R. v. Pesowski, 2023 ONCJ 321

Court File and Parties

Court: ONTARIO COURT OF JUSTICE Date: 2023 07 24 Information Number: 22-47103946

Between: HIS MAJESTY THE KING

— AND —

EDWARD PESOWSKI

Before: Justice M.K. WENDL

Heard on: April 27 & July 13, 2023 Reason for Sentence Released: July 24, 2023

Counsel: R. Branton, for Crown A. Confente, for E. Pesowski

WENDL J.:

1Edward Pesowski pleaded guilty to the charges of criminal harassment and breach of probation on April 27, 2023. The probation order stems from a conviction for criminal harassment in 2021. Mr. Pesowski has a total of 4 prior convictions for criminal harassment.

2The Crown and the defence put forward a joint submission for an 8-month conditional sentence. I was concerned that this sentence recommendation was severely inadequate to hold Mr. Pesowski accountable and accordingly I put both parties on notice about my concerns with the joint submission, I ordered a pre-sentence report and further submissions. At the beginning of this appearance, I put the parties on notice that I thought the joint submission was inappropriate and, again, asked for further submissions to help completely inform this Court about the facts and factors that went into this recommendation.

Facts

3Mr. Pesowski and the victim, Kim Hicks, are neighbours in the complex of 14 Derby Street in Hamilton. On June 7th, 2022, Mr. Pesowski was arrested for an assault involving another neighbour, not Ms. Hicks, in the complex. Ms. Hicks was a witness to that offence. Ms. Hicks was not listed in the non-communication clause of Mr. Pesowski’s undertaking, but she did provide a statement to the police.

4After his release Mr. Pesowski attended Ms. Hicks’s unit and accosted her regarding her witness statement for the assault charge. On July 5th, 2022, Mr. Pesowski was warned to cease all contact with Ms. Hicks and not to attend her unit.

5A few months later, on October 19th, 2022, Mr. Pesowski was again warned to cease all communication with Ms. Hicks. After being asked to stop attending her residence, he began attending her place of employment at Freshco located at 905 Rymal Road East. Ms. Hicks started her employment at Freshco in August of 2022 and since that time Mr. Pesowski has made efforts to always go in the cashier line that she was working, and she would repeatedly request a supervisor to take over until he had purchased his items and left. He was trespassed from the location at the request of the staff. On October 18, 2022, he went to Freshco and he entered the cashier line that Ms. Hicks was working. She had to remove herself and have a co-worker cover for her.

6The manager of Ms. Hick’s other place of employment, Pioneer Gas Station, located at 927 Rymal Road East also trespassed Mr. Pesowski in August of 2022.

7On October 23rd, 2022, police were dispatched to the residence of Ms. Hicks again because of Mr. Pesowski. Ms. Hicks explained to police that on October 21st, 2022, she was working at the Pioneer Gas Station. She observed Mr. Pesowski enter the business and approach the counter where she was working. She immediately left the counter and went back into the back of the business. Mr. Pesowski was focused on Ms. Hicks and watching Ms. Hicks during that time. It was also noted to the police that Mr. Pesowski had attended her workplace, the Pioneer Gas station, on October 18th as well.

8In addition to showing up at her home and work since the time of the assault, Mr. Pesowski would go out on his front step when Ms. Hicks’ daughter went outside to play to watch her. When the daughter returned inside her residence, Mr. Pesowski would also go back inside. This intimidated Ms. Hicks.

9Ms. Hicks is scared of Mr. Pesowski, and she is fearful of his behavior escalating due to the repeated incidents and his failure to abide by the warning and orders of the police and her two employers. His watching her daughter and repeated attempts to interact with her in the context of her involvement as a witness is unsettling and a cause for great concern.

Background

10Mr. Pesowski is 65 years old and his upbringing was unremarkable. He is a retired public transit worker and is currently employed with Amazon. The pre-sentence report notes that he is divorced and, sadly, his daughter passed away from cancer in 2008. He has another child with whom he does not have contact with. As noted above, he has a prior criminal record which includes four criminal harassment convictions. Counsel advised these charges relate to his former spouse. Although he expressed remorse for his actions towards Ms. Hicks, he did go on to say to the pre-sentence report author that he ascribed his behavior to feeling disrespected at her workplace. An initial presentence report was prepared for this matter, counsel objected to the admission of this initial pre-sentence report since it did not comply with section 721(3)(a) of the Criminal Code, I agreed an ordered a second pre-sentence report prepared in conformity with section 721(3)(a) of the Criminal Code.

Law & Analysis

11General deterrence and denunciation are the primary sentencing principles in cases of criminal harassment. [1]

12In Côté [2] 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.

[13] 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. [3]

14The Ontario Court of Appeal in Blake, Myles and O’Connor noted that high reformatory to penitentiary sentences were appropriate for repeat criminal harassment offenders. [4]

15Mr. Pesowski’s behaviour is deeply concerning to the Court. After an alleged neighbour assault, to which Ms. Hicks was a witness, he engaged in a campaign of repeated harassment against her, attending her home and both her workplaces to the point where he was trespassed at both places and warned by the police to cease contact with her. Furthermore, he repeatedly stared at her daughter while she played. The nature of this harassing behaviour is clearly aggravating. It is the result of Ms. Hicks providing a witness statement to the police about an assault the accused was allegedly involved in.

16While the Court has been presented with a joint submission and Mr. Pesowski has pleaded guilty, saving the victim from testifying, this is not a case where I have been advised of any weaknesses in the Crown case. Ms. Hicks has been a full participant in this process. Moreover, while Mr. Pesowski has acknowledged remorse in the presentence report he seemingly justified it by saying he felt disrespected at the victim’s work.

17As the Supreme Court articulated in Anthony-Cook [5] a joint submission is owed a high degree of deference by the sentencing judge, the sentencing judge must view that acceding to the sentencing would put the administration of justice into disrepute or is otherwise contrary to the public interest. As this Court noted in Gordon [6] it is highly aware of the importance of joint submissions to the proper functioning of the Justice system.

18While I accept, pursuant to Proulx [7], that a conditional sentence can have a deterrent effect on an accused, it is not acceptable here. I cannot reconcile the direction from the Court of Appeal in Blake, Sabir, Myles, O’Connor and Nolan, with an 8-month conditional sentence on the facts of this case and involving someone with 4 prior convictions for criminal harassment. The aggravating factors are:

1. This is Mr. Pesowski’s fifth conviction for criminal harassment;
2. He was on probation for criminal harassment when he committed this offence;
3. The harassing behaviour was aimed at a witness of a criminal offence;
4. The accused had been trespassed from both the victim’s workplaces;
5. He accosted Ms. Hicks at her home;
6. He engaged in intimidating behaviour towards the victim’s daughter, a child;
7. He was warned to cease.

19In addition to these factors the court is also required to consider the victim impact statement. As the Court of Appeal noted in Bates “[i]n addition to the need to consider the safety and security of the victims, the court was required to consider the victim impact statements and the ongoing effects the victims were suffering as a result of the conduct of the respondent” [8]. Ms. Hicks now lives in fear and anxiety because of Mr. Pesowski. She is scared for her daughter, and she is rightly anxious and fearful that he will show up at her door or her place of employment.

20These factors, balanced against the mitigating factor of a guilty plea, do not warrant a conditional sentence and make a conditional sentence unacceptable. Mr. Pesowski is a repeat offender, an offender who ignored trespass orders and he is an offender who was willing to intimidate Ms. Hick’s through her child. Even though he has expressed remorse, he seemed to justify it in his pre-sentence report by stating he felt disrespected at her work. This, in my view, shows a lack of insight into his behaviour. The Court of Appeal has made it clear in Blake, Myles and O’Connor, that the sentence range for repeat offenders of criminal harassment is a high reformatory sentence to a penitentiary sentence. Again, the primary sentencing principles in this case are denunciation and general deterrence. I would add that given this is his fifth offence specific deterrence is also one of the primary sentencing principles at bar. Furthermore, this court must send the message that it will not countenance any harassment of witnesses. For the justice system to function properly witnesses to criminal offences must feel free to come forward without any fear of reprisal.

21The victim in this case is Mr. Pesowski’s neighbour, a member of his immediate community. The harassing conduct occurred in his neighborhood and some of the harassing conduct even occurred from the front step of his residence. Again, while Mr. Pesowski is not precluded at law from a conditional sentence, having Mr. Pesowski serve his sentence in that community, feet away from the person he criminally harassed, and who lives in fear and anxiety of him, would be completely inappropriate and contrary to the public interest.

22The Ontario Court of Justice is the busiest criminal court in Canada, I am acutely aware of the importance of joint positions for the proper functioning and stability of the administration of justice. However, I find I am left with no other choice but to reject the joint submission. The appropriate sentence is one of 18 months in custody which makes a conditional sentence of 8 months completely inappropriate, and it would bring the administration of justice into disrepute. The facts of this case and the principles of denunciation and deterrence, both general and specific, simply make a conditional sentence inappropriate. Again, as the Quebec Court of Appeal stated in Côté, a sentencing court must fashion a sentence designed to prevent the commission of further offences by an offender whose conduct may further degenerate to ensure the safety of victims. I note here that I have specifically considered the step/jump principle, and I do not feel a modest increase from his prior sentence, one of probation, is warranted given the aggravating features at play. [9] I have also considered the gap principle, since there is a gap in his record between 2010 and 2021, however, I give it little weight since this is his second conviction for criminal harassment charge within the last 2 years and occurred while he was still on probation from that charge when these offences occurred. [10] To put it another way, since this is his second conviction for criminal harassment in the last two years and he was on probation for criminal harassment when he committed this offence, he has lost the benefit of the gap in his record for the purpose of sentencing. In addition to the 18 months in custody I impose 3 years of probation, a 109 (sections (a) and (b)) order for life and a DNA order.