge on August 10, 2016, to remove the word "sharp". [46] The trial judge, in making findings of fact, concluded that the aggravated assault related to the events in the spa area of the house where Mr. Rickert's eye was injured (the "spa incident"). Mr. Hamer says that this was an error, and that conclusion was inconsistent with the acquittal on Count 3, assault with a weapon. [47] Where the jury verdict renders the factual basis for the offence unclear, the trial judge has an obligation to find the facts for the purpose of sentencing. Section 724 of the Code reads: 724 (1) In determining a sentence, a court may accept as proved any information disclosed

at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender. (2) Where the court is composed of a judge and jury, the court (a) shall accept as proven all facts, express or implied, that are essential to the jury's verdict of guilty; and (b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact. (3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence, (a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial; (b) the party wishing to rely on a relevant fact, including a fact contained in a presentence report, has the burden of proving it; (e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender. [48] The fact-finding process may not require the sentencing judge to arrive at a complete theory of the facts; the sentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case at hand: R. v. Ferguson, 2008 SCC 6 at para. 16. [49] There are two applicable principles: The first is that the sentencing judge "is bound by the

express and implied factual implications of the jury's verdict" and the judge "shall accept as proven facts, express or implied that are essential to the jury's verdict of guilty" and must not accept as fact any evidence consistent only with a verdict rejected by the jury: Ferguson at para. 17. [50] The second principle, as set out in Ferguson at para. 18: [18] Second, when the factual implications of the jury's verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R. v. Fiqia (1994), 162 A.R. 117 (C.A.). In so doing, the sentencing judge "may find any other relevant fact that was disclosed by evidence at the trial to be proven" (s. 724(2)(b)). To rely upon an aggravating fact or previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities: ss. 724(3)(d) and 724(3)(e); see also R. v. Gardiner, [1982] 2 S.C.R. 368; R. v. Lawrence (1987), 58 C.R. (3d) 71 (Ont. H.C.). It follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask

what the issues on sentencing are, and then find such facts as are necessary to deal with those issues. [51] The judge's findings on these points are at para. 21(4) and (5) of her reasons: 4. It is clear that the jury accepted the evidence of Tyler Rickert. I am satisfied on the basis of their acceptance of Mr. Rickert's testimony that they rejected Mr. Hamer's claim of self-defence prior to the events in the bathroom. I reject that Mr. Hamer was acting in self-defence at any point that evening. His actions that evening represented extreme and gratuitous violence.

5. Count 1 on the indictment represents the incident in the spa area where Mr. Rickert was chased into that area. During that incident, Mr. Hamer was on top of Mr. Rickert and repeatedly punching him in the head area. As a result of this incident, Mr. Rickert lost his vision in one eye. An ambiguity arises because of the jury's acquittal on Count 3, assault with a weapon, a sharp object used to stab the eye. I am satisfied on the evidence that Mr. Hamer is responsible for the wound to the eye as a result of the repeated punching in the head area and that the injury occurred during the repeated punching. I conclude that it is unclear from the evidence what object was used and, as a result, there was an acquittal on Count 3. [52] The judge did not set out her reasoning for her conclusions. Mr. Hamer submits that the inference to be drawn from the acquittal on Count 3 is that the jury must have rejected Mr. Rickert's evidence regarding what occurred in the spa area, and concluded that the aggravated assault was the stabbing in the bathroom. [53] Part of the consideration when determining the facts is the basis on which the case was left with the jury: Ferguson at para. 20. [54] The jury was told that Count 1 related to the spa incident. They were never instructed that Count 1 could relate to the events in the bathroom. The following examples from the charge to the jury demonstrate

the context in which the instruction was given in relation to the spa incident. [55] In addressing Count 1 in the jury charge, the judge stated: "As I understand it the Crown is alleging that this count relates to events in the spa when Mr. Rickert allegedly was stabbed in the eye with an object" (emphasis added). [56] The judge then went through the elements of aggravated assault. When explaining that the Crown was required to prove that Mr. Hamer wounded, maimed, disfigured, or endangered the life of Mr. Rickert, the judge stated: "in this case, the Crown is alleging that Mr. Rickert was wounded, maimed, disfigured, or had his life endangered when he was punched repeatedly in the head, when he was hit in the head with the mirror or picture frame, and when he was stabbed in the eye. As I have said, I understand that this count principally refers to the incidents in the spa" (emphasis added). [57] The judge told the jury that, "[i]n considering whether or not the Crown has proven whether Mr. Rickert was wounded, maimed, disfigured, or had his life endangered, you should consider the evidence of Mr. Rickert when he explained the extent of the injuries he received in the spa including the wound to his eye". She also referred to the photographic evidence, along with the testimony of the police and doctors with regard to the injuries. [58] The judge also only referred to Mr.

Rickert's testimony regarding the assault in the spa area, and not the bathroom with respect to Count 1. [59] The judge set out Mr. Hamer's version of events in the spa area. During that summary, the judge also referenced Mr. Hamer's testimony that he did not intentionally slash Mr. Rickert's hands--evidence that related to the bathroom incident. However, the judge made it clear that this portion of Mr. Hamer's testimony was not relevant to Count 1: "[a]lthough with respect to that, I understand that that refers to the incident in the bathroom rather than the spa and I will be dealing with that latter part, the cut on the hands, later". [60] In addressing causation, the judge noted Mr. Hamer's argument that there was an intervening event that caused the eye injury, namely an infection. Again, this only related to the spa incident. [61] In instructing the jury on self-defence in relation to Count 1, the judge told the jury that they had to consider whether Mr. Hamer's actions were reasonable. Here, the judge only referenced the evidence regarding Mr. Hamer's use of force during the spa incident. The judge did not reference any evidence regarding Mr. Hamer's use of force in the bathroom. [62] Defence counsel agreed that the judge should limit her instructions on Count 1 to the events in the spa area, and not include the slashing of Mr. Rickert's hands. In closing submissions,

defence counsel only mentioned Mr. Rickert's eye injury in relation to Count 1. [63] Mr. Hamer submits that the only logical conclusion to draw from the conviction on Count 1 is that the jury was satisfied that the injuries to Mr. Rickert's hands were sufficient to prove aggravated assault. [64] This submission fails to consider how the case was placed before the jury. There was nothing in the charge to suggest that they could convict Mr. Hamer of Count 1, aggravated assault, on the basis of the assault and subsequent injuries that occurred in the bathroom. [65] Being stabbed with an object was not an element of the offence of aggravated assault that had to be proved beyond a reasonable doubt, whereas it was an element in Count 3. [66] The trial judge concluded that the eye injury was caused by the repeated punching by Mr. Hamer. That finding is not inconsistent with an acquittal on Count 3, which required the Crown to prove, beyond a reasonable doubt, that Mr. Hamer used an object as a weapon. The evidence regarding precisely how the injury occurred was uncertain. Thus, it was open to the jury to find that Mr. Hamer's repeated punching to Mr. Rickert's head in the spa area caused Mr. Rickert's eye wound, while also having a reasonable doubt that Mr. Hamer used an object as a weapon to stab Mr. Rickert in the eye. [67] Therefore, the trial judge did not err in concluding that

the aggravated assault related to the spa area of the house, and that the eye injury was caused by Mr. Hamer. The self-defence claim [68] Mr. Hamer also submits that the trial judge's rejection of self-defence was an error. He submits that she should have made the findings that the initial actions by Mr. Hamer were in self-defence. [69] The jury charge was clear, that if the jury had a reasonable doubt regarding whether Mr. Hamer acted in self-defence, they should acquit him. They did not. The evidence of the initial entry was also uncertain. There was some evidence that Mr. Michaels and Mr. Rickert were invited over so Mr. Hamer and his friends could steal their drugs. It was not clear who threw the first punch, but it was clear that Mr. Rickert ran away, and was pursued by Mr. Hamer and others. [70] Her conclusion that self-defence was rejected is entirely consistent with the evidence and the verdicts. Issue 2: Reliance on improper evidence in assessing the pattern of behaviour [71] Mr. Hamer argues that the trial judge impermissibly relied on character evidence (the mischief conviction and the phone call) in assessing whether there was a "pattern of behaviour" under s. 753(a)(i) and (ii) of the Criminal Code. [72] Section 757 of the Criminal Code permits character evidence to be tendered at a dangerous offender hearing: 757 Without prejudice to the right of the offender to

tender evidence as to their character and repute, if the court thinks fit, evidence of character and repute may be admitted (a) on the question of whether the offender is or is not a dangerous offender or a long-term offender; and (b) in connection with a sentence to be imposed or an order to be made under this Part. [73] The trial judge concluded that Mr. Hamer met the "pattern of behavior" under both (i) and (ii): (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 [74] The most comprehensive analysis of the meaning of "pattern of repetitive behaviour" is found in R. v. Neve, 1999 ABCA 206. The Court of Appeal for Alberta found that one episode of violence or aggression is not sufficient, but that a pattern can be based on "very few such incidents" (at para. 113).

The court, however, endorsed the view that "in order to meet the requirements of a pattern, the fewer the incidents, the more similar they must be" (at para. 113). The court opined, at para. 113: Similarity, as noted, can be found not only in the types of offences but also in the degree of violence or aggression threatened or inflicted on the victims. This explains why the requirement for similarity in terms of kinds of offences is not crucial when the incidents of serious violence and aggression are more numerous: R. v. Jones (J.F.) (1993) 63 O.A.C. 317 (C.A.). [75] In Neve, the court also held that the analysis of past behaviour, including whether the conduct forms a pattern, must be undertaken in the context of the surrounding circumstances. The court said: [118] Given these various requirements under s.753(a), it is easy to understand why the context in which an offender committed past criminal conduct will be relevant to this part of the analysis. Without understanding that context, it would not be possible for a judge to make an informed, reliable assessment on whether the offender's past behaviour will be likely to lead to harm in the future. After all, whether something is likely to be repeated in the future is linked not only to what happened in the past but why it happened. This being so, it will be evident that if the analysis of past behaviour is undertaken without

reference to the surrounding circumstances, this can lead to an undermining of a judge's conclusion on two different levels - first, in terms of assessing which past conduct goes on the pattern scale; and second, in assessing the likelihood of that behaviour continuing in the future as a result of the offender's failure to restrain or substantial indifference. [119] In essence, the import of these requirements is that the evidence must show a pattern of repetitive violent behaviour or persistent aggressive behaviour by the offender, including the predicate offence, and from that behaviour, it must be possible to conclude that the offender represents a serious risk to others. As noted, the dangerous offender provisions are not designed to remove all recidivists from society. That is one of the reasons why Parliament has prescribed that before someone can be found to be a threat, the court must first find a pattern of conduct based on past behaviour which leads to the conclusion that serious harm will result to the public from the release of the offender into the community. [76] The Court also found that, "the motives behind, and the context surrounding an offender's actions, may well be relevant to explain conduct and whether it fits within a proscribed pattern" (at para. 131). [77] Mr. Hamer submits that the judge erred in considering character evidence when assessing the

pattern of behaviour pursuant to ss. 753(a)(i) and (ii), citing Neve at para. 127, which reads: [127] In assessing what is relevant and to what issue, one must keep in mind that the standard or measure to be used in determining whether an offender is a threat, and thus capable of being designated a dangerous offender, begins with "pattern of behaviour". While psychiatric and character evidence may be admissible, and while such evidence may be used to explain, for example, why the offences make a pattern, they are not the standard or measure. Actual behaviour is. Thus, they cannot be used to create the pattern in the absence of actual conduct. We concede that there may be a fine line between creating a pattern and explaining it. But nevertheless, there is a line. It is there for a reason, one that is integral to the operation of the dangerous offender provisions. That reason is to ensure that any determination of an offender's future danger is firmly anchored in the pattern of past behaviour (and opinions based on that pattern) and not on an assessment of the person or his or her character generally. If the court were able to find a threat without the necessary finding that the required pattern of conduct had been proven, this would effectively mean that evidence which is not allowed in at the pattern stage could find its way in through the back door. In other words, the threat

must rest on the concrete foundation of past behaviour. Put simply, no pattern, no threat. [78] The Court in Neve also held, at para. 131: The requirement for a pattern of behaviour means that the focus is on actions, not thoughts. An inquiry into whether the requisite pattern of conduct has been established is not an inquiry into the thoughts, feelings and actions of the offender throughout his or her entire life. It is restricted to an assessment of those acts which may or may not be an element of the pattern of conduct. While the motives behind, and the context surrounding an offender's actions, may well be relevant to explain conduct and whether it fits within a proscribed pattern, the thoughts of an offender, absent any causal connection to his or her actions, cannot be loaded onto the pattern scale for the purposes of s.753(a). The dangerous offender legislation is designed to capture dangerous offenders, not dangerous thinkers. [79] Mr. Hamer submits that the judge considered a 2014 conviction for mischief as relevant to establishing that a pattern existed. He says she also erred in considering a telephone call to his girlfriend, Ms. Vitale, that the judge found raised the spectre of witness tampering or intimidation. Mischief offence [80] The facts of the mischief offence are as follows: [81] On November 26, 2014, after he was in custody for the index offence, Mr. Hamer

pled guilty to mischief. He had originally been charged with breaking and entering. On March 22, 2014, less than one month before the index offence, at approximately 1:00 p.m., a resident in a Gorge Road apartment called the police. She had heard a number of noises out in the hallway. When she looked out, there were four men who appeared to be attempting to get into the apartment across the hall. She described a lot of yelling and banging. The only words she could make out were one person saying, "I'll be seeing you, friend." [82] The resident then saw the group leave and came back with an implement that she believed was a crowbar. One of the group started trying to open the door using the crowbar and causing damage. When she opened her door the group fled. [83] She described the person banging and talking through the door as the largest of the group. Mr. Hamer was ultimately identified as the perpetrator. The occupant of the apartment in question was well known to police and was not cooperative with them. He later provided a text message saying he had, in fact, invited Mr. Hamer over. [84] The judge on the mischief ultimately imposed a 21-day jail sentence. [81] In analyzing the various offences in order to determine if a pattern of behaviour emerged, the judge said this about the mischief: [188] After serving a federal sentence for the Castlegar incidents, Mr. Hamer's pattern

of repetitive behaviour continued with the index offence. Of note is that Mr. Hamer was on bail conditions for the mischief offence at that time. That particular mischief, which he subsequently pled guilty to, has some elements of potential violence surrounding it, according to the file material. Although that mischief offence is not necessarily relevant on the pattern analysis, it is still relevant to the background to the index offences. [Emphasis added.] [82] It is, in my view, clear that the judge did not use the mischief offence improperly. She specifically said it was not part of the "pattern" but as part of the context of his conduct. The telephone call [83] Mr. Hamer made a telephone call from the prison to Ms. Vitale, his current girlfriend. The call appears to be made in an effort to dissuade Ms. Hamer from testifying at the trial. [84] The Crown did not tender the evidence as part of its case on the dangerous offender hearing, but sought to use it to cross-examine Mr. Hamer when he testified. The Crown's position was: I chose not to enter this into the -- in the Crown's case, because I'm not seeking to use it as evidence of a prior pattern of behaviour. Much of his prior pattern of behaviour is violent offences and this isn't one of those. But it is very telling about character. [85] The Crown was clearly seeking to use the conversation on the telephone to challenge

Mr. Hamer's credibility, and nothing more. In admitting the evidence, the judge ruled (2017 BCSC 2720 at para. 12): I have kept in mind that we are in the course of a dangerous offender sentencing proceeding, where the strict rules of evidence governing a trial do not necessarily arise. In a sentencing proceeding, including a dangerous offender application, character evidence is admissible. Mr. Justice Fitch's decision in R. v. McDonald, 2015 BCSC 256, at paras. 26-27, is helpful in outlining these general principles. [86] In her reasons for concluding that Mr. Hamer is a dangerous offender, the judge said the following regarding the telephone call: [157] During his testimony on this hearing, a telephone call was played between Mr. Hamer and his current girlfriend. When the Crown suggested to Mr. Hamer that what he said on that recording was that he wanted Ms. Tami Hamer to say that she did not remember what happened or that she forgot, Mr. Hamer responded that he was being facetious. [158] When asked by the Crown about what he meant when he said, "even if she said she forgot, that's perfect...," Mr. Hamer said that he was just venting frustration. [159] Mr. Hamer was asked about a later point in the recorded phone call in which he seemed to be repeating his suggestion for his mother to tell Tami Hamer not to say anything about the index offence being a robbery. When asked if

he said on the recording that if this was done, he would be "hoooome free", Mr. Hamer said yes. [160] My overall impression of Mr. Hamer's actions and testimony is that he continues to have limited insight into his offending history and his risk factors. His evidence indicates to me that he minimizes his behaviour, blames others including his victims, his lawyers, and Corrections staff. He justifies his behaviour or alternatively suggests he was joking (as for example in the telephone call from jail). [87] And later, during her analysis: [190] Mr. Hamer's pattern of behaviour includes a lack of remorse and a lack of insight into the harm caused to his victims. He has a pattern of justifying his behaviour by claiming self-defence (even after conviction), and blaming the victims for initiating the violence. He has exhibited a remarkable lack of insight even on this hearing, both in what he said about his past offences, his time in custody, and about his phone call during the course of the trial wherein he wanted to try to get a message to Tami Hamer that she "tell the truth". This behaviour in the phone call raises the spectre of witness tampering or intimidation and was happening during the course of the trial. I do not accept Mr. Hamer's evidence about those telephone calls. [88] At first blush, it appears that the judge put the telephone call on the "scale" in terms of

assessing the pattern of behaviour, however, part of assessing whether past behaviour will translate into future behaviour under s. 753(a)(i) is whether the offender can "restrain" his behaviour. Mr. Hamer, and other defence witnesses, testified that Mr. Hamer had changed, that he was no longer a threat, and with treatment, his behaviour could be controlled in the future. In my view, when the reasons are considered as a whole, and in the context of the evidence, the judge was not adding the telephone call as one of the acts of violence upon which to found a pattern of behaviour, but to address the question of what the future holds, particularly in light of his now self-professed change. The telephone call attempting to dissuade someone to testify against him weighs against his testimony that he has improved for the better. [89] In my view, the judge did not err in her consideration of the evidence, and did not improperly consider either the mischief count or the telephone call. Issue 3: Gladue principles [90] Section 718.2(e) of the Criminal Code states: 718.2 A court that imposes a sentence shall also take into consideration the following principles: ... (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [91] This provision

was part of Bill C-41, which was proclaimed in force on September 3, 1996, codifying long-standing sentencing principles. However, some principles were new. The principle of restraint when imposing a sentence, found throughout Bill C-41, is not in itself a new principle. What is new was the principle's specific articulation in s. 718.2(e), which included a statutory direction for sentencing judges to pay particular attention to the circumstances of Indigenous offenders. [92] The provisions were introduced in an attempt to remedy the situation of the high overrepresentation of Indigenous people in prison. [93] In R. v. Gladue, [1999] 1 S.C.R. 688, the Supreme Court of Canada comprehensively examined this provision. The Court set out "A Framework of Analysis" for sentencing judges. At para. 66, the Court discussed the "wide range of unique circumstances" affecting Indigenous peoples. In particular, the Court looked at two issues that are unique to Indigenous offenders: (A) The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and (B) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection. [94] The Court identified the systemic and background factors that caused many Indigenous

people to become involved in criminal activity. These include dislocation and economic development resulting in low incomes, high unemployment, lack of opportunities, lack of education, substance abuse and community fragmentation. Dislocation refers to the marginalization of Indigenous peoples onto reserves from their traditional lands and impingement onto their traditional lands as a result of economic development. In essence, the Court acknowledged the historical process of colonization as the root cause of many of the enormous difficulties facing Indigenous peoples. The Court directed sentencing judges to take these factors into account, and consider whether other forms of sentences, such as restorative sentencing, would be more appropriate than prison. [95] In Gladue, at para. 85, the Court expressed the role of the appellate court: Similarly, where a sentencing judge at the trial level has not engaged in the duty imposed by s. 718.2(e) as fully as required, it is incumbent upon a court of appeal in considering an appeal against sentence on this basis to consider any fresh evidence which is relevant and admissible on sentencing [96] Section 718.2(e) was introduced as a remedial provision. Despite the emphasis on the importance of taking an offender's Indigenous background into consideration, the remedial effect did not occur, and overrepresentation increased rather than

decreased: see R. v. Ladue, 2011 BCCA 101 at para. 50; R. v. Ipeelee, 2012 SCC 13 at paras. 62-63. [97] In Ipeelee, the Court said: [72] The methodology set out by this Court in Gladue is designed to focus on those unique circumstances of an Aboriginal offender which could reasonably and justifiably impact on the sentence imposed. Gladue directs sentencing judges to consider: (1) the unique systemic and background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (2) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection. Both sets of circumstances bear on the ultimate question of what is a fit and proper sentence. Causal link [98] Ipeelee makes it clear, that the offender does not need to establish a causal link between the systemic and background factors and the offence before s. 718.2(e) is applied: [81] First, some cases erroneously suggest that an offender must establish a causal link between background factors and the commission of the current offence before being entitled to have those matters considered by the sentencing judge . [83] As the Ontario Court of Appeal goes on to note in Collins, it would be extremely difficult for an Aboriginal offender to ever establish a direct causal link

between his circumstances and his offending. The interconnections are simply too complex. The Aboriginal Justice Inquiry of Manitoba describes the issue, at p. 86: Cultural oppression, social inequality, the loss of self-government and systemic discrimination, which are the legacy of the Canadian government's treatment of Aboriginal people, are intertwined and interdependent factors, and in very few cases is it possible to draw a simple and direct correlation between any one of them and the events which lead an individual Aboriginal person to commit a crime or to become incarcerated. Furthermore, the operation of s. 718.2(e) does not logically require such a connection. Systemic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they provide the necessary context to enable a judge to determine an appropriate sentence. This is not to say that those factors need not be tied in some way to the particular offender and offence. Unless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence. [Emphasis added.] [99] Mr. Hamer submits that the sentencing judge erred in failing to consider Gladue principles at the sentencing hearing. He has filed an application to adduce fresh

evidence in the form of a Gladue report prepared by Stuart Cadwallader (the "Gladue report"). [100] Mr. Hamer did not raise Indigenous roots at the dangerous offender hearing, however, there is a reference in an early corrections report to him being a Métis man, which is quoted in Dr. Levin's report. The records also indicate that he was participating in programs for Indigenous people. On appeal, according to the Gladue report, he identifies as Indigenous, and the issue is whether this Court should admit the new evidence, and apply the Gladue principles. [101] The Gladue report indicates that Mr. Hamer only learned of his Indigenous heritage later in life, perhaps in his late teens (although the timing is not entirely clear). This information was provided to him by his mother and is as follows: that his biological father was an individual named Greg White, with whom his mother had a relatively short and casual relationship. Mr. White apparently told Mr. Hamer's mother that he was part Cree. [102] Mr. Hamer has never met Mr. White. His mother was unable to provide any other information about Mr. White. [103] Mr. Cadwallader, the Gladue report writer, after conducting an extensive search, concluded that Mr. Hamer's self-identification was "not supported by available familial or documentary information". The report therefore does not provide any information about Mr. Hamer's community of origin or the potential intergenerational impacts on him. The report notes, at 9-10:

GLADUE CONSIDERATIONS Michael self-identifies as Indigenous based upon limited recent information provided to him by his mother regarding her extra-marital involvement with Mr. Greg White, who she recently identified as his biological father and a person of mixed Cree lineage. When questioned further, Ms. White [sic] was unable to provide any substantive details regarding Mr. White's familial/personal background, community of origin, associations, occupation, or potential whereabouts. The writer completed an online cross-sectional search of genealogical, census, and other data bases for Greg White covering the dates and geographic region specified, but was unable to locate this individual or any information pertaining to him. Based upon the available information, the writer is unable to provide any further comment regarding Michael's self-identification, community of origin, or the potential intergenerational impacts which may have impacted him or his family members. [104] The report outlines his difficult childhood--his mother left the family when he was very young, and he was raised by his father. By the time his mother left, his father (Mr. Hamer Sr.), had become very committed to the Church. He remarried, and Mr. Hamer's childhood was replete with stories of severe abuse, to the point where he left the family home at age 14 years. [105] Those matters, other than those

related to his self-identification as an Indigenous person, were all before the sentencing judge. [106] In addition, Mr. Cadwallader sets out the various treatment options and programs available to Indigenous people. [107] The sentencing principles in the Criminal Code apply when determining the sentence to impose on a dangerous offender, including s. 718.2(e): Boutilier at para. 63. [108] The Palmer test for the introduction of fresh evidence is well known, as quoted from R. v. Lévesque, 2000 SCC 47 at para. 14: In Palmer, supra, this Court considered the discretion of a court of appeal to admit fresh evidence pursuant to s. 610 of the Criminal Code, the predecessor of s.

683. After emphasizing that, in accordance with the wording of s. 610, the overriding consideration must be "the interests of justice", McIntyre J. set out the applicable principles, at p. 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: see McMartin v. The Queen. (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. [109] Mr. Hamer relies on R. v. Wolfleg, 2018 ABCA 222, where the Court outlined the manner in which s. 718.2(e) applies to dangerous offender proceedings. In that case, the court determined that it would admit the new Gladue report, despite the fact that it did not meet the fourth criteria of the Palmer test, in that the appeal was dismissed. [110] The practice in this Court is to receive the fresh evidence, consider it along with the other evidence, and determine if it is admissible. Where the fresh evidence would not affect the outcome, then, in my view, the evidence should not be

admitted. [111] The obvious question that arises is whether the tenuous connection averred by Mr. Hamer to Indigenous heritage is sufficient to engage the ameliorating provisions of s. 718.2(e). As noted by Jonathan Rudin in Indigenous People and the Criminal Justice System (Toronto: Emond, 2019) at 103: [I]dentity is a challenging concept and for many a somewhat malleable one. Inviting courts to determine if someone is or is not an Indigenous person after the individual has made that assertion is not just fraught with moral, ethical and legal concerns, all of which are heightened by the impacts of colonialism, but most importantly are irrelevant to applying the law. [112] This Court considered a similar application in R. v. Violette, 2013 BCCA 31, and concluded: [6] The appellant says he meets all these criteria. That is, he says he did not know of his Aboriginal heritage and so, with due diligence, could not have adduced it at the sentencing hearing; the evidence is credible; the evidence is relevant; and the evidence could be expected to have affected the result because it bears upon s. 718.2(e), as elucidated in R. v. Gladue, [1999] 1 S.C.R. 688, 133 C.C.C. (3d) 385, and R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433. [7] The material presented on the application, strictly speaking, is not evidence because it is not presented in a sworn form, either in an affidavit or as

an exhibit to an affidavit, as is required. As we said at the hearing of the appeal, were the form in which the "evidence" is presented the only bar to its reception, we would provide the appellant with an opportunity to present it in proper form. It is not the only bar, however, in my view; it appears to me that the Palmer test is not met. In particular, the fourth requirement, that the "evidence" could reasonably be expected to affect the result, is not established, because it does not meet the reasons that consideration must be given, under s. 718.2(e) of the Criminal Code, to Aboriginal heritage. Those reasons are explained by Justice LeBel in Ipeelee: [59] ... Section 718.2(e) directs sentencing judges to pay particular attention to the circumstances of Aboriginal offenders because those circumstances are unique and different from those of non-Aboriginal offenders (Gladue, at para. 37). When sentencing an Aboriginal offender, a judge must consider: (a) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection (Gladue, at para. 66). ... [Emphasis added.] [113] Relying on the above-quoted passage from Ipeelee at

para. 83, this Court concluded: [8] In this case, the appellant does not assert any personal background, or any systemic factors, that bear upon his appearance as an accused person. There is no material before the court which would suggest he has suffered deprivation because of Aboriginal heritage, nor is there connection between this circumstance and his culpability, or anything to suggest the sentencing objectives should be influenced by this newly discovered factor. It simply cannot be said, in my view, that the evidence sought to be adduced could have a bearing upon the sentence imposed for these offences. Accordingly, I would dismiss the application to adduce new evidence. I also would not accede to the fourth ground of appeal. [114] Similarly, the difficulty in this case is that there is nothing in the fresh evidence to show that systemic or background factors as described in Gladue and Ipeelee operated in any way in Mr. Hamer's life or affected his moral culpability for this crime. Assuming Mr. Hamer has Indigenous roots, there is nothing that spells out the circumstances that would have affected his criminality. [115] Ipeelee is clear that courts must take judicial notice of historical and ongoing colonialism, displacement, and attempts by the government to assimilate Indigenous peoples, including through residential schools and "the 60s Scoop". Having taken such

judicial notice, it is important to acknowledge that these methods of assimilation are often the very things that give rise to an Indigenous person's alienation from their Indigenous community or culture. Thus, not everyone with Indigenous roots can prove those roots. The government's system of assimilation was, in many ways, "successful". It resulted in many Indigenous people being partially or totally estranged from their Indigenous heritage and disconnected from their culture, their community, and their support. This disconnection is intergenerational and acts as a barrier to realizing the principles enunciated in Gladue and Ipeelee. [116] Gladue principles, however, clearly apply to such individuals. Furthermore, they apply without evidence necessarily and causally connecting them to their Indigenous heritage. Gladue principles must, after all, "go beyond a technical assessment of bloodline" (R. v. T.A.P., 2013 ONSC 797 at para. 40). [117] Rudin states that "[t]he application of Gladue and Ipeelee is not a matter of proving or disproving that the person before the court is an Indigenous person" (at 102). It is not the role of this Court to serve as a gatekeeper to Indigenous identity or to specifically comment on whether or not Mr. Hamer is Indigenous. He has identified that he is. It is the role of this Court, however, to evaluate relevant information about the

significance of a person's Indigenous identity and the individual's circumstances as an Indigenous person. In this case, there was no relevant information or evidence about Mr. Hamer's Indigenous circumstances to evaluate. [118] The evidence in relation to Mr. Hamer's difficult background was before the sentencing judge, and she took it into account: [24] I turn now to Mr. Hamer's personal background. Mr. Hamer is currently 38 years of age. He was born December 3, 1979. The file materials, Dr. Jack's report, and many other reports provide Mr. Hamer's early life. Mr. Hamer also testified about his personal background. I will not detail that here again. It is clear from this background that Mr. Hamer had a difficult upbringing and that he was raised in an unstable environment. He left home around the age of 14 and he has spent much of his adult life either in jail or under some form of court-ordered supervision. He has two children, a son whom he has only met once, and a daughter. [119] In my view, the application of the Gladue principles in this case would not have affected the result, and therefore the evidence does not meet the fourth criteria in the Palmer test. There is nothing in the Gladue report that would ameliorate the circumstances or shed light on Mr. Hamer's moral blameworthiness for the very serious offences he faced. Nor do the treatment options that may be

available to him as an Indigenous person assist in assessing whether he would benefit from treatment. The evidence is that the programs are available, nothing more. [120] In addition, Mr. Hamer seeks to lead evidence of his post-sentence behaviour, the programs he has taken and the support from the prison chaplain. New evidence regarding post-sentence rehabilitation efforts rarely meet the test for fresh evidence, as those matters are left to the prison and parole authorities: Sipos at para. 43. [121] Therefore, I would not admit the fresh evidence, and would not give effect to this ground of appeal. Issue 4: The evidence of defence witnesses and Mr. Hamer's self-report [122] The fourth issue is whether the sentencing judge erred in rejecting the evidence of the defence witnesses, particularly evidence about Mr. Hamer's recent behaviour in custody and his risk in the community, for the reason that the evidence relied on Mr. Hamer's self-report. [123] Mr. Hamer frames this issue as an error relating to the reason for rejecting defence evidence. Mr. Hamer argues that the trial judge failed to take into account evidence of his improved behaviour, including recent Client Logs, failed to consider the evidence of Mr. Asselbora, who he says refuted other evidence of misconduct, and thereby committed an error in her assessment of both Mr. Hamer's evidence and that of his experts and

other supporting witnesses. [124] It is trite law that the opinion of an expert is only as strong as the evidence upon which it is based. When the foundation for the expert's opinion is not proven, it is accorded less or no weight. [125] In R. v. Pike, 2010 BCCA 401, this Court discussed the role of the expert in the dangerous offender hearing, but made it clear that it is the role of the judge to make findings of fact, including that which underlies the foundation for the expert opinion: [61] Psychiatric evidence plays a vital role in dangerous offender proceedings, furnishing the sentencing judge with "an expert opinion on the interpretation of past conduct and the likely future conduct of the offender based on his or her past behaviour": Neve at para. 182. [62] Psychiatrists are entitled to use and rely upon a wide range of information in forming an expert opinion: Wilband v. The Queen, [1967] S.C.R. 14; R. v. Kanester, [1968] 1 C.C.C. 351 (B.C.C.A.); R. v. Boyd (1984), 8 C.C.C. (3d) 143 (B.C.C.A.); Neve at para. 187. [63] It remains, however, the undivided responsibility of the sentencing judge to make all requisite findings of fact, including those regarding the alleged conduct upon which a psychiatrist bases his or her opinion. A psychiatric opinion is not evidence of the facts upon which it is based. If the court is not independently satisfied as to the truth of those

facts on the basis of evidence presented at the hearing, then the value of the ultimate opinion is correspondingly diminished: R. v. Knight (1975), 27 C.C.C. (2d) 343 at 354, 356 (Ont. H.C.J). As explained by the Supreme Court of Canada in Wilband: The value of a psychiatrist's opinion may be affected to the extent to which it may rest on second-hand source material; but that goes to the weight and not to the receivability in evidence of the opinion, which opinion is no evidence of the truth of the information but evidence of the opinion formed on the basis of that information. [Emphasis added.] [65] The Court [in Neve] emphasized the important role of the sentencing judge in evaluating the proper weight to be given to the psychiatric evidence, noting that "[f]or the court to accept an expert opinion without scrutinizing and assessing its foundation is, effectively, to put that expert in the role of judge" (at para. 191). [126] The sentencing judge did not accept Mr. Hamer's evidence that he was ready for change: [161] I am not left with a positive impression of Mr. Hamer's personal sense of responsibility. Since much of Dr. Levin's, Dr. Monkhouse's, and Mr. Caulder's evidence is based on Mr. Hamer's self-report, my view is that their evidence is entitled to limited weight. I do wish to emphasize that the limited weight I am ascribing to their testimony is not based on their

qualifications or presentations as witnesses themselves. Rather, it is based on the fact that the entirety of the hearing material before me and Mr. Hamer's testimony itself does not convince me that there is a level of insight or willingness to change that which he professes. I am also not satisfied that his time in custody for the index offence has allowed Mr. Hamer to develop the level of insight that Dr. Monkhouse stated he now has. [127] When considering whether to designate Mr. Hamer as a dangerous offender, the judge made these comments at the assessment of future treatment stage: [201] Although I was impressed by Dr. Monkhouse's description of his work with Mr. Hamer, that work, on Dr. Monkhouse's own evidence, is dependent on Mr. Hamer's honest approach to the therapeutic relationship. I do not accept Mr. Hamer's evidence and I am not satisfied that Dr. Monkhouse had an accurate history so that his evidence is entitled to less weight. I come to a similar conclusion with respect to Dr. Levin. [202] It is clear from all of the evidence before me that Mr. Hamer has failed to restrain his behaviour in custody. He has had contraband in his cells, has assaulted other inmates, and has interacted with a guard in a manner that caused that guard, Mr. Malhotra, to move to another unit. The incident involving Mr. Malhotra occurred only a month before the dangerous offender hearing

commenced. He has, during the course of the trial, had a conversation with his current girlfriend that could be interpreted as an attempt to influence the trial process in his favour. Throughout it all, he has minimized, justified, and explained his behaviour. He has not fully accepted responsibility for it. He has expressed no real remorse. [203] I am not satisfied that Mr. Hamer's treatability rises above a mere expression of hope. He has in the past said what he needed to say in order to influence his custodial status. I am satisfied that he is merely doing so again here. [128] With respect to whether to impose an indeterminate sentence, the judge said: [211] Having considered the evidence of Dr. Levin, Mr. Caulder, and Dr. Monkhouse, I am not satisfied that I can impose a fixed sentence followed by a long-term supervision order. As I have already stated, although I accept the genuine nature of Mr. Caulder's and Dr. Monkhouse's work with Mr. Hamer, I do not accept that Mr. Hamer was genuine in his reporting to him. I do not share Dr. Monkhouse's perspective of Mr. Hamer's behaviour in custody and, as I have already outlined, his record in custody has been abysmal. I do not accept, as Dr. Monkhouse does, that the risk of a dangerous offender designation is sufficient to change Mr. Hamer's behaviour since he was behaving poorly in custody during his remand and after a notice

was given to him in this case. I am of the view that the underlying basis of the defence reports is flawed, that is, Mr. Hamer's self-report, and therefore the defence reports are entitled to less weight. [129] Mr. Hamer submits that the sentencing judge was selective in terms of the evidence she referenced, and failed to address evidence that was favourable to him. [130] It is not an error to fail to refer to evidence: R. v. Dinardo, 2008 SCC 24 at paras. 26, 30-31; R. v. R.E.M., 2008 SCC 51 at para.

64. However, a complete failure to consider a body of evidence may be a reversible error. [131] However, let's examine the claim a little more closely. Mr. Hamer says that there were positive comments made about him in various client logs--for example, one note is that he "does a great job as the peer rep and appears to have stable interactions with all his peers", "he is respectful to me and follows expectations without issue". On the other hand, a day or two later, it is reported that he was "rude/disrespectful to staff/inciting peers to same". A review of the Client Logs that Mr. Hamer says demonstrate that he is improving, also demonstrate days where he has reports of negative behaviour. [132] The judge's failure to reference the hundreds of entries in the Client Logs, both favourable and unfavourable, cannot be said to be an error or a misapprehension of the evidence. Additionally, the evidence of Mr. Asselbora did not shed much additional light on the circumstances. His evidence was that Mr. Hamer was always polite and respectful to him, that he is a good "unit rep", and that he has not had an institutional charge for two years. He had four interactions with Mr. Hamer, and took most of his information from the Client Logs. He did not work on the unit where Mr. Hamer was lodged, nor was he present for the incident with Mr. Malhotra, which occurred shortly before the

dangerous offender hearing. [133] In my view, the failure to refer to the evidence of Mr. Asselbora did not amount to an error. [134] Nor can it be said that the sentencing judge overlooked or misapprehended the Client Log information. While there are positive reports in the logs, there are also negative reports. A judge is not required to reference every piece of evidence. [135] Dr. Levin, and especially Dr. Monkhouse and Mr. Calder, relied heavily on Mr. Hamer's self-report that he was ready to make significant changes in his life. They accepted Mr. Hamer's assertions that he was ready to change. Mr. Hamer argues that the sentencing judge should have deferred to their assessment, and accepted (or at least had a doubt), that he was willing to make behaviour changes. [136] The sentencing judge had before her evidence that during his past incarcerations (1999, 2004 and 2009), Mr. Hamer made the same statements expressing a "sincere desire to change". The judge made the following observations regarding this evidence: [153] In cross-examination, when asked by the Crown about his statement in 1999 that he expressed a sincere desire to change, Mr. Hamer said he made this statement just because he had to. He agreed that he was probably trying to deceive his counsellor in making these statements. [154] When asked whether he had made statements to his parole officer that he did not

sincerely feel that way, Mr. Hamer agreed. Mr. Hamer agreed that it was a lie to his parole officer to say that he did not intend to drink again or to stay out of jail. Mr. Hamer said he was probably trying to "kiss butt" to not be sent back to jail. [155] When questioned by the Crown about statements he made in the context of his August 2009 applications for parole, Mr. Hamer said he was trying to put words in that would get his parole. He said his heart was not 100 percent in changing his life and that, if he was being honest, he would have to say that he was not fully committed. Mr. Hamer said that the federal system is all about doing what you need to do to get out, jumping through hoops, and that it is a hard place to change. [137] The judge was entitled to not accept the evidence of Mr. Hamer, and his sincerity for wanting to change. Given that finding, which is amply supported by the evidence, she was correct to give the evidence of the witnesses who relied on those assertions less weight. [138] As noted in Pike, it is for the judge to decide the facts, not the experts. [139] In my view, there is no misapprehension of evidence, or error in the fact-finding process. Issue 5: Parity [140] Finally, Mr. Hamer argues that the sentencing judge failed to consider other cases where individuals in similar circumstances received a lesser sentence. Mr. Hamer relies on two Ontario

trial court decisions and one Saskatchewan trial court decision for similar circumstances and the range of sentence. When it comes to parity, unless the offence is one that is rarely judicially considered, court decisions from other provinces are generally of little value. One of the reasons that trial court judges are given significant deference in their sentencing decisions is that they know the community in which they are imposing a sentence on an offender. Relevant cases are those from British Columbia. Needless to say, cases involving legal principles are helpful from any court, particularly appellate courts, but not so in terms of the fitness or range of the sentence. [141] As noted in R. v. L.M., 2008 SCC 31 at para. 36, in order to violate the parity principle, a sentence must be "a substantial and marked departure" from the sentence normally imposed for offenders in similar circumstances: [36] Owing to the very nature of an individualized sentencing process, sentences imposed for offences of the same type will not always be identical. The principle of parity does not preclude disparity where warranted by the circumstances, because of the principle of proportionality (see Dadour, at p. 18). As this Court noted in M. (C.A.), at para. 92, "there is no such thing as a uniform sentence for a particular crime". From this perspective, an appellate court is justified in

intervening only if the sentence imposed by the trial judge "is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes" (M. (C.A.), at para. 92). [Emphasis in original.] [142] In Mr. Hamer's case, the sentencing judge concluded that the public could only be protected by an indeterminate sentence. Mr. Hamer's aggressive and assaultive behaviour over many years has inflicted serious injury on a number of people. The judge accepted the opinion of Dr. Jack that he had a high risk to reoffend violently. He has a long history of violating community supervision orders. Based on the whole of the evidence, I see no error in her conclusion.

CONCLUSION [143] I would not give effect to any of the grounds of appeal put forward on behalf of Mr. Hamer. I would dismiss the appeal. "The Honourable Madam Justice Bennett" I AGREE: "The Honourable Mr. Justice Harris" I AGREE: "The Honourable Mr. Justice Abrioux"