Ontario Court of Justice

Date: 2021 01 08 Court File No.: Halton 19 - 3560

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Kyle Jacob KROEPLIN and Matthew Tadeusz WASIKIEWICZ

Before: Justice D.A. Harris

Heard on: October 18, 2020 and November 26, 2020 Reasons for Sentence released on: January 8, 2021

Counsel: Charon Kerr and Amy Stevenson.................................................. counsel for the Crown David Hayward.................................................. counsel for the defendant Kyle Kroeplin Robert Jagielski.................................. counsel for the defendant Matthew Wasikiewicz

Introduction

1Kyle Jacob Kroeplin and Matthew Tadeusz Wasikiewicz were both charged that on or about June 2, 2019 at the City of Burlington, they did, by communicating statements other than in private conversations, willfully promote hatred against identifiable groups to wit: Jewish and Black people, contrary to section 319(2) of the Criminal Code.

2The charge was laid with the necessary consent of the Attorney – General pursuant to section 319(6).

3Crown counsel ultimately elected to proceed summarily with respect to both men and both pled guilty before me, albeit on different days.

4They are before me today to be sentenced.

5Crown counsel suggested that I should sentence them to imprisonment for three to four months followed by probation for one year.

6Counsel for Mr. Kroeplin and counsel for Mr. Wasikiewicz suggested that I grant each of them a conditional discharge with lengthy probation.

7I find that conditional sentences of imprisonment for six months, followed by probation for two years is the appropriate sentence.

[8] My reasons for this are set out under the following headings: (1) The law regarding conditional discharges, (2) The law regarding conditional sentences of imprisonment, (3) The fundamental purpose and principles of sentencing, (4) The facts underlying the offence, (5) The community impact of the offence, (6) The background of Mr. Kroeplin, (7) The background of Mr. Wasikiewicz, and (8) Analysis.

Conditional Discharge

9Section 730(1) of the Criminal Code provides that:

Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

10There is no minimum sentence here. The offence is not punishable by imprisonment for 14 years or life. So I can grant both young men a conditional discharge if I consider it to be in their best interests and not contrary to the public interest.

11In Regina v. Sanchez-Pino, the Ontario Court of Appeal stated that:

16 ...In my view, the primary purpose of Parliament in enacting that section was to provide that an individual, although found guilty of what may loosely be described as a "less serious" offence, would not have a conviction recorded against him in all cases. In other words, he would not "have a criminal record" as a result of the occurrence.

17 The trial Judge in this case was right in saying that the guide-lines are meagre. The section does not apply to corporations, nor to offences for which a minimum sentence is prescribed, nor to offences punishable, in the very proceedings, by imprisonment for 14 years or for life or by death. The granting of some form of discharge must be "in the best interests of the accused". I take this to mean that deterrence of the offender himself is not a relevant consideration, in the circumstances, except to the extent required by conditions in a probation order. Nor is his rehabilitation through correctional or treatment centres, except to the same extent. Normally he will be a person of good character, or at least of such character that the entry of a conviction against him may have significant repercussions. It must not be "contrary to the public interest" to grant some form of discharge. One element thereby brought in will be the necessity or otherwise of a sentence which will be a deterrent to others who may be minded to commit a like offence -- a standard part of the criteria for sentencing.

18 Obviously the section is not confined to "simple cases of possession of marijuana". It is not confined to any class of offences except to the extent I have noted. On the other hand, it is only common sense that the more serious the offence, the less likely it will appear that an absolute discharge, or even a conditional one, is "not contrary to public interest". In some cases, the trivial nature of the offence will be an important consideration; in others, unusual circumstances peculiar to the offender in question may lead to an order that would not be made in the case of another offender. [1]

12In R. v. Fallofield, the British Columbia Court of Appeal made a number of observations regarding the discharge provisions, including the following:

(1) Discharges are not limited to technical or trivial violations;

(2) Generally, the requirement that a discharge would be in the best interest of the accused would presuppose that the accused is a person of good character, without previous conviction, that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of a conviction against him may have significant adverse repercussions; and

(3) While the public interest in the deterrence of others must be given due weight, it does not preclude the judicious use of the discharge provisions. [2]

13In R. v. Meneses, the Ontario Court of appeal took into account:

(1) that the appellant was a widow with children;

(2) that she has had a good standing in the community;

(3) that she has no criminal record;

(4) that her misconduct was an isolated one and out of keeping with her past good character; and

(5) that a conviction might have a detrimental effect on her ability to obtain gainful employment in the profession of dentistry of which she already has some expertise. [3]

14It was in the public interest for this woman to be given every opportunity to become a useful person in the community and earn a livelihood for herself and her family. [4]

15Further:

The argument that a conviction and fine against this accused must stand to effect a more apparent deterrent to others must give way when other considerations are more paramount, and when the broad view of the public interest is considered. In our opinion, the knowledge of speedy apprehension, arrest and trial should be an effective deterrent to persons such as the accused who may be tempted to commit such an offence. A conviction and a fine would not be a deterrent to a professional shoplifter, but, of course, such a person would not receive either an absolute or conditional discharge. [5]

16Finally:

It is always to be borne in mind that a person who is granted a conditional discharge does not go scot-free after committing the offence. In this case the accused is subject to the terms of the probation order, and in the event that the terms of the probation order are met, she will have earned her discharge. [6]

17In R. v. Carson, the Ontario Court of Appeal stated that:

The sentencing judge rejected certain of the Crown's submissions concerning sentence on the basis that they would have an unnecessarily harsh impact on the appellant's prospects to continue his employment as a police officer. This is a legitimate factor, among others, to be taken into account at a sentence hearing. Neither the appellant's personal interest nor the societal interest would be served by the imposition of a sentence, not otherwise warranted, that would preclude the appellant's continued employment as a police officer. [7]

18There are of course limits on how far this may be taken. In R. v. Swierszcz, the Ontario Court of Appeal stated that “The fact that a person may suffer professional consequences cannot justify the imposition of a sentence that is outside of the appropriate range” [8]. The Court of Appeal allowed the Crown appeal since a conditional discharge was far outside of the range appropriate for the kind of criminal conduct in that case.

19The following comments have been made in a number of summary conviction appeal decisions in Ontario:

(1) Discharges are not restricted to trivial matters; [9]

(2) Where an offender has acted entirely out of character, perhaps in the context of unusual pressure or stress, a discharge may be a fit sanction; [10]

(3) Where a criminal record will have a tendency to interfere with employment, a discharge should be given serious consideration; [11]

(4) A suspended sentence is not necessarily a greater deterrent to others than a conditional discharge. [12]

Conditional Sentence of Imprisonment

20The conditional sentence came into being when section 742.1 of the Criminal Code was proclaimed in 1996.

21The Supreme Court of Canada subsequently stated in R. v. Proulx that "Parliament clearly mandated that certain offenders who used to go to prison should now serve their sentence in the community." [13]

22The Supreme Court of Canada stated further that an offender who meets the criteria of section 742.1 will serve a sentence under strict surveillance in the community instead of going to prison. His liberty will be constrained by conditions to be attached to the sentence. In case of breach of conditions, the offender will be brought back before a judge who may order him to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence. [14]

23Section 742.1 lists five criteria that a court must consider before deciding to impose a conditional sentence. These are:

1. the offender must be convicted of an offence that is not specifically excluded by the legislation;

2. the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;

3. the court must impose a term of imprisonment of less than two years;

4. the safety of the community must not be endangered by the offender serving the sentence in the community; and

5. a conditional sentence must be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

24The first four criteria are prerequisites to any conditional sentence. These prerequisites answer the question of whether or not a conditional sentence is possible in the circumstances. Once they are met, the next question is whether a conditional sentence is appropriate. That decision turns upon a consideration of the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

25In this case, the first four prerequisite criteria have been satisfied.

26The offence was not excluded pursuant to section 742.1.

27Nor is it punishable by a minimum term of imprisonment.

28Crown counsel agreed, as do I, that I should impose a sentence of imprisonment for much less than two years. The maximum sentence is imprisonment for six months.

29Finally, I find that Mr. Kroeplin and Mr. Wasikiewicz serving their sentence in the community, subject to appropriate conditions, would not endanger the safety of the community. Neither had a prior criminal record. Neither has been in any further trouble since being charged 15 months ago. I am satisfied that there is no danger that either would return to crime following the imposition of a conditional sentence.

30That then leaves the question of whether a conditional sentence is appropriate in all of the circumstances of this case. In making this decision, I must consider the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.

31I must also consider the fundamental purpose and principles of sentencing in order to determine whether a conditional discharge would be appropriate in the particular circumstances of this case.

Fundamental Purpose and Principles of Sentencing

32The fundamental purpose of sentencing as expressed in section 718 of the Criminal Code is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

33The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender. [15]

34The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence. [16]

35Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence. [17]

36He went on to state that:

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime. [18]

37He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good. [19]

38Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.

39Section 718.2(a)(i) provides that evidence that an offence was motivated by bias, prejudice or hate based on race, national or ethnic origin colour or religion shall be deemed to be an aggravating circumstance and that the sentence should be increased to reflect that.

40Section 718.2(d) provides that “an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances”.

41Section 718.2(e) provides that “... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.”

42The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen and said that section 718.2 (e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender. [20]

43In R. v. Priest, supra the Ontario Court of Appeal made it clear that much of this is simply a codification of the existing law, especially with respect to youthful first offenders. That case also made it clear however that this principle is of much less importance in cases involving very serious offences. [21] The case before me is certainly one of those cases.

44More recently, the Ontario Court of Appeal stated the following in R. v. Disher:

The principle of restraint, as reflected in ss. 718.2 (d) and (e) of the Criminal Code, directs that a first period of incarceration imposed on a young first offender should be as short as possible, while giving adequate weight to the principles of general deterrence and denunciation: R. v. Rocchetta, 2016 ONCA 577, [2016] O.J. No. 3871, at para. 35. As s. 718.2(e) specifically directs, while the restraint principle should be considered for all offenders, particular attention should be given to the circumstances of Aboriginal offenders, a class of offenders to which Ms. Weaver belongs. Sentencing judges are to give effect to the principles in s. 718.2(e) even where the offence is serious and the sentence involves imprisonment: R. v. Batisse, 2009 ONCA 114, [2009] O.J. No. 452, at para. 36. [22]

45The Supreme Court of Canada noted in Gladue v. The Queen that section 718 now requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. [23] As a general matter restorative justice involves some form of restitution and reintegration into the community.

46At the time of this offence the maximum sentence for a summary conviction offence was imprisonment for 6 months. [24]

47I must also take into account the effect that Covid-19 is having on our community at large and in the corrections system in particular. For the reasons expressed by Justice Pomerance of the Superior Court of Justice in R. v. Hearns, I too:

…take judicial notice of the fact that: we are experiencing a worldwide pandemic; that control of the pandemic requires that individuals practice social distancing; that social distancing is very difficult to maintain in custodial settings; that inmates are consequently at a greater risk of infection; and that the risk of COVID-19 in prison settings translates into an increased risk for the community at large. [25]

48I also adopt the following comments made by her in that decision:

Impact of the Pandemic on Sentencing Principles

15 How does all of this impact the fitness of sentence? Clearly, the pandemic does not do away with the well-established statutory and common law principles. However, the pandemic may impact on the application of those principles. It may soften the requirement of parity with precedent. The current circumstances are without precedent. Until recently, courts were not concerned with the potential spread of a deadly pathogen in custodial institutions.

16 COVID-19 also affects our conception of the fitness of sentence. Fitness is similar to proportionality, but not co-extensive with it. Proportionality dictates that the sentence should be no more than is necessary to reflect the gravity of the crime and the moral blameworthiness of the offender. Fitness looks at a broader host of factors. A sentence may be fit even if it is not perfectly proportionate. Fitness looks, not only at the length of a sentence, but the conditions under which it is served. As a result of the current health crisis, jails have become harsher environments, either because of the risk of infection or, because of restrictive lock down conditions aimed at preventing infection. Punishment is increased, not only by the physical risk of contracting the virus, but by the psychological effects of being in a high-risk environment with little ability to control exposure.

17 Consideration of these circumstances might justify a departure from the usual range of sentence, such as that contemplated in R. v. Lacasse, 2015 SCC 64, para. 58:

There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. [Emphasis added.]

18 The "specific circumstances of each case" would, in today's environment, include the ramifications of the current health crisis. [26]

49I also accept the comments made by Justice D.E. Harris of the Superior Court of Justice in R. v. Vigon-Campuzano:

52 Lastly, the original sentencing recommendations of counsel were made before the blight of the global COVID pandemic. The fact is, there is now extra hardship in serving a jail sentence both physically and psychologically. This reality, at the outset of what may well be the "second wave," must be taken into account. That is only logical. After all, if additional hardship is properly used in determining pre-trial custody credit under R. v. Duncan 2016 ONCA 754, it must also be factored into the crafting of a prospective sentence. Hardship over and above the general burden of serving a jail sentence has always been a proper consideration: see R. v. Kandhai, 2020 ONSC 1611 at para. 7; R. v. Hearns, 2020 ONSC 2365 at paras. 20, 23-24. It will be apparent, therefore, that I disagree with the Crown's position that COVID is irrelevant.

53 I believe a proportionate sentence can be formulated responding to both the gravity of the offences and the moral responsibility of Mr. Vigon-Campuzano while exercising some restraint in the use of incarceration as a sentencing tool. [27]

50Crown counsel provided me with a number of cases. The sentences in these ranged from jail terms (14 cases) to conditional sentences (4 cases) to suspended sentences (2 cases) and fines (1 case). Counsel for Mr. Kroeplin and counsel for Mr. Wasikiewicz also referred to these cases in their submissions.

51None of these cases were on all fours with the case before me. They do however emphasize the principles to be applied here (although a number of them predate conditional sentences and the enactment of sections 718 through 718.2). They also make it clear that this is an offence that embraces a wide spectrum of behaviour and that a wide range of sentences is available.

52In R. v. Friesen [28], the Supreme Court of Canada stated that in such cases an offender's conduct will be less morally blameworthy in some cases than in others. Further, the particular personal circumstances of offenders may have a mitigating effect. [29]

53Accordingly, before applying the above principles, I must take into account the facts underlying the offence, the impact on the relevant communities, and the backgrounds of Mr. Kroeplin and Mr. Wasikiewicz.

The Offence

54On or about June 2, 2019, Mr. Kroeplin and Mr. Wasikiewicz posted two posters on the outside of the Art Gallery of Burlington at 1333 Lakeshore Road. The first poster depicted a Jewish man being bound and shot in the back of the head and the second poster depicted a Jewish man and an Black man and a rat and cockroach with the words “Let’s face it a world without [depiction of a Jewish man and a Black man] would be like a world without [depiction of a rat and a cockroach]”.

55Around the same time, they posted two posters on the outside of the Elgin Street entrance to Burlington City Hall. The first poster again depicted a Jewish man being bound and shot in the back of the head. The second poster depicted the Israeli flag inside a red circle with a red diagonal line across it.

Community Impact

56Section 722.2 (1) of the Criminal Code provides that:

When determining the sentence to be imposed on an offender or determining whether the offender should be discharged under section 730 in respect of any offence, the court shall consider any statement made by an individual on a community's behalf that was prepared in accordance with this section and filed with the court describing the harm or loss suffered by the community as the result of the commission of the offence and the impact of the offence on the community.

57There were three Community Impact Statements filed in this case, on consent. All of the authors of these statements chose to read them aloud in court.

58Ran Ukashi read the following on behalf of B’nai Brith Canada:

B’nai Brith Canada is a leading Jewish human rights organization and opponent of all activities, publications, and incitements to hate including antisemitism. The League for Human Rights of B’nai Brith Canada operates an anti-hate hotline which daily receives complaints about antisemitic incidents and publishes our Annual Audit of Antisemitic Incidents, the only report of its kind in Canada.

We are contacted for many reasons and on multiple occasions almost every single day by our Jewish and non-Jewish communities who bring to our attention incidents of discrimination, hate motivated acts, and indeed hate-motivated crimes. These include all manner of actions, publications, and incitements imaginable and include vandalism of property, holy sites, violence, both directed at individuals and groups, and in recent years, on line harassment. Sadly, we are aware of incitement to hatred and the wilful promotion of hatred aimed at our communities across this nation. Thus, B’nai Brith Canada is particularly well positioned and abled to understand the negative impact on the lives of individuals and communities affected by the hateful publications at the center of the current proceedings.

We hear directly from those members of the Jewish community who have been personally victimized and impacted by hate and whose fears for their personal safety and well-being, and that of their family members and friends, have been growing. The demand for our assistance has been increasing and this observation has been borne out by B’nai Brith Canada’s own statistics suggesting that on average more than six antisemitic incidents occurred every day in 2019, making 2019 the fourth consecutive record-setting year for antisemitism in Canada – an unwelcome trend and unfortunate reality. Toronto Police’s 2019 Hate Crime Report, for instance, show 32% of hate occurrences target Jewish people, although representing only a small fraction of approximately 1% of the total Canadian population. Nationally, the most recent police- reported statistics indicate that 19% of all hate crimes in Canada target the Jewish community. As such, it is all but too obvious that Jews in Canada are overwhelmingly at risk of hate-motivated criminality, including violence.

At times, in certain Canadian communities, the fear felt by the Jewish community as individuals and as a community for themselves, for their families, friends and future generations is palpable. We wish to emphasize to the court that what we are describing is a sense of fear, of concern for personal safety, that not too many years ago would been thought simply not in the character of Canada.

It is against this backdrop that the case before this court adds real and justified feelings of concern in our community for the well-being of the community and the individuals comprising our community. Members of our community are seeing their security and ability to live freely as equal citizens within Canadian communities rapidly eroding.

It is clear to anyone, and certainly so for the Jewish community, that these crimes represent a significant escalation in the atmosphere of fear and the threat both overt and implied by these unambiguous pictorial depictions advocating for the killing of Jewish citizens. These images are a deliberate depiction made by young adult men that send a clear message that Jews should be shot. This criminal behaviour makes clear its target; Jewish people. And as a consequence these images create a hostile environment that sends a clear message: Jews are not welcome; they should feel unsafe; and they should fear for their personal and community safety.

The poster that places an ‘x’ through the Israeli flag is an expression of hatred towards Jews as it denies the Jewish people their right to self-determination in what is the historical, cultural and religious homeland of Jews. Such an image attempts to delegitimize our Jewish identity. An identity no less legitimate than the connection Irish Canadians feel towards Ireland, that Sudanese Canadians feel towards Sudan, or that Chinese Canadians feel towards China.

These graphic images go further than threatening Jews. When they liken Jews and Black people to rats and cockroaches, they vilify and dehumanize both Jewish and Black people, broadening the scope of the attack, creating further fear and a sense of lack of personal safety and again laying the foundation for an escalation towards violence and killing.

We are highly sensitive to the pain of others and support our brothers and sisters within the Black community, standing shoulder to shoulder with them as they too, continue to face racism, bigotry and hate.

The Jewish community is particularly empathetic to the pain of others as Jewish people know all too well where this destructive force of hate inevitably leads; many Jewish people across Canada are Holocaust survivors or descendants of Holocaust survivors, who lost family members to the systematic murder committed by Nazis and their collaborators. They were hunted down across borders, victims of a systemic and industrialized genocide the likes of which is historically unprecedented. Hate and a hateful philosophy was employed to systemically murder 6 million Jewish people, as many as 1.5 million of whom where children – murder on this scale committed for no other reason other than the fact these people happened to be Jewish. These experiences contribute to our understanding of the significance of the hate on display here, and how these seeds of hate can grow and bear fruit of the most vile kind. The call to kill Jews contained within these posters, the dehumanizing imagery against Jews and Blacks is something that we hope will be nipped in the bud before it may blossom further. We are fearful, but we are strong and determined to be vigilant and have faith in and know that we can look to the Canadian justice System for protection.

The Jewish community finds these evil and chilling posters which were publicly displayed to be despicable for the loathsome messages they carry. These images display not only hate directed at us but also speak to a lack of individual moral responsibility on the part of those that created these images. In contrast, we not only feel a sense of moral responsibility as individuals or for our community but also to the collective responsibility to work for the safety and well-being of our brothers and sisters in all our minority communities who have a right to feel and be safe. We have a responsibility towards one another. These images are antithetical to our democratic values; they promote hate and counsel to commit murder.

We see no excuse for the creation of these images. No individual past that can excuse this behaviour or absolve perpetrators of responsibility. Those that produced these images knew and understood what they were promoting and advocating, namely, the death of Canadian citizens. Such behaviour has had a lasting and grievous impact on our community, on individual members of our community, on the Black community, including individual members of the Black community. We look to the court for justice that will send a message that this simply cannot and will not be tolerated.

59Rabbi Stephen Wise read the following statement:

The posters that you created and displayed on public buildings in Burlington hurts more than you might possibly believe. They are violent images, they compare Jews and Blacks to insects and rodents and were intended to send the message that we don't belong, that we are inferior, that we are sub-human, that we are worthless, and we deserve to die. To think that you could have so much hate in your heart to display such hurtful images is hard to fathom. Did someone teach you this? Did you learn about it somewhere? I can't believe you were born to hate but yet somewhere along the line you determined that some human beings are better than others. I believe in a world that sees each human as holy, as full of worth, as equal. But no everyone shares that view. If you did, you would not have displayed these images. Because they not only embarrass you and your beliefs but they send a message to any other person who sees that image that perhaps it is ok to hate others for their religion or their skin type. And in this town, in this province, in this country, we cannot stand for that. For too long we have not stood up when there is hatred or antisemitism or racism. it starts perhaps with a joke at our expense. maybe an image on a school or store window or in a newspaper. Soon it becomes part of conversations, it enters into political discussions, it gets enshrined into law. We have seen the ugly side of hate and discrimination - when it turns to violence - hangings, pogroms, burning, killing, expulsion, extermination. We have seen great atrocities the past century, none as horrific as 6 million Jews who were murdered in the Holocaust. Did you know that right here in Halton are survivors from those death camps, who belong to our Shaarei-Beth El synagogue, who to this day can barely speak of what they saw, who only have vague memories of entire families murdered before their eyes, who still bear the scars in their hearts and numbers tattooed on their arms? These hateful pictures, placed on a wall, sends a ripple of fear and dread into the hearts of not only these survivors, but anyone who understands that in this country we lift up the fallen, we care for each person, we unite against hatred and march forward in harmony for equality, for decency, for unity. I hope you understand the implications of what you have done and the hurt you have cause. Please learn from this, please go out of your way to make amends for your crime, learn about the communities you have attacked and turn the page.

60Dennis Scott read the following statement on behalf of Halton Black History Awareness Society:

Emotional Impact

Being an 8th generation Black Canadian enslaved descendent with diverse cultures including African, West Indian, Indigenous, British and French Caucasian, and Chair of the Halton Black History Awareness Society, an organization devoted to mitigating hate crimes, this public display of hate against Blacks and Jews is intolerable.

A public display of the sort experienced from this crime against BIPOC individuals has to be mitigated immediately, consistently and judicially to restrain others from following this example. “Marginalized communities” have endured this negative portrayal forever, which gives rise to the current anti-racism protests against systemic racism and injustice.

To publicly display this hate in areas most highly populated amongst Halton’s constituents aggravates the work Halton constituents and diversity organizations have consistently promoted in assuring Halton being an inclusive society. Attending to these crimes appropriately will support Halton’s prestigious goals towards this objective.

Unfortunately, we live in a society where that racism is sometimes allowed to go unchecked, or even acknowledged. People of colour feel the racial divide every day. They experience various levels of racism; some thinly veiled, some of it systemic, and some of it, like this instance, a heart breaking and savage depiction of hate against colour and race. This is especially heinous within the community of Halton which is experiencing the fastest visible minority growth in Canada and exalts in its police being number one in Canada in organization diversity and diversity training leading this community to be the number one safest in Canada.

Every time hate crimes happen it reinforces the fear, anxiety, and feelings of inequity that people of Colour experience. It says that claims of inclusivity for all are not to be believed by our communities. That they are motherhood statements that do not represent their reality, and can therefore not be trusted.

Halton Black History Awareness provides, esteem building, motivational, support for our youth and members of our community and their concerns are raw. Imagine living in a community where you know that you share that space with people who hate you because of the colour of your skin, ethnic background, or religious beliefs. With people who would post this kind of hateful and derogatory information.

The biggest impact is on the children, the next generation. When they see things like this, it feels like we're going backwards, instead of forward to them. They question their parents, and their community about whether they are truly safe. We are already living in seriously stressful times with COVID - imagine adding this anxiety and fear to it.

Our youth, already enduring anxiety within 34% of their populace do not need to be again denigrated, bullied or abused by portrayals and incidents negating their heritage, and culture. Consistently allowing continuation of any hate crime promotes continuance of prejudice and slander toward others. This lowers self esteem, confidence, community integration, and individual and community progression by stopping victims from prospering as well as could be possible.

Children need to see justice happening and they need to see zero tolerance for racism. They need to see consequences that send a strong message this will not happen in our community.

Physical Impact

We already train our children on how they need to behave in order to stay safe. Because that looks quite different for people of colour. Given the societal stereotypes that includes how they need to dress in order to be safe. Or where they are allowed to go within communities. As adults there is not a person in our community who has not been stopped by someone to inquire "why they are where they are."

Something like this crime reinforces feelings of fear as it relates to walking freely, anywhere for people of colour. Because what if they're in the wrong place, at the wrong time, and they encounter people who feel like these defendants do? It also emboldens other likeminded racist people in the community which changes the soul of the community and any sense of safety and authentic inclusivity.

Economic Impact

In anticipation, of society returning to a time when we can gather and celebrate. We hope that our Freedom Festival will be able to move forward next year. This is a festival that celebrates community, roots, and culture. It celebrates emancipation, freedom, and authentic inclusivity.

We cannot allow this kind of hatred to grow or permeate in our cities. It is not the values that we claim to live by in this country. Moreover, it is not aligned to a free, anti-racist, and inclusive society. We are at a place where we must have actions to go along with our declarations.

Fears for Security

Every case like this; every incident of racism or hatred makes our community question how real their security really is. It makes it more difficult to trust that those fears will be addressed. It puts an added layer of stress and anxiety into the day to day lives of the people. It steals joy and hope from everyone - especially our youth.

As President Obama stated at a United Nations General Assembly Conference, "At this moment, we all face a choice. We can choose to press forward with a better model of cooperation and integration, or we can retreat in a world sharply divided and ultimately in conflict." It is our generations which must NOW forage the best future for our ascendants.

Background of Kyle Kroeplin

61I received a Pre-sentence Report, three reference letters written by his mother and his father and his next-door neighbours, an employment letter, and a receipt for a donation to B’nai Brith of Canada. These documents and the submissions of counsel provided me with the following information about Mr. Kroeplin.

62He is 23 years old.

63He is the eldest of three children. His mother is employed as an Education Assistant by the Catholic School Board. His father is the General Manager of a service equipment company. He has a 21-year-old brother attending university studies in Guelph, and a 19-year-old brother who is attending university in Ottawa.

64He views himself and his parents as being different types of people. He shares a very good relationship with both brothers.

65He spends a lot of time helping his maternal grandparents who reside in Oakville.

66His childhood was “pretty good”. He received most of the things that he desired and did not get into trouble too much. He was well provided for with respect to food, shelter, clothing and received gifts at Christmas and for his birthday. His family travelled a lot to the United States as his brother played hockey at the Rep level. He also went on trips with his family to Hawaii, California and other tropical destinations, however, he did not find said trips to be “enjoyable” as he does not enjoy “the whole tropical thing.”

67He played house league level hockey from grade two through to 2015 and enjoyed said activity as he was able to meet other individuals and “hang out.” His brothers had more ambition; however, he was content to play hockey at the house league level.

68He also played soccer and baseball and loved to sail and snowboard. His father coached his hockey teams, cheered him on at his baseball and soccer games and played a huge role in his social life.

69He has never been involved in a relationship. He has talked to girls but does not have an interest in girls in general. He described himself as being “asexual and celibate.”

70He attended Catholic elementary schools. He was on the school hockey team in grades seven and eight. He got along fine with his peers, shared a pretty good relationship with his teachers.

71He then attended the same Catholic secondary school from grade nine through to the first semester of his victory lap year. He returned for that semester in order to upgrade his math grade. He graduated in June of 2015. For the most part he shared a pretty good relationship with his teachers and that he had a pretty consistent group of friends.

72Although he was not diagnosed with a specific learning disability, he was provided an Individualized Education Plan as an assessment found him to be a slow learner, he had deficits in managing his time and putting things in order. He was bused to an alternative school which focused on accessing learning through technology. He did not want to access the technology provided to him as “some of his peers saw him differently and some of them were not very kind.” He never really had a lot of confidence in himself or in his abilities. This plan transferred to secondary school as well.

73In September of 2016, he started college in London. He was enrolled in the computer science program in his first semester but changed to a General Arts program in second semester as he viewed computers as more of a hobby and consequently was not interested in pursuing a three-year degree program in this area of study. He passed his first semester and then just stopped showing up to school in his second semester as he was not really interested in his courses. He viewed his involvement in the program as being a “waste of time” as there were other students studying psychology and history at the university level and he did not have any interest in doing same.

74His mother stated that he lacked time management skills and as a result became overwhelmed with the requirements of the program and quit.

75He had a paper route while in grades seven through nine and secured a job at a grocery store when he was 14. He worked at grocery stores for more than five years. This continued upon his return home for school breaks from college.

76He left this when he secured a job with Honda in Alliston, through a family contact. He worked there for approximately two months, but he found it to be monotonous and he did not have any friends to socialize with in Alliston. He quit and returned home and secured a maintenance and cleaning job at a retirement home from February until June of 2019. He then left as he did not enjoy the job.

77He secured his present job with the Leggat Chevrolet Cadillac dealership in Burlington on September 3, 2019. He was initially hired for a detailing position and was then transferred to the porter department. He earns $15 per hour.

78His employer noted that he has demonstrated a positive attitude, dependability and reliability throughout his tenure.” He is aware of Mr. Kroeplin’s involvement in the offence currently before the Court and advised that they are willing to continue to employ him as long as his work ethic does not falter.

79He has never been fired from a job.

80In his leisure time he enjoys working on his car and playing computer games. Prior to his involvement in the offence he had a friend group, but he no longer associates with them as they call him a “criminal” and “don’t want to hang out” with him. He does not have any friends at the present time. He referred to the loss of his friend group as “ex-communication” and added that people do not want to “hang out” with people who possess his type of views.

81Mr. Kroeplin started to consume alcohol at the age of 14 years with “buddies on the bike path near the school.” He used to get drunk at school and found the idea of getting inebriated at school to be fun. He stopped drinking alcohol when he was 16 years of age as he has extended family members who suffer from alcoholism and he thought that he should stop. He does not consume alcohol currently.

82He started to use marijuana at the age of 13 years as he used to “hang out” with an older peer group. He has been using marijuana on a daily basis since the age of 13 years to the present time. He smokes “weed” five times per day. He also used “magic mushrooms” from the age of 14 years until his graduation from high school on a bi-monthly basis and he has used “magic mushrooms” periodically since that time. He stated that his use of said substance “takes a toll” in that it is “harder on one’s psyche.”

83He does not have a medical or mental health diagnosis.

84He attended six or seven sessions with a psychiatrist in the spring of 2018 after he returned home from college. His mother wanted him to see someone as she was of the opinion that he was “reclusive and full of angst.” He did not view the sessions as being productive and stopped attending.

85He is of the belief that further attendance at counselling would not be too productive as he is not articulate, and it is difficult for him to express his emotions. He describes himself as being “emotionally flat” and that he “conditions” himself when in the presence of his family to be more “upbeat” but in reality, he is “pretty dormant inside.” He reported that he currently just goes to work, goes home and smokes “weed.” The subject expressed that his only initiative to maintaining gainful employment is to get out of his parent’s house, other than that, he “can’t care less” with respect to his future.

86His mother has stated that when he was 19 years of age, he was not happy and was investigating places in Switzerland that offered assisted suicide. During that time he did not focus on his employment as he stated that he would not live that long. Medical issues began to manifest themselves, namely heart pain and arm pain.

87The family’s neighbours for more than ten years also have three children. They advise that Mr. Kroeplin has shared a particularly close friendship with their youngest son, has always been a true friend to him and was “ready to listen and provide a shoulder to lean on.” They describe him as being a “deeply sensitive and respectful young man” who has a caring nature and that “the qualities that make him who he is reflect his loving upbringing, strong bonds with his siblings and the Catholic schools that he has attended.” They referred to the offence as “a total aberration for him” and an “isolated situation that seemed to have gotten out of control.”

88Mr. Kroeplin has stated that he never wants to see Mr. Wasikiewicz again and does not want to have any contact with him. He met Mr. Wasikiewicz in the “smoker’s pit” in secondary school, his interactions with him were “bearable” and Mr. Wasikiewicz would “orbit” with respect to his social interactions.

89With respect to his involvement in the offence, he advised that he did not want to discuss his political views and that he did not have any other information to add to the Pre-Sentence Report.

90On February 21, 2020, he attended for the Shabbat service at Anshe Sholom Temple and met afterwards with Rabbi Jordan Cohen. He also made a donation to B’nai Brith in the amount of $185.40.

Background of Matthew Wasikiewicz

91I received a Pre-sentence Report and three letters from Dr. Anne Nwebube and from the PHAST (Prioritizing Health Through Acute Stabilization and Transition) Program and from the Canadian Mental Health Association. These documents and the submissions of counsel provided me with the following information about Mr. Wasikiewicz.

92He is 23 years old.

93He is the eldest of three children. His mother is employed as a seamstress and is currently taking insurance related courses.

94His father committed suicide in June of 2017 at the age of 43 years. He and his mother found his father hanging in the basement and he untied him as his mother called 911. His father had been employed as a transport driver.

95He has a 15-year-old brother and an 11-year-old sister.

96He gets along well with his mother but the offence currently before the Court has created a lot of friction. His mother continues to support him, but she is disappointed with respect to his actions. She does yell at him, but he is of the opinion that she has every right to do so.

97He experienced a good childhood and was well provided for with respect to food, shelter, clothing and gifts. His father would “break his back” to ensure that they had everything. In his youth, his father would take him on his runs to the United States and that as a family they enjoyed trips to Atlantic City and a few Caribbean destinations. His father always wanted to engage in family activities on his days off.

98He expressed that had his father been alive he has a strong feeling that he would not have involved himself in this offence and added that he does respect his mother.

99He shares a good relationship with his siblings and that he has a good, supportive environment at home. He sees his extended family on occasion and that he has contact with his maternal grandparents in Mississauga every two weeks.

100His father’s passing has affected him greatly and the memory of discovering his father’s body is one that will never leave him. His father was a “strong figure of support when alive.” He aims to do the best in the future so that he can provide full support for his younger siblings and mother. He hopes that, despite his current charge, he is an adequate role model for his siblings as he always encourages them and assists them with their school work.

101He has never been involved in a committed relationship.

102He attended a Catholic elementary school in Burlington. He did not involve himself in extra-curricular activities at school. He shared a “fine” relationship with his teachers and an “ok” relationship with his peers. He preferred his interactions with his peers in secondary school as there was a bigger student population, thus it was easier for him to find people with common interests.

103He attended the same Catholic secondary school in Burlington from grade nine through to the fall semester of his victory lap year. He did not involve himself in any extra-curricular activities, adding that he did not like “the whole organized aspect.” He felt that he had to choose between gainful employment and sports, and he thought that pursuing employment was a better and more practical option. He did not have any issues with his teachers but was somewhat immature and presented as being “a smart ass” at times. However, he always did everything that was required of him in class.

104He attended university in Hamilton in the fall of 2016 and left the following fall. Following the death of his father he had difficulty concentrating, was not enjoying his program and also was not doing well academically. He was however commended for being in the top 25% of a first year History class.

105He transferred to the University of Guelph in the fall of 2018 and is currently in his last full course semester. He has an additional two courses to complete in order to earn an Honours Bachelor of Arts in Criminal Justice. He found the atmosphere in Guelph to be more conducive.

106He secured his first job at a grocery store in grade ten and worked part-time for 14 to 15 months. He did not view this as a great job and secured a customer convenience position in July of 2014 at “a multinational conglomerate, that designs and sells ready-to-assemble furniture, kitchen appliances and home accessories.” He was fired from this job in September of 2016 as he could not stand working there and had differences of opinion with the manager.

107At the end of September 2016, he started working full days for a moving company and he found this job to be more practical as it was easier for him to plan ahead in that he was scheduled on the days that he did not attend school. He did not work for one month in July of 2017 due to the passing of his father and then secured a landscaping job for a period of a few weeks. He wanted to earn some money for the upcoming school year. He did not work from September of 2017 though to April of 2018 while attending university. From April of 2018 through to August of 2018 he was employed as a general labourer by a family friend in the construction industry. From October of 2018 through to December of 2018 he worked at an on-campus restaurant as a “stop-gap” situation where he could earn extra money and have additional responsibilities aside from his school work. He worked for a framer from January to February of 2019 and in residential painting from April of 2019 to August of 2019. He was doing clean up for a local builder but that ended in March of 2020 due to the COVID-19 pandemic. While in hospital in May of 2020 he met his next employer and worked in chimney restoration for approximately one month following his release from hospital. His employer suffered a subsequent breakdown bringing his business to a stand still. He has been employed on an on-call basis for a construction business since September of 2020.

108Marcin Grelak is a self-employed contractor who employed Mr. Wasikiewicz. He expressed that Mr. Wasikiewicz “has proven himself as an upstanding young man with a strong work ethic. He is empathetic and gets along well with others regardless of differences. As the construction industry employs workers from across the world, Matthew is well accustomed to working in diverse environments and acting in a polite manner to others regardless of background.”

109In his leisure time he enjoys reading about history, eco-systems and various other topics. He also enjoys hiking and swimming. He used to be a part of a larger social circle, however, many individuals cut ties with him due to his involvement in the offence currently before the Court. He expressed that he has one close friend and that he would rather have one close friend than ten false friends.

110He has resided at his current home since 2005. He owes approximately $16,000 t0 $18,000 dollars in student loans and has a $320 per month car payment.

111Mr. Wasikiewicz began consuming alcohol at the age of 19 years at social functions on a less than once per week basis. He went out more often when he was in university, however, he was still able to go to work. He is not currently consuming alcohol, but alcohol was an issue in April of 2020.

112He started using marijuana at the age of 18 years once or twice per week with friends, but he stopped using it late last year as he viewed it as being a waste of time and money.

113He saw a counsellor who was also a physician following the passing of his father in June of 2017. He saw him once every two weeks. The sessions were one hour in duration and focused on grief and general counselling. One of the reasons that he returned to school was that the counsellor emphasized to him the importance of obtaining an education. He ceased attending sessions in the spring of 2018 as he had started working and could not fit his appointments into his work schedule and he no longer needed to talk to the counsellor. He started seeing his counsellor again in February of 2020 but lost contact with him in April. He tried to re-connect following his release from hospital in September of 2020 but the counsellor had retired.

114He was taken to the Psychiatric Unit of the Joseph Brant Hospital on April 30, 2020.

115He was initially taken home after being caught outside of his residence past curfew in a heavily intoxicated state. He felt that he was going to go out like his father.

116The following day Halton Police Sergeant Kilfeather reviewed the report about this and followed up by attending at the residence where he was informed by the mother that he was not home and that he had told her that he “would be dead by the end of the week.” Sergeant Kilfeather was able to locate Mr. Wasikiewicz and following an assessment by the Mobile Crisis Rapid Response Team, he was formed and taken to Joseph Brant Hospital where he was admitted and remained for approximately one week.

117His admitting diagnosis was “Major Depressive Disorder, currently suicidal.” He was described as a pleasant, respectful and polite gentleman throughout his stay at the hospital. He engaged in counselling, took medication that assisted him with sleeping and “made significant improvement in mood and affect” while in hospital. The physician in charge of his care at Joseph Brant Hospital noted that he would not do well in jail and would likely do well with counselling and support in the community.

118Mr. Wasikiewicz still maintains contact with Sergeant Kilfeather. Since May of 2020 they have been meeting regularly and discussing various things. He appreciates the fact that Sergeant Kilfeather has taken an interest in him. He likens the situation to “being on probation already.”

119Sergeant Kilfeather is of the opinion that due to his father’s passing, Mr. Wasikiewicz was missing a strong male positive role model and was “filling the void” by associating himself with a negative dominant male peer group. He is of the opinion that Mr. Wasikiewicz knew that what he did was wrong, wanted to rectify it and views him as being “a complete success story thus far.” He is an impressionable young man. His father’s passing had a significant impact on him. He is not a “hateful person” but rather a very intelligent individual. He has taken full responsibility for his actions, does not make any excuses for his actions and recognizes that he needs to pay the consequences. He is of the belief that “the sky is the limit” for Mr. Wasikiewicz as long as he is surrounded by the proper influences. Sergeant Kilfeather will continue to communicate with Mr. Wasikiewicz for as long as he is wanting that communication.

120Following his release from the hospital Mr. Wasikiewicz was also given a telephone consultation by a physician on May 25, 2020. It was noted that he had discontinued all medications that were started while he was in the hospital. He did not like the way the medication made him feel and was of the opinion that his “cognitive distortions and perceptions would be more effectively treated with cognitive behavior therapy.” He advised that if said therapy” does not produce the changes in his mental health that he is hoping for then he would be willing to talk about medications. He was advised to secure a family physician and was also encouraged to follow through with his referral to the PHAST program.

121He did complete the PHAST Program. He was also connected to CMHA caseworkers. They report that he “has been keeping in touch by telephone contact and video conference on a regular basis”. He has been responsible in keeping in touch with them and “has taken his court matters very seriously and has expressed remorse regarding the incident.” He has been cooperative, very organized, punctual with respect to his appointments and very responsible.” In addition, his “main goal was to secure a volunteering position so he could give back to his community” and that together they were able to secure a volunteer position during the pandemic with the Good Shepherd Centre in Hamilton. He started volunteering at the end of August 2020 and has since completed 80 volunteer hours. He has expressed that he is not just at the Centre to accumulate hours but feels that he does contribute to the cause and recognizes that small efforts can make a big difference in people’s lives.

122Janusz Ziemianin, his maternal Uncle and Godfather described Mr. Wasikiewicz as a respectful, diligent young man who is “strongly committed” to completing his university degree. He “has never shown any indication of an attitude that could lead to this matter”. Mr. Ziemianin is of the “firm belief that this matter does not represent him as a person.”

123Declan Griffin is a friend who has known Mr. Wasikiewicz for eight years. He described him as being “a smart, dependable person, who has always placed value on attending and completing school and maintains a strong work ethic by holding employment while being in school.” He helps to support his mother and siblings through his employment “while remaining committed to completing his school work. Mr. Griffin believes that the offence is not representative of his character.

124Mr. Wasikiewicz is of the belief that he and Mr. Kroeplin were a negative influence on one another and that they need to go their separate ways.

125He would like to move away from this as far as he can with respect to his future.

Analysis

126Doherty J.A. aptly described my task here when he began the judgment in R. v. Hamilton, supra by stating:

The imposition of a fit sentence can be as difficult a task as any faced by a trial judge. [30]

127Sentencing is not an exact science. The determination of the sentence that is just and appropriate in a given case is "a highly individualized exercise that goes beyond a purely mathematical calculation." [31]

128I must craft a sentence that is proportionate to the gravity of the offence committed and the degree of responsibility of Mr. Kroeplin and Mr. Wasikiewicz and yet, at the same time, one that is responsive to their unique circumstances.

129I must consider both the aggravating factors and the mitigating factors when determining the appropriate sentence here.

130The aggravating factors are found in the simple facts of the offence itself.

131They went to two public buildings in downtown Burlington and put up posters that depicted Jews and Black people as vermin who ought to be eradicated.

132Such hatemongering and incitement to violence is intolerable in Canada today.

133Historically, both Jews and Blacks have been the targets of such behaviour. The Community Impact Statements speak to that quite eloquently. In that regard I will not repeat here all that is set out in them. I will however repeat the following.

134Mr. Ukashi’s stated that:

these images create a hostile environment that sends a clear message: Jews are not welcome; they should feel unsafe; and they should fear for their personal and community safety.

135Mr. Scott wrote that:

Every time hate crimes happen it reinforces the fear, anxiety, and feelings of inequity that people of Colour experience. It says that claims of inclusivity for all are not to be believed by our communities. That they are motherhood statements that do not represent their reality, and can therefore not be trusted.

136Clearly, these acts had a significant impact on the two communities that they targeted.

137I must however put the facts here into context and recognize that what was done in many of the other cases cited before me was much worse.

138This offence occurred once, on a single night. The posters were put up at two locations but the Elgin Street entrance to Burlington City Hall is an easy five-minute walk from the Art Gallery.

139Mr. Kroeplin and Mr. Wasikiewicz did not create the posters themselves. I was not told where the images came from, but I assume that they found them on the internet and printed copies.

140There is no evidence of any long-term premeditation or planning. Having said that, I note that this also cannot be described as something done on impulse. It would have taken time to find these particular posters, to download them and print them and then to transport them to their final locations where they put them up. There would have been ample opportunities throughout this to pause and reflect on what they were doing and to stop.

141While the posters were put up in public places, the locations held no particular significance for either the Black or the Jewish community. This is very different from R. v. Lelas [32] where the offender spray-painted swastikas on the door of a synagogue, spray-painted anti-Semitic slogans on the synagogue's property, spray-painted a swastika on the sign of a Hebrew school and anti-Semitic slogans on the door.

142Further the posters were quickly and easily removed once they were discovered. It would appear that they were not up for very long.

143These two young men had no pulpit from which they preached their message of religious and racial hatred. They were not teachers attempting to influence students. They did not publish a newspaper spreading their message. They did not use the internet to spread that message. Their method was very low-tech by today’s standards.

144I am mindful of the fact that none of the above constitutes a mitigating factor. I am simply recognizing the absence of things that would have made their offence even worse.

145There are some actual mitigating factors.

146Both of them are young men. Neither has a prior criminal record.

147They pled guilty. I take that to be an acceptance of responsibility and an expression of remorse. They have consistently expressed that remorse since being charged.

148Their pleas have made it unnecessary for anyone in the Black or Jewish communities to have to go through the emotional stress of a trial.

149Mr. Kroeplin was a slow learner in school and something of a loner. He was not able to cope with college. He has never been in an intimate relationship. He reached the point where he was considering assisted suicide.

150Mr. Wasikiewicz was traumatized by his father’s suicide. He found his father dead and cut him down. He entered university without a clear sense of direction and dropped out. More recently, he was admitted to hospital pursuant to the Mental Health Act and spent some time there.

151None of this constitutes a mitigating factor. The mitigating factor is that they appear to have recognized that they have these various issues and have taken steps to address them.

152Having said that I make the following observations.

153While I am satisfied that both young men are truly remorseful, I am very uncertain as to the degree of insight that they have into what they did.

154I do not know why they did these things. Nobody has told me anything in that regard. There is nothing before me to indicate that they held strong racist beliefs in the past and ordinarily I would see that as a good thing. Here it just leaves me asking, “why”.

155More concerning to me is that I do not know if they know why they did this. Accordingly, I cannot be certain that the steps they have taken will address the appropriate issues. I do note that neither of them sought out a counsellor or a doctor for that specific purpose. Any professional intervention has been to address more long-term issues which may or may not have played a part in the offence.

156To their credit, while both young men have gone through a great many jobs in their short lives, I note that they keep finding new work. That is a positive sign.

157Mr. Wasikiewicz has returned to a different university and is about to graduate.

158Both have the support of family and of some friends. Mr. Wasikiewicz also has the support of Sgt Kilfeather and local mental health agencies. This speaks well to their prospects of rehabilitation.

159Both of them have already paid a price for their offence in that they have both been ostracized for it. While some friends have stood by them, many if not most, have not. Total strangers can now find references to Mr. Kroeplin and Mr. Wasikiewicz on the internet and what is said there is far from kind.

160They have been subject to a curfew from 10 pm to 6 am daily since being charged 15 months ago. This does not qualify them for credit similar to R. v. Downes [33] but it is a factor I should consider.

161Counsel for Mr. Kroeplin asked me to give weight to the fact that Crown counsel elected to proceed summarily. I am not prepared to do this. The election certainly carries with it a lesser maximum sentence, but Crown counsel has asked for a sentence that is shorter than that in any event.

162Crown counsel asked me to give weight to the fact that Parliament has increased the maximum sentence albeit after the offence was committed. I recognize that this can be appropriate [34] in many cases but not in this one. Parliament increased the maximum sentence for summary conviction offences in general. It did not do so for the current offence in particular. In fact, Parliament left intact the maximum sentence for this offence where the Crown proceeds by indictment.

163Taking all of the above into account, I am satisfied that denunciation and deterrence are the most important sentencing objectives in this case.

164The message must go out loud and clear that conduct such as that engaged in by these young men will not be tolerated in Canadian society, and if it is engaged in, it will be met with a severe penalty. [35]

165I have no hesitation in concluding that a conditional discharge will not deliver such a message in this case. I find that a conditional discharge would be contrary to the public interest here.

166I further find that a suspended sentence would also be insufficient.

167As I see it, the only question before me is whether I should send them to jail or impose conditional sentences.

168Jail is very much within the range of appropriate sentence.

169Saying that, I note that I was satisfied that imprisonment for a period at the low end of the range suggested by Crown counsel, that is three months, would have been an appropriate sentence had I chosen to send Mr. Kroeplin and Mr. Wasikiewicz to jail.

170I would have rounded that down to 90 days to permit them to serve their time intermittently so that they could continue to work or complete their studies at university.

171I understand however that in the current Covid climate, the jails are simply placing people who receive intermittent sentences in temporary absence programs. In other words, they would not serve any time in an actual jail if I imposed an intermittent sentence.

172Alternatively, I could impose a longer conditional sentence of imprisonment.

173The Supreme Court of Canada expressly said in R. v. Proulx, supra that a conditional sentence is "a punitive sanction capable of achieving the objectives of denunciation and deterrence" [36]

174Justice Blouin said the same thing while sentencing Mr. St Germain in R. v. Sears, supra: “The principle of denunciation and deterrence can be met with a conditional sentence as long as there is, contained within, a punitive aspect.” [37]

175In R. v. Wismayer, Rosenberg J.A. said that there is no rule that a conditional sentence is never available for any particular kind of offence. [38] The cases provided to me by counsel, including R. v. Sears, make it clear that it may be appropriate in cases such as this one.

176In light of the maximum sentence I can impose a conditional sentence of imprisonment for six months.

177I can include a home confinement term for the whole six months. That will provide a punitive aspect to the sentence.

178I can prohibit the consumption of alcohol or cannabis during that time. These substances would not be available in jail and they should not be available while under house arrest either.

179I can impose probation to follow for another two years.

180I can include a curfew for the first six months of that order. That will add a further punitive aspect to the sentence and also contribute to rehabilitation.

181I can include a provision for the maximum allowable hours (240) of community service. Community service orders were introduced approximately 40 years ago. At the time they were touted as an alternative to imprisonment. Clearly, they can have a deterrent effect. They also provide an element of restorative justice as they require offenders such as Mr. Kroeplin and Mr. Wasikiewicz to give something back to the community. This can also serve a rehabilitative purpose.

182Fairness dictates that I credit Mr. Wasikiewicz for the volunteer hours (80) that he has already put in. I will also credit Mr. Kroeplin with 15 hours to reflect the donation he made to B’nai Brith.

183I have chosen to make the community service order part of the probation rather than the conditional sentence. Hopefully Covid will not be a problem six months from now when the probation starts.

184I can keep Mr. Kroeplin and Mr. Wasikiewicz away from each other for the combined duration of the conditional sentence and probation.

185Finally, I can require that they attend for counselling throughout that combined period. I have concerns about their willingness to fully commit themselves of their own volition in this regard. Including a counselling provision in both orders goes some way to remedy that. A counselling requirement will also contribute to their rehabilitation. That in turn will reduce the likelihood that either of them will reoffend.

186I am satisfied that such a conditional sentence of imprisonment would be consistent with the fundamental purpose and principles of sentence. It addresses the need for denunciation and deterrence, while also having a proper regard for rehabilitation and restorative justice.

Sentence

187For all of the above reasons, I sentence Mr. Kroeplin and Mr. Wasikiewicz to a conditional sentence of imprisonment for six months, to be served in the community. That will be followed by probation for two years.

188The terms of the conditional sentences of imprisonment will require that both of them:

1. keep the peace and be of good behaviour;

2. appear before the court when required to do so by the court;

3. report to a supervisor within two working days and thereafter report when required by the supervisor and in the manner directed by the supervisor;

4. notify the supervisor in advance of any change of name or address, and promptly notify the supervisor of any change of employment or occupation;

5. remain within the Province of Ontario unless written permission to go outside the Province is obtained from the court or the supervisor;

6. cooperate with his supervisor. He must sign any releases necessary to permit the supervisor to monitor his compliance and he must provide proof of compliance with any condition of this order to his supervisor on request

189Mr. Kroeplin will live at […], Burlington, Ontario or at an address approved of by the supervisor and not change that address without obtaining the consent of the supervisor in advance.

190Mr. Wasikiewicz will live at […], Burlington, Ontario or at an address approved of by the supervisor and not change that address without obtaining the consent of the supervisor in advance.

191Each of them is subject to the following:

1. A home confinement condition will be in effect for the full duration of this sentence.

2. During that time, he will remain in his residence or on the property of his residence at all times except

(a) between 1 pm and 5 pm on Saturdays in order to acquire the necessities of life,

(b) for any medical emergency involving him or any member of his immediate family (spouse, child, parent, sibling),

(c) for going directly to and from or being at school, employment, court attendance, religious services and legal or medical or dental appointments, or looking for work,

(d) for going directly to and from or being at assessment, treatment or counselling sessions

(e) he will confirm his schedule in advance with his supervisor setting out the times for these activities

(f) with the prior written approval of the supervisor. The written permission of the supervisor is to be carried with him during these times.

3. During the period of home confinement, he must present himself at his doorway upon the request of his supervisor or a peace officer for the purpose of verifying his compliance with his home confinement condition.

192Mr. Kroeplin will not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with Matthew Wasikiewicz.

193Mr. Wasikiewicz will not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with Kyle Kroeplin.

194Each of them will

1. not possess any weapon(s) as defined by the Criminal Code (for example: a BB gun, pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon, ammunition, or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person;

2. not buy, possess or consume alcohol or cannabis;

3. attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the supervisor, and complete them to the satisfaction of the supervisor for anger management, psychiatric or psychological issues, stress management, bereavement / grief issues, life skills, history of the Black or Jewish communities in Canada, or any other program directed by his supervisor;

4. make reasonable efforts to seek and maintain suitable work or attend school.

195The terms of the probation will require that both of them:

1. keep the peace and be of good behaviour;

2. appear before the court when required to do so by the court;

3. notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation;

4. report to a probation officer within two working days of completing his conditional sentence of imprisonment and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in his supervision;

5. cooperate with his probation officer. He must sign any releases necessary to permit the probation officer to monitor his compliance and he must provide proof of compliance with any condition of this order to his probation officer on request;

6. Live at a place approved of by the probation officer and not change that address without obtaining the consent of the probation officer in advance;

7. For the first six months of this order; remain in his residence between the hours of 10:00 pm and 6:00 am, except

(a) for any medical emergency involving him or any member of his immediate family (spouse, child, parent, sibling),

(b) travelling directly to and from and while at work or school,

(c) he will confirm his schedule in advance with his probation officer setting out the times for these activities

(d) with the prior written approval of the probation officer. The written permission of the probation officer is to be carried with him during these times.

196Mr. Kroeplin will not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with Matthew Wasikiewicz.

197Mr. Wasikiewicz will not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with Kyle Kroeplin.

198Each of them will

1. not possess any weapon(s) as defined by the Criminal Code (for example: a BB gun, pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon, ammunition, or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person;

2. attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the probation officer, and complete them to the satisfaction of the probation officer for anger management, psychiatric or psychological issues, stress management, bereavement / grief issues, life skills, history of the Black or Jewish communities in Canada, or any other program directed by his probation officer;

3. make reasonable efforts to seek and maintain suitable work or attend school.

199Mr. Kroeplin will perform 225 hours of community service work. This work is to commence by August 1, 2021 and shall be completed at a rate of not less than 15 hours per month. He shall complete the work as directed by and to the satisfaction of the probation officer. He shall complete all of his community service hours by / within 18 months.

200Mr. Wasikiewicz will perform 160 hours of community service work. This work is to commence by August 1, 2021 and shall be completed at a rate of not less than 15 hours per month. He shall complete the work as directed by and to the satisfaction of the probation officer. He shall complete all of his community service hours by / within 18 months.

Released: January 8, 2021 Signed: Justice D.A. Harris

1Regina v. Sanchez-Pino, [1973] O.J. No. 1903 (Ont. C.A.) per Arnup J.A. at paras. 16 to 18.

2R. v. Fallofield, [1973] B.C.J. No. 55 (B.C.C.A.) at para. 21.

3R. v. Meneses, [1974] O.J. No. 736 (Ont. C.A.) per Dubin J.A.) at para. 7; See also R v. Moreau (1992), 76 C.C.C. (3d) 181 (Que.C.A.).

4R. v. Meneses, supra at para. 9.

5Ibid, at para. 10.

6Ibid, at para. 12.

7R. v. Carson, [2004] O.J. No. 1530 (Ont. C.A.) at para. 38.

8R. v. Swierszcz, [2006] O.J. No. 1088 (Ont. C.A.) at para. 5; see also R. v. Preston, [2008] O.J. No. 5136 (Ont. C.A.); R. v. Pham, [2013] S.C.J. No. 100 (S.C.C.) at paras. 11 to 20; R. v. Hamilton, [2004] O.J. No. 3252 (Ont. C.A.) at paras. 156 to 158.

9R. v. Hayes, [1999] O.J. No. 938, (Ont. S.C.J.) Summary Conviction Appeal per Hill J. at para. 32; R. v. Barilko, [2014] O.J. No. 792 (Ont. S.C.J.) Summary Conviction Appeal per Hill J. at para. 31; R. v. Berseth, [2019] O.J. No. 2732 (Ont. S.C.J.) Summary Conviction Appeal before Durno J. at para 47. See also Regina v. Vincente (1975), 18 Crim. L.Q. 292 (Ont. C.A.).

10Ibid. See also Regina v. Taylor (1975), 24 C.C.C. (2d) 551 (Ont. C.A.), at 552.

11Ibid. See also Regina v. Myers (1978), 37 C.C.C. (2d) 182 (Ont. C.A.) at pp. 184-5; Regina v. Culley (1977), 36 C.C.C. (2d) 433 (Ont. C.A.), at p. 435.

12Ibid. See also Regina v. Cheung and Chow (1976), 19 Crim. L.Q. 281 (Ont. C.A.).

13R. v. Proulx, [2000] S.C.J. No. 6 (S.C.C.) at para. 12.

14Ibid, at para. 21.

15R. v. Hamilton, supra at para. 102; R. v. Lyons, [1987] 2 S.C.R. 309 (S.C.C.) at para. 26; R. v. Morrisey, [2000] S.C.J. No. 39 (S.C.C.) at para. 46.

16Criminal Code, section 718.1

17R. v. Hamilton, supra, at para. 90.

18Ibid, at para. 91.

19R. v. Priest, [1996] O.J. No. 3369 (Ont. C.A.) at para. 26, quoted in R. v. Hamilton, supra, at para. 92.

20Gladue v. The Queen, [1999] S.C.J. No. 19 (S.C.C.) at para. 36; see also R. v. Proulx, supra, at para. 20.

21R. v. Priest, supra at para 17.

22R. v. Disher, [2020] O.J. No. 4849 (Ont. C.A) released Nov 9, 2020, at para 59.

23Gladue v. The Queen, [1999] S.C.J. No. 19 (S.C.C.) at paras. 43 and 48; see also R. v. Proulx, [2000] S.C.J. No. 6 (S.C.C.), at paras. 18 to 20.

24It has since been amended and as of September 19, 2019 the maximum sentence would have been imprisonment for two years less one day. I do note that no change was made to the maximum sentence in cases where the Crown proceeded by indictment.

25R. v. Hearns, [2020] O.J. No. 1648 (Ont. S.C.J.) per Pomerance J. at para. 14.

26Ibid, at paras. 15 to 18.

27R. v. Vigon-Campuzano, [2020] O.J. No. 4020 (Ont. S.C.J.) per D.E. Harris J. at paras. 52 and 53. I point out that while Crown counsel in that case apparently took the position that COVID is irrelevant, Crown counsel did not advocate a similar position before me.

28R. v. Friesen, [2019] S.C.J. No. 100 (S.C.C.). In this case the Supreme Court of Canada provided a detailed analysis of the sentencing principles to be applied in cases where an adult has sexually abused a child. Some of their comments however are applicable here.

29Ibid, at para. 91

30R. v. Hamilton, supra at para.1

31R. v. Muzzo, [2016] O.J. No. 1506 (Ont. S.C.J.) per Fuerst J. at para. 59.

32R. v. Lelas, [1990] O.J. No. 1587 (C.A.)

33R. v. Downes, [2006] O.J. No. 555 (Ont. C.A.) per Rosenberg J.A.

34See R. v. Friesen, supra.

35R. v. Lelas, [1990] O.J. No. 1587 (C.A.) para. 31. See also R. v. Keegstra, 1996 ABCA 308 at para 11. Quoted in R. v. Sears, [2019] O.J. No. 4525 (Ont. O.C.J.) per Blouin J. at paras. 21 to 23.

36R. v. Proulx, supra, at para. 22.

37R. v. Sears, supra at para. 34.

38R. v. Wismayer (1997), 33 O.R. (3d) 225 (Ont. C.A.) per Rosenberg J.A. at para 36. See also para. 50.