R v Jenik, 2023 ABCJ 133

In the Alberta Court of Justice Citation: R v Jenik , 2023 ABCJ 133 Date: 20230613 Docket: 201081924P1 Registry: Calgary Between: His Majesty the King - and - Douglas Gordon Jenik Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify [ML] must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Identification Ban – See the Criminal Code ,

section 486.5 . By Court Order:

(1) Information that could identify [ML] shall not be published, broadcast, or transmitted in any way.

(2) No person shall publish, broadcast, or transmit in any way the contents of the publication ban application or the evidence, information or submissions at the hearing of the application. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Decision of the Honourable Justice M.M. Keelaghan

Introduction [ 1 ] In 2015, Mr. Jenik was designated a dangerous offender and given a determinate sentence followed by a long-term supervision order. [ 2 ] On April 15, 2021, Mr. Jenik entered a guilty plea before me to the following offence on Information # 201081924P1: On or about the 30th day of July, 2020, at or near Calgary, Alberta, did unlawfully commit a sexual assault upon ML, contrary to

section 271 of the Criminal Code of Canada and to the following offence on Information # 200905347P1: On or about the 30th day of July, 2020, at or near Calgary, Alberta, being an offender who is required to be supervised by an Order made 10th day of May, 2017 under paragraph 753.1(3) (

b) of the Criminal Code of Canada and being bound to comply with a condition obey the law and keep the peace, did without reasonable excuse fail or refuse to comply with this condition, contrary to

section 753.3(1) of the Criminal Code of Canada [ 3 ] The Crown at that time gave notice of its intention to apply for an indeterminate sentence pursuant to

section 753.01(4) of the Criminal Code and the Court ordered an assessment of Mr. Jenik pursuant to

section 753.01(1). In due course, the Crown filed the Consent of the Deputy Attorney General and the hearing of the application proceeded between November 28, 2022 and April 12, 2023 in which the court heard thirteen days of evidence and two days of argument, which included a Charter application by the Defence. [ 4 ] I have reviewed all of the material submitted and exhibited in these proceedings including a transcript of the previous dangerous offender hearing which occurred in 2015, the materials provided to SAFPC in 2021 in relation to the

section 753.01(1) assessment, correctional programming material, correctional programming reports, correctional plans and other material from Corrections Canada, previous expert reports of Dr. Tano, Dr. Trifiletti, current report of Dr. Tano and the report of Ms. Cunningham (psychologist) and the report of Ms. Jobe (social worker), counselling notes, material provided by Dr. Baxter as well as documents and evidence submitted by defence. [ 5 ] The sole issue in this hearing is whether an indeterminate sentence is the appropriate disposition or whether a lessor measure would adequately protect the public.

Facts [ 6 ] I found Mr. Jenik guilty of the above offences based on the following facts which are set out in the Agreed Statement of Facts filed with the Court and reproduced here: 1. Douglas Gordan Jenik (the accused) is a designated dangerous offender. On May 12, 2015 after a dangerous offender proceeding in front of PCJ J.D. Bascom, the judge declared the accused a dangerous offender, having previously pled guilty to s. 271 with regards to a young person and 173(1)(a).

Judge Bascom declined to declare an indeterminant sentence rather sentence in the accused to a global sentence of 1582 days followed by a 10 year long term supervision order (LTSO). After the accused’s pre trial credit was deducted he had two years left to serve on the custodial portion of his sentence. 2. The accused was released on the above referenced sentence on his statutory release date of September 8, 2016. The accused’s release was suspended and he was brought back into custody on October 26, 2016. He was re-released on May 10, 2017 at warrant expiry to serve is 10 year LTSO in the community.

The accused’s release was suspended again on August 9, 2017 and he was re released on August 14, 2017. The accused’s release was suspended on June 19, 2019 and he was re- released on August 8, 2019. 3. The accused was re released on August 8, 2019 on very strict conditions including a condition to reside at Bedford House. 4. On July 30, 2020, around 8:50 PM, the complainant, ML approached the lobby doors of an apartment building located in southwest Calgary. ML was carrying a bag and two Starbucks Drinks.

As she opened the exterior doors to the building an unknown male (later identified as the accused) approached her from the sidewalk and helped her hold open the exterior doors. ML, aided by the accused gained entry into the vestibule between the exterior doors and the interior locked doors of the building. 5. ML utilized her security key fob and the lock on the interior doors disengaged. The accused opened and held the door for ML and she went through the doors followed by the accused.

The building has security cameras that capture the interactions between the accused and ML as they move through both sets of doors into the building. 6. ML went into the building elevators, entered one and the accused followed her onto the elevator. ML situated herself in front of the elevator door display and asked the accused “what floor he wanted.” The accused said “uhhhhhh” and ML pushed floor #19 and moved to the back of the elevator and the accused pushed floor #16. 7. ML stood in the back right corner of the elevator and the accused was to her right closer to the elevator doors.

As the elevator began to ascend, ML became aware that the accused was looking at her. This made her feel very uncomfortable. The accused was situated in front of ML and ML could not move away from the accused. ML recalls feeling trapped in the corner of the elevator. 8. ML recalls that the accused’s stare became more intense and then the accused gradually moved closer towards her in the back corner of the elevator. As the elevator continued upwards, the accused, arms clasped behind his back, began bending over at the waist leaning towards ML.

She was confused and concerned but thought perhaps the accused wanted to read the writing on the bag she was carrying.

9. ML recalls that while she was trying to rationalize the accused’s bizarre behavior, the accused continued to bend his body and his head/face moved towards her crotch. Before ML could react, the accused, arms. still clasped behind his back, touched the front part of her vagina, over her jean shorts, with his nose for approximately 2 seconds. ML was frozen with shock and fear; she felt violated and wanted to hit the accused. 10. ML immediately shoved the accused's face away from her crotch and exclaimed “what the fuck”.

As this was happening, the elevator door opened on floor #16 and the accused exited the elevator still bent over at the waist. 11. ML recalls pushing the button to close the elevator doors and continuing up to #19 where she got off and went to her boyfriend's apartment. Once inside, ML told her boyfriend and his brother what happened and they called 911. 12. Calgary Police Service (CPS) attended the building, took a statement from ML and seized the building front door security camera footage.

Clear still photographic images were isolated from the footage and a ‘Need to Identify’ bulletin went out to the CPS districts. Within days, numerous police officers had identified the individual in the photos as the accused. 13. A photographic lineup was compiled and ML identified the accused as the person who had sexually assaulted her. 14. The accused has a criminal record. 15. The accused was arrested on September 25, 2020. [1] Victim Impact [ 7 ] The victim, ML, attended court on November 30, 2022 and read her Victim Impact Statement [2] into the record and was examined by Crown and Defence.

It is clear to me that the assault that she endured by Mr. Jenik was terrifying for her at the time and has caused her a tremendous amount of anxiety since. She told the Court that she is afraid of men she doesn’t know and has suffered sleeplessness which affected her school and work. She fears for her safety and that of other women should the offender be released. Previous Dangerous Offender Designation [ 8 ] As noted in the Agreed Statement of Facts, in 2015 my learned colleague Justice Bascom previously heard a Crown application pursuant to

Part XXIV of the Criminal Code for a finding that Mr. Jenik was a dangerous offender and for the imposition of an indeterminate sentence. [3] [ 9 ] After considering the facts surrounding the predicate offence, the criminal record and the facts supporting each prior conviction, the expert opinions as well as others who dealt with Mr. Jenik during periods of incarceration and while in the community, Justice Bascom designated Mr. Jenik a dangerous offender pursuant to section 753(1)(

b) on the basis of an inability to control his sexual impulses and likelihood of causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses. [ 10 ] To summarize, Mr. Jenik’s criminal record includes 7 sexual assault convictions and 11 indecent act convictions beginning in 1987 and continuing to 2012, exclusive of the 2015 sexual assault/indecent exposure convictions which Justice Bascom was considering.

The predicate offence in that case included exposing his penis and then the sexual touching and digital penetration of a 16 year old female victim who he happened upon at a bus shelter. [ 11 ] Justice Bascom heard that Mr. Jenik had engaged in sexual offender treatment in the past and he was assessed by Dr. Tano and Dr. Trifiletti as a high risk to reoffend. Justice Bascom came to the “inevitable conclusion” that Mr. Jenik had shown a failure to control his sexual impulses. His Honor ultimately declined to sentence the offender to an indeterminate period of incarceration and instead sentenced Mr.

Jenik to a period of incarceration of 1582 days, less pre-trial custody, resulting in a sentence of 2 years left to serve, followed by a ten year period of long term supervision. Post Dangerous Offender Designation [ 12 ] In this hearing, I have heard extensive evidence relating to Mr. Jenik’s time at Bowden Institution where he served his sentence of incarceration and the programming in which he participated. [ 13 ] Allison Cunningham was the facilitator of the High Intensity Sex Offender Program at Bowden Institution.

The model currently used in federal facilities is the Integrated Correctional Program model (ICPM) but at the time Mr. Jenik was at Bowden in 2015, the institution was using the High Intensity Sex Offender Program (HISOP), which is a 7 to 8 month program (between 420 to 480 hours). [4] The Program is based on a cognitive behavioural therapy (CBT) model. Mr. Jenik participated in this program from March 29, 2016 until September 6, 2016. [5] He was released from Bowden Institution in September, 2016. This was his statutory release date. As a result, he did not complete the program at this time.

It had been anticipated by all involved, including Mr. Jenik, that he would remain in the institution until his warrant expiry date, but the paperwork required for his detention past his statutory release date was erroneously not submitted. Prior to his release, he attended a one-on-one session with his facilitator to complete a “behavioural progression” document as part of preparation for his unexpected release. A review of the Program Report [6] indicates that Mr.

Jenik was engaged in the program and a final report, while it identified issues with entitlement, indicated that he had gained insights into his offending, completed a behaviour progression plan and had an understanding of the skills necessary to change his life for the better if he chooses. [7] He was noted to have completed assignments and attended every available session.

[ 14 ] From time to time, he spoke to the institutional psychologist and attended a stress management course offered to inmates. [ 15 ] After his release from Bowden on his statutory release date, he resided at Bedford House, a federal halfway house. He maintained reasonably steady employment and connected with the volunteer organization Circles of Support and Accountability (COSA). He became involved in a relationship with a 29 year old woman which was monitored by his parole officer.

He continued to work on the High Risk Sexual Offender Program in the community and then completed the ICPM Community Program through the auspices of Calgary Parole. He completed 4 additional sex offender sessions and reports indicated that there were improvements in his emotional management, attitude and behaviour. [ 16 ] After his release, his parole was revoked for deteriorating behaviour, including an allegation of tampering with his electronic monitoring ankle bracelet, which he denied.

The suspension occurred on October 28, 2016 (revocation followed in November) and he served the remainder of his sentence until warrant expiry on May 11, 2017. [ 17 ] His release was again suspended as a result of police attendance at his girlfriend’s home in relation to a domestic complaint and his failure to advise his parole officer about this police contact. The police contact was not reported by Mr. Jenik but was discovered months after the fact. As a result, his long term supervision order was suspended in June of 2019 for 90 days and he was re-incarcerated as a result of concerns about domestic violence.

Upon his release, he was again required to reside at Bedford House. [ 18 ] During his time in the community, Mr. Jenik maintained a good relationship with his family, who are very supportive. He also, as noted, became involved with Circles of Support and Accountability (COSA), a community volunteer group that has been run in Calgary since 2002 out of the Mennonite Central Committee, that provides support for sex offenders. He maintained fairly steady employment and met regularly with his parole officer.

He volunteered for a time doing lighting and sound technical work at the United Church. [ 19 ] The onset of CoVID in March, 2020 required increased restriction in terms of in-person counselling and visits with family, friends and other supports. Counselling and support sessions occurred on-line and social distancing was required at Bedford House and on visits with family and with his girlfriend. On July 2, 2020, Mr. Jenik was laid off from his employment and there was an indication that his girlfriend was suffering significant health issues. It was said that these were factors contributing to Mr.

Jenik’s level of stress but importantly, he did not disclose these concerns to his parole officer, nor any of his other supports. Psychological/psychiatric assessment (s. 752.1) and viva voce evidence Ms. Nessman, Psychologist [ 20 ] The Court heard from Ms. Deena Nessman, a registered psychologist with significant experience in conducting dangerous offender assessments. She described the use of actuarial tools, including the STATIC-99 (static) and the STABLE-2007 (dynamic) in conducting Mr. Jenik’s psychological assessment as well as structured professional judgment tools. Ms.

Nessman also reviewed extensive materials provided from Corrections Canada as well as materials, including assessments, from his previous dangerous offender hearing. [ 21 ] Ms. Nessman’s report, which was relied on by Dr. Tano in his assessment, contains a close examination of Mr. Jenik’s background through clinical interviews and his offending history as well as treatment measures in which he participated and his response to supervision in the community after his dangerous offender designation.

The report also contains the results of psychological testing as well as risk assessment using standard actuarial tools noted above. Ms. Nessman also gave viva voce evidence during the hearing which emphasized clinically significant aspects of Mr. Jenik’s offending behaviour as well as her opinion regarding his treatability and management of his behaviours. [ 22 ] Psychological testing revealed narcissistic personality features, grandiosity and entitlement.

She explained the narcissistic personality as one that overestimates its abilities and self-importance, while the self-esteem is very fragile, susceptible to narcissistic injury if criticism and rejection is perceived. This can result in anger and makes these individuals prone to exploit and take advantage of others.

They can view themselves as victims and the resulting anger allows them to justify their violent and/or sexual offending. [ 23 ] She reported psychological testing resulted in findings regarding treatment amenability: Treatment amenability is evaluated by the degree of openness and disclosure shown on testing, evidence of sustained effort in taking the test, some estimate of contrition offered and the level of motivation to want to make the necessary changes. Results of MSI-II (Multiphasic Sex Inventory-II)testing suggests Mr. Jenik is capable of showing effort in treatment.

Although he was not fully disclosing on testing, he acknowledged committing a sex offence and engaging in deviant sexual behavior. In addition, he says he needs help because he was not able to control his sexual behaviors. Based on these results, he may potentially be a suitable treatment candidate. [8] [ 24 ] In relation to actuarial risk assessment of risk, Ms. Nessman’s report reflects the following findings. [ 25 ] In regard to the STATIC-99R, it is an actuarial risk assessment instrument developed to provide an estimate of an offenders’ sexual recidivism rate.

The STATIC-99 R utilizes static (mostly unchangeable) factors when determining risk level and as Dr. Tano notes in his report, given its lack of dynamic factors, it cannot be used to select treatment targets, measure change, evaluate whether offenders have benefitted from treatment or predict when sex offenders are likely to recidivate. The STATIC-99R can be used as a baseline risk for re-offending. Ms. Nessman found Mr. Jenik’s score to be in the Well Above Average Risk category for sexual recidivism, which is the highest risk category on the STATIC-99R.

[ 26 ] The STABLE-2007 is another actuarial tool developed to assess change (dynamic factors). It attempts to assess risk based on the individual's current life circumstances (ie relationship status, cooperation with supervision, etc). Mr. Jenik’s score on this table 2007 places him in the high risk category (the highest risk category on the STABLE- 2007) as compared to other sex offenders. [ 27 ] Combining both tests, Ms.

Nessman placed him in the very high overall supervision priority category. [ 28 ] The Risk for Sexual Violence Protocol (RSVP), which is a set of structured professional judgment guidelines was administered with the following findings: Sexual violence history : chronicity and physical coercion are risk factors; escalation a moderate risk factor; Psychological adjustment: extreme minimization, attitudes that condone sexual violence, lack of self-awareness and problems coping with stress; Mental disorder : sexual deviation (exhibitionistic and frotteuristic behaviour); Social adjustment: employment is a stabilizing factor for Mr.

Jenik, relationships and non-sexual criminality (domestic violence) are risk factors; Manageability : treatment, supervision and planning are areas of high risk. [ 29 ] Overall, the results of the RSVP place Mr. Jenik at high risk of sexual recidivism . [ 30 ] In viva voce testimony, Ms. Nessman stated as follows in relation to Mr. Jenik’s ability to put the coping skills that he learned in treatment into practice: Well, I believe -- I believe through my conversations with Mr. Jenik that he knows what he needs to do. He has supports.

He -- It's not that he doesn't understand why this -- like why this is happening or why he engages in it fully. He has to actually not get into his mode of thinking which he describes as his “fuck it” thinking. He has to be really attentive to that and really work and really want to do -- want to stop sexually offending. And I believe he has the knowledge to do it. He has the ability to do it. It's just-- it's hard. Sometimes going -- patterns of behavior and breaking patterns of behavior are hard. [9] Dr. Tano, Psychiatrist [ 31 ] Dr.

Tano, a forensic psychiatrist well known to Courts in this jurisdiction, was qualified as an expert in forensic psychiatry. He has demonstrated training and expertise in the use of actuarial assessment tools as well as structured professional judgment tools and has conducted numerous dangerous offender assessments and has been qualified as an expert and testified previously in 10 – 15 dangerous offender hearings. [ 32 ] Doctor Tano was familiar with Mr. Jenik as he had assessed him in the past and in fact conducted the assessment that was considered by Justice Bascom in Mr.

Jenik’s 2015 dangerous offender hearing. For the current assessment, Dr. Tano reviewed Mr. Jenik’s history including his background, history of offending, psychosocial history, his history of psychiatric treatment and his post 2015 supervision reports. [ 33 ] Dr. Tano utilized the same actuarial tools in conducting a risk assessment of Mr. Jenik as did Ms. Nessman and their conclusions were the same, although Dr. Tano scored him slightly lower on the STABLE-2007 tool. In both cases, Mr.

Jenik was categorized in the high risk category of the STATIC-2007 and the high risk category of the STABLE-99R and overall, based on risk testing tools, placed him in the very high risk category. Dr. Tano opined that Mr. Jenik would require highly structured and closely monitored community supervision to address his sexual recidivism risk. [ 34 ] In relation to the RSVP, Dr.

Tano’s assessment of the risk factors was noted the following concerns: sexual violence history: chronicity and physical coercion were risk factors and escalation may be a factor based on fact that latest offence occurred while on supervision. In terms of the facts of the predicate offence, Dr. Tano noted that it was not an escalation, however, the context of the offence occurring while he was on supervision was a risk factor [10] ; psychological adjustment risk factors: difficulties with managing stress and coping (noted as a risk factor that he did not express this to supports before latest offence). Dr.

Tano noted that Mr. Jenik has made significant progress (“come a long ways”) with respect to understanding that he has a sex offending cycle but lacks understanding that there are ongoing issues regarding anger and stress. Dr.

Tano noted “[t]herefore within this domain, the primary risk factors include minimalization of sexual violence, some attitudes that continue to support his sexual offending, problems with self-awareness and problems with stress and coping; mental disorder risk factors: his history is consistent with the diagnosis of sexual deviance of exhibitionism and frotteurism, therefore sexual deviancy is the high risk factor for him; social adjustment risk factors : it was noted that employment seems to be a stabilizing factor for him.

He maintains relationships with pro-social family members but the history of domestic violence indicates ongoing difficulties with intimate relationships; Manageability: the obvious concern is that he offended despite intensive supervision and treatment. His plans to reduce his future risk are very similar to his previous plans and therefore treatment supervision and planning are all areas of high risk. [ 35 ] Based on all three risk assessment measures, Mr. Jenik would be classified as a high risk for sexual offending recidivism .

[ 36 ] In terms of the issue of eventual control of the risk Mr. Jenik presents in the community, Dr. Tano, in his report and in his viva voce evidence expresses concern that Mr. Jenik offended while on supervision and having undergone treatment and maintenance programming. It was noted that when things were going well for Mr. Jenik, he was able to incorporate and articulate what he needs to in order to identify and reduce his risk of recidivism. Unfortunately, notes Dr.

Tano at page 33 of his assessment: …it appears clear that when experiencing stress, feelings of rejection, feelings of lack of control, this can quickly lead to resentment and subsequent anger. Although he reports some basic strategies to monitor this, including going for walks and listening to music, when these feelings of rejection continue to occur and the anger builds, he tends to project blame onto others, have all or nothing types of thought patterns which quickly escalate and can result in either the domestic violence situation or sexual offending. [ 37 ] Dr. Tano, like Ms.

Nessman, is of the view that if Mr. Jenik is in the community, he must be subject to external controls such as electronic monitoring, ongoing frequent visits by his parole officer, residential housing rather than relying on the possibility of Mr. Jenik being able to intrinsically recognize his thought patterns and change his subsequent behaviors. [ 38 ] Importantly, Dr. Tano notes that Mr. Jenik would benefit from various types of psychotherapy which may provide benefit to help him with respect to coping with his feelings of rejection, hurt and anger and subsequently maintain him in the community.

He specifically recommends the anger management, cognitive behavioral therapy (CBT) and dialectical behaviour therapy (DBT) to reduce his future risk. These therapies can address his cognitive distortions and then his subsequent behaviors to them. [ 39 ] Dr. Tano notes: any attempts in the future made by Mr. Jenik to reduce his frequency of monitoring or change conditions of his release should be viewed cautiously.

Having said this, with the intensive supervision, electronic monitoring and residency at Bedford house he did not appear to offend which may suggest that with these types of interventions, he may be manageable in the community without putting the community at risk. It is when these restrictions were gradually lifted, that his feelings of entitlement grew which then significantly increased his risk. Therefore, in conclusion, should Mr.

Jenik receive the above therapies and incorporate his understanding of how he copes with perceived rejection, stress and frustration along with intensive monitoring in the community without an expectation of decreasing the level of supervision in the future, Mr. Jenik may be manageable in the community. [11] Programming Available within the Correctional Institutions [ 40 ] Mr. Jenik participated in the High Risk Sex Offender Program at Bowden Institution. He did not complete the program due to his unexpected early release.

Correctional Services Canada has now replaced the HRSOP with a new program known as Integrated Correctional Program Model (ICPM) which is designed to address a variety of risk factors (as opposed to specific sexual offender programming) for a “holistic approach” that encompasses multiple risk areas such as sex offending, substance abuse and domestic violence. [12] The Program is based on the CBT therapy model. The program does not offer DBT. ICPM is a longer program consisting of 100 group sessions as well as 8 individual sessions.

Both programs are facilitated by Correctional Service Canada employees and it is clear from the evidence I heard that a background in psychology or psychiatry is not required. The training program consists of a ten day training program and a further three day training on the use of actuarial risk assessment tools with regular training updates. [13] [ 41 ] The Rocky Mountain Program in the provincial system replaced the former Phoenix Program which was operated out of the Alberta Hospital in Edmonton. [14] The Rocky Mountain Program was developed by Dr.

Cynthia Baxter, a forensic psychiatrist with extensive experience in treating sex offenders. The program is based at the Calgary Correctional Centre and is an approximately [15] six month program for sex offenders of varying risks, but including high risk offenders. The high risk stream consists of group therapy, a psychoeducation group, an available addictions group and dialectical behaviour therapy (DBT) group for individuals with personality disorders. The program is run by clinical staff including Dr. Baxter, psychologists, nurses and social workers. Individual therapy is available as well and Dr.

Baxter is available for psychiatric management. The purpose of the program is to reduce risk of recidivism by tailoring the program to the criminogenic needs of the offender. The program is CBT based. The DBT group focusses on skills such as emotional regulation, distress tolerance and interpersonal skills and is particularly helpful for those with personality disorders. [ 42 ] The main difference between the two programs (federal vs provincial) is that the Rocky Mountain Program is facilitated by clinicians in a multidisciplinary approach and the federal program is not.

Also, the DBT group therapy is unique to this program and the program has follow up therapeutic assistance after offenders are released. Dr. Baxter agreed that she would liase with federal corrections if the offender was on a LTSO. Lastly, the RMP is provided at the wing where the participants are housed and Dr. Baxter commented that often the inmates work on assignments together and the environment has become very therapeutic. [ 43 ] Calgary Parole offers maintenance programming in the community following the model of the ICPM.

Law and Analysis Statutory Framework [ 44 ] The earliest incarnation of the current dangerous offender legislation was introduced in 1977 and amended in 1997. The most recent amendments to dangerous offender legislation came into effect on July 2, 2008. These amendments removed the discretion of the

judge when ordering a dangerous offender designation. It required that, once the Crown discharged the onus of proof that an offender met the criteria of dangerousness, the judge must declare the offender a dangerous offender. However, once a designation has been ordered, the 2008 amendments provide that the sentencing judge has discretion at the sentencing stage: a dangerous offender can either be sentenced to an indeterminate period of incarceration, to a determinate sentence followed by a long term supervision order of up to 10 years, or to a determinate sentence alone.

A sentence for an indeterminate period must be ordered unless the Court is satisfied that there is a reasonable expectation that a lesser sentence will “adequately protect the public”. [ 45 ] These provisions are contained in

Part XXIV of the current Criminal Code , entitled Dangerous and Long Term Offenders. [ 46 ]

Section 753 sets out the criteria for the designation of a dangerous offender: [ 47 ] 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; or (

b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (

b) of the definition of that expression in

section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses. [ 48 ] A "serious personal injury offence" is defined in

section 752 as follows: "serious personal injury offence" means (a)an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving (i)the use or attempted use of violence against another person, or (ii)conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, and for which the offender may be sentenced to imprisonment for ten years or more, or (b)an offence or attempt to commit an offence mentioned in

section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault). [ 49 ] Section 753(4) sets out the types of sentences available for dangerous offenders: (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 - and order that the offender be subject to a 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 [ 50 ] If an offender is declared a dangerous offender, the following provision applies with respect to sentence:

(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. [ 51 ] Relevant to this hearing, the Criminal Code addresses proceedings in relation to a designated dangerous offender who reoffends.

Section 753.01 states: 753.01

(1) If an offender who is found to be a dangerous offender is later convicted of a serious personal injury offence or an offence under subsection 753.3(1) , on application by the prosecutor, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under subsection (4).

Application for new sentence or order

(4) After the report is filed, the prosecutor may apply for a sentence of detention in a penitentiary for an indeterminate period, or for an order that the offender be subject to a new period of long-term supervision in addition to any other sentence that may be imposed for the offence. Sentence of indeterminate detention

(5) If the application is for a sentence of detention in a penitentiary for an indeterminate period, the court shall impose that sentence unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a sentence for the offence for which the offender has been convicted — with or without a new period of long-term supervision — will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

Analysis [ 52 ] It is clear from the jurisprudence and the evolution of the legislation regarding preventive detention and the current legislation relating to dangerous offenders that the primary consideration for the Court in determining the appropriate disposition of this matter is protection of the public. [ 53 ] In Mr. Jenik’s prior dangerous offender hearing, the Crown sought a finding based on section 753(1)(b). Justice Bascom found the Crown had proven beyond a reasonable doubt that the offence of which he convicted Mr. Jenik was a serious personal injury offence and that Mr.

Jenik had shown a failure to control his sexual impulses and that there is a likelihood in the future of him causing injury, pain or other evil to other persons through his failure to control his sexual impulses. As a result, Justice Bascom found Mr.

Jenik to be a dangerous offender as defined by the Criminal Code . [ 54 ] Justice Bascom found that there was a reasonable expectation that a measure less than an indeterminate sentence would adequately protect the public and he imposed a sentence of 1582 days (or 4.3 years) to be followed by a long-term supervision order of 10 years. [ 55 ] The practical result of the previous designation of Mr.

Jenik as a dangerous offender is that the scope of this proceeding is narrowed to the issue of whether there is a reasonable expectation that a measure less than an indeterminate sentence will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. Reasonable Expectation [ 56 ] This test is a similar but, in my view, a more exacting standard than the previous “reasonable possibility of eventual control of risk in the community” test applicable under the 1997 legislation.

A “reasonable expectation” refers to a belief that risk will be managed to an acceptable level, as opposed to a mere possibility. [ 57 ] The Court in R. v. Osborne [16] adopted the comments of Labach, PCJ in R v Merasty [17] in making a distinction between the two standards: 72 The case law does indicate a different and higher standard in "reasonable expectation" than in "reasonable possibility." … 73 A most succinct expression of the difference between the phrases is found in R. v.

Merasty , … a decision of the Saskatchewan Provincial Court where, after briefly discussing the difference between the two phrases, Labach P.C.J. wrote (at para. 114): Both of these phrases really involve an assessment of the offender's risk to the public. They ask a judge to consider if the offender's risk in the community can be lowered to an acceptable level by a lesser punishment. The only difference is under the old regime the question was one of "reasonable possibility" whereas under the new amendments the test is one of "reasonable expectation". The difference in wording, while subtle, is significant.

A "reasonable possibility" connotes a belief that something may happen while a "reasonable expectation" speaks to a belief that something will happen. The onus for finding a reasonable expectation then is somewhat higher but the factors to consider under both tests would essentially be the same.

I would substitute the word "standard" for the word "onus" in the above quotation, but otherwise adopt the statement. 74 It would seem to me that the higher standard flows reasonably from the enhanced dangerousness of one designated a dangerous offender, as compared with the lower standard applicable to the lesser dangerousness of one designated a long-term offender. Onus/presumption [ 58 ] In R v Boutilier [18] , the Court emphasized that section 753(4.1) does not impose an onus, a rebuttable presumption, or mandatory sanctioning. The Court was addressing the defence argument that the

section creates a presumption that an indeterminate sentence is a fit sentence for a dangerous offender and imposes a burden on the offender to adduce evidence to demonstrate a “reasonable expectation” that a lesser measure will adequately protect the public. In rejecting this argument, Justice Cote for the majority, referring to R v Johnson , [19] the precursor to the 2008 amendments to

section 734 [20] , states at paragraph 65:

Section 753(4.1) guides the discretion of the judge, who ultimately must determine the fittest sentence in a given case based on the evidence adduced during the sentencing hearing. This Court in Johnson stated that the "sentencing judge should declare the offender dangerous and impose an indeterminate period of detention if, and only if, an indeterminate sentence is the least restrictive means by which to reduce the public threat posed by the offender to an acceptable level": para. 44.

Again, s. 753(4.1) is simply a codification of the exercise of discretion required by Johnson in light of the regime's general purpose of public protection in dealing with offenders presenting a very high likelihood of harmful recidivism. [ 59 ] The Court emphasizes that every sentence must be imposed after an individualized assessment of all the relevant factors and circumstances. This is, clearly, an evidence-based determination. [ 60 ] In relation to the evidence before me, Dr. Tano was in a particularly good position to conduct the assessment as he has assessed Mr.

Jenik a number of times in the past and the dynamics of Mr. Jenik’s offending cycle and psychological issues are well known to him. I found him to be fair and balanced in his assessment of Mr. Jenik and I can say that I put a great deal of weight on his opinion, while bearing in mind that the expert opinion, while significant, is but one factor for me to consider. Evidence regarding Mr.

Jenik’s support in the community, his cooperation with past supervision, available programming to address recidivism, whether he is motivated to engage in programming and what controls are available in the community are all relevant factors. [ 61 ] The Crown referred me to the case of R v B(D), [21] in which Justice Hill provided a succinct statement of many of the factors that must be considered in the exercise of discretion on sentencing a designated dangerous offender: In the balancing exercise to determine whether public protection can realistically be achieved by a disposition less severe than indeterminate imprisonment, bearing in mind that "Parliament has provided that [such detention] should not be imposed unless there is no reasonable expectation that a lesser measure will be able to adequately protect the public" ( Sawyer , at para. 30), the totality of the circumstances of a particular case must be scrutinized.

There is no exhaustive menu of relevant factors for consideration as to whether an offender's future conduct is likely to be inhibited by normal standards of behavioural restraint.

Important are the nature and circumstances of the predicate crimes, criminal history of the offender, the nature and duration and intensity of his or her mental disorder, treatability, profile of previous compliance with orders and release conditions, expert risk assessments respecting likelihood of reoffending, attitude and motivation of the offender, community capacity to adequately monitor and supervise the offender upon release, etc. [22] [ 62 ] Drawing on Justice Hill’s proposed inexhaustive list of factors to consider, the following questions are helpful in determining whether a reasonable expectation of control of the offender’s risk in the community can be achieved: 1.

Has Mr. Jenik ever refused treatment and refused to take advantage of treatment opportunities? Mr. Jenik has attended a number of treatment programs over the years and there was no evidence that he refused treatment. 2. What past treatment has Mr. Jenik undertaken and what was his level of success? I heard evidence with respect to Mr. Jenik’s engagement in the High Risk Sex Offender Program in 2016 and in the community Integrated Correctional Program Model in 2018. Mr. Jenik received positive evaluations for his participation in these programs.

In HRSOP he was noted, however, to be resistant when challenged on his behaviours and distortions and required a “recommitment” to engage in the program. In both programs, he worked on his problem-solving strategies and was noted to have improved in this area. In the community program he was noted to have worked on, and improved in emotional management, attitude and behaviour and strengthen relationships with positive supports in the community. Mr. Jenik attended maintenance programming monthly from 2018 to 2019.

He appeared to make changes in his life and to be doing well, but he did not disclose the difficulties that he was experiencing in his relationship. While he had developed the skills and knowledge to live a prosocial life, he appeared to be lacking in motivation and self- control. 3. Does Mr. Jenik have insight into his offences? Dr. Tano noted that Mr. Jenik had Insight into offending cycle but minimized the predicate offence. Ms. Nessman noted that he has some insight into his need for ongoing treatment. Notable was his lack of empathy for the victims. 4.

What improvement or gains in risk reduction could be expected including during a period of custody preceding community release? Both Dr. Tano and Ms. Nessman noted the efficacy of dialectical behaviour therapy as well as cognitive behaviour therapy in addressing emotional dysregulation and coping mechanisms. Mr. Jenik has apparently not been exposed to DBT and this is available in the Rocky Mountain Program. Additionally, follow up in the community by a psychiatrist and connection with other mental health professionals is available in this program. 5. How has Mr.

Jenik engaged in the past with community supervision? Mr. Jenik had conflicts with his first parole office but appeared to develop a rapport and a reasonably good relationship with Mr. Valstar, who is a very experienced parole officer. He also appeared to get along well with the caseworkers at Bedford House, although he grew frustrated when his application to live in the community with his girlfriend was denied. His parole was suspended for tampering with his

electronic monitoring. As noted, he dis not disclose his increasing stress close to the time of the offence. 6. What supports does Mr. Jenik have in the community? Mr. Jenik continues to have the support of his family as well as COSA and a group called Building Bonds in the Community (BBIC), which is a new program at the John Howard Society of Alberta that provides ongoing support for former inmates in the community. He was employed during much of the time that he was in the community and employment appeared to be a stabilizing factor. 7.

What is the availability of external controls in the community to adequately protect the public? Mr.. Jenik was subject to electronic monitoring while on parole and he did not reoffend during this period. Close supervision by parole is available, as are supervised residences, such as Bedford House where Mr. Jenik resided while on parole and on his LTSO. Charter Argument [ 63 ] Prior to dealing with sentence, I must address a Charter application brought by Defence in the course of this hearing. The defence contends that Mr. Jenik’s rights were infringed as a result of an assault on Mr.

Jenik that occurred at the Calgary Remand Centre on July 12, 2022 when Mr. Jenik was moved to a different unit. He alleged that he was assaulted by the inmate in his new cell and suffered injuries as a result. Mr. Jenik alleges that his rights, presumably pursuant to

section 7, were infringed by the institution as a result of either deliberately orchestrating a situation in which Mr. Jenik was put at risk or due to negligence in not properly screening the inmate with whom Mr. Jenik was housed to ensure his safety. The remedy initially sought in the Charter Notice filed by defence was a stay of proceedings or, alternatively a reduction in sentence. During argument, the defence indicated that he was abandoning his argument in relation to a stay of proceedings as well as his argument for a reduction in sentence, but instead sought simply a declaration that Mr.

Jenik’s rights had been violated by the conduct of the administrative and correctional staff at the Remand Centre in hopes that CRC might amend its policy in relation to movement of inmates. [ 64 ] The issues then, on this application are whether an assault occurred and if so, were Mr. Jenik’s rights pursuant to

section 7 infringed and finally if these 2 questions are answered in the affirmative, what is the appropriate remedy? [ 65 ] I heard evidence on this issue over 3 days, from March 20 to March 22, 2023. I find the following facts. [ 66 ] Unit 2 is the protective custody unit at the Calgary Remand Centre, where sex offenders and others at risk from the general population were housed. Unit 2 itself is split into 2 units which are physically separated: Unit 2A and Unit 2B. Mr. Jenik was housed in Unit 2B.

As is the regular, daily practice in the operation of the institution, numbers of inmates in each unit are reviewed with an eye to keeping numbers somewhat balanced and avoiding triple bunking. On the morning of July 12, 2022 there were 52 inmates on Unit 2B and approximately 34 inmates on Unit 2A, therefore a number of inmates would need to be moved to unit 2A from unit 2B. [ 67 ] The deputy director of programs determined, based on whether an inmate had “incompatibles” on Unit 2A, a number of inmates chosen to be moved to Unit 2A.

The sole criteria for moving any inmate in particular was whether they had “incompatibles” or inmates with whom they may have had a dispute with or ought not to be housed with for other reasons on the unit to which they were being moved from Unit 2B had no incompatibles on Unit 2B and Mr. Jenik was one of those inmates. I find that this was a routine process and the movement of Mr. Jenik was a result of his being one of the relatively small number of inmates on Unit 2B that had no incompatibles on Unit 2A. [ 68 ] I do not accept Mr.

Jenik’s contention that this was a “gang unit” and find that Unit 2A was a protective custody unit with similar inmates to those on Unit 2B. I find that Officer Brown, who was on Unit 2A told Mr. Jenik to go to his designated cell where he was ultimately assaulted by the inmate that was housed there. [ 69 ] I find that Mr. Jenik, once he was allowed out of his cell, attended at the Guard’s station and told Mr. Brown that he was suicidal and he was taken to the Health Unit. [ 70 ] On the Health Unit he was observed to have 2 black eyes. No other injuries were noted. I find that Mr.

Jenik did receive facial injuries in the assault and may have received other, minor injuries but I do not accept the extent of the injuries to which Mr. Jenik testified. [ 71 ] I do not find that Mr. Jenik to be an entirely credible witness given the directly contradictory medical evidence that is before the Court and the evidence of the classification officer and the then acting deputy director of operations, each of whose evidence I accept in its entirety.

I am not prepared to find that he was lying to the Court, but I do find that he embellished the details of what occurred and I suspect that this may be part of his tendency towards distorted thinking that has been noted by witnesses in the main part of this proceeding. I find that if he had more serious injuries, they would have been noted by health care staff and he would have been kept on the Health Care unit for longer than he was. As it was, he was returned to Unit 2B the following day. [ 72 ] If I understand the Defence argument correctly, the position is that Mr. Jenik’s right to pursuant to

section 7 was infringed in that the institution negligently did not adequately screen either Mr. Jenik himself or the inmate with which he was being housed to ensure Mr. Jenik’s safety when he was moved at best and at worst, the movement of Mr. Jenik was orchestrated to create a situation in which Mr. Jenik was likely to be assaulted. [ 73 ] I find no merit in the latter argument which was apparently abandoned by Defence in the course of his argument. To be clear, there is no evidence whatsoever of state misconduct in relation to the movement of inmates from Unit 2B to 2A on the evening of July

12. [ 74 ] In relation to the negligence argument, I find no merit to this position. The onus is on the defence to establish a breach. I heard no evidence of anything but the standard practice used by the Remand Centre to ensure that an inmate is not inadvertently housed with an incompatible cellmate, creating a situation of risk.

I heard no evidence that the standard practice was not followed and I heard no evidence of practices in other jurisdictions or other institutions where practices were different or updated, as for example in the case of R v Munoz [23] at paragraph 77(c). [ 75 ] The argument that the Remand Centre administration, or the on-duty guards had an obligation or ought to have researched the criminal history of the inmate with whom a new inmate was to be housed with has no basis in the evidence.

Again, I heard no evidence that such a practice occurs in other institutions or that inmates are regularly put at risk because the proposed practice does not occur. [ 76 ] I therefore find no breach of the

section 7 rights of Mr. Jenik.

Conclusion [ 77 ] Given that there is an intensive in custody treatment program available and substantial external controls available in the community, I find that the evidence before me supports a reasonable expectation that a determinate sentence followed by a long term supervision order that would provide intense and ongoing supervision would adequately protect the public against the Commission by the offender of murder or a serious personal injury offence. [ 78 ] In the Boutilier case, the Court notes as follows at paragraph 53: This Court has consistently affirmed that dangerous offender proceedings are sentencing proceedings: R v Steele ; R v Jones ; R v Lyons .

Accordingly, a sentencing judge in a dangerous offender proceeding must apply the sentencing principles and mandatory guidelines outlined in

section 718 to 718.2: R v Johnson. [ 79 ] And at paragraph 56: … Parliament is entitled to decide that protection of the public is an enhanced sentencing objective for individuals who have been designated as dangerous. This does not mean that this objective operates to the exclusion of all others. It is permissible for Parliament to guide the courts to emphasize certain sentencing principles in certain circumstances without curtailing their ability to look at the whole picture. Emphasis on the public safety component is consistent with the fact that public protection is the general purpose of

part XXIV of the Criminal Code : Steele at para 27. [ 80 ] The sentence that I impose in this case is one that in my view addresses protection of the public. The record will reflect a lengthy term of incarceration, followed by an LTSO, while requiring Mr. Jenik to engage in an intensive treatment program with components (including DBT) to which he has not been exposed in the past, that is the Rocky Mountain Program, with follow up in the community.

The LTSO will allow for intensive controls, all of which will protect the public while at the same time exercising some restraint in sentencing (s. 718.2) and giving effect to the sentencing goals of denunciation and deterrence. I take into consideration the aggravating factor of his criminal record An additional aggravating factor in relation to the breach of the LTSO is the fact that he did not disclose to any of his supports, and that includes his parole officer, that he was experiencing stressors which he knew, or ought to have known, would put him at increased risk of relapsing into his offending cycle.

In relation to the sexual assault, aggravating is the fact that he chose a victim at random and the facts disclose an element of confinement as the offence occurred in an elevator and she was unable to extricate herself until the elevator came to a stop. His guilty plea is a mitigating factor. [ 81 ] The sentence I impose is one of 3 years or 36 months in relation to the sexual assault and 2.5 years or 30 months consecutive in relation to the breach of the long term supervision order. This will be followed by a 10 year LTSO. [ 82 ] Mr.

Jenik as of today has 989 days of pre-trial custody, or 2 years and 259 days or 32 months and 19 days. I give him enhanced credit for the extended period he spent at the Calgary Remand Centre in difficult conditions, which would include the assault by another inmate. At the enhanced rate of 1.5 I deem him to have served 1483 days or 4 years and 23 days. This leaves him a sentence of slightly less than 17 months to serve. [ 83 ] I wish to make it clear on the record that it is my intention that Mr.

Jenik be provided the opportunity to engage in the Rocky Mountain Program at the Calgary Correctional Centre referred to in this judgment. This will require an application be made to the program and I trust that defence counsel will assist Mr. Jenik with that application. Delivered orally on the 9 th day of June, 2023. Dated at the City of Calgary, Alberta this 13 th day of June, 2023.

M.M. Keelaghan A Justice of the Alberta Court of Justice Appearances: Janice Walsh for the Crown Telmo Dos Santos for the Accused