Louis Stokes

This is a sentencing judgment for Kemar Clarke, who was found guilty of criminal harassment and failing to comply with a probation order.

The victim, a 17-year-old girl, was harassed and followed into her school.

The court considered aggravating factors including the victim's vulnerability, the sexual nature of the harassment, and the offence occurring on school property.

The court also considered the offender's severe mental health issues and history of non-compliance with treatment.

Despite the Crown's request for a nine-month jail sentence, the court imposed a suspended sentence with three years of probation, noting that the offender had already served the equivalent of an 18-month jail sentence with pre-sentence custody credit.

A lifetime weapons prohibition and DNA order were also issued.

Kemar Clarke was charged with criminal harassment by repeatedly following the complainant, M.R., and breaching a probation order.

The court found M.R.'s testimony credible and reliable despite some discrepancies in eyewitness identification.

The court determined that the defendant's conduct constituted "repeatedly following" for criminal harassment purposes and that the defendant knew he was harassing the complainant.

Furthermore, the court found the defendant was the same person named in the prior probation order, and the presumption of judicial regularity applied regarding his knowledge of the probation terms, despite the order not being signed.

The defendant was found guilty on both counts.

The accused brought a section 11(b) Charter application seeking a stay of proceedings on the grounds that their right to be tried within a reasonable time had been violated.

The charges involved two counts of assault arising from incidents on October 3 and October 13, 2012.

The trial was scheduled for August 2, 2013, but was adjourned when the complainant failed to appear despite being subpoenaed.

A second trial date was set for December 4, 2013.

The total delay from the date of the alleged offences to the second trial date was 13¾ months.

The court dismissed the application, finding that while the delay was substantial, it was not unreasonable when all factors were considered holistically.

The Crown sought admission of a video and audio-taped statement given by the defendant to police at a hospital's SCAN unit.

The defence applied for exclusion under sections 10(b) and 24(2) of the Canadian Charter of Rights and Freedoms, arguing the statement was involuntary and obtained in breach of Charter rights.

The court conducted a voluntariness voir dire and Charter analysis.

The court found that the defendant was psychologically detained within minutes of the interview's commencement and that the police officer made significant inducements, including threats regarding custody of the defendant's child.

The court excluded the statement as involuntary and as obtained in breach of Charter rights.

The court sentenced an offender for multiple historical offences involving prolonged physical abuse of his sons and sexual and physical abuse of his step-daughter, all committed within a parental or step-parental relationship.

Applying the Kienapple principle, the court conditionally stayed duplicative counts and then determined individual sentences before applying the totality principle to avoid an unduly harsh cumulative term.

The court emphasized denunciation and general deterrence in cases of systemic child abuse, particularly where the offender exploited a position of trust and had a prior record for similar misconduct.

A global sentence of 8 years’ imprisonment was imposed, together with DNA, lifetime sex offender registration, and a 5-year weapons prohibition, while a s. 161 order was refused on retroactivity grounds.

Following convictions at trial for multiple counts on an indictment, correspondence from a witness was sent to the trial judge after the verdict but prior to sentencing, alleging pressure relating to the witness’s testimony.

Counsel were invited to address whether the correspondence justified reopening the trial.

Applying the four-part test for reopening a criminal case after verdict, the court found the letter was unsworn, inconsistent with the witness’s sworn testimony, and not reasonably capable of belief.

The circumstances did not meet the stringent threshold required to reopen a concluded trial.

The trial was not reopened.