Aboriginal Dangerous Offenders and Sentencing
This month the British Columbia Court of Appeal (“BCCA”) handed down a decision in the case of an Aboriginal offender, David Jennings. The accused in R v Jennings, 2016 BCCA 127 had a violent criminal history involving repeated sexual offenses against children over the course of nearly 30 years. Central to the appeal was the issue of how Gladue factors should be weighed by a judge in the trial of an Aboriginal person along with alternative forms of sentencing for Aboriginal people.
This ruling speaks to the misconception that an Aboriginal person should necessarily be treated more leniently by the justice system despite the criminal acts they have committed. While those personal factors are a relevant consideration, they will not always lead to a lesser sentence for an Aboriginal offender as compared to a non-Aboriginal offender.
Beginning in 1985, Jennings committed numerous sexual offenses against children. A cursory review of his criminal history revealed an individual intent on doing harm to the most vulnerable of our society no matter how many interventions he went through. Neither criminal interventions (i.e prison) nor medical interventions (i.e therapy or anti-libinal medication) appeared to work.
Finally, in January 2013, Jennings was convicted of his most recent offense, which was a sexual assault against an eight-year old boy. Under s. 753 of the Criminal Code, RSC 1985, c C-46 [CC], the Crown applied for and received a dangerous offender declaration against the accused. Of the various sentencing options available for a dangerous offender designation, Jennings was given an indeterminate period of detention reviewable every seven years.
As part of the sentencing decision, the trial judge gave consideration to the circumstances of Jennings in light of his Aboriginal heritage, as required by s. 718.2 (e) of the CC. Typically, a Gladue report is provided to the court to allow for a comprehensive picture of an Aboriginal offender as a way of mitigating his or her culpability. However, in Jennings’ case, a forensic psychologist provided a background of Jennings to the court in lieu of a Gladue report.
The psychologist’s evidence included the fact that Jennings was a mixed race Aboriginal man whose father abused alcohol and whose mother suffered from depression. Other details of Jennings’ upbringing included his placement in a foster home as a small child, a home that he did not leave until he was 18 years old. The psychologist discussed Jennings’ mental health as well: Jennings was diagnosed with borderline mental retardation, had only a grade 5 education, and abused drugs and alcohol.
Although the trial judge did not have a formal Gladue report, the judge referenced the detailed history of the accused in the sentencing decision.
On appeal, Jennings raised several objections to his designation as a dangerous offender. His two main objections were that the judge failed to use a Gladue report and did not have sufficient evidence of Gladue factors relevant to Jennings’ case in order to make an appropriate decision. More specifically, Jennings argued that the trial judge erred in not considering alternative Aboriginal-focused programs that could help determine whether Jennings was truly a serious risk to the community, and whether he could be controlled sufficiently to prevent his reoffending.
The BCCA rejected the arguments posed by the accused on appeal. While no formal Gladue report was submitted, the psychologist’s incorporation of the accused’s history in his evidence was deemed sufficient for the court to meet its mandate pertaining to Aboriginal offenders under the CC.
Furthermore, upon review of the available Aboriginal programs to address sexual offences, there was no evidence that any could provide the kind of supervision and interventions to treat the serious nature of Jennings’ offending patterns. Past failures in treatment as well as repeated contravention of community supervision rules strongly supported that Jennings would likely fail in an Aboriginal-focused program. As a result, an indeterminate sentence following classification as a dangerous offender was held to be most suitable in the circumstances.
It was the position of the BCCA that the overwhelming risk posed by Jennings to children in any community far outweighed the mitigating factor of his Aboriginal background.
In this case, the BCCA got it right in reiterating the importance of balance in sentencing decisions. By no means does the CC suggest that Aboriginal heritage and related circumstances should outweigh other important factors. Equitable treatment of offenders by the justice system is critical to maintaining its credibility. However, public safety remains paramount.
Moreover, the availability of Aboriginal programs to address offender needs is not the end of the court’s analysis. The court must be able to evaluate the ability of such programs to meet the goals of treating and properly supervising the offender. Together, these elements can provide a solid argument for why an alternative to indeterminate sentencing of a dangerous offender should be given. For Jennings, this was not the scenario.
Going forward, this case reveals the need to provide more supports to the available Aboriginal-focused programs so that they can adequately manage offenders on the more extreme end of the spectrum.