Appeal court decision addresses problems with repeat offender

Law360 Canada (July 26, 2024, 12:55 PM EDT) --

John L. Hill

 When a cloistered group of nuns had a member of the group unable to fit into their society, the musical The Sound of Music had them break into song, singing “How Do You Solve a Problem Like Maria?” The City of Calgary also had a problematic resident who did not fit into its society but was much more dangerous than Maria von Trapp.

Back in 2001, the public was warned when Douglas Gordon Jenik was released from jail after serving a sentence for sexual assault and performing indecent acts. Then, in 2016, both the Calgary Herald and the Calgary Sun reported on a police warning: “The Calgary Police Service is issuing this information and warning after careful deliberation and consideration of all related issues, including privacy concerns, in the belief that it is clearly in the public interest to inform the members of the community of the release of Jenik. Members of the public are advised that the intent of the process is to enable members of the public to take suitable precautionary measures and not to embark on any form of vigilante action.”

Jenik had run up a long list of sexual offences dating back to 1987. Jail did not seem to work. His time in custody was increased upon each new conviction. In 2015, Jenik was declared a dangerous offender. However, in the hope that sexual offender programming could provide treatment, a determinate sentence and a 10-year long-term supervision order were imposed. The problem with Jenik was not solved.

In 2020, while under supervision, Jenik assaulted another victim. For a second time, Jenik was declared a dangerous offender. He was sentenced to a fixed term of incarceration and a further 10-year, long-term supervision order. The Crown had sought an indeterminate sentence and appealed. The Alberta Court of Appeal allowed the appeal in a judgment released on June 7, 2024 (R. v. Jenik, 2024 ABCA 195).

Increased terms of incarnation, treatment as a sexual offender and community supervision had not worked as means to protect the public. Effectively, the Alberta Court of Appeal was being asked, “How do you solve a problem like Douglas Jenik?”

The Court of Appeal responded by citing earlier judgments that recounted previous attempts at finding rehabilitation for the offender (R. v. Jenik, 2015 ABPC 107; R. v. Jenik, 2023 ABCJ 133). Even though Jenik pleaded guilty to the 2020 sexual assault and breach of the supervision order, a 13-day trial heard from psychiatric experts, including evidence of the success of a program being used in a provincial institution, and concluded that Jenik remained at high risk for sexual offending recidivism. It was that 2023 judgment, cited above, that led to the appeal.

The sentence under review was based on the trial judge’s analysis to determine whether the public would be protected as outlined in R. v. D.B., 2015 ONSC 5900. The trial judge then concluded that a lengthy period of incarceration followed by a long-term supervision order and, in addition, completion of the Rocky Mountain sex offender program at the Calgary Correctional Centre would provide the necessary public protection.

Although an appellate court ought to be deferential to a sentencing court, it may intervene when there is an error in law or failure to consider a relevant factor (R. v. Lacasse, 2015 SCC 64; R. v. Friesen, 2020 SCC 9). Here, the question was whether the trial judge adequately interpreted s. 753.01(4) of the Criminal Code, which requires the imposition of an indeterminate sentence unless there is a “reasonable expectation” that a lesser punishment would adequately protect the public.

The appeal court concluded that the sentencing judge erred in substituting the “reasonable expectation” test with a “reasonable possibility” test. Further, he considered other sentencing principles other than the protection of the public. Jenik’s failure to comply with expectations in the past created “significant pessimism” that he could be managed in the community (R. v. Potvin, 2020 ONCA 299).

The sentencing judge relied heavily on the prospect of rehabilitation after enrolment in the Rocky Mountain Program but failed to consider that the program is not available to federal inmates. Even if such a program could “cure” Jenik, the decrease in custodial term required would not necessarily ensure Jenik could take the course, given the backlog in the provincial facility.

How do you solve a problem like Jenik? The appeal court intervened to alter the sentence to indeterminate incarceration, leaving it up to the Parole Board of Canada to determine when he is a manageable risk to society,

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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