The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.5 (1) or (2) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.5 (1) or (2), read as follows:
486.5 ORDER RESTRICTING PUBLICATION — VICTIMS AND WITNESSES — (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
(2) JUSTICE SYSTEM PARTICIPANTS — On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
(2.1) OFFENCES – The offences for the purposes of subsection (2) are
(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;
(b) a terrorism offence;
(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or
(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
(3) LIMITATION – An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5 (1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: 2023 06 28 COURT FILE No.: Toronto 22-70002576
BETWEEN:
HIS MAJESTY THE KING
— AND —
DAVID CROWE
Sentencing Judgment
Before Justice B. Jones
Heard on May 30, 2023
Reasons for Judgment released on June 28, 2023
K. Hebert............................................................................................... counsel for the Crown S. Weinstein……………………………………………………………counsel for D. Crowe
Jones J.:
Introduction
[1] David Crowe and Z.J. met in 2016. For nearly two years, they were in a healthy, loving relationship. Yet the relationship came to an end on April 26, 2018, when Ms. J. decided its time had passed. Shortly thereafter she informed Mr. Crowe that she did not want any further contact.
[2] Unfortunately, Mr. Crowe was unwilling to accept her decision. What happened over the following 14 months resulted in him being found guilty after a trial of criminal harassment, harassing communications, mischief under $5000, three counts of failing to comply with a probation order, two counts of failing to comply with a release order, and one count of impersonation to gain an advantage.
[3] On May 30, 2023, a sentencing hearing was conducted. The Crown seeks a global sentence of two years less a day in custody followed by three years of probation. The defence argues that Mr. Crowe has already served a sufficient period in custody and requests a suspended sentence, but does not dispute the appropriateness of a lengthy probation order.
Summary of the Offences
[4] Ms. J. and Mr. Crowe met each other on a movie set. They were both actors. Following their breakup, she continued to work as an actor in Stratford in the theatre industry.
[5] Between April 30 and June 9, 2018, Mr. Crowe sent Ms. J. a considerable number of text messages and emails in a futile attempt to rekindle their relationship. Some of these messages were kind. Others were very mean-spirited and accused Ms. J. of being cruel, selfish and having abandoned him. They were sometimes laced with profanity and included demeaning language. For example, he referred to her as a “shallow selfish bitch.”
[6] On May 9, 2018, Ms. J. met with Mr. Crowe in Stratford face to face. She told him again the relationship was over. He still refused to move on maturely and respectfully. A few days later, he texted her that he would “lash out in anger, to hurt and destroy what I perceive as the cause of that pain.” He warned her he would ruin her acting performances and her reputation in the community.
[7] Ms. J. ignored Mr. Crowe’s text messages and emails. She then began to receive electronic messages from ostensibly “anonymous” sources which I found were all authored by Mr. Crowe. These were often vulgar, hateful, demeaning and intended to cause Ms. J. to fear for her safety. For example, on May 18, Mr. Crowe wrote to her from an unknown phone number, “I hate this silence. Makes me violent” and that he “can’t wait to see you you dirty cunt.”
[8] On May 22, Ms. J. wrote to him that she wanted all communication to stop immediately. Nevertheless, the messages continued.
[9] In June 2018, Mr. Crowe publicly displayed posters of Ms. J. around the theatre district in Stratford. In the centre of each poster was a copy of her professional headshot. Her name was written in a large font next to a title of a play she had a role in entitled “An Ideal Husband.” At the top of the poster, written in large, bold letters, was “I’ve had an STD, have you? Ask me which one.”
[10] On August 29, 2018, Mr. Crowe sent her an email from an anonymous account with a link to an online advertisement on a website known for promoting sexual services. Mr. Crowe wrote in the email, “This seems a most unlikely moonlighting gig.” The link led to a webpage that contained Ms. J.’s headshot picture, referenced her acting role in “An Ideal Husband”, and referred to her as a “selfish lover.” It also contained text, meant to appear as if she authored it herself, that stated, “I love rape fantasies!” and “No more nice guys. Not for this girl!” She received many lurid emails due to this fraudulent advertisement.
[11] Ms. J. left Stratford concluding she could no longer live and work there. She stayed with her mother for some time in Toronto. In 2019 Mr. Crowe tracked her down and more posters appeared at various locations across the city. These were similar to the posters that were placed in Stratford. Some posters were placed around Ms. J.’s mother’s home and others at her former places of education or employment. They were also placed at several businesses associated with the theatre industry. The posters were intended to harm to Ms. J’s acting career as well as to cause her emotional distress.
[12] In early 2019 Ms. J.’s mother found a box at her home that appeared to be from a chocolate store in Stratford. Inside the box were not chocolates but over-the-counter gas pills. Ms. J. had some medical issues with bloating. She enjoyed this chocolate store when she resided in Stratford. I found that Mr. Crowe either personally delivered this box or had someone else do it on his behalf. The box was meant to convey a message to Ms. J. that Mr. Crowe knew where she could be located and she would never be free from him.
[13] In the first six months of 2019, Mr. Crowe placed more posters of Ms. J. at various locations in Toronto. These posters were like the ones placed in Stratford. They appeared near Ms. J.’s mother’s home, where she went to school and worked, and businesses associated with the theatre industry. He also impersonated Mr. T. Sawtell to rent a vehicle unlawfully. He used this vehicle when travelling to some locations in Toronto where he placed some of the posters to evade detection.
[14] Mr. Crowe continued to send Ms. J. unwanted text messages. He repeated his accusations that she was responsible for her fate and was a terrible person. They regularly included profanity and threatening language. The messages did not stop until he was arrested on June 25, 2019. He was initially denied bail.
[15] Mr. Crowe was bound by a probation order when he harassed Ms. J. Each count of failing to comply with probation was a result of him not keeping the peace and being of good behaviour.
[16] Mr. Crowe was also bound by a recognizance of bail after October 13, 2018. The bail order prohibited him from contacting Ms. J. He breached that order intentionally by sending Ms. J. text messages after that date. He was also living outside of Ontario and was prohibited from being within 25 km of anywhere he knew Ms. J. to live, work or happen to be. When he placed the posters in Toronto he violated that term as well.
Victim Impact Statements
[17] Ms. J. presented her victim impact statement personally in court. She was terrified of Mr. Crowe’s harassment. She turned her life upside down to avoid contact with him. She changed phone companies, moved, and stopped using social media. Yet he continued to find and torment her. She felt shame and guilt about his anger towards her. She lost control over her career, privacy, social life, and personal relationships.
[18] She described the intense fear that overcame her when she worried about Mr. Crowe’s potential for retaliation if she spoke out against his abuse. She was afraid to even report his conduct to the police as it might aggravate him further. She worried he would harm her family or friends as well.
[19] She felt worthless, and undeserving of love. She wondered if she was somehow responsible for Mr. Crowe’s conduct. She did not want to explore new opportunities in her life as she felt emotionally unstable and had difficulty trusting people.
[20] While she is currently working in television and film, she has not been able to return to public performances in the theatre industry. She does not feel safe appearing in public. She is constantly troubled by who may have seen the posters and the damage done to her reputation.
[21] Ms. A. was very upset by what happened to her daughter. The harassment affected her life as well, including her emotional and physical health. She had to refuse some work assignments to care for her daughter. She would check her own home regularly as Mr. Crowe knew where they lived.
[22] Mr. Hickman was a member of the community where some of the posters were located. He felt the safety of the community was impacted by Mr. Crowe’s conduct. He described how he and his partner, Ms. Ironside, altered their daily lives and routines. In particular, he feared for Ms. Ironside’s safety knowing that someone who would engage in this type of harassment was potentially lurking in the neighbourhood. It continues to affect him to the present day.
[23] Ms. Ironside filed a community impact statement as well. She witnessed the posters in public areas. She feared for her safety and the safety Ms. J.
[24] Mr. Sawtell, who had his identity misappropriated by Mr. Crowe, explained that he has suffered ongoing financial and reputational damage for himself and his business. I place limited weight on his victim impact information, only because I found Mr. Crowe guilty of using his identity unlawfully to rent a vehicle, but not any other crimes of this nature. Mr. Sawtell testified that many of his identification documents were stolen, which may explain what he has experienced, but that cannot be entirely attributed to Mr. Crowe based on my findings.
Background of Mr. Crowe
[25] In many respects, Mr. Crowe had a privileged life. He has a loving and supportive family. He grew up in a stable, financially secure household. He graduated at the top of his class in high school and completed engineering and economics degrees at Duke University. He enrolled in the Rotman School of Business but failed out the first year due to addiction issues.
[26] Mr. Crowe has struggled with addiction to drugs and alcohol since he was in high school. He began drinking as a teen. In his twenties, he underwent eight separate surgeries. He was prescribed painkillers, such as Oxycontin, which only fuelled his growing addiction. This occurred in the early 2000s before the contours of the opioid crisis were fully understood. His doctors prescribed greater and greater doses believing it might help him to overcome what appeared to be a “high tolerance.” At the age of 30, he experimented with meth.
[27] In 2019 Mr. Crowe was detained in custody and spent ten months in jail. He was assaulted by inmates and dealt with the abuse by using fentanyl.
[28] Dr. Jessica Palmer authored a letter to the court dated May 15, 2023. Dr. Palmer explained that Mr. Crowe has been a patient at her clinic since December 14, 2017. He had been treated by both a dermatologist and a rheumatologist for severe joint and skin symptoms. He was diagnosed with psoriatic arthritis in June 2020. He was prescribed methotrexate, an immune suppression medication. He was also treated for a substance use disorder.
[29] Dr. Palmer’s opinion is that Mr. Crowe is motivated to improve his health and has been compliant with all recommended treatments. She considers him to be in a clinically extremely vulnerable group and he remains vulnerable to acquiring infections.
[30] Dr. Gary Richardson, the Medical Director of Edgewood, a private treatment centre for concurrent substance abuse and mental health disorders, authored a letter dated February 5, 2021. Edgewood provides a treatment that is designed to help patients build the skills necessary for improved mental health and to address and recover from their substance use challenges. In a subsequent letter dated May 28, 2021, a representative from Edgewood confirmed Mr. Crowe completed the program.
[31] Several support letters were also filed for Mr. Crowe. Mr. Chris Sinclair, of Edgewood, has been involved with the treatment of alcohol and drug addiction through rehabilitation centres for twenty years. Mr. Crowe attended Edgewood twice in 2021 due to a relapse. Upon his release, he was told to avoid all contact with his previous life. He spent six months in a “sober house” in Nanaimo and now lives with another Edgewood alumni. He continues to attend AA meetings. He views Mr. Crowe as a changed man but observed that his struggles with addiction are ongoing.
[32] Mr. Crowe’s parents, Richard and Deborah, as well as his sister, Darcie, also wrote letters of support. Mr. Crowe’s family relationships have improved dramatically over the last 18 months. He has a good relationship with his sister and her children. He is engaged with the Nanaimo community and has a strong circle of friends. He is also employed as a sales representative.
[33] Several other letters from friends of Mr. Crowe’s were submitted that speak to his character and genuine commitment to rehabilitation since he was released from custody in 2020.
[34] Mr. Crowe has one entry on his criminal record. He was convicted of failing to comply with a probation order and attempting to obstruct justice on October 8, 2020. The sentence was 14 days time served noted and a 1-year probation order. Mr. Crowe was also subject to a probation order that was imposed as a part of a conditional discharge for other offences at the time of the offences before the court. That discharge has since been removed from his record.
Position of the Parties
[35] The Crown seeks a global sentence of two years less a day in custody followed by three years probation. Ms. Hebert submits the harassment had a devastating impact on Ms. J. Additionally, Mr. Crowe’s crimes harmed other innocent persons, including her mother and members of their community.
[36] Mr. Crowe’s actions were deliberate, planned and sophisticated. They were not consistent with someone in the throes of addiction or suffering from mental illness; rather, they demonstrate he was well in control of his decisions and intended to cause Ms. J. as much emotional harm as possible. He ruined her reputation and humiliated her. The acting community in Stratford in particular was small and close-knit. Ms. J. continues to suffer from his actions.
[37] It is highly aggravating that this occurred in the context of an intimate partner relationship. Ms. Hebert submits that this court should send a message that when a woman wishes to leave a relationship, that decision must always be respected. Mr. Crowe sought to deny Ms. J. her agency and independence. He furthermore willfully violated court orders intended to protect her, and the convictions from breaching court orders alone could easily justify additional jail time of up to six months.
[38] On the fraud count, she submits that any form of identity theft has serious consequences. Mr. Sawtell suffered financially and his business was impacted.
[39] Mr. Weinstein does not dispute that the harassment was terrible and that the breaches of court orders were egregious and inexcusable. However, he asks me to consider that there is a good side to Mr. Crowe as well. That side has recently been able to show itself due to his genuine commitment to his rehabilitation. He is determined to stay sober and is a positive member of the community at Edgewood where he recently acquired a paid position. He can help others address their addiction struggles based on his journey. He also has the love and support of his family.
[40] Simply put, Mr. Crowe has changed since these offences occurred. He was acting out of character at the time. While that does not excuse his crimes, it does explain why they happened and presents a good reason for the court to be confident he will not re-offend.
[41] Mr. Weinstein submits that the time Mr. Crowe already spent in custody is sufficient to meet the principles of deterrence and denunciation. He also asks the court to consider some additional credit for the restrictive bail conditions Mr. Crowe was placed on after his release from custody on April 6, 2020.
Applicable Sentencing Law
[42] A sentence must always be proportionate to “the gravity of the offence committed and the moral blameworthiness of the offender: Criminal Code section 718.1 and R. v. Suter, 2018 SCC 34, 2018 S.C.C. 34, at para. 4.
[43] General deterrence and denunciation are the primary sentencing principles in cases of criminal harassment: see R. v. Nolan, 2019 ONCA 969, at para. 65; R. v. Sabir, 2018 ONCA 912, at paras. 45-6.
[44] Criminal Code section 718.2(a)(ii) directs a sentencing court to treat as an aggravating factor “evidence that the offender, in committing the offence, abused the offender's intimate partner or a member of the victim or the offender’s family”. Criminal Code section 718.201 states a court “that imposes a sentence in respect of an offence that involved the abuse of an intimate partner shall consider the increased vulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal female victims.” Criminal Code section 718.04 requires a sentencing court to give primary consideration to the objectives of denunciation and deterrence for an offence that “involved the abuse of a person who is vulnerable because of personal circumstances – including because the person is Aboriginal and female.”
[45] The need to emphasize the protection of vulnerable former intimate partners such as Ms. J. is paramount. In R. v. Bates (2000), 146 C.C.C. (3d) 321 (Ont. C.A.), the Ontario Court of Appeal noted harassment in a domestic context is considered "particularly heinous because they are not isolated events in the life of the victim. Rather, the victim is often subjected not only to continuing abuse, both physical and emotional, but also experiences perpetual fear of the offender”: see para. 30.
[46] In R. v. Butler, 2019 NLCA 21, the Newfoundland Court of Appeal held that the most common motivations for criminal harassment are “jealousy, possessiveness, and the inability to handle rejection following the demise of an intimate relationship. Such harassment is frequently tied to domestic violence”: see para. 23. A court should focus on the nature and degree of the harassing actions when determining an appropriate sentence.
[47] In R. c. Côté, 2013 QCCA 1437, the Quebec Court of Appeal held that to ensure the safety of victims, a sentencing court must fashion a sentence designed to prevent the commission of further offences by an offender whose conduct may further degenerate. While not all harassers are violent, they are often unpredictable, and the seemingly irrational aspects of their obsession cause real fear in their victims: see paras. 20–23.
[48] Factors to consider when determining the quantity of jail that may be warranted in a particular case of criminal harassment include:
- the duration of the harassing behaviour;
- the frequency and persistency of that behaviour;
- the harm caused to the victim, including feelings of fear and anxiety;
- whether or not the accused persisted despite being told to stop and being informed of the harm he was causing; and
- whether the victim was a former intimate partner
See: El Hami c. R., 2015 QCCA 1865, at para. 16
[49] Mr. Crowe’s campaign of harassment spanned over a year. He sent Ms. J. hundreds of unwanted emails and text messages, the majority of which communicated that he would never leave her alone. Many were laced with invective and profanity. They were cruel and intended to break her spirit. Additionally, he displayed posters of Ms. J. in public areas to cause her maximum emotional distress, smear her character, and destroy her professional career.
[50] The harassment was planned and deliberate. He was told by Ms. J. to stop but did not. More than once he implied that acts of violence would result from Ms. J.’s refusal to respond to him. The sheer number of text messages demonstrates how obsessed Mr. Crowe was with his desire to seek revenge upon Ms. J.
[51] Several other features of his offences are particularly aggravating.
[52] First, the posters were crafted to not only ruin Ms. J’s professional reputation but also denigrate her character more broadly. When Mr. Crowe revealed that she had an STD, he committed a serious abuse of trust. By making this deeply personal part of her prior sexual medical history known to the world, he robbed Ms. J. of her fundamental right to choose with whom she might share this information. It was a horribly abusive means by which Mr. Crowe sought to cause irreparable damage to his former partner’s sexual integrity in the eyes of anyone who might happen to see the posters.
[53] Equally disturbing was the online advertisement Mr. Crowe placed on a sexual services website. By making it seem like Ms. J. was publicly advertising she liked rape fantasies and was not interested in “nice guys”, Mr. Crowe invited the possibility of sexual violence upon her. This was a direct attack on her bodily integrity, dignity, and equality rights. He included her personal contact information and other unknown men sought her out. He wanted her to be viewed as a morally depraved woman and knew that men with ill intent would contact her hoping to see if they could act upon their violent sexual desires. He sent it to her to revel in the fear that would grip her when she realized he was responsible.
[54] When Mr. Crowe attended at Ms. J.’s mother’s address to deliver the box of chocolates containing the gas pills he was effectively stalking her. I heard no evidence that he necessarily knew Ms. J. had been residing there in late 2018 and early 2019. However, he knew it was her mother’s home. He also wanted to further humiliate Ms. J. by having her mother see the embarrassing posters (which were placed nearby). He was sending a message to Ms. J. that he would always be able to find her or her family members.
[55] Mr. Crowe violated his probation order when these events occurred by not keeping the peace. In this case, it is even more troubling that after being released on a release order in Stratford on October 13, 2018, he continued to harass Ms. J. That order prohibited him from contacting Ms. J. or attending within 25 km of anywhere he knew her to be. Ms. J.’s explicitly stated desire to be left alone did not deter him. A prior probation order compelling him to “keep the peace” did not deter him. A release order specifically meant to address contact with Ms. J. did not deter him. Only his detention in custody finally stopped the harassment.
[56] The upper end of the range of sentences for criminal harassment includes high reformatory sentences and penitentiary sentences of approximately three years. These cases typically involve serial harassers with prior convictions for criminal harassment: see, for example, R. v. Blake, 2016 ONCA 508 (two years less a day sentence upheld); R. v. Myles, 2017 ONCA 375 (three-year sentence upheld) and R. v. O’Connor, 2008 ONCA 206 (three and a half years imposed on appeal.)
[57] Mr. Crowe has no prior convictions for criminal harassment. Yet the existence of the significant aggravating factors in this case leads me to conclude that an upper reformatory sentence is required to meet the applicable sentencing principles.
[58] Three prior reported decisions are particularly informative. In R. v. Ahmad, 2017 ONSC 6972, the accused and the female complainant were friends and had been roommates. There was never an intimate partner relationship between them. Their cohabitation came to an end when he was arrested for another matter. After he was released from custody, he asked if he could live with her again. She said, “No.” He emailed her persistently for a period of three years. The “barrage” of emails became “threatening, profane and sometimes lewd”: see para. 4. He eventually threatened to kill people. She called the police, and after he was arrested, he ceased attempting to contact her. The Superior Court imposed a sentence of two years less a day imprisonment. The Court noted the offender lacked insight into his behaviour and blamed others for his predicament: see para. 51.
[59] In R. v. Hyra, 2016 MBQB 171, the accused and the complainant dated only once or twice before she told him she was no longer interested. The accused called the victim 10 to 15 times per day and left her voicemail messages. He was told to stop calling her but persisted. He sent her a package to her home which included condoms and lubricant. He also sent numerous letters professing his love for her. The police contacted him and warned him to cease all contact. The victim obtained a peace bond. He nevertheless contacted her again, including through Facebook messages and emails.
[60] The harassing conduct spanned three years. The Court found him to be irrational and obsessive and concluded he was unwilling or unable to control his behaviour: see paras. 11-12. He was sentenced to two years less a day jail and three years’ probation.
[61] In R. v. Beckwith, 2015 ONCA 588, the Ontario Court of Appeal upheld the decision of Ramsay J. of the Superior Court of Justice to impose a two-year sentence for criminal harassment: see para. 4. Ms. Hebert provided me with a transcript of Justice Ramsay’s sentencing decision. Justice Ramsay described the relationship between the complainant and the accused as a “clear cycle of abuse.” The accused “conducted a relentless campaign of threats… and sent hundreds of emails which were not only threatening conduct but that were extremely sexually graphic and demeaning.” The criminal harassment was so disturbing that Justice Ramsay held a sentence of three years might have been justified.
Credit For House Arrest and Conditions of Pre-Sentence Custody
[62] Mr. Crowe was detained for 285 days (or 9 months and 2 weeks) in pre-trial detention at the Toronto East Detention Centre between June 25, 2019, and April 6, 2020. Applying the standard Summers credit he is credited with 428 days (or 14 months and 1 week). I take judicial notice that the conditions of imprisonment there were especially difficult during that period, which included the onset of the COVID-19 pandemic. The risk of exposure to COVID was very serious. Lockdowns were a constant reality. Mr. Crowe also experienced physical abuse from other inmates. I accept that he was a vulnerable inmate due to his medical conditions and that his time in custody was particularly hard on him.
[63] In R. v. Hills, 2023 SCC 2, the Supreme Court held that courts must consider how the conditions of confinement have affected an individual offender. Sentences can be reduced to reflect particularly harsh experiences. In R. v. Bristol, 2021 ONCA 599, the Court of Appeal similarly held that the realities of pre-sentence custody may be factored into the duration of a sentence, beyond what is reflected in the standard Summers credit.
[64] Mr. Weinstein further submits that Mr. Crowe’s “house arrest” and curfew conditions on his release orders following his release from custody on April 6, 2020, also warrant some credit.
[65] I agree Mr. Crowe is entitled to some credit for the time spent on restrictive release order conditions following his release from custody on April 6, 2020: see R. v. Downes Determining the amount of credit to award for time spent on restrictive release order conditions is an exercise in discretion: see R. v. Schlaepfer, 2022 ONCA 566, at para. 13. The impact of the conditions on the accused is what is relevant, not the reasonableness of the conditions themselves.
[66] On this bail order, Mr. Crowe was bound by a house arrest condition with GPS monitoring and only permitted out of his place of residence in the presence of a surety or for a medical emergency. He was also prohibited from accessing computers or electronic devices that could access the internet except to contact counsel. I agree with Mr. Weinstein that he was largely cut off from the outside world during this period. In R. v. Brar, 2016 ONCA 724, the Court of Appeal held that access to the internet is a necessary feature of modern life, and I accept having that access denied would have a significant impact on anyone, even if the reason for that term was entirely justifiable: see para. 24.
[67] On October 28, 2020, the house arrest condition was varied on consent to a curfew of 8 pm to 6:30 am and the prohibition on the use of computers and the internet was dramatically loosened. That curfew was removed on June 21, 2021. I did not hear any evidence that his curfew restriction meaningfully impacted Mr. Crowe.
[68] I award him two months’ credit for the period of house arrest and restrictions on his access to the internet.
Mental Health, Addiction and Efforts at Rehabilitation
[69] Mr. Crowe was heavily addicted to drugs and alcohol around the time his offences were committed. This does not excuse his conduct, but it does help to explain why it occurred. While there is not necessarily a crystal-clear nexus between his addiction issues and the offences, the letters filed in support of him from his family members noted a dramatic change in his behaviour since he was released from custody. He has taken extraordinary efforts to rehabilitate himself over the past several years. I accept that he is a recovering addict, and that he has a strong support network in the community that has kept him from relapsing.
[70] Ms. Hebert rightly submits that the principles of general deterrence and denunciation should be prioritized and that Mr. Crowe’s rehabilitative needs are secondary. Nevertheless, where there is substantial and meaningful evidence of a positive transformation in an offender’s life, a court should approach with caution a decision to impose any further jail term: see R. v. Sauvé, 2023 ONCA 310, at para. 9; R. v. Desmond-Robinson, 2022 ONCA 369, at para. 17.
Conclusion
[71] Mr. Crowe was an angry, jealous, and obsessive former male partner. His crimes were actions of coercive control meant to deprive Ms. J. of her independence.
[72] Criminal harassment of this magnitude represents a real and substantial danger to the safety of women that should never be underestimated. It not only undermines a woman’s fundamental right to her personal autonomy. By its very nature, it threatens all women who experience it with the spectre of both physical and sexual violence.
[73] For some victims, the harm resulting from this degree of harassment will be severe and long-lasting. The cumulative impact of months or even years of harassment may have a devastating impact on their mental and physical health. It is difficult for me to express how impressed I am with Ms. J. today. Despite continuing to deal with the harm caused to her by Mr. Crowe, she lives a productive and positive life and is slowly reengaging with her professional goals. She is a powerful example of how a survivor can begin to reclaim her life.
[74] Yet victims like Ms. J. are placed in a terrible paradox when the harassment is ongoing. If they do not respond to their harasser, that may further enrage him. If they do respond, it may also exacerbate their ongoing trauma. Even a communication of how she was personally afraid could encourage her former partner to persist in his behaviour. The abuser may believe he has been successful in his attempts to harass his victim, giving him even more power over her. It is for this reason that courts must demonstrate through sentencing judgments that there will be a heavy price to pay for these crimes.
[75] In my assessment, Mr. Crowe has already served the equivalent of an 18-month sentence for his offences between his pre-sentence custody, Summers credit, additional credit for the difficult conditions he experienced in pre-trial detention, and Downes credit. This is just marginally within the range of what is an appropriate sentence for the criminal harassment and harassing communications counts alone.
[76] The breaches of the prior court orders were independent offences. To continue to harass Ms. J. while he was ordered by a prior court to have no contact with her is one of the most aggravating forms of breaching imaginable. When an accused person is placed on a release order to have no contact with an alleged victim of intimate partner violence, it is absolutely essential that this term is respected. Bail conditions of this nature lie at the core of why judicial interim release is appropriate. In particular, they are imposed to ensure that vulnerable victims – especially women – are assured that their abuser will not continue to target them after the justice system has become involved. For those who intentionally violate these terms, a custodial sentence will almost always be required. A flagrant violation of terms designed to protect a specific victim must be denounced in the strongest terms and offenders must be strongly deterred from committing these offences.
[77] In this case, I find the repeated breaches of the release order were egregious and require a sentence of 4 to 6 months custody. Mr. Crowe not only violated a “no contact” condition but he was also bound by a radius restriction and placed some of the posters personally in Toronto in violation of this term. He was furthermore not obeying the term of his probation order requiring him to “keep the peace and be of good behaviour”.
[78] I also endorse the prior bail order from Stratford for estreatment. It is mandatory upon finding of a breach that the trial judge certify the default: see R. v. Hadi, 2022 ONSC 3396, at para. 11; R. v. Hassan, 2016 ONSC 1285, at para. 26.
[79] I agree with Ms. Hebert that a global sentence of up to two years less a day in custody would be entirely appropriate and better reflect the weight that should be associated with the sentencing principles of general deterrence and denunciation. However, since Mr. Crowe has not re-offended since his release from custody, resides in another province, is now gainfully employed, and has taken impressive steps toward his own rehabilitation, I have decided that a conditional sentence is appropriate. It is only because of his rehabilitative example, and the strong letters of support from his family and friends, that I come to this conclusion. His efforts at rehabilitation should serve as an example to other similar offenders of what is required to avoid re-incarceration, which serves the public interest: Sauvé at para. 13.
[80] Pre-sentence custody of 285 days, credited for 428 days, will be noted on the criminal harassment and harassing communication counts.
[81] I impose concurrent conditional sentence orders of four months on all the failure to comply with court order counts to be followed by a three-year term of probation. This is meant to reflect a 22-month global disposition. The terms of the conditional sentence and probation orders will be included as an appendix to these reasons. A term that prohibits him from having any contact with Ms. J. or any member of her family will be included in both.
[82] For the impersonation count regarding the car taken out in Mr. Sawtell’s name, a concurrent conditional sentence of sixty days is appropriate. As stated by the Superior Court in R. v. Aly, 2023 ONSC 2108, any form of identity theft may cause a victim significant financial loss and/or a damaged reputation or credit rating. There is also the emotional toll associated with restoring one’s good financial reputation: see para. 46.
[83] Criminal harassment is a secondary designated offence for DNA orders. A court may order that an offender provide a DNA sample for a secondary designated offence if the court is satisfied that “it is in the best interest of the administration of justice to do so”: Criminal Code section 487.051(3)(b). Mr. Crowe has a prior criminal record and has a significantly diminished privacy interest following these convictions. Furthermore, the DNA databank serves an extremely important purpose for law enforcement. It is exactly this type of case where the ability to identify a suspect could be essential to ensuring a victim’s safety. I order a sample of Mr. Crowe’s DNA to be taken for inclusion into the national DNA databank.
[84] A weapons prohibition order is mandatory when an accused is convicted of criminal harassment: Criminal Code section 109(1)(b). I order that Mr. Crowe is prohibited from having in his possession:
- Any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life, pursuant to section 109(2)(b); and
- With respect to any other firearm, crossbow, restricted weapon, ammunition and explosive substance, for a period of 10 years, pursuant to section 109(2)(c).
[85] Mr. Crowe is employed and therefore he can pay the victim fine surcharges. Given the total sum, I grant him two years to pay.
Released: June 28, 2023 Signed: Justice Brock Jones