R. v. Fendley Date:, 2013 BCPC 194

Citation: R. v. Fendley Date: 20130604 2013 BCPC 0194 File No: 157581 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MARK EDWARD JAMES FENDLEY REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE CUTLER BAN ON PUBLICATION Pursuant to s. 486.4(2) Criminal Code of Canada

Counsel for the Crown: R.M Picha Counsel for the Defendant: T.M.S. Hemphill Place of Hearing: Victoria, B.C. Date of Hearing: March 7, 8, 20; April 4, 5; May 22, 2013 Date of Judgment: June 4, 2013 [1] THE COURT: This matter involves an application by the Crown to have the defendant, Mark Fendley, placed on arecognizance pursuant to

section 810.1 of the Criminal Code. [2] The Information before the court indicates that the informant has reasonable grounds to fear that Mark Edward James Fendleywill commit an offence under

section 151, 152, or 271 of the Criminal Code in respect of one or more persons who are under the age ofsixteen years, having regard to incidents that occurred with M.H., D.J. and J.T. on or between the dates of October 1, 2011 and March22, 2012, at or near Victoria, British Columbia. [3] After hearing numerous days of evidence and argument, I ordered on May 22, 2013, that the Defendant enter into arecognizance pursuant to

section 810.1 with various conditions including that he not be in the presence of anyone under the age of 16except in the presence of another adult, and that he not attend any public park, school grounds, day care center, swimming pool,playground, or other areas where persons under the age of 16 are present or might reasonably be expected to be present. [4] At the time of issuing the order, I indicated that I would provide reasons for imposing the recognizance in due course. Theseare those reasons. [5] This is a somewhat unusual application in that unlike most applications brought before the court pursuant to

section 810.1, theDefendant, while possessing an unenviable criminal record, has never been convicted of a sexual offense, nor is he approaching awarrant expiry date as a result of corrections officials’ concerns that he continues to be a risk to the public. Such a history is not required.The jurisprudence has held that a recognizance pursuant to

section 810.1 may be imposed where the defendant has no previous criminalrecord for sexual offences. All that is required is for the presiding judge to be satisfied that the informant has reasonable grounds to fearthat the defendant will commit a sexual offense against a person under 16. The evidence supporting the imposition of a recognizancemay include past inappropriate sexual behavior with persons under 16 years of age, sexual propositions made to persons under 16 yearsof age, as well as the defendant's proclivity to engage in sexual activity with persons under 16 years of age. (R. v.

Budreo (ON CA), [2000] O.J. No. 72 (Ont.C.A.)). [6] This application by the Crown is for the most part founded on a series of allegations by three girls in their early teens whoreported sexually inappropriate conduct on the part of the defendant, in some cases criminal in nature. These allegations relate to a six-month period in time at the end of 2011 and the beginning of 2012, during which period the Defendant had befriended one of the girls,M.H., when she was 15 years old.

Eventually the Defendant came to know two friends of M.H., D.J. and J.T. who at the time were 13and 12 years of age, respectively. [7] There is no doubt on the evidence that the Defendant, who was approximately 50 years of age at the time of the allegedincidents, interacted with the girls during this period and hosted the girls in his apartment where he lived alone. There is also no disputethat during this period the Defendant had an ongoing relationship with M.H. wherein she visited the Defendant regularly in his apartmentand he provided her with money, food, cigarettes, and gifts.

The evidence established that the girls had little structure or support in theirlives during this period. Their parents provided little in the way of guidance or financial support. [8] Compounding the girls’ difficulties is that two of them suffer from various cognitive disabilities which adversely impacted boththeir educational and social capabilities. An experienced social worker provided evidence with respect to the girls’ difficulties. Thiswitness characterized M.H. as the most vulnerable youth she had ever worked with.

In short, the girls were vulnerable youths. [9] M.H. provided extensive evidence of her relationship with the Defendant. She recounted incidents where she had attended theDefendant’s residence and he touched her for sexual purposes, played pornographic videos, and would masturbate in front of her. Shehad difficulties in providing her evidence which suffered at times from poor recollection, inconsistencies, and inaccuracies. This is notsurprising given her age, cognitive abilities, and the sexual incidents she was asked to recount.

Despite these difficulties, I accept M.H.'sevidence and am satisfied that the Defendant committed the sexual acts alleged. [10] The other two girls provided accounts of attending the Defendant's apartment whereat the Defendant tried to look up one girl’sdress (J.T.) and on another occasion rubbed the girl’s groin area over her pants (D.J.).

These girls also had difficulties in providing theirevidence but on the whole I believe them and the evidence they provided with respect to these encounters with the Defendant. [11] The Informant’s fear is further bolstered by information received by him indicating that the Defendant engaged in sexualactivity, including oral sex, with a girl under the age of 16 in the past. There was evidence of a police investigation in 1998 when it wasalleged that the Defendant committed a sexual assault of a 13 year old girl.

Although no criminal charges proceeded, I heard evidencefrom the Informant in this case that he discussed the matter with the Defendant in 2008. In that discussion the Defendant did not denythat consensual sexual activity occurred but maintained he believed the complainant was 15 or 16 years old which would not haveconstituted an offence in 1998. (The Criminal Code has since been amended to raise the age from 14 to 16.) The response provided bythe Defendant understandably raised fears for the Informant with respect to the Defendants activities with teenage girls.

The Defendantin his evidence denied having this discussion with the Informant or admitting his sexual involvement with the complainant. I reject theDefendant's evidence in this regard and accept the evidence of the Informant that the Defendant admitted to having sexual contact with ayoung teenage girl in 1998.

[12] The Defendant gave evidence adamantly denying the allegations of sexual misconduct. He did admit to the girls attending hisapartment and that M.H. was a regular visitor. I found the Defendant's evidence quite unsatisfactory and have difficulty accepting hisexplanation of his relationship and interaction with each of the girls. His testimony did little to alleviate the obvious concerns raised bythe evidence called by the Crown. [13] His account of his relationship with the girls is difficult to accept.

I have no doubt based on the evidence that the girls wereyoung, immature, some with cognitive disabilities, and in poverty. They were struggling socially and financially and in the case of M.H.,extremely vulnerable. The Defendant testified that he did not see the girls, and M.H. in particular, as vulnerable. Yet, he claims heprovided M.H. assistance because she would break down and cry.

And, despite his evidence that he survived on financial assistance withan unpredictable monthly income, often running out of money to buy basic necessities, he would provide money, gifts and food to M.H. [14] The defendant testified that he has suffered from a long list of mental and physical ailments including schizophrenia, Post-traumatic Stress Disorder, and depression. He also suffers from migraines, cancerous tumors on his face, and Obsessive CompulsiveDisorder including a phobia of touching other people.

The Defendant claimed that as a result of his various medical issues and themedication he has been prescribed to address same he has no sexual desire and suffers extreme pain when experiencing a penile erection.The Defendant maintained in his testimony that as a result of these medical issues there is no way he would have, or could have,committed the acts recounted by the three girls. [15] I do not accept the Defendant's claims in this regard. The Defendant’s testimony lacked credibility and any corroboration. Notsurprisingly these claims were not pushed in argument by counsel for the Defendant.

The Defendant provided the court with evidence ofthe numerous prescriptions he has received to address his various ailments and the potential sexual side effects of some of them.Although the Defendant claimed to have spoken to his doctor and pharmacist with respect to these sexual difficulties, there was noevidence, either from medical professionals or of medical records of the Defendant, to confirm his assertions. [16] It may be helpful at this point to review some general principles established in the jurisprudence relating to applications seekinga recognizance pursuant to

section 810.1. The law has made it clear that an application pursuant to

section 810.1 is distinct from acriminal prosecution. It is not a criminal charge and does not result in a conviction. The purpose of a

section 810.1 recognizance is toprevent future harm where the court is satisfied that there is sufficient evidence supporting a reasonable fear that the defendant maycommit a sexual offense against a person under the age of 16. The rules of evidence are relaxed, and the burden on the Crown is not asonerous as in a criminal prosecution. (R. v. Budreo, Ont.C.A., supra). [17] In order for the court to impose a recognizance pursuant to

section 810.1, it must be satisfied by the evidence adduced that theinformant has reasonable grounds to fear that the defendant will commit a sexual offense in respect of a person who is under the age of16. The Ontario Court of Appeal in R. v.

Budreo, supra, adopted a two-pronged test whereby the court must be satisfied that theinformant has a subjective fear of the defendant sexually offending persons under the age of 16 and this fear must be objectively founded.The Ontario Court of Appeal further held that the standard of proof is on a balance of probabilities. [18] The evidence establishes that the Informant, Detective Lastiwka, an experienced officer with the Victoria Police Department,became aware of the various incidents reported by the girls regarding the inappropriate sexual conduct on the part of the Defendant.

TheInformant conducted interviews with the girls and conducted his own investigation. Based on the information gathered, the Informantcaused this application to be brought forward and testified with respect to his concerns for the safety of girls under 16 years of age.

Therecan be no doubt, based on the testimony of the Informant and the information he gathered, that the Informant is genuinely concerned,and fears, for the safety of girls under the age of 16 who may have contact with the Defendant. [19] As indicated earlier, I accept that the incidents relating to the Defendant’s inappropriate and unlawful sexual conduct with thethree girls occurred. The Informant, having interviewed the girls and investigated the matters, understandably fears that girls under 16 areat risk when in the presence of the Defendant.

The fears of the Informant are further grounded by the Defendant’s admission to theInformant that he engaged in sexual activity with a young teenaged girl in the past. [20] I am satisfied that the evidence establishes on the balance of probabilities that the Informant has a reasonably grounded fear theDefendant will in the future commit a sexual offense against a girl under 16 years of age.

The belief is not grounded on mere suspicion orspeculation but on reliable information which when fairly assessed would cause a reasonable person to conclude that girls under the ageof 16 years of age are currently at considerable risk of being sexually assaulted by the Defendant if he is permitted to have contact withthem. [21] Counsel have submitted case law indicating that the Court must be satisfied there is a reasonably grounded fear of a "serious andimminent danger" in order to place the Defendant on a recognizance pursuant to

section 810.1. After reviewing the jurisprudence relatingto this general proposition I feel compelled to address same. However before doing so, I will state that for the purposes of the applicationbefore me, I am satisfied that given the nature of the incidents, and the frequency and recency of same, there exists a serious andimminent danger to girls under 16 who may have contact with the Defendant. [22] There seems to be much debate in the case law on whether the court must determine in each case whether the fear is of a"serious and imminent danger ".

I, like others, have struggled with the "serious and imminent danger "concept. In my view, such a testplaces an overly onerous burden on the applicant, and one not consistent with the statutory language or the intent and purpose of theprovision. [23] The concept of a "serious and imminent danger" test appears to have its genesis in the decision of Justice Then in R. v. Budreo, (ON SC), [1996] O.J. No 3 (Ont. Ct).

The phrase appears only once in Justice Then’s reasons at paragraph 25 whichreads as follows: It is clear then that the use of the word "fear" in a legislative context does not put the judicial process at the mercy of unsubstantiatedparanoia but requires an allegation to be objectively provable. Judges should take care before exercising their preventive jurisdiction.Both ss. 810 and 810.1 speak of a reasonably grounded fear that the defendant "will" commit an offence.

To my mind, as a matter oflegislative construction, this takes the appropriate threshold a notch above a simple demonstration that the defendant is more likely than

not to commit an offence. A reasonably grounded fear of a serious and imminent danger must be proved on a balance of probabilities.The court under s. 810.1 must therefore scrutinize carefully the evidence put before it: Banks, supra, at p. 705. (at para. 25)(emphasisadded) [24] I do not believe, as some have concluded (see Noble v. Teale (QC CS), [2005] Q.J. No. 17295 (Q.S.C.) andR. v. Tausendfrende [2003] O. J. No. 3739 (O.C.J), that Justice Then intended these words to place such a heavy burden on the applicantor that the phrase would become the touchstone in determining whether a

section 810.1 recognizance ought to be ordered by the court.The reasons of Justice Then do not address or explain what was intended by the use of the phrase "serious and imminent danger", or howsuch an

interpretation of the statutory provision was determined. Absent from the reasons is any discussion of the temporalconsiderations. Moreover, there is little indication in Then J.’s reasons supporting such an onerous burden being placed on the applicantas is suggested in some of the case law. [25] The jurisprudence in British Columbia relating to this issue seems unsettled as, although my brother judge, His Honour JudgeSeidemann III in R. v. Firth, 2004 BCPC 449 , 2004 BCPC 0449, rejected an

interpretation requiring such an onerous burden,the

summary conviction appellate decisions in this province have yet to resolve the issue as it relates to an application pursuant to section810.1 (R. v. Bonsan, 2006 BCSC 1161 and R. v. Lanferman, 2006 BCSC 980). Jurisprudence in other jurisdictions has rejected thenotion that the applicant has such an onerous burden (J.H. v. W.B. 2001 YKTC 502 , [2001] Y.J. No. 37 and R. v. Soungie,2003 ABPC 121). The reasons provided in the jurisprudence rejecting an

interpretation which imposes such an onerous burden in thecontext of a

section 810.1 application are persuasive and provide a reasonable

interpretation of the wording of the provision andParliament’s intention in enacting this preventative measure. [26] I would supplement this reasoning by simply pointing out that while the phrase employed by Then J. of "serious and imminentdanger " was not specifically addressed when the Ontario Court of Appeal reviewed the reasons on appeal (R. v. Budreo, supra), itwould appear that the Ontario Court of Appeal implicitly rejected the notion of a requirement that the danger be "imminent" in each casein order for the court to grant a

section 810.1 application and place the defendant on a recognizance. In its reasons, the Court addressedthe powers and process by which a person subject to a

section 810.1 application may be brought before the court to respond to theapplication. The Court stated at paragraph 67: The same analysis applies to the arrest and release procedure imported into s. 810.1.

Under s. 507(4), the justice is to compel thedefendant's attendance by means of a summons only, unless the allegations of the informant or the evidence "discloses reasonablegrounds to believe that it is necessary in the public interest to issue a warrant for the arrest of the accused." Because a hearing under s.810.1 can only result in the defendant being required to enter into a recognizance, the circumstances in which it would be "necessary inthe public interest" to issue an arrest warrant will be limited to cases where that process is necessary to preserve the integrity of the s.810.1 proceedings.

The justice will require the informant to make out a case that the defendant will not otherwise attend court or that thedefendant poses an imminent risk to the safety of children, which s. 810.1 is designed to protect. [27] It would appear that the Ontario Court of Appeal did not view it as a requirement that the danger be "imminent" in each section810.1 application. The Court did hold that it will be incumbent upon the Crown to establish the danger is "imminent" where the Crownseeks a warrant for the arrest of the defendant.

In other cases where there does not exist an "imminent" danger ,the Crown maynonetheless pursue a

section 810.1 application and compel the defendant's attendance by means of a summons. [28] There will always be a temporal component to the court's assessment, and in some cases the temporal component may be acentral issue; such as when the fears are based on information or incidents which are significantly dated and relate to behaviour of thedefendant long in the past. This was the situation before Justice Then who was assessing conduct of a defendant which had occurredmore than six years in the past. As the Ontario Court of Appeal confirmed in R. v.

Budreo, supra, projecting future conduct is not anexact science. Indeed, as reflected in the jurisprudence addressing sexual offenders, the courts are frequently provided with expert reportsopining on the likelihood of the subject reoffending sexually in the future.

These experts do not profess to be able to predict behaviourthat is "imminent" as that word is commonly used and defined in both the English language and jurisprudence relating to criminal law.Requiring the court to be satisfied that the commission of a sexual offence is imminent would seem to be setting a threshold which isexceedingly high given the inherent difficulties in predicting such future conduct. [29] In concluding these reasons, I am satisfied on a balance of probabilities that the Crown has established, by adducing credibleevidence, that the Informant, both subjectively and objectively, has a reasonably grounded fear the Defendant will commit a sexualoffense against a person under 16 years of age in the very near future.

The court must employ the preventative measures afforded bysection 810.1 to protect young girls from the Defendant. ______________________ R. F. Cutler Provincial Court Judge