



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


R. 
          v. Berikoff,







2007 
          BCCA 31



Date: 20070111





Docket: CA027463

Between:

Regina

Respondent

And

Ronald 
    Carl Berikoff

Appellant






Before:


The 
          Honourable Chief Justice Finch




The 
          Honourable Mr. Justice Donald




The 
          Honourable Mr. Justice Chiasson



Oral Reasons for Judgment




R.A. 
          Ross


Counsel for the Appellant




S.J. 
          Brown


Counsel for the (Crown) Respondent




Place 
          and Date:


Vancouver, British Columbia




11 January 2007



[1]

FINCH, C.J.B.C.
: This is an appeal from a judgment of the 
    B.C. Supreme Court pronounced 29 June 2000 declaring Mr. Berikoff to be a 
    dangerous offender, and imposing a sentence of detention for an indeterminate 
    term.

[2]

The appellant advanced two grounds of appeal initially.  The first 
    ground was that the learned sentencing judge failed to apply the correct burden 
    of proof and evidentiary standard in determining that the appellant was a 
    dangerous offender.  This ground of appeal has now been abandoned.

[3]

The second ground of appeal is based upon the appellants application 
    to adduce fresh evidence.  Counsel asserts that the fresh evidence would reasonably 
    have affected the sentencing judges decision to designate the appellant a 
    dangerous offender.  The appellant seeks an order allowing the appeal, declaring 
    that the appellant is not a dangerous offender and sentencing him for the 
    predicate offences.  Alternatively, the appellant seeks an order that he is 
    not a dangerous offender, but is rather to be declared a long-term offender.  
    In the further alternative, the appellant seeks a new trial.

[4]

The proposed fresh evidence includes a psychiatric evaluation prepared 
    by Dr. Shabehram Lohrasbe dated 26 September 2005, a psychiatric report from 
    Dr. Rakesh Lamba dated 5 September 2004, and a program review from the Regional 
    Treatment Centre dated 28 September 2004.

[5]

It is Dr. Lohrasbes opinion that the appellants situation has changed 
    significantly since his detention as a dangerous offender, and that he now 
    presents a greatly reduced risk of future acts of violence.

[6]

The Crown opposes the application to adduce fresh evidence.  It submits 
    that the proposed fresh evidence could not reasonably have affected the sentencing 
    judges conclusion that the appellant was a dangerous offender within the 
    meaning of s. 753(1)(a)(i), s. 753(1)(a)(ii) and s. 753(1)(b) of the
Criminal 
    Code
and could not support the imposition of straight determinate 
    sentence, followed by a long term supervision order.  In the event that the 
    fresh evidence were to be admitted the Crown also submits a body of further 
    evidence to be considered along with it.

[7]

The Crown contends that any evaluation of the risk that the appellant 
    now presents, and how that risk should be managed, should be made by the parole 
    authorities.  The appellants next review by the Parole Board will be in April 
    2007, and the Crown says the Board will be in the best position to evaluate 
    the appellants progress in detention, his participation in programs, and 
    whether he has developed true insight into his history and condition.

[8]

There are therefore potentially two issues to be addressed on this 
    appeal.  The first is whether the proposed fresh evidence meets the test for 
    admissibility under s. 687 of the
Criminal Code
on an appeal 
    against sentence.  The second is whether, in any event, the Court should refuse 
    to exercise its discretion to admit the evidence, and defer to the parole 
    authorities to review the appellants position.

[9]

On 2 October 2003 while the appellant was in detention at Mountain 
    Institute, he was involved in a hostage taking incident.  As a result he was 
    transferred to the Regional Treatment Centre where he was certified under 
    the
Mental Health Act
, and began receiving anti-psychotic medication.

[10]

Dr. Lambas report of 5 September 2004 addressed two issues, first 
    the appellants mental state at the time of instructing previous counsel to 
    abandon his sentence appeal, and second, the appellants mental state at the 
    time of the hostage taking incident on 2 October 2003.  Dr. Lamba diagnosed 
    the appellant as paranoid schizophrenic.

[11]

A charge of unlawful confinement and others was laid as a result of 
    the hostage taking incident.  It went before a Provincial Court judge and 
    on 23 November 2004 the court concluded that the appellant was not criminally 
    responsible by reason of mental disorder.

[12]

Following that verdict, the appellant was transferred to the Forensic 
    Psychiatric Hospital in Port Coquitlam and became subject to the continuous 
    supervision of the Review Board.  In early 2005 he was transferred back to 
    the Regional Treatment Centre.  He is subject to the direction of the Review 
    Board indefinitely.

[13]

Dr. Lohrasbes report of 26 September 2005 confirms the diagnosis of 
    paranoid schizophrenia.  He says this under the heading of Risk Management:

Although 
    risk management blends seamlessly with risk assessment in actual clinical 
    practice, it is useful to consider it separately as a concept.  Risk management 
    involves both the application of
external
monitoring and controls to 
    unwanted behaviour as well as supporting and strengthening the
internal
controls of the offender.

With 
    Mr. Berikoff, future risk management at the community (these strategies are 
    already in effect at the present time, with the last recommendation likely 
    to be implemented soon) will ideally consist of the following:

1.         Ongoing Psychoeducation; although he has developed 
    substantial insight, it needs to be continuously built on and reinforced.

2.         Ongoing monitoring of his mental state; so 
    that any deterioration can be quickly acted on.

3.         Continuous monitoring of treatment compliance 
    and response to medications; this is now clearly recognized as a key component 
    to his risk management.

4.         Monitoring of any relapse into substance abuse; 
    which would obviously be a clear signal of a relapse into prior attitudes 
    and behaviours.

5.         Supportive psychotherapy; aimed at strengthening 
    his commitments to his mental health, the continuing development of prosocial 
    attitudes, and recognition of danger signs within himself.

6.         Completion of a sex offender treatment program; 
    to build on the changes he has made in his attitudes towards women, sexuality, 
    and his prior victims.

It 
    is worthwhile noting that Mr. Berikoff is not an individual who would be difficult 
    to monitor.  His file is replete with illustrations of his in-your-face 
    communicative style.  He is not psychologically sophisticated and would have 
    difficulty hiding his true feelings, attitudes, and behaviours.  Any decline 
    in mental state is likely to be picked up quickly by those charged with his 
    supervision.  This perspective is illustrated by a comment from Dr. Hunter 
    in his report of 2004/09/21.  
Along with other clinical staff here I feel 
    confident in our abilities to recognize any deterioration in Mr. Berikoffs 
    mental status.
Risk management relies to a heavy extent on the transparency 
    of the offender and in my opinion it will be relatively straightforward to 
    monitor Mr. Berikoffs progress or decline in the foreseeable future.

In particular, it can be anticipated that monitoring two key risk factors 
    will be viable and tangible.  Firstly, his compliance with prescribed medications 
    can be determined through blood levels.  Additionally, regular mental state 
    examinations are likely to reveal any non-compliance, as his paranoia announces 
    itself readily, and will reemerge quickly if he discontinues his medications.  
    Secondly, compliance with an abstinence (from intoxicants) condition can be 
    monitored through unexpected home visits, curfews, and urine sampling, both 
    randomly and if clinically indicated.

Overall, my view is that risk management within the community with Berikoff 
    is quite feasible in the near future.

[14]

In Dr. Lohrasbes summary he says:

Mr. 
    Berikoff was once a high-risk violent offender who committed numerous acts 
    of violence, including sexual violence.  At the time of his designation as 
    a dangerous offender, there was little reason to believe that change could 
    reasonably be expected through available treatment interventions.  The situation 
    has changed significantly, principally through the combination of the identification 
    and subsequent treatment of a major mental disorder, Paranoid Schizophrenia, 
    and the delivery of intense and continuous psychosocial, educative, and cognitively 
    based treatment programs.

Although 
    there is no cure at present for his major mental disorder, control of its 
    symptoms is feasible, and routinely carried out in the community.  Mr. Berikoff 
    has cooperated with treatment after a prolonged period of disagreement with 
    the diagnosis and subsequent non-compliance with treatment.  Along with treatment 
    for paranoid schizophrenia, there has been a steady improvement in behavioural 
    control.  Additionally, likely as a side effect to his medications, there 
    has been a decline in his sexual drive.

Although 
    it cannot be said that the symptoms of Paranoid Schizophrenia
caused
his past acts of violence, including sexual violence, it is highly likely 
    that he suffered from pre-psychotic symptoms, or prodromal Schizophrenia, 
    wherein suspiciousness, jealousy, easy reactivity, hostility, and violence 
    were indirectly promoted, especially when he was intoxicated.  In my view, 
    continuous treatment of his paranoid schizophrenia is, in itself, likely to 
    drastically reduce the risk for future acts of violence.  Put together with 
    other risk management options, outlined earlier, it is my view that the risk 
    that he poses can be managed with available resources within the community 
    in the relatively near future.

Although postulating a time frame within which further treatment interventions 
    can be implemented is a little artificial, I am hopeful that after he completes 
    a second course of the sex offender treatment program at RTC, he can be managed 
    through a careful release program.  I am of course mindful of the fact that 
    Mr. Berikoff is a dual status offender, having been found Not Criminally 
    Responsible by reason of Mental Disorder following charges resulting from 
    the hostage taking of a correctional officer, and is therefore also under 
    the jurisdiction of the B.C. Review Board.  If, as expected, he completes 
    the Odyssey (sex offender treatment) program for the second time in 2006 or 
    2007, I am optimistic that his treatment, monitoring, and release plan can 
    be implemented through Forensic Psychiatric Services and supervised by the 
    B.C. Review Board, as is typically the case with individuals with a major 
    mental disorder.

[15]

In my respectful opinion, the proposed fresh evidence taken as a whole 
    could not reasonably be expected to have affected the result of the sentencing 
    hearing.  The essence of Dr. Lohrasbes opinion is an expression of hope or 
    optimism that in the carefully controlled environment he describes the appellants 
    management in the community would be feasible at some time in the future.

[16]

Dr. Lohrasbes recommendations include continuous monitoring of treatment 
    compliance and response to medications as well as unexpected home visits and 
    curfews to enforce drug and alcohol abstention.  Those recommendations tacitly 
    acknowledge that the appellant is unlikely to comply with such conditions.  
    They are essentially an expression of hope that with constant and vigilant 
    supervision nothing untoward will happen.  It is, in my view, unrealistic 
    to think that continuous monitoring take place in the community.  That is 
    the level of supervision he presently receives in a maximum security psychiatric 
    hospital.

[17]

Dr. Lohrasbe says the appellant must maintain medication indefinitely 
    and abstain from drug and alcohol abuse for the rest of his life.  He does 
    not predict when if ever the appellant will cease to need the high level of 
    supervision presently necessary to maintain compliance.

[18]

It is evident in my view therefore that had this evidence been before 
    the judge at the time of sentencing the result would have been the same.

[19]

I would not admit the fresh evidence for this reason.

[20]

I also agree with the Crowns submission that the proper forum for 
    a review of the appellants situation is before the Parole Board.

[21]

I would dismiss the application to adduce fresh evidence and I would 
    dismiss the appeal.

[22]

DONALD, J.A.
: I agree.

[23]

CHIASSON, J.A.
: I agree.

[24]

FINCH, C.J.B.C.
: The appeal is dismissed.

The Honourable Chief Justice Finch


