ONTARIO COURT OF JUSTICE DATE: 2021·05·05 COURT FILE No.: Toronto 4817 998 18-75000396:00; 4817 998 18-75000575:00
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
JADE ELIZABETH THELWEL
Before Justice H. Borenstein
Reasons for Sentence delivered orally on May 5, 2021
Ms. Sandra Duffey ................................................................................. counsel for the Crown Mr. Daniel Kayfetz .................................. counsel for the defendant Jade Elizabeth Thelwel
BORENSTEIN, J.:
1Jade Thelwel pled guilty to two counts of breaching Court Orders that ordered her not to communicate or post comments online about Luke Halstead or Andrei Korottchenko.
2These breaches occurred in January 2018, over three years ago. Ms. Thelwel was 25 years old at the time. She is now 29. She had no criminal record.
3The Crown seeks a suspended sentence plus probation. Ms. Thelwel seeks an absolute discharge.
4Ms. Thelwel is a country music singer and performs under the name Jade Naraine. She has a public profile including a significant social media presence. She, or her management company, write extensively on her social media platform.
5Ms. Thelwel met Mr. Korottchenko in 2016 and Mr. Hallstead 2017. She dated both men. Those relationships both ended. However, following the end of her relationships, Ms. Thelwel engaged in a sustained online attack against both men. She used her social media platforms to accuse one or the other or both of all sorts of activities including stealing, using drugs, lying, abusing women, engaging in criminal behaviour, including sexual assault. Whether she actually believes these comments or not, she went to the police with her allegations. The police investigated and concluded there was no basis to charge either man. Yet Ms. Thelwel kept writing about these men and her view of the poor police investigations. She sued the police and others involved.
6Finally, she was arrested for harassment and as a condition of her release, she was ordered to stop contacting or posting comments online about these men. She violated those Orders twice.
7I will not repeat the specifics of her writings in this judgment as I do not want to give them any further oxygen. Her postings are exhibits at this trial but, like the no contact breach, Ms. Thelwel engaged in very manipulative, focused attempts to harm these men by her public writings.
8Fortunately, she has taken down her offensive posts and has stopped communicating and writing about these men. Through her lawyer, she says she will stop and wants to move on with her life.
9Her writings about the two men caused them both harm – emotionally and otherwise.
10Both told the author of the Pre-sentence Report about the negative impact of Ms. Thelwel’s conduct. They want her out of their lives. Mr. Hallstead wrote a Victim Impact Statement where he writes:
My involvement with Ms. Thelwel has been the most uniquely traumatic experience of my life I am an army veteran and a first responder with PTSD OCD and major depression. The continued unwanted contact by Mr. Thelwel has been a constant stressor in my life which has contributed to and functionally halted my ability to recover from these conditions. My exacerbated mental health issues have caused a great deal of interference in my relationships with my friends family and my domestic partner. I have quite simply never been through a situation as horrendous as this in my entire military career or during my service as a paramedic. I will be recovering from the emotional trauma brought up on by Ms. Thelwel for years if not the rest of my life.
Ms. Thelwel’s Personal Circumstances
11Ms. Thelwel is now 29 years old. She was 25 at the time of these offences. She had no criminal record. Most of the information about her background comes from the Pre-sentence Report, which is largely based on what Ms. Thelwel told the author. According to the Report, Ms. Thelwel’s parents separated when Ms. Thelwel was very young. Her father had apparently been physically and emotionally abusive to her mother, and her mother left the situation. Her mother had drug and alcohol abuse issues she had to deal with, so Ms. Thelwel was raised for six years by her grandmother with whom she is still close. She has little contact with her mother at present and no relationship with her father.
12Following high school, Ms. Thelwel studied creative writing at the University of Toronto for two years but left school to pursue a career as a singer songwriter. She has had success in this field. She has a music producer and her songs are on the charts in the United States. She earns her living through music. She is also taking courses at Lakehead University, and wants to go to law school. She does not have any substance abuse issues.
13Since 2020, she has been on medication for depression and anxiety which has helped her.
Positions of Crown and Defence
14The Crown submits that a suspended sentence and three years’ probation would be a fit sentence in the circumstances for a first offender.
15The defence seeks an absolute discharge arguing that the communication has stopped, Ms. Thelwel pled guilty, has gone to counselling and has removed the posts.
Aggravating and Mitigating Factors
16The aggravating factors are the sustained campaign to publicly vilify these two men. Courts tried to stop it and Ms. Thelwel persisted. The impact on the victims is serious. These men are the victims of this crime, not her, and they have a right to be left alone.
17By way of mitigation, Ms. Thelwel has pled guilty. She has begun to take responsibility for her own conduct by pleading guilty. She has taken counselling. I am aware of her background. She has a promising career and I do not want to interfere with her pursuit of that career.
Principles of Sentencing
18The sentencing principles of deterrence, denunciation and rehabilitation are all relevant in this case. When sentencing a first offender, the Court tries to focus more heavily on the offender’s rehabilitation where appropriate. Ms. Thelwel is a first offender who has pled guilty and her rehabilitation will be given strong consideration.
19However, the context of these breaches is important. Ms. Thelwel was on a campaign against both men making public allegations, both criminal and otherwise. When the police determined that charges were not warranted, Ms. Thelwel persisted in her harassing posts and communication. She was eventually arrested and released on Court-ordered conditions to stop communicating and posting about the men. She violated those Orders twice. These men deserve to be left alone. Deterrence to her and others as well as denunciation will be factored into this sentence as well.
Decision
20The issue in dispute between the Crown and Defence is whether a discharge should be granted. Defence seeks an absolute discharge.
21Pursuant to section 730 of the Criminal Code, a discharge may be appropriate if it is in the accused’s interest and not contrary to the interests of justice. It must be consistent with the principles of sentencing. A discharge is not restricted to trivial offences.
22A discharge is in Ms. Thelwel’s best interest to be sure. She was a first offender. She is a performing artist with the potential for international travel. A criminal record could impact her ability to travel.
23The tougher question is whether it is contrary to the public interest.
24Respect for orders of release is critical. The Courts strive to release as many people as possible. Conditions are tailored to increase the possibility of release but they are imposed to protect the public and to ensure an accused’s attendance in court. Courts and the public need to know that the conditions will be respected. Or at least, serious consequences will flow from a willful breach of those conditions.
25The harm done to the victims in this case increase the seriousness of the offending conduct and the need to denounce and deter Ms. Thelwel and others. I recognize that she has pled guilty to breaching the terms of the Court Orders and not harassment. However, again the context is important, she was released on the substantive charges on the basis that she would not contact these men or post about them online.
In my view, despite the aggravating features of this case, a conditional discharge would not be contrary to the public interest for the following reasons:
- Ms. Thelwel was a first offender.
- She pled guilty to the breaches.
- She removed the offending content and stopped communicating with the victims.
- More than three years have passed since this offence.
- She was 25 at the time and is now 29.
- She spent 40 days in jail, the equivalent of six months, which is a very significant penalty for a first offender who pled guilty. The sting of actual jail would have a deterrent effect on her and others. She was also on bail with restrictions including travel.
- She has real prospects for rehabilitation and it is in society’s interest that her rehabilitation continue and that she be able to work and become a positive contributing member to society.
26For these reasons, and although it is a close call, I will give her a discharge. But it will not be an absolute discharge. It will be conditional. She will be placed on probation for two years, effectively providing control and protection to the victims for five years. It is my hope that, as she says, and with counselling, she will move on with her life. If she contacts the victims, or otherwise re-offends, her record will remain.
27The terms of the probation will be as follows:
- She will be subject to all the mandatory terms of probation.
- She will have no contact, directly or indirectly with either Mr. Hallstead or Mr. Korottchenko nor will she post any comments about either man on the internet.
28She will perform 50 hours of community service to the satisfaction of her probation officer.
Released: May 5, 2021 Signed: “Justice H. Borenstein”