R. v. Jennings Date:, 2014 BCPC 272

Citation: R. v. Jennings Date: 20140925 2014 BCPC 0272 File No: 94846-1 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAVID BRUCE JENNINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L.S. MARCHAND Counsel for the Crown: Mr. Joel Gold Counsel for the Accused: Mr. Murray Armstrong

Place of Hearing: Kamloops, B.C. Dates of Hearing: March 31, April 1-4, 7-11, May 20-21 and June 23, 2014 Date of Judgment: September 25, 2014 INTRODUCTION [1] David Bruce Jennings has a lengthy history of sexually offending against children. He has repeatedly been diagnosed assuffering from Pedophilia and Boderline Intellectual Functioning. Various psychological and psychiatric assessments indicate that he isan untreated sexual offender who is at high risk to reoffend. [2] The Crown applies to have Mr. Jennings declared a dangerous offender under ss. 753(1)(a)(

i) and/or (

b) of the Criminal Codeof Canada, RSC 1985, c. C-46 (the “Code”) and to have him sentenced to an indeterminate period of detention under s. 753(4) of theCode. [3] On January 15, 2013, the Honourable Judge Harrison found Mr. Jennings guilty of sexually assaulting and sexually touchingJ.C., a person under 16 years of age, contrary to ss. 271 and 151 of the Code respectively. Judge Harrison found that Mr. Jenningsbefriended J.C.’s mother and was staying at her home on a nearby First Nations reserve. Mr. Jennings was known to J.C. as “UncleDave”. In the spring or fall of 2011, Mr.

Jennings entered J.C.’s bedroom while J.C. was sleeping. He sat on J.C.’s sister’s empty bedbefore sitting on J.C.’s bed. Mr. Jennings then rubbed J.C.’s penis with lotion and said to J.C. “don’t tell anybody or I’ll hurt you”. J.C.was eight years old. [4] Through an application of the “Kienapple principle”, a conviction has been entered against Mr. Jennings for sexually assaultingJ.C. and a conditional judicial stay of proceedings has been entered with respect to the sexual touching conviction. (See R. v.

Kienapple, (SCC), [1975] 1 SCR 729.) [5] Subsequent to Judge Harrison rendering his verdict, the Crown identified that, during his previous career as Crown counsel,Judge Harrison had been involved in a consideration of whether the Crown ought to pursue a dangerous offender designation for Mr.Jennings. On learning of this history, Judge Harrison promptly recused himself and I was assigned to hear the Crown’s application tohave Mr. Jennings declared a dangerous offender. [6] At a pre-trial conference, I asked defence counsel whether Mr.

Jennings intended to challenge Judge Harrison’s verdict and wasinformed that Mr. Jennings would not be doing so. ISSUES [7] In any event, it is now my job to rule on the following issues: 1. Does Mr. Jennings meet the criteria to be designated a dangerous offender under s. 753(1)(a)(

i) of the Code? 2. Does Mr. Jennings meet the criteria to be designated a dangerous offender under s. 753(1)(

b) of the Code? 3. If Mr. Jennings meets the criteria to be designated a dangerous offender under either s. 753(1)(a)(

i) or s. 753(1)(b), under s. 753(4) ofthe Code, what is the appropriate sentence to impose: an indeterminate period of incarceration, a minimum two year period ofincarceration followed by a long term supervision order of up to ten years or another sentence? 4. If Mr. Jennings does not meet the criteria to be designated a dangerous offender, does Mr. Jennings nevertheless meet the criteria tobe designated a long-term offender under s. 753.1(1) of the Code? 5. If Mr.

Jennings does not meet the criteria to be designated a dangerous offender but does meet the criteria to be designated a long-term offender, what is the appropriate sentence to impose under s. 753.1(3) of the Code (which must include a minimum period ofimprisonment of two years plus a long-term supervision order of up to 10 years)? 6. If Mr.

Jennings does not meet the criteria to be designated a dangerous or long-term offender, what is the appropriate sentence toimpose? [8] Before turning to my analysis of these issues, I will comment on credibility and reliability issues and then summarize the keybackground allegations and facts. BACKGROUND [9] The Crown adduced substantial evidence during the sentencing hearing. This included the video-recorded statement of J.C.(which had been introduced into evidence at trial under s. 715.1 of the Code) as well as a substantial collection of documents andtranscripts.

I also heard from J.C.’s foster parent, L.R., court appointed expert, psychologist Dr. Lynn Piché, Crown expert, psychologistDr. Nalini Joneja, former Forensic Psychiatric Services Commission psychiatrist, Dr. Ron Chale, three past or present British ColumbiaCorrections Services officials, Lyndsay Gordon, Lisa Johnston and Bernice Hammett, RCMP Corporal Mark Goodall and twoCorrectional Services Canada officials, Lorne Forseille and Grant Anderson. [10] I found all of the court appointed and Crown witnesses to be highly credible and reliable.

All were knowledgeable andpresented their evidence in a balanced and thoughtful way, all gave testimony that was internally and externally consistent and, aside

from L.R., all were able to point to documentary evidence in support of their testimony. [ 11 ] Mr. Jennings did not challenge the credibility of the court appointed expert or Crown witnesses. Mr. Jennings did, however, raise reliability concerns with respect to some of the testimony and opinions offered by these witnesses. Specifically, Mr. Jennings raised issues regarding the reliability of hearsay descriptions of his past offences which appeared within various documents adduced by the Crown. These descriptions were relied on to some extent by other witnesses and, in particular, the expert witnesses.

The reliability issues raised by Mr. Jennings are central to his defence and I will deal with these issues during my analysis of whether the Crown has established that Mr. Jennings meets the criteria to be declared a dangerous offender. [ 12 ] Mr. Jennings testified on his own behalf. Throughout the hearing, Mr. Jennings was attentive and polite. Though Mr. Jennings testified with apparent sincerity, I had significant credibility and reliability concerns regarding Mr. Jennings’ testimony. Mr. Jennings’ testimony often lacked detail, conflicted with other witnesses and conflicted with documentary evidence. Mr.

Jennings’ testimony was also often internally inconsistent. For example, Mr. Jennings remembered having suffered verbal, physical and sexual abuse as a child but claimed not to remember any of his past sexual offending. It was hard to tell whether Mr. Jennings was being intentionally forgetful and/or evasive, whether his testimony lacked credibility and reliability due to his low intellectual functioning or whether his testimony lacked credibility and reliability due to a combination of factors. Regardless, suffice to say that where Mr.

Jennings’ testimony conflicted with other witnesses or documents, I have placed no weight on his testimony. In any case where Mr. Jennings disputed an aggravating or material fact, his testimony did not raise any doubt in my mind as to the existence of the disputed or material fact. [ 13 ] Based on the evidence I heard, I now outline the key background allegations and facts. [ 14 ] Mr. Jennings was born on July 3, 1963 in Westlock, Alberta. He self-identifies as a member of one of the Cree First Nations located in Maskwacis (formerly known as Hobbema), Alberta.

He was the youngest child of a large family and was taken into care when he was four or five years old. He lived in a number of group and foster homes but was raised mostly as a single child in the foster home of the Shantz family. [ 15 ] Given his low intellectual functioning, school was difficult for Mr. Jennings. He was in “special classes” and says he finished grade six. During his cross-examination, Mr. Jennings demonstrated an ability to find the right page in long documents and to read some passages reasonably well. Nevertheless, I accept Mr.

Jennings’ testimony that he has a hard time grasping and retaining information and that “big words” confuse and frustrate him. [ 16 ] Mr. Jennings described a lonely and unstable childhood. He felt like he did not know where he would be going next. He also says that he suffered verbal, physical and sexual abuse. He provided virtually no detail regarding the abuse he suffered. In terms of verbal abuse, he said he was called names like “stupid”, was told he would never be able to learn and felt that others “low esteemed” him.

In terms of the physical and sexual abuse he says he suffered, the only detail he provided was that he was abused by a man. He said that his history of abuse was “quite in depth and personal”, that he “kept everything wound up inside” and that he did not complain because no one would listen to him. He says he “gave up”. [ 17 ] Mr. Jennings has a lengthy criminal record, including convictions for five sexual offences. I will now outline his relevant criminal history and interactions with the criminal justice system. [ 18 ] On September 12, 1985, Mr.

Jennings was convicted in Morinville, Alberta of two counts of sexual assault. He received a suspended sentence and two years of probation. Various documents tendered by the Crown describe that the convictions relate to events on July 26 and 27, 1985 during which Mr. Jennings fondled the vaginas of two girls, aged three and five. The documents describe that Mr. Jennings had access to the girls “through befriending the family” and assaulted them “at a residence where he had been invited as a guest”. In his direct examination, Mr. Jennings testified that he did not recall these events.

In cross-examination, he said that he was not trying to deny the events occurred and conceded that he “could have done it”. [ 19 ] On October 8, 1992, Mr. Jennings was convicted in Edmonton, Alberta of sexual interference. He was sentenced to six months’ imprisonment and two years of probation. Various documents tendered by the Crown describe that between July 1, 1990 and January 31, 1991, Mr. Jennings touched the vagina of a four year old girl while he was babysitting her. In his direct examination, Mr. Jennings testified that he did not recall these events.

In cross-examination, he denied the specific description of events put to him by the Crown but also said that he could not recall the events and conceded that he “may have” committed the offence. [ 20 ] On March 19, 1993, Mr. Jennings was convicted in Fort Saskatchewan, Alberta of assault. He was sentenced to 21 days’ imprisonment. Various documents tendered by the Crown describe that Mr. Jennings had grabbed a female correctional worker and that the “attack” was “sexually motivated”. In cross-examination, Mr.

Jennings testified that he did not recall this incident but stated that “if it says I did then I guess I did”. [ 21 ] On September 5, 1996, Mr. Jennings was convicted in Wetaskiwin, Alberta of sexual interference. He was sentenced to imprisonment of two years less a day. Various documents tendered by the Crown describe that Mr. Jennings had fondled the penis and digitally penetrated the anus of a five year old boy. According to the documents, Mr. Jennings had regained the trust of the family of the girl he had been convicted of fondling in 1992 and had moved into their residence.

He apparently fondled and digitally penetrated the boy while sharing a bed with him. In his direct examination, Mr. Jennings described this conviction as “his serious personal offence” and agreed that it was a sexual offence against a child. In cross-examination, he testified that he did not remember the event. [ 22 ] Following Mr. Jennings’ release from custody in January 1998, the Edmonton Police Department released a public notification to warn the public that Mr. Jennings was an “untreated sex offender” who posed a risk to children. Mr.

Jennings relocated to the Kamloops area of British Columbia soon after to escape unwanted public attention associated with the notification. [ 23 ] On October 14, 1998, the Honourable Judge Shupe considered an Information laid by the Crown seeking to place Mr. Jennings on a recognizance under s. 810.1 of the Code . That

section enables a provincial court judge to place a person on a recognizance if satisfied on a balance of probabilities that an informant has reasonable grounds to fear that person will commit an enumerated sexual offence against a person under the age of 16.

[ 24 ] Judge Shupe heard evidence from a number of witnesses and found that, since arriving in Kamloops, Mr. Jennings had volunteered at a thrift store, worked “inordinately closely” with a 13 year old offender who was completing community work service hours at the store, inquired into attending a seminar that could have qualified him to be involved with children at a Sunday school and volunteered to babysit at another church. Judge Shupe heard evidence that Mr. Jennings had given the thrift store the alias “David Chance” and had posed as a single father of two.

Judge Shupe also received “extensive evidence of (Mr. Jennings’) background and criminal record for sexual offences against children”, including forensic psychological and pre-sentence reports. Judge Shupe imposed a s. 810.1 recognizance on Mr. Jennings “because of (his) unresolved sexual proclivity to molest children he knows, and because of the steps he took in Kamloops to put himself in close proximity to children despite that proclivity.” [ 25 ] In a December 10, 1998 report to the Kamloops Probation Office, a Registered Psychologist with Adult Forensic Psychiatric Services in Kamloops named Dr.

Jim Bowman reported that Mr. Jennings had acknowledged an ongoing sexual interest in children. According to the report, Mr. Jennings told Dr. Bowman that about two months previously, Mr. Jennings had become sexually aroused when he saw a girl about six years old at a local mall. Mr. Jennings reported that he “went to the washroom facilities where he masturbated” and that he felt this action was appropriate because he had “unloaded”. According to the time estimate given by Mr. Jennings to Dr. Bowman, this event occurred at about the same time as Judge Shupe placed Mr. Jennings on the s. 810.1 recognizance. Mr.

Jennings testified that he could not recall Dr. Bowman, denied telling Dr. Bowman about this incident and denied that the incident occurred. The Crown did not call Dr. Bowman to testify. [ 26 ] On May 31, 1999, after a two day trial, Judge Shupe convicted Mr. Jennings of three counts of breaching the s. 810.1 recognizance and one count of assault. All of the counts related to events on January 12 and 14, 1999 at or near a Catholic elementary school in Kamloops. The first breach count involved Mr. Jennings being on the school grounds, the second breach count involved Mr.

Jennings loitering within 100m of the school grounds and the third breach count involved Mr. Jennings having contact with a 9 year old girl on the occasion he was loitering near the school. The assault charge involved Mr. Jennings reaching for the girl on that same occasion. Judge Shupe reached the “inescapable conclusion” that Mr. Jennings “took steps to once again sexually offend against young children, the very thing the subject s. 810.1 recognizance was intended to prevent.” [ 27 ] Judge Shupe gave Mr. Jennings nine months’ credit for the time he had served awaiting trial and sentenced Mr.

Jennings to a further 18 months’ imprisonment followed by three years of probation. Judge Shupe felt this sentence would best achieve the goal of “protecting the public, particularly children, from (Mr. Jennings’) pedophilic offending, which now appears to include predation”. [ 28 ] On September 18, 2000, Mr. Jennings was convicted of failing to comply with his probation order. He was sentenced to time served plus 45 days which totalled 135 days. Various documents tendered by the Crown describe that Mr.

Jennings was found by police officers at the local Greyhound terminal, having purchased a bus ticket to Vancouver. I did not have access to the sentencing transcript and, although Mr. Jennings was not questioned about these events, he did not deny that they had occurred as described. [ 29 ] From the time of his release in October 2000 until May 2003, Mr. Jennings did not commit any offences. He was on an anti- libidinal medication (Androcur) during this time. Because of uncomfortable side-effects known as gynecomastia (the growth of breast tissue in a male), Mr.

Jennings discontinued the anti-libidinal medication as soon as he completed a subsequent probation order in June 2004. [ 30 ] On June 24, 2003, Mr. Jennings pled guilty to one count of breach of probation, one count of breach of recognizance, one count of obstructing a peace officer and one count of assaulting a peace officer. The counts related to events on May 20 and 26, 2003. Mr. Jennings was arrested on May 20, 2003 for breaching his probation order by being out past his curfew and drinking alcohol. He was released on bail the next day.

He was arrested again on May 26, 2003 for breaching his recognizance by being out past his curfew and being intoxicated. The obstruction and assault counts arose out of events that occurred during his arrest on May 26, 2003. Mr. Jennings was sentenced to time served plus one year of probation on each count. I did not have access to the sentencing transcript from June 24, 2003 but Mr. Jennings did not challenge the description of events provided by his then Probation Officer, Lisa Johnson, nor did he deny that the events had occurred as described. [ 31 ] By late April 2004, Ms.

Johnson had determined that she would be applying for a new s. 810.1 recognizance for Mr. Jennings when his then current probation order expired in June 2004. In Ms. Johnson’s view, Mr. Jennings had experienced no change in his internal ability to control his behaviour and Ms. Johnson was concerned that Mr. Jennings was going to be discontinuing his anti-libidinal medication. On June 17, 2004, Ms. Johnson swore an Information to obtain a s. 810.1 recognizance and a warrant was issued for Mr. Jennings. On being informed of the warrant, Mr.

Jennings turned himself in on June 21, 2004 and was released on a bail order that included similar terms to his last probation order. [ 32 ] On January 21, 2005, Mr. Jennings pled guilty to one count of breaching his bail by consuming alcohol on December 25, 2004. On February 14, 2005, the Honourable Judge Sundhu sentenced Mr. Jennings to one day in custody plus one year of probation. The sentencing transcript discloses that the police received an anonymous tip that Mr. Jennings was drinking and, when they arrived at Mr. Jennings’ residence, they located him hiding in a shower.

It was clear he had been drinking contrary to the conditions of his bail order. The terms of Judge Sundhu’s probation order were essentially identical to the terms of his previous bail and s. 810.1 recognizance orders and the Crown abandoned its June 2004 application for a further s. 810.1 recognizance. [ 33 ] On September 12, 2005, Mr. Jennings was arrested for breaching his probation order by being in possession of alcohol. Ms. Johnson testified that Mr. Jennings was loitering in front of the local Friendship Centre with a bottle of sherry and some needles in his possession. Ms.

Johnson’s notes indicate that Mr. Jennings “most likely was drunk”. On February 3, 2006, Mr. Jennings was sentenced to three years of probation for his latest breach. I did not have access to the sentencing transcript from February 3, 2005 but Mr. Jennings did not challenge the description of events provided by Ms. Johnson nor did he deny that the events had occurred as described. [ 34 ] On April 5, 2006, Mr. Jennings was arrested for breaching his probation order. Ms. Johnson testified that she took a close approach to breaches and that she had breached Mr.

Jennings for going to a neighbour’s house even though he knew the neighbour had children. Ms. Johnson described that she was concerned Mr. Jennings was engaging in “grooming activity”. On April 11, 2006, Mr. Jennings was sentenced to one day in custody (time served) for this breach. I did not have access to the sentencing transcript from April

11, 2006 but Mr. Jennings did not challenge the description of events provided by Ms. Johnson nor did he deny that the events had occurred as described. [ 35 ] Mr. Jennings’ February 3, 2006 probation order expired on February 2, 2009. Community Corrections notes indicate that consideration was given to submitting a new application for a s. 810.1 recognizance but it appears that did not occur. Of some concern, on April 2, 2009, the Kamloops RCMP received a complaint that Mr. Jennings was purchasing children’s videos because he was babysitting children.

RCMP Corporal Mark Goodall investigated the complaint. [ 36 ] After gathering some background information, Corporal Goodall located Mr. Jennings in an alley near Mr. Jennings’ residence in downtown Kamloops. Corporal Goodall and Mr. Jennings went to Mr. Jennings’ residence and Mr. Jennings invited Corporal Goodall inside. Corporal Goodall observed that Mr. Jennings was intoxicated and that his residence was decorated like a child’s room with stuffed animals everywhere and a shelf with children’s videos. Because of Mr. Jennings’ level of intoxication, Corporal Goodall felt that Mr.

Jennings did not understand Corporal Goodall’s questions so Corporal Goodall said he would return. Corporal Goodall next saw Mr. Jennings on the street on April 6, 2009. Mr. Jennings denied that he had been babysitting and said he had the children’s videos because he enjoyed watching them. As Mr. Jennings was not on any court orders, no charges were pursued and nothing came of the complaint. [ 37 ] Mr. Jennings was not under any form of court restrictions or community supervision between April 2009 and June 2011 when the RCMP initiated a new application for a s. 810.1 recognizance.

Probation Officer Bernice Hammett testified about the circumstances leading to the s. 810.1 application. Mr. Jennings had been residing in Ashcroft and befriended a family. He took a liking to the family’s female child. He bought her things and was affectionate to her. He also held the family’s four year old son on his lap when he thought no one was observing him. The family was concerned about Mr. Jennings’ behaviour which they reported to the RCMP. Due to Mr. Jennings’ history of sexual offending, the RCMP initiated the application for a s. 810.1 recognizance. Mr.

Jennings was arrested as a consequence of the application and released on bail. Mr. Jennings did not challenge the description of events provided by Ms. Hammett nor did he deny that the events had occurred as described. [ 38 ] One of Mr. Jennings’ bail conditions was that he not have contact or communicate with any person under the age of 16. On August 25, 2011, Mr. Jennings pled guilty to breaching this bail condition by having contact with an 11 year old boy. According to the record of proceedings at the sentencing hearing, Mr. Jennings approached this boy and offered him $600 to buy his cat. Mr.

Jennings was sentenced to 45 days in custody. [ 39 ] On October 6, 2011, Mr. Jennings agreed to enter a s. 810.1 recognizance. The only significant issue Mr. Jennings raised at the time was with the length of the recognizance order. Mr. Jennings submitted that a one year recognizance would suffice but, after hearing submissions on Mr. Jennings’ history of criminal convictions, the results of various psychiatric and psychological assessments and Mr. Jennings’ most recent contacts with children, Judge Harrison imposed a two year recognizance. Judge Harrison was specifically concerned that Mr.

Jennings may have been exhibiting grooming behaviours. [ 40 ] Mr. Jennings was released from custody on October 11, 2011. A few days later, a public notification went out to warn the community of the risk posed by Mr. Jennings and included information on Mr. Jennings’ “victim type”. [ 41 ] On December 14, 2011, Mr. Jennings was arrested for breaching his s. 810.1 recognizance. On December 3, 2011, Mr. Jennings met with an adult Jehovah’s Witness and a 13 year old boy at Mr. Jennings’ apartment in Kamloops and Mr. Jennings subsequently had contact with children at a meeting at the local Kingdom Hall.

On December 19, 2011, Mr. Jennings pled guilty to breaching his recognizance and was sentenced to 60 days in custody. The sentencing judge was concerned that Mr. Jennings had initially “lied” to the RCMP about the circumstances. [ 42 ] On June 15, 2012, Mr. Jennings was arrested for a further breach of his s. 810.1 recognizance. On June 8, 2012, Mr. Jennings approached a 14 year old girl who was holding a sign promoting a pizza establishment. He spoke with her and bought her a pizza. He wanted to write her a note on the pizza box but an employee of the pizza establishment did not allow him to do so. Mr.

Jennings pled guilty to breaching his s. 810.1 recognizance and, on September 17, 2012, was sentenced to six months’ imprisonment. [ 43 ] Mr. Jennings next conviction is the present conviction for sexually assaulting J.C. Despite the conviction, Mr. Jennings continues to deny having committed this offence. I must note, however, that when Dr. Joneja interviewed Mr. Jennings, she asked Mr. Jennings about his gender preference in the context of the sexual assault against J.C. Mr. Jennings replied “you take what’s there”. ANALYSIS Does Mr.

Jennings Meet the Criteria to be Designated a Dangerous Offender Under s. 253(1)(a)(

i) of the Code ? [ 44 ] Section 753(1) (a)(

i) of the Code provides as follows: 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. [ 45 ] “Serious personal injury offence” is defined in s. 752 of the Code . Under paragraph (

a) of the definition, the phrase is defined to mean: (

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. [ 46 ] Cases such as R. v. Pike , 2010 BCCA 401 and R. v. Walsh , 2011 BCSC 1911 make clear that the Crown must prove beyond a reasonable doubt all of the elements necessary to find an offender to be a dangerous offender. R. v.

Ziegler , 2012 BCCA 353 also makes clear that the Crown can rely on hearsay from “reliable and trustworthy” sources to establish the circumstances surrounding an offender’s past offences in order to do so. On my reading of paragraphs 7 to 10 of Ziegler , however, where an offender “clearly and unequivocally challenges” the circumstances surrounding the offender’s past offences, reliance on hearsay may be insufficient to prove those circumstances beyond a reasonable doubt. [ 47 ] In this case, Mr.

Jennings has not contested that his sexual assault of J.C. is a “serious personal injury offence” as described in paragraph (

a) of the definition of the term in s. 752 of the Code . Rather, Mr. Jennings argues that the hearsay evidence adduced by the Crown regarding the circumstances of his sexual offences in 1985, 1992 and 1996 does not prove the circumstances of those offences beyond a reasonable doubt. Once the circumstances are stripped away, Mr. Jennings argues that his historic convictions for sexual offences, standing alone, do not establish the necessary pattern under s. 753(1) (a)(

i) of the Code . [ 48 ] Mr. Jennings relies heavily on the Pike decision in which our Court of Appeal set aside the trial judge’s finding that the accused was a dangerous offender. The Court found that the sentencing judge had improperly relied directly and indirectly on allegations which had not been proven beyond a reasonable doubt.

After excluding unsupported findings of fact, including findings of fact based on hearsay contained within expert reports, the Court concluded that the sentencing judge was left only with one prior “bare” conviction for a sexual offence when the accused was a teen and one predatory sexual offence committed by the accused many years later. The Court held this was insufficient to establish the necessary pattern of behaviour and threat to the public to declare the accused a dangerous offender. [ 49 ] Returning to Mr.

Jennings’ case, prior to trial, the Crown advised that transcripts of proceedings and reasons for judgment were no longer available in relation to Mr. Jennings’ historic convictions for sexual offences. The Crown also advised that the Crown would not be calling the victims of Mr. Jennings’ historic sexual offences to testify. Instead, the Crown advised that the Crown would be relying on descriptions of Mr. Jennings’ historic sexual offences provided in various documents that would be adduced during the sentencing hearing.

In light of the passage of time, the age of the victims at the time of the offences and the risk of traumatizing the victims by forcing them to recall painful childhood memories in the setting of a sentencing hearing, the Crown’s decision against calling the victims of Mr. Jennings’ historic sexual offences was understandable. [ 50 ] Similar concerns may have been at play in the relatively recent case of R. v. Kudlak , 2011 NWTSC 29 . In that case, the Crown entered extensive materials setting out, amongst other things, the offender’s criminal history.

To avoid confusion as to how the documentary evidence was to be assessed, the parties filed a written agreement which included a term that “All convictions and all materials related to the convictions should be accepted by the Court as proven beyond a reasonable doubt.” (See paragraph 35 of the decision.) [ 51 ] Mr. Jennings did not object to the Crown adducing a wide variety of documents into evidence, including many that contained descriptions of Mr. Jennings’ historic sexual offences. No agreement such as the one in Kudlak was filed and Mr. Jennings did not otherwise admit the truth of the descriptions.

In fact, as the documents were entered into evidence, Mr. Jennings highlighted there would be a question of the weight I could place on the hearsay contained within the documents. [ 52 ] During his testimony, Mr. Jennings generally testified that he did not recall the circumstances surrounding any of his convictions for sexual offences. While his testimony was equivocal, during submissions, Mr. Jennings put the circumstances of his past sexual offences into issue. On the authorities provided to me, it is not clear whether Mr.

Jennings could equivocate during his testimony and then purport to “clearly and unequivocally” put these circumstances into issue during submissions but I will proceed on the basis that the Crown must prove these circumstances beyond a reasonable doubt. [ 53 ] Descriptions of Mr. Jennings’ historic sexual offences are contained within documents from sources which are generally considered “reliable and trustworthy” but the descriptions are brief, often not sourced and were not admitted during the sentencing hearing.

While it may have been reasonably necessary for the Crown to rely on hearsay to prove the circumstances of Mr. Jennings’ historic sexual offences, the question is whether the hearsay is sufficiently reliable to prove those circumstances beyond a reasonable doubt. [ 54 ] Regarding Mr. Jennings’ 1985 convictions for sexual assault, the best source of information is a “Post Sentence Report” prepared by the Alberta Correctional Services Branch soon after Mr. Jennings was sentenced. There is a note on the cover page of the

report which says “Confidential: Not For Use In Court”. The author of the report spoke with a Sgt. Ozinski about the circumstances of the offences but it is not clear where Sgt. Ozinski got his information. The author likely put these circumstances to Mr. Jennings who is reported to have stated “he doesn’t feel good about it” and to have accepted “full responsibility for his behaviour”. The author also spoke to a Cst. Magotiaux who appears to have been the arresting officer. The author writes “CST. MAGOTIAUX questioned JENNINGS as to why he involved himself in the second sexual assault.

JENNINGS advised that he felt he was in trouble anyway so he may as well repeat his performance.” (Emphasis in original.) [ 55 ] Even though the report indicates that it is “Not For Use In Court”, it is from a reliable source, was completed very soon after the offences were committed and contains admissions from Mr. Jennings. That said, the report is not clear that the description of events provided by Sgt. Ozinski was specifically put to Mr. Jennings nor that Mr. Jennings admitted the specific details. During submissions, I asked whether Mr.

Jennings admitted that the 1985 sexual assaults were committed against children. Mr. Jennings did not object to such a finding being made which relieved the Crown from seeking an adjournment to adduce further evidence on the point. [ 56 ] Based on Mr. Jennings’ reported statements to Sgt. Ozinski, the entire course of the management of Mr. Jennings’ file by the Crown, police and corrections officials and the fact that Mr. Jennings did not put the age of his 1985 victims into issue, I am satisfied, that Mr. Jennings sexually assaulted two children in 1985. [ 57 ] Regarding Mr.

Jennings’ 1992 conviction for sexual interference, various documents describe the events but only one contains any form of admission by Mr. Jennings. That admission is contained in a letter dated August 4, 1992 from “Forensic Assessment & Community Services (F.A.C.S.)” at the Alberta Hospital Edmonton to a lawyer named Harley Gillett. In the letter, the author writes: I interviewed (Mr. Jennings) at Forensic Assessment and Community Services on the 20 th of July 1992 in order to provide a report suitable for sentencing purposes.

I understand that he plans to plead guilty to sexual assault, on the three year old daughter of his friends. He had previously been assessed here by my resident, Dr. Adams… He told me that the offence consists of him touching this girl, at his friend’s house; that he was visiting at the time. Although he told me he does not remember the offence, he gave me a number of details… [ 58 ] The Crown only introduced a two page excerpt of the F.A.C.S. letter. While the name of the author does not appear in the excerpt, the context makes clear that the author was a physician and probably a psychiatrist.

The only admission contained in the letter is that Mr. Jennings touched a girl at his friend’s house. [ 59 ] Regarding Mr. Jennings’ 1996 conviction for sexual interference, no documents contain any admissions by Mr. Jennings regarding the circumstances of this offence. [ 60 ] In the result, on the whole of the evidence, all that has been proven beyond a reasonable doubt to establish the “pattern of repetitive behaviour” required by s. 753)1)(a)(

i) of the Code is: 1. Mr. Jennings sexually assaulted two children in 1985; 2. Mr. Jennings committed the offence of sexual interference, by touching a girl under the age of 14 who was the daughter of a friend for a sexual purpose, in 1992; 3. Mr. Jennings committed the offence of sexual interference, meaning that Mr. Jennings directly or indirectly touched a person under the age of 14 for a sexual purpose, in 1996; and 4. Mr.

Jennings sexually assaulted J.C. in 2011 in the fashion found by Judge Harrison. [ 61 ] These facts indicate a history of sexual offending against children, but fall short of establishing the required “pattern of repetitive behaviour”. On the proven facts, the Crown has not established even a basic pattern of offending. For example, the Crown has not proven beyond a reasonable doubt whether Mr. Jennings has an age or gender preference, whether he is typically predatory or opportunistic, how Mr. Jennings identifies victims, the nature of the sexual abuse typically perpetrated by Mr. Jennings nor whether Mr.

Jennings employs any specific strategies to avoid detection. [ 62 ] Being unable to find the necessary “pattern of repetitive behaviour”, I dismiss the Crown’s application to have Mr. Jennings declared a dangerous offender under s. 753(1) (a)(

i) and I move on to consider the Crown’s application under s. 753(1) (

b) of the Code . Does Mr. Jennings Meet the Criteria to be Designated a Dangerous Offender Under s. 253(1)(

b) of the Code ? [ 63 ] Section 753(1) (

b) of the Code provides as follows: 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 … (

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. [ 64 ] In Ziegler (at paragraph 6 ), our Court of Appeal broke down the requirements of s. 753(1) (

b) of the Code into three elements, each of which must be proven beyond a reasonable doubt. Paraphrasing slightly, these elements are: 1. the predicate offence is a “serious personal injury offence” as described in paragraph (

b) of the definition of that term in s. 752 of the Code ; 2. the offender’s conduct in any sexual matter, including that involved in the predicate offence, has shown a failure to control his sexual impulses; and 3. there is a likelihood the offender’s failure to control his sexual impulses in the future will cause injury, pain, or other evil to other people. [ 65 ] I will deal with each of these elements in turn. Element One: Has Mr. Jennings Been Convicted of a “Serious Personal Injury Offence”? [ 66 ] “Serious personal injury offence” is defined in s. 752 of the Code . Under paragraph (

b) of the definition, the phrase is defined to mean: (

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). [ 67 ] In this case, Mr. Jennings has been convicted of sexually assaulting J.C. which meets the definition of “serious personal injury offence” under paragraph (

b) of the definition of that term in s. 752 of the Code . The first element is, therefore, satisfied. This was not contested by Mr. Jennings. Element Two: Has Mr. Jennings Shown a Failure to Control His Sexual Impulses? [ 68 ] Mr. Jennings argues that, by failing to prove the circumstances of his historic sexual assaults beyond a reasonable doubt, the Crown has not proven beyond a reasonable doubt that Mr. Jennings “has shown a failure to control his sexual impulses.” [ 69 ] I begin my analysis of the second element by noting that s. 753(1) (

b) of the Code specifically does not require the Crown to prove any pattern of conduct on the part of an offender. This

section empowers the court to find an offender to be a dangerous offender based on an offender’s conduct in “any sexual matter” (not “matters”) which may include “that involved in the commission of the offence for which he… has been convicted”. [ 70 ] Next, I am not restricted to considering only Mr. Jennings’ specific conduct in any sexual matter or matters. I may also rely on the fact of Mr. Jennings’ previous convictions for sexual offences, his conduct while in the community (particularly during periods of substantial external controls) and, insofar as they are based on established facts, expert opinions.

Ziegler (at paragraphs 83 to 85 ) is a good example of a case where the court considered a wide variety of evidence in concluding the offender demonstrated an inability to control his sexual impulses. [ 71 ] In this case, Mr. Jennings preyed on a vulnerable young boy. J.C. was eight years old. Mr. Jennings had befriended J.C.’s mother and was known to J.C. as “Uncle Dave”. Mr. Jennings woke J.C. from his sleep to sexually assault him. Mr. Jennings also threatened J.C. not to tell. While it is not clear whether Mr.

Jennings was on any form of court ordered community supervision at the time of the sexual assault, the sexual assault occurred after Mr. Jennings had been under intense scrutiny and/or extensive community supervision for the previous 13 years. These circumstances demonstrate beyond a reasonable doubt that Mr. Jennings has shown a failure to control his sexual impulses. [ 72 ] Though not required for me to reach this conclusion, my conclusion is supported by Mr.

Jennings’ historic sexual assault convictions, his continual approaches to children despite being on court imposed conditions not to do so and the expert evidence of Drs. Piché and Joneja. I will say more about the evidence of Drs. Piché and Joneja below. For present purposes, I can simply say that I accept their opinions that Mr. Jennings has difficulties with impulsivity. Element Three: Is there a likelihood Mr. Jennings will fail to control his sexual impulses in the future and cause injury, pain, or other evil to other people? [ 73 ] Mr.

Jennings argues again that, by failing to prove the circumstances of his historic sexual assaults beyond a reasonable doubt, the Crown has not proven beyond a reasonable doubt “a likelihood of (Mr. Jennings) causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses”.

[ 74 ] I will deal first with whether the Crown has proven beyond a reasonable doubt that there is a likelihood that Mr. Jennings will fail in the future to control his sexual impulses. [ 75 ] Drs. Piché, Joneja and Chale all gave expert evidence that Mr. Jennings is at a high risk to sexually reoffend. Their evidence deserves some attention. [ 76 ] Mr. Jennings did not consent to speaking with Dr. Piché so she was limited to forming her opinions on the basis of extensive file information provided to her by the Crown. In the absence of an interview with Mr. Jennings, Dr.

Piché declined to offer any diagnoses regarding Mr. Jennings. Instead, Dr. Piché used actuarial and structured risk assessment tools to assess Mr. Jennings’ risk of sexually reoffending. [ 77 ] Dr. Piché utilized the actuarially designed STATIC-99R (“ST-99R”) tool to assess Mr. Jennings’ risk to sexually reoffend relative to other sexual offenders. The tool is based on “static” rather than “dynamic” risk factors. These “static” factors depend only on the most basic and readily available facts about an offender and his offending past. Dr.

Piché described the ST-99R tool as the most widely used tool to assess the risk posed by sex offenders. She testified that the tool is considered moderately accurate in predicting risk and has been criticized as being too conservative - from which I infer that inaccuracies in assessing risk are generally considered to result in risks being understated. Dr. Piché also testified that the ST-99R tool is suitable for use in assessing developmentally delayed offenders such as Mr. Jennings and that it is age sensitive. [ 78 ] Dr. Piché assessed Mr.

Jennings’ ST-99R score as falling in the range of 97.8 to 99.1 percentile meaning that only 0.9 to 2.2 percent of sex offenders have a higher risk to reoffend than Mr. Jennings. Put another way, the results indicate that Mr. Jennings’ risk to sexually reoffend is 4.96 times higher than the risk posed by “the typical sexual offender”. For high risk and high needs offenders like Mr. Jennings, Mr. Jennings’ results indicate a risk to reoffend at a rate of 45% in five years and 55% in ten years. [ 79 ] I have reviewed Dr. Piché’s “Tally Sheet” for her ST-99R assessment of Mr. Jennings.

None of the information relied on by Dr. Piché was in dispute and, in any event, with one exception, the Crown has established all of the information relied on by Dr. Piché in completing her ST-99R assessment. The one exception is that the evidence was not clear whether Mr. Jennings has or has not maintained an intimate relationship with an adult for longer than two years. Dr. Piché assumed that Mr. Jennings had not. As will be seen when I discuss Dr. Joneja’s evidence, even if I give Mr. Jennings the benefit of the doubt on this point, the ST-99R still assesses Mr.

Jennings as having a high risk to sexually reoffend. [ 80 ] Dr. Piché utilized a structured risk assessment tool known as the SVR-20. The SVR-20 is an “aide memoire” that provides a “checklist” of factors for clinicians to consider in assessing the risk posed by sex offenders. Based on the file information available to her, Dr. concluded that “Mr.

Jennings presents with multiple risk factors including deviant sexual interests, cognitive deficits, substance abuse, poor attitude towards intervention, disregarding community supervision requirements, relationship problems, employment problems, housing problems and continued approach behaviours towards children”. [ 81 ] I have carefully considered the foundation of Dr. Piché’s SVR-20 assessment. While the Crown did not prove every aspect of Mr. Jennings’ sexual deviancy nor the full extent of Mr. Jennings’ struggles with substance abuse, for the most part, the risk factors were not in dispute.

In fact, based only on the undisputed and/or indisputable facts - namely, the fact of Mr. Jennings’ historical convictions for sexual assaults, the circumstances of his sexual assault of J.C., the circumstances surrounding the imposition of the s. 810.1 recognizances, the circumstances surrounding his many breaches of various court orders as well as all of the other evidence Mr. Jennings did not challenge - the Crown established all of the risk factors identified by Dr. Piché through the course of the sentencing hearing. [ 82 ] Dr. Joneja based her assessment of Mr.

Jennings’ risk of sexually reoffending on her interview of Mr. Jennings as well as her review of extensive file information provided to her by the Crown. Dr. Joneja also relied on actuarial and structured risk assessment tools to assess Mr. Jennings’ risk of sexually reoffending. [ 83 ] Dr. Joneja assessed Mr. Jennings utilizing the ST-99R tool. Dr. Joneja described the ST-99R as a tool to estimate long-term risk. Dr. Joneja found that Mr. Jennings’ scores fell within the 94.9 to 97.8 percentile, meaning that only 2.2 to 5.1 percent of sexual offenders have a higher risk to reoffend than Mr. Jennings. Dr.

Joneja used these results to estimate that Mr. Jennings’ risk to sexually reoffend was 3.8 times higher than the typical sexual offender. [ 84 ] Dr. Joneja testified about how she scored the ST-99R tool in Mr. Jennings’ case. The evidence satisfies me that she gave Mr. Jennings the same score as Dr. Piché except that she scored him on the basis that he had maintained an intimate relationship with an adult lasting more than two years. None of the information relied on by Dr.

Joneja in completing her ST-99R assessment was in dispute and, in any event, the Crown established all of this information. [ 85 ] The structured risk assessment tool utilized by Dr. Joneja is known as the Risk for Sexual Violence Protocol (“RSVP”). Dr. Joneja described the RSVP as a tool to describe medium to long-term risk. Based on her interview of Mr. Jennings and her review of file materials, Dr. Joneja identified a number of factors that demonstrate that Mr. Jennings is at a high risk to reoffend. Dr.

Joneja reports that these factors “include but are not limited to: problems with self-awareness; minimisation of sexual violence; psychological and physical coercion in sexual violence; attitudes that condone sexual violence and sexual deviance; impulsivity; possible difficulties with stress or coping; and potential problems resulting from child abuse.” [ 86 ] I have carefully considered the foundation of Dr. Joneja’s RSVP assessment. I note that Dr.

Joneja relied on information which the Crown did not seek to prove or did not prove beyond a reasonable doubt, including allegations of sexual misconduct which did not result in convictions, details of Mr. Jennings’ historic convictions for sexual offences, behaviour demonstrating Mr. Jennings’ use of physical coercion, details of various grooming strategies employed by Mr. Jennings and details regarding the extent of Mr. Jennings’ substance abuse. [ 87 ] With one exception, even after expunging this information, there was plenty of evidence to establish each of the risk factors identified by Dr. Joneja.

Based only on the undisputed and/or indisputable facts I set out earlier, the Crown established all of the risk factors identified by Dr. Joneja through the course of the sentencing hearing. The one exception is that the Crown did not establish that

Mr. Jennings relies on physical coercion to perpetrate sexual abuse. [ 88 ] Turning next to Dr. Chale, he had a number of personal dealings with Mr. Jennings between 1998 and 2004 as well as access to various reports and assessments completed by others prior to and during that time. Dr. Chale testified that Mr. Jennings was extremely guarded during their appointments together. Mr. Jennings minimized, denied or avoided speaking about his history of sexually offending. Mr. Jennings told Dr. Chale that he was no longer attracted to children - even though he had never really admitted such an attraction to Dr.

Chale in the first place. Mr. Jennings also told Dr. Chale that he did not believe he needed sex offender treatment. Dr. Chale felt that Mr. Jennings’ substance abuse was disinhibiting and cause for concern. Other than taking anti-libidinal medication for a number of years, Dr. Chale reported that Mr. Jennings did not engage in any sex offender treatment. Based on his clinical assessment, Dr. Chale concluded that Mr. Jennings made essentially no progress over the course of many years, that he had an extremely poor prognosis and that he was at an extremely high risk to reoffend. [ 89 ] Mr.

Jennings testified that he did not recall Dr. Chale and did not dispute any of Dr. Chale’s testimony about their dealings with one another. Based only on the undisputed or indisputable facts I set out earlier, with one exception, the Crown established a sufficient foundation for Dr. Chale’s opinions. The only exception is that the Crown did not establish the full extent of Mr. Jennings’ substance abuse. [ 90 ] Given my factual findings, it should come as no surprise that I accept the opinion of Dr. Chale that Mr. Jennings is a pedophile and the opinions of Drs. Piché, Joneja and Chale that Mr.

Jennings presents a high risk to sexually reoffend. Further, in light of these opinions and the fact that Mr. Jennings sexually assaulted J.C. after 13 years of intense scrutiny and/or close community supervision, I find that the Crown has established beyond a reasonable doubt that Mr. Jennings is likely to be unable to control his sexual impulses in the future and is likely to sexually reoffend against children. [ 91 ] The other aspect of the third element of the test under s. 753(1) (

b) of the Code is that the Crown must establish beyond a reasonable doubt that Mr. Jennings is likely to cause “injury, pain, or other evil to other persons”. [ 92 ] The Crown did not adduce expert evidence to establish that sexual assaults, including incidents of sexual touching, of children cause “injury, pain, or other evil”. In my view, that is not required. Over the last thirty or so years, an increasingly bright light has been shone on the prevalence and consequences of sexual abuse against children. It has come to be generally accepted that sexual abuse of a child in any form is harmful.

The degree of injury and pain can be mitigated and will vary from child to child but some form of pain or injury almost always follows. J.C. is a case in point. J.C.’s victim impact statement and the evidence of J.C.’s foster parent, L.R., satisfy me that the sexual assault by Mr.

Jennings caused J.C. to, at a minimum, feel sad, afraid and suffer night terrors. [ 93 ] The provisions of our family law and child protection legislation, the extent of public education directed at the prevention of child sexual abuse and the mandatory minimum sentences for certain sexual offences against children all reflect society’s understanding that sexual abuse of children is harmful to them. There are also a great number of cases in the civil context which describe injury and pain experienced by children who have suffered the type of sexual abuse perpetrated by Mr.

Jennings against J.C. [ 94 ] On the strength of J.C.’s victim impact statement and the evidence of L.R. alone, I am satisfied beyond a reasonable doubt that Mr. Jennings is likely to cause “injury, pain, or other evil to other persons” in the future. My conclusion is bolstered by the judicial notice I take of the commonly accepted harms associated with sexual abuse of children. I also note that Mr. Jennings did not dispute the statements in J.C.’s victim impact statement, L.R.’s testimony nor that this aspect of the third element had been established. Conclusion Regarding Whether Mr.

Jennings Meets the Criteria to be Designated a Dangerous Offender Under s. 753(1)(

b) of the Code [ 95 ] As set out above, on the whole of the evidence, the Crown has established beyond a reasonable doubt that Mr. Jennings meets all of the criteria to be designated a dangerous offender under s. 753(1) (

b) of the Code . In the circumstances, the Code mandates that I designate Mr. Jennings to be a dangerous offender and I do so. Under s. 753(4) of the Code , What is the Appropriate Sentence? [ 96 ] Having concluded that Mr. Jennings is a dangerous offender, the next question is what sentence to impose under s. 753(4) of the Code . That

section provides as follows:

(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. [ 97 ] The court’s discretion to impose an appropriate sentence is constrained by s. 754(4.1) of the Code which provides as follows:

(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. [ 98 ] Accordingly, the first question is to determine whether the evidence adduced during the sentencing hearing satisfies me that a jail term followed by a long term supervision order or another sentence will adequately protect the public from the risk of Mr. Jennings sexually reoffending. [ 99 ] Mr. Jennings has argued that if I find him to be a dangerous offender I should sentence him to four years custody, less time served, followed by a 10 year long term supervision order. Mr.

Jennings argues that the following evidence should satisfy me that this lesser measure would adequately protect the public: 1. There has been a 15 year gap between his convictions for sexual offences. 2. There have been periods of up to three years when Mr. Jennings has not offended, including periods when he was not under any form of court supervision. 3. Mr. Jennings has a history of working closely with Probation Officer Hammett. He has reported regularly and accessed a number of programs and supports. 4. Mr.

Jennings’ willingness to remain on anti-libidinal medication for a number of years despite its side-effects demonstrates his willingness to work on his issues. 5. Mr. Jennings has also been willing to attend treatment for substance abuse and to deal with his own history of being abused. Though I was not provided any specific programming details, Mr. Jennings identified the “New Hope” program as one he is keen to attend. Mr. Jennings asserts that treatment such as that offered at New Hope would benefit him and reduce his risk of reoffending. 6. Mr.

Jennings is aging and his risk of reoffending reduces with his age. [ 100 ] Mr. Jennings argues that I should take into account the many hurdles he has faced as a result of his cognitive limits and notoriety, including difficulties finding employment, stable housing and appropriate treatment. Mr. Jennings also asks that I take into account how difficult it is for him to engage in pro-social activities without interacting with children. [ 101 ] I have a certain level of personal empathy for Mr. Jennings. He was born into a dysfunctional family. As a child he faced ridicule and abuse.

He was taken into care at a relatively young age. He has cognitive deficits that have limited his educational and vocational opportunities. Due to his notoriety, it has been difficult for him to find suitable stable housing. [ 102 ] While all of these factors may reduce Mr. Jennings’ moral blameworthiness, I must consider whether there is evidence to satisfy me that a sentence other than an indeterminate sentence will adequately protect the public. [ 103 ] In considering whether a lesser sentence would adequately protect the public, I take into account the following: 1. Mr. Jennings is a pedophile. 2. Mr.

Jennings has been convicted of five sexual offences against children dating back almost thirty years. 3. Though the evidence falls short of establishing a particular pattern of offending, the offence against J.C. shows that Mr. Jennings is capable of gaining access to children through building trust with their families and employing threats to avoid detection. 4. Mr. Jennings has resorted to the use of an alias to avoid public scrutiny and gain access to children despite the risk that poses. 5. Mr. Jennings has not admitted his past sexual offences and denies he is sexually attracted to children. 6. Mr.

Jennings feels victimized by the justice system and media. He can recite all of the difficulties he has faced due to various court orders but shows no insight into why the court orders were necessary to reduce his risk of sexually reoffending. 7. Mr. Jennings shows no remorse towards the victims of his sexual offending. 8. Mr. Jennings has performed poorly under community supervision. While he has reported regularly, he has repeatedly breached the most protective feature of various court orders that he not have contact with children.

Of note, in the year or so prior to his arrest for sexually assaulting J.C., he befriended a family in Ashcroft and had close contact with their two children, breached a bail order by approaching a boy and offering to buy his cat, breached a s. 810.1 recognizance by having contact with children through a local church, breached the same s. 810.1 recognizance by approaching a 14 year old girl at a local pizza establishment and sexually assaulted J.C. 9. Due to unpleasant side-effects, Mr. Jennings is unwilling to take anti-libidinal medication to curb his sexual desires. 10. Mr.

Jennings has not availed himself of various opportunities to engage in sex offender treatment. Not only is Mr. Jennings a pedophile, he is an untreated pedophile and has made very little to no progress towards dealing with his sexual attraction to children over the course of nearly thirty years of interaction with the criminal justice system. 11. Due to his cognitive deficits, Mr. Jennings is a poor candidate for sex offender treatment. 12. While Mr.

Jennings’ sex drive will diminish as he ages, his ST-99R score will still place him at the moderate to high risk to sexually reoffend at any age, including the age he would be at the conclusion of the sentence he has proposed.

[104] A number of cases have tackled the correct

interpretation and application of s. 753(4.1) of the Code. I have taken particularguidance from R. v. Walsh, 2011 BCSC 1911 and R. v. Bonnetrouge, 2013 NWTSC 93. [105] In Walsh, Arnold-Bailey J. carefully analysed the requirements of s. 754.1 and summarized at paragraph 307 as follows: Section 753(4.1) requires the imposition of an indeterminate sentence unless the court is satisfied that there is a reasonable expectationthat a lesser measure will adequately protect the public against the commission by (the offender) of murder or a serious personal injuryoffence.

Any such reasonable expectation must amount to a confident belief for good and sufficient reasons based on the quality andcogency of the evidence. (Emphasis added.) [106] In Bonnetrouge, Charbonneau J. found a cognitively challenged aboriginal offender with a history of sexually offending againstchildren to be a dangerous offender. Charbonneau J. considered whether the possibility of successfully treating Mr. Bonnetrougethrough new and different treatment options could satisfy the “reasonable expectation” standard in s. 753(4.1) of the Code.

Atparagraphs 86 and 87, Charbonneau J. concluded that something more was required: I accept the submission that… possibilities exist. I accept that some things that have not been tried should be tried to assist him in thecontrol of his risk. But possibility or hope is not enough at this stage. There is nothing concrete in the evidence, in my view, to find that based on these factors alone, there is a reasonable expectation thatwithin a determined period of time Mr. Bonnetrouge will no longer present a risk to the public.

Saying that some of the things that havebeen tried have not worked and it is not all his fault because they may have been ill-suited for his needs is one thing. Saying that there isa basis to conclude that the things that have not been tried can be reasonably expected to succeed is quite another. (Emphasis added.) [107] Before imposing an indeterminate sentence, Charbonneau J. expressly gave special consideration to Mr. Bonnetrouge’s status asan aboriginal offender.

Charbonneau J. reached the same conclusion as was reached in Kudlak, namely that “where protection of thepublic is paramount, incarceration is the only alternative, whether one is considering an aboriginal or non-aboriginal offender.” (Seeparagraphs 102 and 103.) [108] I am familiar with the Supreme Court of Canada decisions in R. v. Gladue, (SCC), [1999] 1 SCR 688 and R. v.Ipeelee, [2012] SCR 433 which set out sentencing considerations specific to aboriginal offenders. I am aware of the overrepresentationof aboriginal offenders in Canadian prisons.

I am also aware of the systemic and background factors that contribute to the socio-economic gaps that exist between aboriginal and non-aboriginal Canadians and how these gaps translate into higher levels ofincarceration for aboriginal people. I accept that these systemic and background factors likely contributed to dysfunction within Mr.Jennings’ family and, to some degree, to Mr. Jennings’ offending. I am familiar with and support the use of restorative justice principleswhen sentencing aboriginal offenders - in appropriate cases.

I have reached the conclusion, however, that protection of the public is theparamount consideration in Mr. Jennings’ case and that his case is not amenable to the application of restorative justice principles. [109] I have carefully considered all of the evidence, with particular emphasis on the evidence highlighted by Mr. Jennings. I haveconcluded that Mr. Jennings has not demonstrated any capacity to internally control his behaviours and, in the absence of significantprogress in treatment, it seems that external controls will be required indefinitely to reduce the risk he poses to children.

Experience overthe last 13 years amply demonstrates that even significant external controls cannot eliminate the risk posed by Mr. Jennings nor reducethe risk to “adequately protect the public”. [110] Put simply, there is no cogent evidence to give me a confident belief that the risk posed by Mr. Jennings can be addressed in adetermined period of time by the imposition of a jail sentence or the imposition of a jail sentence followed by a long-term supervisionorder.

In the circumstances, s. 753(4) of the Code mandates that I impose a sentence of detention in a penitentiary for an indeterminateperiod. [111] Although I have sentenced Mr. Jennings to an indeterminate period of imprisonment, it is my hope that Mr. Jennings will benefitfrom the programs available to him in the federal corrections system. I hope that Mr. Jennings will come to realize that he has nothing tolose and everything to gain by opening up in therapy to address his sexual attraction to children. [112] Based on the evidence I have heard, I recommend that Correctional Services Canada offer Mr.

Jennings sex offender treatmentthat is modified to his cognitive abilities, individual therapy and access to the full range of programs and supports available foraboriginal offenders. [113] Mr. Jennings will undoubtedly need to make significant progress in therapy to demonstrate that the public can be protected if heis released under close supervision on parole. Whether this occurs will rest largely on Mr. Jennings. _____________________________ L.S. Marchand Provincial Court Judge