Court of Appeal for Ontario
Simmons, Rouleau and Tulloch JJ.A.
Between
Her Majesty the Queen
Respondent
and
Ashish Dewan
Appellant
Counsel:
Mark Sandler and Amanda Ross, for the appellant
Michael Fawcett, for the respondent
Heard: October 14, 2014
On appeal from the sentence imposed on April 2, 2013 by Justice John McMahon of the Superior Court of Justice, sitting without a jury.
By the Court:
1The appellant pleaded guilty to one count of mischief and one count of criminal harassment. The sentencing judge found that while a conditional sentence would be in the accused’s best interests, it would be contrary to the public interest. Accordingly, in addition to two months’ credit for time served, credited on a two-for-one basis, the trial judge sentenced the appellant to a suspended sentence and two years’ probation on the mischief charge, and to 90 days’ imprisonment, to be served intermittently, on the criminal harassment charge.
2The appellant applies to introduce fresh evidence on appeal and seeks leave to appeal sentence. In the event that leave is granted, he raises two main arguments on appeal.
3First, the sentencing judge misapprehended the evidence bearing on his (the appellant’s) employability and concerning the level and timing of his remorse.
4Second, when combined with the evidence led on the sentencing hearing, the fresh evidence demonstrates that a conditional discharge would not be contrary to the public interest in the light of the following factors:
the effective sentence of five months’ imprisonment, which the appellant has now served;
the community service performed by the appellant;
the efforts the appellant has made at rehabilitation; and
the transformative effects that counselling has had on the appellant.
5The appellant emphasizes that he chose to serve his sentence without seeking bail, with the result that this court should impose a conditional discharge, taking account of five months’ time served.
6We do not accept these submissions. The appellant hopes to work in the regulated financial industry. Even assuming that criminal convictions would end the appellant’s prospects of pursuing a career in this, or a related, field and assuming that counselling has transformed the appellant’s attitudes, we are unable to accept that imposing a conditional discharge would not be contrary to the public interest.
7The offences the appellant committed are very serious. The mischief charge arose out of events that occurred between 2001 and 2003. In November 2001, the appellant suggested to a co-worker that he wanted to be more than friends. The co-worker did not share his feelings. The appellant persisted in contacting the co-worker on a daily basis but she did not respond. After the co-worker told the appellant she had contacted the police, the appellant distributed an e-mail, purportedly from the co-worker, to nine other co-workers. The e-mail degraded the co-worker professionally, sexually, and physically.
8The criminal harassment charge arose out of events that occurred between 2008 and 2009. Following a breakup with a woman with whom he had been involved in an intimate relationship for about six months, the appellant persisted in attempting to contact the woman. When his attempts at communication were rebuffed, he sent an e-mail to the human resources department of the woman’s employer, purporting to be from her. The e-mail degraded the woman professionally, sexually, and physically, and suggested that she was a drug user.
9A naked photograph of the woman was also attached. This photograph had been taken with consent during the parties’ relationship. However, the woman had asked the appellant to delete it when their relationship ended, and the appellant had agreed to do so.
10The appellant distributed the same package of material to the doorman and property manager of the woman’s condominium and to the neighbours on her floor.
11Comments made by the appellant during the initial phase of his counselling demonstrated that the appellant’s actions in relation to the second victim were calculated to hurt her.
12The impact on both victims was significant; in the case of the second victim, she described the impact on her life as devastating.
13Having regard to the nature and seriousness of these offences, we are of the view that, even taking account of the appellant’s positive prospects and five months’ time served, imposing a conditional discharge would be contrary to the public interest. Intimate partners must be free to terminate a relationship without fear of abuse, whether physical or psychological, or retaliation of any kind. Even taking account of five months’ time served, imposing a conditional discharge would not reflect the level of denunciation these offences deserve.
14Leave to appeal is granted. As we are not satisfied the fresh evidence could reasonably have affected the outcome of the sentencing hearing or that it should affect the outcome on appeal, we decline to admit the fresh evidence. The appeal is dismissed.
Released:
“MT” “Janet Simmons J.A.”
“OCT 30 2014” “Paul Rouleau J.A.”
“M. Tulloch J.A.”
