Court Information
Information No.: 3111-998-17-8163-00
Ontario Court of Justice
Location: Brampton, Ontario
Parties
Her Majesty the Queen
v.
J. R.
Before the Court
The Honourable Justice J. Stribopoulos
Appearances
D. Mangat – Counsel for the Crown
A. Goldkind – Counsel for J. R.
Publication Ban Notice
INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO S. 486.5(1) OF THE CRIMINAL CODE OF CANADA
Reasons for Sentence
Introduction
The defendant, J. R., pled guilty before me to three offences: criminal harassment, uttering a death threat, and distributing an intimate image without consent, contrary respectively to s. 264(2), s. 264.1(1)(a), and s. 162.1(1) of the Criminal Code of Canada. These are my reasons for sentence in this matter.
Circumstances of the Offences
The circumstances of these three offences, considered individually, are extremely troubling. Together they represent an extraordinarily disturbing and exceptionally serious course of criminal wrongdoing.
In August 2016, Mr. R. separated from his wife, E. R., to whom he was married for eight years. The couple has two children together. In December 2015, Mr. R. concluded that his wife and N. A. had an affair. In response, Mr. R. reached out to Mr. A.'s wife to inform her of the affair. During these communications, he also told Mr. A.'s wife that he wanted to harm him. There were many communications back and forth between Mr. R. and Ms. A. during which Mr. R. repeatedly threatened to harm Mr. A. Throughout, Ms. A. warned Mr. R. that if he continued speaking about harming Mr. A. she would have no choice but to contact the police. Eventually Mr. R. and Ms. A. ended their communications, agreeing to deal with the respective marital situations separately.
The A.s were sufficiently concerned by Mr. R.'s behaviour that they relocated to a different residence in July 2016, in the hope of ending any further communications from him.
Although Mr. R. and his wife separated in August 2016, they remained in the same residence until October 1, 2016. After each moved into separate residences, over the course of a nearly seven-week period between October 1, 2016 and November 19, 2016, Mr. R. repeatedly communicated with Ms. R. by means of telephone calls, emails, and text messages. He did this despite Ms. R. making it clear to him on a number of occasions that his communications were unwanted.
The content of these communications was menacing. Mr. R. continually raised accusations of prior infidelity while insinuating that Ms. R. had begun a new intimate relationship. Mr. R. referenced having a firearm. He also told Ms. R. that he had been watching her. At the time she was unsure whether he had been doing so by means of a private investigator (which he claimed), through the use of a GPS device, or through her mobile phone.
At the beginning of October 2016, Mr. R. posted a Google review on the Google page of Mr. A.'s employer. The post referenced the affair. Beyond embarrassing Mr. A., given its tone and content, the post was also undoubtedly intended to compromise Mr. A.'s position with his employer. Thankfully the company managed to have the post removed shortly after it was posted.
On November 12, 2016, Mr. R. created a Twitter account using a pseudonym. Using that account, Mr. R. attempted to communicate with Mr. A. The Twitter post referred to Mr. A. as a "home wrecker." It suggested that the poster knew that Mr. A. was in a new residence. It ended with a death threat.
That same day, Mr. R. also sent Mr. A. a long email. It is difficult to summarize the depravity of this communication. In it, Mr. R. insinuates that he is surveiling both Mr. A. and Ms. R. He claims to know intimate details of their activities and to also know where Mr. A. is living. He repeatedly makes disparaging and vile references to Ms. R. Throughout this email, Mr. R. repeatedly threatens Mr. A. in the most graphic and disturbing terms with violence and death. This included a threat to harm Mr. A. in front of his wife and child. Amongst the many troubling aspects of this communication was the following warning:
Oh yeah, also before I forget, LOL, if you think going to the cops is going to make this go away, let me remind you in case you didn't know that I have a pretty high ranking cousin who is a Peel Regional and if this gets under his nose... Yeah, I might have to go to court, which I will get off of...
On November 14, 2016, Mr. R. left Mr. A. a long voicemail message. The message was played during the sentencing hearing and made an exhibit. The message is chilling. In it, Mr. R. threatens to torture and kill Mr. A. Various threats of that nature are repeated during the recorded message. At one point, Mr. R. expresses excitement at the possibility of murdering both Mr. A. and Ms. R. at the same time. In short, the recording represents an extraordinarily terrifying diatribe.
On November 15, 2016, Mr. R. was arrested and charged with uttering threats towards Mr. A. He was released on a promise to appear that required that he not contact or attend within 100 metres of Mr. A.
On November 19, 2016, four days after his arrest, Mr. R. left Ms. R. a voicemail message in which he told her, in reference to Mr. A., that "if he didn't have a restraining order, he'd be dead right now." He also referenced "being there since 6 a.m." It is unclear whether he was referring to Ms. R.'s or Mr. A.'s residence. In either case, Ms. R. was concerned.
Later that day, Ms. R. finally contacted police. She reported the unwanted communications by Mr. R. over the preceding seven-week period and she disclosed the substance of these disturbing communications.
Ms. R. also reported to police that there had been a number of strange occurrences involving her car over the preceding two months. On two occasions, all the air in her car tires had been removed. On another occasion, the valves to her car tires had been cut off. And, on yet another occasion, the nuts and bolts on one of the wheels of her car had been removed.
On November 19, 2016, Mr. R. was once again arrested by police. He was charged with criminal harassment in relation to Ms. R. and a further charge of uttering a threat in relation to Mr. A. He was held for a bail hearing.
Following his arrest, the police executed a search warrant at Mr. R.'s residence. The warrant specifically authorized police to search for electronic devices located in the residence. The search revealed the extent and sophistication of Mr. R.'s all-consuming obsession. In the residence, the police found an application active on Mr. R.'s computer that mapped the location of Ms. R.'s car. A box for a GPS tracking device was also located.
With her consent, police subsequently searched Ms. R.'s vehicle and located a GPS tracking device secreted underneath her vehicle. In addition, what appeared to be a carbon monoxide detector located in an electrical outlet across the hall from the door of Ms. R.'s residence turned out to be a surveillance camera. The police found a box for that device in Mr. R.'s residence. Using this device, Mr. R. was able to make remote observations of the front door of Ms. R.'s home.
During the search of Mr. R.'s residence, the police also located various other surreptitious recording devices. In addition, the police found an MP5-K pellet gun inside the residence. In his email to Mr. A., sent on November 12, 2016, Mr. R. made reference to such a firearm although he did not avert to the fact that it was merely a pellet gun. At one point in that long disturbing email, he wrote:
All bets are off, fuck face, and I can't wait to take your fucking head and put your mouth on a road curb and just smash every fucking tooth you have in your mouth. Then just to clean things up, I'm going to piss in your mouth and shove my MPK-5 right up your ass and empty the clip into you!!!!
Further searches of Mr. R.'s phone also revealed that he had created an ad for Ms. R. on a website, Backpage.com. This is a website where sex trade workers advertise their services. The ad appeared as though it was an advertisement by Ms. R. offering sexual services. It included photos of Ms. R. in which she was scantily clad, referencing her actual first name and cell phone number. Mr. R. posted similar ads using some of the same photographs of Ms. R. but with the names of two of her friends and their actual cell phone numbers listed.
Finally, one of the Backpage.com ads, which again included Ms. R.'s first name and actual cell phone number, included an image of her engaged in explicit sexual activity.
The various photographs that Mr. R. posted had been taken with Ms. R.'s consent. However, Ms. R. had not given her consent for Mr. R. to share these photographs with anyone else or to post them to the Internet.
Turning to the impact of these offences on the victims, although afforded an opportunity to provide an impact statement, neither Ms. R. nor Mr. A. elected to do so. The author of the presentence report did, however, contact Mr. A.
Mr. A. reported that Mr. R.'s offences profoundly impacted him and his family. Not surprisingly given the repeated and graphic nature of the threats, the family's sense of security and well-being has been significantly affected. As already noted, the family relocated in July of 2016. They have installed a security system at their current residence. In the immediate aftermath of these offences, the couple avoided taking their daughter outside as every vehicle that drove by slowly caused them to feel uneasy. To this day, nearly two years after Mr. R.'s threats, Mr. A. reported that his wife continues to feel uneasy any time an unknown vehicle is parked outside their residence for prolonged periods of time.
Circumstances of the Offender
Mr. R. is 42 years of age. He does not have a criminal record. He is a first offender.
Mr. R. was born in Mississauga, the only child of his immigrant parents. It would appear that Mr. R. grew up in a household in which he received unconditional love and support. His childhood was uneventful. In other words, unlike far too many people who appear before this court for sentencing, Mr. R. did not suffer any real misfortune during his upbringing.
He continues to be fortunate in that, despite these charges, he continues to enjoy the love and support of his parents, as well as members of his extended family.
Growing up, Mr. R. was a good student and an exceptional athlete, excelling at volleyball, baseball, soccer, and especially at hockey. Upon graduating from high school, he was offered an athletic scholarship to a university. Following graduation, he pursued college studies, obtaining a diploma in Computer Science. He worked in the field from 2000 to 2006. However, he found the work boring and moved on to a career as a mechanic. He secured a job as a senior manager with a company, remaining with that company from 2006 to 2016 when he was apparently laid off.
Mr. R. was unemployed between July 2016 and November 2017. Since November of last year, he secured employment as a forklift mechanic, which he reportedly enjoys. A letter from his work supervisor confirms his employment and describes him as a conscientious and professional employee.
Mr. R. has had a long-standing interest in music. He attended a high school for the arts where he was a vocalist major. That interest led him into part-time work in the entertainment industry in his young adulthood with him working regularly as a disc jockey during this period. It was during that time that Mr. R. reports first using illicit drugs.
Mr. R. was married to the victim, E. R., for 10 years. The couple have two sons together, who are ages nine and six. Since their separation, Mr. R. has shared custody of the boys with his estranged wife. He reports having regular contact with his sons, who he describes as his "life." Access is arranged through a third-party given a bail condition that precludes Mr. R. from having direct contact with Ms. R.
Mr. R. is now in a new romantic relationship. The couple have been dating for approximately four months. According to his new girlfriend, Mr. R. has been forthright with her about his current legal difficulties. (I note, parenthetically, that his new girlfriend has been in attendance for some of his court appearances before me, including today.)
By way of explanation for these offences, Mr. R. cites other difficult events in his life that coincided with his discovery of his wife's infidelity. Apparently, his grandmother passed away in 2015, then in June 2016 he lost his best friend of 25 years, who was killed in a motorcycle accident. That same month, he lost his job. Finally, in August 2016, he learned of his wife's infidelity.
A downward spiral ensued in which Mr. R. began associating with people from his young adult years and once again began using illicit drugs. This led him to using and then abusing cocaine and MDMA, commonly known as ecstasy. In the words of defence counsel, during the period when he committed his offences Mr. R. was a "raging cocaine addict."
Mr. R. readily acknowledged to the author of the Presentence Report that he was abusing drugs during the period he committed these offences. He reports that, during a six-month period in 2016 that corresponds with the commission of his crimes, he was using cocaine and MDMA on a daily basis.
According to his cousin, during this period Mr. R. attempted suicide by overdosing. Apparently, this took place in October 2016. Mr. R.'s wife discovered him in this condition and summoned emergency services. Mr. R. was hospitalized in the aftermath of this overdose. Mr. R. denies the overdose was deliberate. A note in his counselling record reveals that he maintains the overdose was accidental.
Mr. R.'s cousin identifies the overdose, which took place after the death of his best friend, his discovery of his wife's infidelity, and the loss of his job, as the point when things became very bad. She reports that during this period Mr. R. was behaving strangely. Usually in control, during this period he was the opposite. He was acting like someone who "did not care anymore." This was the period when his behaviour toward the victims escalated.
Mr. R. explains that the turning point in terms of his recovery was his realization that his sons were no longer his priority. His cousin identifies his arrest for breaching his recognizance as the turning point, with Mr. R. recognizing that he did not want to return to jail again.
Since being arrested and charged, Mr. R. has taken a number of steps to address his drug problem. In May 2017, he attended detox for four to five days. Thereafter he began regularly attending Narcotics Anonymous meetings. Apparently, he attended these meetings for about six to eight weeks. He reportedly stopped attending because he was able to quit on his own. He told Dr. Weiman, from the Centre for Addiction and Mental Health, "I did it myself." He reportedly accomplished this by increasing his physical activity, attending the gym daily, and cycling. As a result, he reports losing 63 pounds over the last year.
Mr. R. began taking mindfulness counselling. He is also taking unspecified counselling arranged through the benefits he enjoys through his employer, which commenced in February 2018. He also completed anger management counselling in February 2018, arranged with the assistance of the Children's Aid Society. The CAS appears to have become involved with the family due to Mr. R.'s charges.
Mr. R. has also completed volunteer work with the Unity Charity doing work with youth who have experienced trauma. A letter from Mr. DaCosta, the program coordinator, attests to Mr. R.'s "exceptional volunteer support" over a five-month period. According to Mr. DaCosta, Mr. R. has a "unique empathetic manner" and his participation in the program was very much appreciated by the youths and the organizers.
Mr. R. expresses regret for his actions. He readily conceded his criminal wrongdoing to the author of the Presentence Report. He cited his abuse of drugs as the principal culprit in terms of how he decided to deal with the anger he was experiencing during the relevant period. He told the author of the Presentence Report that "drugs make you do stupid things" and he also indicated that he will "forever regret" his actions. According to Mr. R., his experience in custody was transformative. He told the author of the Presentence Report that he would never again do anything that would result in him losing his liberty.
The contents of some of the materials filed on sentencing by defence counsel are, however, somewhat concerning. A report regarding mindfulness counselling from Oakville Trafalgar Hospital, from July 2018, Exhibit 4 on sentencing, reports that at that time Mr. R. indicated that his wife was "still a trigger for him."
A report authored by Dr. Weiman, from the Centre for Addiction and Mental Health, from November 2017, was also filed and became Exhibit 9 on sentencing. Although the doctor concludes that Mr. R. does not appear to suffer from any psychiatric disorder and the only applicable diagnosis is "MDMA/cocaine substance use disorder," some of Mr. R.'s comments to the doctor reveal a concerning lack of insight or genuine remorse for his wrongdoing. I quote from p. 2 of the report:
He stated that his ex-wife and her boyfriend were spiteful and had done things to "sabotage him." He stated his ex-wife's attempts to ruin his life went on for about a year. It was at this point in the assessment that J. seemed vague in describing details.
Then later, at the bottom of p. 2 to the top of p. 3, Dr. Weiman writes:
He has some ongoing legal difficulties relating to his ex-wife. He stated she had him "thrown in jail" on charges of uttering threats and criminal harassment. He states he sold his condo in order to pay for a lawyer. He's due to have his charges litigated on December 4th and 5th, 2017. He stated he is hopeful the charges will be dropped.
Then on the final page of the report, the doctor continues:
In general, it was my impression that he was relatively forthcoming. However, at times during the assessment, he was sometimes vague and nonspecific in his responses especially regarding the ongoing conflict and events with his ex-wife. He also appeared to be confident and have high self-esteem.
At least in December 2017, he reported to Dr. Weiman that he "does not feel as if he needed any help at the present time including medications or counselling."
That said, I do note that the anger management counselling arranged by CAS was completed in February 2018. Further counselling was also arranged beginning in February of 2018 through Mr. R.'s work benefits.
More recently, his cousin reported to the author of the presentence report that Mr. R. had gone through a process in terms of dealing with the breakdown of his marriage beginning with anger, then "ranting and raving," before arriving at a place more recently where he "knows what he did was wrong and takes responsibility for it." She maintains that he has now stopped blaming others, is remorseful, and recognizes that he put himself in his current position.
During his meeting with the author of the presentence report, Mr. R. expressed remorse and regret for his actions. He reportedly became emotional when doing so. During the sentencing hearing, he expressed similar sentiments to the court.
In terms of the future, Mr. R. has expressed an interest in focusing on his health, his sons, and establishing himself again. He hopes to secure his own residence (he is currently living with an aunt and uncle), purchase a car, and maintain stability in his life.
The Positions of the Parties
The parties are far from agreed on the appropriate sentence in this case. For the Crown, Mr. Mangat, emphasizing the importance of the sentencing objectives of denunciation and deterrence when it comes to the sentencing of offenders for criminal harassment and distributing intimate images, argues in favour of a global sentence of five months imprisonment. Although Mr. Mangat acknowledges the mitigating effect of Mr. R.'s guilty pleas, the genuineness of his remorse, and the significant steps he has taken towards his rehabilitation, he contends that nothing short of custody would be adequate to the essential task of denouncing and deterring the kind of serious wrongdoing that Mr. R. engaged in.
In terms of sentence breakdown, the Crown contends that the offence of criminal harassment warrants a sentence of three months custody while the offence of distributing an intimate image warrants a sentence of two to three months custody, and finally the offence of uttering a death threat warrants a sentence of one to two months custody.
Even choosing from the bottom end of the suggested sentencing range, Mr. Mangat notes, would result in a total sentence of six months imprisonment. But recognizing the mitigating factors here, including Mr. R.'s guilty pleas, his genuine remorse, and his upfront work, Mr. Mangat concedes that these are deserving of some meaningful credit, hence the five-month global sentence being urged by the Crown. Mr. Mangat also submits that a probation order for three years should be imposed with conditions tailored to both protect Ms. R. and Mr. A. and help address the underlying causes of Mr. R.'s criminal behaviour.
Mr. Mangat also seeks a s. 109 weapons prohibition, as well as a DNA order. With respect to the latter, he notes that both criminal harassment and uttering threats to cause bodily harm are secondary designated offences.
Finally, Mr. Mangat seeks an order under s. 743.2(1) of the Criminal Code to prohibit Mr. R. from having any contact with Mr. A. while serving his custodial sentence.
Mr. Goldkind, on behalf of Mr. R., urges the Court not to impose a sentence of actual jail. Although Mr. Goldkind acknowledges that the offences are simply horrendous, he emphasizes the considerable and transformative upfront work undertaken by Mr. R. since he was charged in urging the Court not to jail him for these crimes.
In effect, Mr. Goldkind argues that, given the great strides Mr. R. has made since being charged, he is essentially rehabilitated. To impose a jail sentence at this juncture would simply occasion an unnecessary step backwards for Mr. R.
Mr. Goldkind argues that a conditional sentence order, in the range of 12 to 18 months, with conditions that place meaningful restrictions on Mr. R.'s liberty, would be sufficient to address the sentencing objectives of denunciation and deterrence in this case.
Alternatively, if the Court concludes that an actual jail sentence is required, Mr. Goldkind urges me to impose a sentence in the intermittent range. This would allow Mr. R. to continue with his employment and remain an active part of his sons' lives while he serves his sentence.
Mr. Goldkind does not take any issue with the probation order or any of the ancillary orders sought by the Crown.
The Governing Principles
The fundamental purpose of sentencing, the Criminal Code instructs, "...is to protect society and contribute to respect for the law and the maintenance of a just, peaceful, and safe society." See Criminal Code s. 718.
The purpose is realized through the imposition of just sanctions that serve one or more of the traditional sentencing objectives. These objectives include denunciation, general and specific deterrence, separation of offenders, rehabilitation, preparation to victims, and promoting a sense of responsibility in offenders and an acknowledgement of the harm done to victims in the community. See Criminal Code s. 718(a) through (f).
The Criminal Code also sets out a number of principles meant to guide judges in the imposition of sentence. The fundamental principle is that the sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender." See Criminal Code s. 718.1.
Proportionality requires that a sentence be tailored to the circumstances of the offence and the offender. See R. v. Ipeelee, (2012) SCC 13 at paras 36-39. See also R. v. Lacasse, (2015) SCC 64 at paras 12, 53, and 58.
In determining the appropriate sentence, a sentencing judge must consider any relevant aggravating or mitigating circumstances relating to the offence or the offender. See Criminal Code s. 718.2(a). Taking proper account of the aggravating and mitigating factors is essential to evaluating the gravity of the offence and degree of the responsibility of the offender and its commission. It is by giving due regard to these factors that a sentencing judge ensures the sentence imposed is proportionate. See R. v. Priest (1996), 110 CCC (3d) 289 at 297-298 (Ont CA). I therefore turn to the aggravating and mitigating factors.
Aggravating Factors
There are five aggravating factors in this case.
First, there are the circumstances of the offences themselves. These crimes were not the result of a momentary lapse in judgment. Quite the opposite. Two of the crimes, the offences of criminal harassment and uttering a death threat, took place over many months.
There was also a fair degree of planning and deliberation involved in the commission of each of these offences.
With respect to the criminal harassment, there were repeated communications over an extended period of time involving different means of communication. This, combined with the purchase of surveillance equipment, a GPS tracking device and a surveillance camera that looked like a carbon monoxide detector, enabled Mr. R. to ratchet up the level of harassment by impressing upon his wife that he was watching her without her being aware of the exact means. There were also repeated acts of mischief involving Ms. R.'s vehicle.
With respect to the death threats, there are a number of different threats over an extended period of time. They were repeated in various forms, in conversations with Mr. A.'s wife, in a Twitter post, in an email, in a voicemail message, and finally during a conversation with Mr. R.'s wife. A number of the threats were detailed, graphic, and chilling, both in their substance and tone. This is not a case involving a single threat issued during a heated exchange and resulting from a momentary loss of self-control. These threats are at the very opposite end of the spectrum of severity in terms of the offence of threatening.
Finally, the offence of distributing an intimate image involved the creation of an account on the Backpage.com website, writing text for each of the fake ads, selecting photos of Ms. R. to be uploaded, including the photo of her involved in an explicit sexual act, the inclusion of her actual cell phone number, and then the phone numbers of two of her friends.
In other words, each of these crimes involved a fair amount of planning and deliberation. In my view, this is a very significant aggravating factor.
Second, at least one of the victims of these offences was Mr. R.'s spouse. In my view, criminal harassment and distributing intimate images represent a form of psychological abuse for any victim. Parliament has specified that an offender's abuse of their spouse is an aggravating factor on sentence. See Criminal Code s. 718.2(a)(ii). In short, Mr. R. did not commit these offences against just anyone. The victim was his wife, the mother of his two young children. This is an aggravating factor.
Third, and closely related to the last factor, is the breach of trust involved in the offence of distributing an intimate image in the circumstances of this case. The victim consented to Mr. R. taking these photographs because she trusted him as her husband. They were shared in confidence. By distributing such images without his wife's consent, Mr. R. breached her privacy and also breached her trust. This is a significant aggravating factor. See Criminal Code s. 718.2(a)(iii).
Fourth, it is an aggravating factor that one of the death threats that Mr. R. acknowledged making took place following his arrest after he was released on bail. Despite the intervention of the justice system, Mr. R. persisted in engaging in the very same menacing behaviour that led to his arrest.
Finally, there is the significant impact of the offences on the victims. Ms. R. did not provide a victim impact statement, but the impact on her sense of security and privacy is somewhat obvious and undoubtedly significant. I did have the benefit of information regarding the impact of Mr. R.'s death threats on Mr. A. and his family. The family was so shaken by Mr. R.'s threats that they relocated to a new residence. Two years after the fact, the impact on their sense of safety and security persists. This, too, is a statutorily aggravating consideration. See Criminal Code s. 718.2(a)(iii.1).
Mitigating Factors
All that said, in this case there are also five closely related mitigating factors.
First, Mr. R., although 42 years of age, is a first offender. This is his first interaction with the criminal justice system. This is a significant mitigating factor.
Second, it would appear that before these offences, Mr. R. was a person of previously good character. He led an entirely pro-social life. He has been gainfully employed throughout his adult life. By all accounts, he is a hard-working person.
Third, the previously untarnished life that Mr. R. led is undoubtedly in no small part due to the love and support of both his immediate and extended family. Family, and their ongoing support, bodes well for Mr. R.'s rehabilitation. This also counts in his favour.
Fourth is the mitigating factor that Mr. R. has taken some steps to address at least some of the causes of his criminal behaviour. In order to end his drug use, he attended detox and Narcotics Anonymous meetings. He reports abstaining from using illicit drugs for the last 13 months. He has also taken anger management counselling and mindfulness counselling.
Finally, Mr. R. pled guilty to these offences. He thereby spared the administration of justice the time and expense, and the victims the ordeal of a trial. I also accept that his guilty plea is reflective of some degree of remorse by him for his actions.
In terms of remorse, I think it bears noting that I do have some concerns. I have no doubt that Mr. R. regrets his actions. That said, some of his comments as recent as July of this year, around the time that Mr. R. entered his guilty plea before me, I am referring to the counselling report from Oakville Trafalgar Hospital, Exhibit 4, suggests that there is still a fair amount of hostility towards his wife. Some of his remarks to Dr. Weiman last December, well over a year after committing these offences, cause me to question whether or not Mr. R. has true insight into the magnitude of his wrongdoing, his sole responsibility for these crimes, and the impact of his actions on his victims.
Sentencing Guidance from Case Law
Beyond the general principles and objectives of sentencing, as well as the aggravating and mitigating factors, determining the appropriate sentence in this case also requires reference to the guidance provided by the Court of Appeal when it comes to the sentencing of offenders for crimes of this nature.
For the offence of criminal harassment, the Court has made clear that, despite the existence of mitigating factors:
The principles of general deterrence, denunciation, and specific deterrence must take precedence in determining a fit and appropriate sentence together with concern for the safety and security of the victims.
R. v. Bates (2000) 146 CCC (3d) 321 at para 48 (Ont CA). See also Bates at paras 29, 32, and 42; R. v. Finnessey, 2000 CanLII 16862 (ON CA), [2000] OJ No 3316, 135 OAC 396 at para 11-13.
In Bates, the Court of Appeal made the following observations, which are especially relevant to the circumstances of this case. The Court wrote, at paras 35-36 of its judgment:
Domestic violence and harassment cases most often involve conduct directed by a male spouse or partner against a woman, yet offenders who feel empowered to harass a partner or former partner with impunity will not necessarily confine their behaviour to that person. The males will harass and terrorize her friends and family members. As this case illustrates, the respondent somehow perceived that his love and need for the complainant allowed him to be an unwanted presence in her life and the lives of her family and associates to threaten and terrorize them to achieve his ends. His irrational actions made him a menace to Ms. Emmett and to those close to her.
Consequently, when an offender like the respondent comes before the Court for sentencing, it is important for the Court to denounce his conduct in the clearest terms by fashioning a heavy sentence. The statements of this Court in R. v. Denkers (F.P.) (1994), 1994 CanLII 2660 (ON CA), 69 O.A.C. 391 at 394, where the accused was appealing a sentence for the attempted murder of his former girlfriend is equally applicable to cases of criminal harassment:
This victim and others like her are entitled to break off romantic relationships. When they do so, they are entitled to live their lives normally and safely. They are entitled to live their lives free of harassment by and fear of their former lovers. The law must do what it can to protect persons in those circumstances. In this case its order that the appellant not have contact with the victim failed to provide that protection.
It follows the principles of general and specific deterrence must be overriding considerations in the determination of a fit sentence in this case. Those principles demand a very heavy sentence to act as a general deterrent to other persons who cannot abide by the rejection of a person whom they love. The sentence must act as a specific deterrent to this appellant, who is not deterred by the victim's request that he leave her alone nor by a court order requiring him to do so.
The Court of Appeal in Bates, at para 38 of its judgment, also quoted with approval the following passage, also directly relevant to the circumstances of this case, from the decision of the Prince Edward Island Court of Appeal in R. v. Wall (1995), 1995 CanLII 2320 (PE SCAD), 136 Nfld. & P.E.I.R. 200 at 203:
The very unsettling aspect of dealing with these offences in the criminal justice system is that undoubtedly many offenders will be presenting themselves with no criminal record and with the reputation of being both a good family and community person. The other unsettling aspect of these cases is if the pattern of harassing conduct continues and is not properly dealt with by the sentence imposed, the result could be very serious physical and/or emotional harm to the victim. In passing sentence, trial judges must therefore be wary of positive presentence reports depicting the offender as a person whose actions in respect of the offence are entirely out of character. The fact that an offender shows any propensity towards this kind of conduct, regardless of his unblemished past, is cause for great concern and for a very careful and judicious approach to sentencing. Factors such as the absence of a prior criminal record and expressions of remorse, which must necessarily be considered on sentencing, should not be given undue weight in the sentencing of this offence.
The focus of sentence must be to send a message to the offender and the public that harassing conduct against innocent and vulnerable victims is not tolerated by society and, most importantly, the Court must insure, as best it can, that the conduct of the offender never happens again, recognizing that, if it does, a far more serious offence could be committed. The principles of sentencing must be applied with this focus squarely in mind.
Unlike criminal harassment, the offence of publishing or distributing an intimate image is a relatively recent addition to the Criminal Code. It was part of Bill C-13, Protecting Canadians from Online Crime Act, and was only proclaimed into force on March 9, 2015. As a result, the Court of Appeal has not yet provided guidance on the sentencing of offenders who commit this offence. However, in R. v. AC, 2017 ONCJ 317, Justice Rahman helpfully reviewed the sentencing decisions from this court involving this offence. See AC at para. 29-33.
Today, given that every cell phone is now also a camera and a video camera, intimate partners routinely share intimate images. Relationships end, sometimes badly. The potential for these sorts of images to then be distributed by a jilted former partner has become all too easy. As a result, the cases have understandably recognized that denunciation and deterrence are the most pressing sentencing objectives for this offence as well. The sentences imposed by courts for this crime must send a strong message. If you breach the privacy and trust of an intimate partner, the punishment will be severe.
Determination of Appropriate Sentence
In light of these principles, I turn then to my determination of the appropriate sentence in this case. I will begin by directly addressing Mr. Goldkind's submission that, in all of the circumstances, this is an appropriate case for conditional sentence.
On my review of the statutory preconditions, given that the Crown elected to prosecute these charges summarily, a conditional sentence is available for each of these offences. None of the statutory bars on the availability of conditional sentences set out in s. 742.1(a) through (f) of the Criminal Code precludes such a sentence. The imposition of such a sentence therefore depends on an application of s. 742.1(a), specifically whether or not:
...The Court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in s. 718.2.
Given that Mr. R. has been on bail for the last two years, apparently without incident, I am satisfied that permitting him to serve his sentence in the community would not endanger the safety of the community. Therefore, the key question before me is whether or not such a sentence would be consistent with the fundamental purpose and principles of sentencing.
Generally speaking, as the Supreme Court of Canada made clear in Proulx, a conditional sentence with sufficiently onerous conditions can achieve the objectives of denunciation and general deterrence. See R. v. Proulx, [2001] SCR 61 at paras 22, 30, 35-37, 41, 66-67, 102-107.
At the same time, the Court also recognized that "there may be certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct." Proulx at para 106. The same is true of deterrence, with the Court acknowledging that "there may be circumstances in which the need for deterrence will warrant incarceration." Proulx at para 107.
The Supreme Court in Proulx further explained:
Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravating circumstances, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence.
In a case like this, involving as many as five significant aggravating factors, I am strongly of the view a conditional sentence would be inappropriate. In such circumstances, the objectives of denunciation and general deterrence require a custodial sentence, even for a first offender like Mr. R. I fear that nothing short of a jail sentence would be sufficient to the task of denouncing these extraordinarily serious crimes. At the same time, I think it unlikely that other prospective offenders who would be inclined to engage in the sort of vengeful, planned, and deliberate crimes committed by Mr. R. would be deterred by a sentence of house arrest.
Unfortunately, a great many marriages end because of infidelity. No doubt many married couples share intimate images of one another. In the aftermath of a marriage breakdown, especially one precipitated by one partner's infidelity, emotions understandably run high. In such circumstances, feelings of betrayal and anger are understandable.
The sentence imposed by this court must send a very strong message that estranged spouses who feel aggrieved in such circumstances cannot embark on a course of conduct designed to instil fear in their former partner. No matter how a relationship ends, each party is entitled to move on, free of harassment and also free from the fear that intimate images will be distributed by a former partner in order to embarrass and humiliate.
An aggrieved spouse who feels betrayed by another partner's infidelity can feel a tremendous sense of betrayal and considerable anger. I fear that for such a person the prospect of facing house arrest might be considered a small price to pay for instilling fear in, and taking revenge on, a former partner.
In short, an actual jail sentence is necessary to denounce these crimes and to deter others from engaging in similar conduct. I have therefore concluded that a conditional sentence would not be a fit and appropriate sentence in this case. I must next consider the length of the custodial sentence that should be imposed in this case.
In arriving at the appropriate sentence, there is another important sentencing principle, also codified by Parliament that must be kept in mind. That being that, "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances." Criminal Code s. 718.2(b).
Unfortunately, as is often the case, the search for the perfectly analogous sentencing precedent has proven elusive. There are many sentencing cases involving criminal harassment, a handful of decisions involving the distribution or publishing of intimate images, one that involves both offences, and none that involves both crimes combined with the uttering of threats. The most analogous of the cases is R. v. MR, 2017 ONCJ 943.
In that case, Justice Felix was sentencing the offender following a trial on charges of criminal harassment and the distribution of intimate images. The offender and the victim had been engaged. The relationship ended and, in its aftermath, the offender engaged in unwanted electronic communications that were ominous and menacing. The offender also distributed intimate images of the victim that he obtained during the relationship to some of the victim's family members and friends, both within Canada and overseas.
The distribution offences involved premeditation. They included the creation of anonymous email accounts to facilitate the distribution on two separate occasions about one month apart.
The offences had a profound impact on the victim and her family. The offender, who pled not guilty, remained defiant, expressing no remorse. He did not have a criminal record. His actions were unexplained. There was no suggestion that the abuse of drugs or alcohol or mental illness played a role.
In these circumstances, Justice Felix imposed a sentence of four months for the offence of criminal harassment and a five-month consecutive sentence for the offence of distributing intimate images for a total sentence of nine months custody.
To be sure, there are distinguishing features between Mr. R.'s case and MR.
With respect to the nature and circumstances of the offences, I am of the view that this case involves a worse form of criminal harassment. Beyond unwanted communications over an extended period of time, Mr. R. facilitated the harassment of his estranged wife by surreptitiously tracking her whereabouts through a GPS device he affixed to her vehicle and through the use of a hidden camera in the hallway across from the door to her residence. There were also acts of mischief involving the victim's car. In short, the criminal harassment in this case was far more sophisticated and far more menacing.
With respect to the offence of distributing intimate images, the cases are different. In MR, the offender distributed many images to the victim's family members and friends. The effect on the victim, especially given her cultural and religious background, was especially devastating. In this case, the intimate images were shared with complete strangers. The forum for the distribution was a website where sex trade workers offer their services. The victim's name and actual cell phone number were listed in the ad, as were the names and photos of two of her friends. The level of sophistication involved as between MR and in this case was comparable. Frankly, it is hard to assess which set of circumstances was worse. In short, I think both are equally bad, for different reasons.
Finally, this case involved a number of victims. There was Ms. R., her two friends, and importantly Mr. A. and his family. With respect to Mr. A., there were a number of extremely disturbing, even chilling, threats delivered by a variety of different means. These threats were made on a number of different occasions over an extended period of time. This is a separate serious offence that finds no analogy in MR.
Of course, some of the distinguishing features are very much in Mr. R.'s favour. There was only one mitigating factor in MR, the offender had no criminal record. There are five mitigating factors in this case, although the first three, the lack of a criminal record, prior good character, and supportive family, are all very closely related and were arguably also present to an extent in MR. Importantly, in this case, unlike in MR, Mr. R. has offered an explanation for his behaviour and taken steps to address what he describes as the causes of his conduct. He also pled guilty and expressed remorse for his actions. MR pled not guilty and was convicted after trial, was defiant, expressed no remorse, and offered no explanation for his behaviour.
In summary, I am of the view that the offending behaviour is more extensive and, to an extent, far worse in this case than it was in MR. But there are mitigating factors in this case that were not applicable in MR.
Before addressing what I consider to be the appropriate sentence, it is worth remembering a final well-established and important principle of sentencing. The Court of Appeal has repeatedly instructed that an offender's first sentence of imprisonment should be as short as possible and tailored to that individual's particular circumstances. See Priest at 296-297 and R. v. Borde (2003), 2003 CanLII 4187 (ON CA), 172 CCC (3d) 225 at para 36 (Ont CA).
At this point I'm going to ask you to stand up, Mr. R.
Mindful of the principles and objectives of sentencing, taking into account both the aggravating and mitigating factors in this case, I have ultimately concluded that a fit and appropriate global sentence in this matter, which is proportionate to the gravity of these offences and Mr. R.'s degree of responsibility in their commission, is eight months imprisonment.
You can sit down now, sir.
I must now determine how that period of imprisonment should be apportioned as between these three offences. See R. v. Jewell (1995), 1995 CanLII 1897 (ON CA), 100 CCC (3d) 270 at 279, (Ont CA); and R. v. Ahmed, 2017 ONCA 76, 246 CCC (3d) 504 at para 85.
For count one, the offence of criminal harassment, the sentence will be 120 days imprisonment.
For count three, the offence of uttering a death threat, the sentence will be 60 days imprisonment, to be served consecutively.
For count four, the offence of distributing an intimate image, the sentence will be noted as 60 days imprisonment to be served consecutively.
At this point I'm just going to take a break and let Mr. R. compose himself.
Recess and Resumption
RECESS
UPON RESUMING...
CLERK REGISTRAR: Good morning once again, Your Honour.
THE COURT: Good morning.
CLERK REGISTRAR: Court shall resume. Please be seated.
THE COURT: Continuing where I left off, for count four of the offence of distributing an intimate image, the sentence will be noted as 60 days imprisonment, to be served consecutively.
Mr. R. spent four actual days in pretrial detention. He is entitled to credit for that time at the usual rate of 1.5 to 1. Accordingly, he is entitled to 6 days credit. The presentence custody will be credited towards the 60-day sentence for the offence of distributing an intimate image, count three. The sentence for that offence will therefore be endorsed on the warrant of committal as 54 days.
I, of course, recognize that the sentence being imposed exceeds the sentence requested by the Crown. I note that, during the sentencing hearing, I made it clear to both counsel that by proceeding with an open sentencing hearing there was the possibility that the court could impose a sentence in excess of that being sought by the Crown. The defendant therefore had notice of this possibility and an opportunity to address it during submissions.
I also think that Mr. R. should know that, but for the mitigating factors, especially his guilty plea and his efforts towards addressing his drug problem, I believe that after trial, these offences would warrant a sentence in the range of 12 to 15 months. In my view, the aggravating factors in the absence of the mitigating would have required a sentence in that range. These offences are simply that serious.
Ancillary Orders
In addition, I will make an order pursuant to s. 743.2(1) of the Criminal Code prohibiting you, Mr. R., while you are in custody serving your sentence, from communicating or indirectly with N. A. That is a freestanding court order. It applies throughout the time you are in jail. It means you cannot have any contact with Mr. A. directly or indirectly. You cannot call him, you cannot call someone to speak to him on your behalf, or to send a message or to post something to a social media page that he might have access to. No contact with him. If you were to contact him directly or indirectly by any means during the time you are in jail, that is a separate crime for which you could go to jail. Do you understand?
J. R.: Yes, Your Honour.
THE COURT: You do need to speak up, I'm sorry.
J. R.: Yes, Your Honour.
THE COURT: You will follow the order?
J. R.: Yes.
THE COURT: All right. Further, after you complete your custodial sentence, you will be placed on probation for a period of three years. While on probation, you will be subject to the following conditions.
First, that you keep the peace and be of good behaviour. That means exactly what it sounds like: you must be good. If you were to commit another offence over the three years you are on probation, not only would you be guilty of that offence, you would be guilty of breaching your probation order.
Further, you are to attend court if and when directed to do so by the court or your probation officer. I cannot imagine that the court will ask you to come back, but, if we do, you must come.
You are to advise either the court or your probation officer in advance of any change in your name, address, or occupation. I cannot imagine you are going to change your name, but if you change addresses or change jobs, you have to let the probation officer know before hand and not afterwards.
You are to report to a probation officer within two business days following your release from custody, which means if you are released on the weekend you will have until the close of business on Tuesday to report, and thereafter if and when directed to do so by your probation officer.
That you take counselling as recommended by your probation officer with the specific recommendation that you: undergo a drug abuse assessment and take any counselling as recommended through that assessment process, and that you take counselling for anger management and/or complete the Partner Abuse Response (PAR) counselling program.
Further there will be a condition that you cooperate with your probation officer and that you sign any necessary releases to allow your probation officer to monitor your compliance with any of the terms of this order.
In addition, that you not communicate directly or indirectly, by any means, with N. A. or any member of his immediate family, and again, everything I said to you before about the order that applies in custody, same applies here. No contact direct or indirect, by any means. That means you cannot speak to him directly, text him, email him, post something for him to see on Twitter or Facebook. Anywhere he might see something, you cannot communicate through that medium to him directly or indirectly.
Further, that you not attend within 250 metres of any location where you know N. A., or any member of his immediate family, to be. That means you cannot go within 250 metres of his residence, where he works, or any member of his family's residence or where they work, where they go to church, where his kids go to school, etc. Anybody who is part of Mr. A.'s immediate family is protected by this order as well. If you see them anywhere while you are on probation, you are at the mall and they are there, you have to turn around and walk away. You leave the mall, not them. You are subject to a court order, they are not.
Further, you are not to communicate directly or indirectly by any means with E. R. or attend at any location where you know E. R. to be, including her residence or her place of employment. And everything I said to you before about what that means, direct or indirect communication, applies here, too. There will be exceptions, though, given that the two of you have children together.
Except, and she might have a different view in time, except with her written revocable consent filed with probation services in advance.
Also, except indirect contact in order to exercise access or visitation rights in relation to your sons by making arrangements through a mutually agreed upon third-party or through a child protection agency or under the terms of a valid Family Court order issued after today's date.
Finally, there will be an exception with respect to E. with respect to any incidental contact while in attendance at any scheduled court appearances, and I include that because I have no idea whether there is a possibility that the two of you may find your way back into Family Court or be in Family Court at some point in the future.
Lastly, as a condition of your probation you are not to possess any weapons as defined by the Criminal Code of Canada.
So those are the various terms of the probation order. Do you understand them? You are going to get them all in writing of course and I know you are pretty upset right now still, but you will have a chance to review them and you will have a written copy. But you do understand them? Are you getting those responses, Madam Reporter?
COURT REPORTER: No, I'm not.
THE COURT: Oh.
J. R.: Yes, Your Honour.
THE COURT: Okay, thank you. And I have to warn you, failure to abide by any of those terms is a separate serious crime for which you could go to jail. You will follow the various terms?
J. R.: Yes, Your Honour.
THE COURT: All right. Both criminal harassment and uttering a death threat are secondary designated offences under s. 487.04 of the Criminal Code. As such, the relevant subparagraph of the Code is s. 487.051(3)(b). I have read this provision in light of the guidance supplied by the Court of Appeal in its decision in R. v. Hendry (2001) 161 CCC (3d) 275.
I am to make the order if I am satisfied that it is in the best interests of the administration of justice to do so. In that regard, I am to consider an offender's criminal record, the nature of the offences and the circumstances surrounding their commission, and the impact on his privacy and security of person.
Here I note that these are Mr. R.'s first criminal convictions. Nevertheless, both offences are extremely serious. The criminal harassment resulted from a prolonged and extremely troubling course of conduct directed at the victim. The death threats were repeated and disturbing. I am also mindful of the Court of Appeal's observation in Hendry that:
...Given an adult offender's diminished expectation of privacy following conviction, the minimal intrusion into the security of the person in the ordinary case and the important interests served by the DNA databank, it will usually be in the best interests of the administration of justice for the judge to make the order.
In light of that, in relation to both counts one and three, I have decided to make an order directing that a sample of your blood be taken for inclusion of your DNA profile in the National DNA Databank, and that will happen today when you are taken into cells.
Further, the Crown sought a weapons prohibition under s. 109 of the Criminal Code. If the Crown had proceeded by indictment, then such an order would be available pursuant to s. 109(1)(a) of the Criminal Code for the offence of uttering a death threat. However, on my reading of the section, given the Crown's summary election, such an order is not available. However, I do have authority to make an order under s. 110(1)(a) and I will.
Therefore, Mr. R., for a period of 10 years you will be prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance or any such thing.
That is a freestanding court order, it applies for 10 years, it applies right across the country. If you fail to abide by it, that is a separate crime for which you could go to jail. Do you understand the order?
J. R.: Yes, Your Honour.
THE COURT: You will follow it?
J. R.: Yes, Your Honour.
THE COURT: Lastly, there is $300 in victim fine surcharges, as the Crown proceeded with these three offences summarily. Under the regulations, he would ordinarily be entitled to 30 days to pay. Mr. Goldkind, or your associate, do you want to bring an application for an extension of time?
MR. GOLDKIND: Oral application made.
THE COURT: How much time would you like?
MR. GOLDKIND: I would ask Your Honour for 18 months.
THE COURT: You will have 18 months to pay the victim fine surcharges. There was, if I remember correctly, Mr. Mangat, another count that he wasn't arraigned on.
MR. MANGAT: Is that the single count of utter threats?
THE COURT: Yes.
MR. MANGAT: If that charge can be marked withdrawn.
THE COURT: Count two, the charge of uttering a threat against E. R., sorry, to cause death to N. A., will be marked withdrawn at the request of the Crown.
MR. GOLDKIND: Thank you.
THE COURT: Thank you.
MR. GOLDKIND: Your Honour, Mr. Thomaidis came in during that break given when we were chatting about Your Honour's decision, does Your Honour have a copy of your decision for counsel? It would be very helpful for both of us to review.
THE COURT: At this point I have my notes...
MR. GOLDKIND: Oh.
THE COURT: ...which aren't in a condition to be shared...
MR. GOLDKIND: Okay.
THE COURT: ...but I can tell you that within a couple of days, given that they are electronic notes, a transcript could probably be prepared. It wouldn't take long.
MR. GOLDKIND: The best way to accomplish that is through this court reporter here or....
THE COURT: You will have to order it through the regular process.
MR. GOLDKIND: That's what I was – okay.
THE COURT: Okay. But I can tell you because I can provide my notes to the transcriptionist the turnaround time is very fast indeed.
MR. GOLDKIND: I appreciate that.
THE COURT: It just allows me to fix typographical errors and....
MR. GOLDKIND: No, no, I just was watching you, it just seemed like....
THE COURT: No, they are typewritten, but they're my notes.
MR. GOLDKIND: No problem.
THE COURT: As I've read them of course I've noticed many, many mistakes that I didn't notice when I was proofreading it.
MR. GOLDKIND: I completely understand.
THE COURT: Okay.
MR. GOLDKIND: Thank you, Your Honour.
THE COURT: Thank you very much. Good luck, Mr. R.
MR. GOLDKIND: Thank you.
...WHEREUPON THIS MATTER WAS ADJOURNED
