ONTARIO COURT OF JUSTICE
CITATION: R. v. Gowers, 2026 ONCJ 473
DATE: August 10, 2026
COURT FILE No.: Toronto
24-48108229
BETWEEN:
HIS MAJESTY THE KING
— AND —
KEVIN GOWERS
Crown’s Application For A Dangerous Offender Designation
& Sentencing Judgment
Before Justice Brock Jones
Heard on November 27, 2024
January 14, May 28, July 25, and October 23, 2025
April 21-24, May 25, and July 24, 2026
Reasons for Judgment released on August 10, 2026
E. Moore and J. Mahal....................................................................... counsel for the Crown
P. Rochman....................................................................................... counsel for Mr. Gowers
I. Introduction
[1] On November 27, 2024, Kevin Gowers entered a guilty plea to one count of criminal harassment, contrary to Criminal Code section 264(2)(b). The Crown placed Mr. Gowers on notice of its intention to have him declared a dangerous offender (“DO”) and be sentenced to an indeterminate period of incarceration.
[2] Nearly a year later, on October 23, 2025, following a contested application hearing, I ordered that Mr. Gowers be assessed by a forensic psychiatrist under Criminal Code section 752.1 to determine whether he met the criteria for designation as a dangerous or long-term offender (“LTO”). The report was received in early 2026 and Dr. J. Gray testified on April 21 and 22, 2026. The sentencing hearing concluded on July 24, 2026, when counsel completed their oral submissions. I reserved my decision at that time.
[3] In Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), the Supreme Court of Canada began its landmark decision with the following:
In every society there are those who commit criminal acts because of mental illness. The criminal law must find a way to deal with these people fairly, while protecting the public against further harms. The task is not an easy one.
[4] Mr. Gowers’ case illustrates how difficult this task can be for sentencing courts when they are presented with a mentally ill accused person who has a history of violent and threatening behaviour, yet also has insight into his illness and has been responsive to treatment in the past. Protecting society is unquestionably the fundamental purpose of sentencing: Criminal Code section 718. Even with that vital goal in mind, we must remain vigilant to ensure that these very challenging cases do not result in unjust outcomes. As stated by C.J. Tulloch of the Ontario Court of Appeal in R. v. Kulatheeswaran, 2026 ONCA 128, at para. 32, “sentencing must be proportionate, but it must also be humane.”
[5] The dangerous offender regime in the Criminal Code was meant to be applied sparingly to a “very small group” of offenders who pose “a tremendous future risk”: R. v. Lyons, 1987 SCC 25 (CanLII) at para. 44; R. v. Boutilier, 2017 SCC 64, at para. 46. As I will explain, I am not satisfied that the Crown has proven beyond a reasonable doubt that Mr. Gowers meets the criteria for a DO designation.
[6] The Crown’s application is therefore dismissed. These are my reasons for imposing an alternative sentence, which considers not only the objective gravity of Mr. Gowers’ criminal harassment, but also his decades-long struggle of living with schizophrenia. Since he was a teenager, Mr. Gowers has undergone repeated attempts at treatment, including various prescription medications and hospitalizations. Absent appropriate care, he presents with a high risk of reoffending. Yet while his needs are complex, they can be met, and a path to future success is available to him. It will depend not only on a comprehensive support network remaining in place, but also on his willingness to comply with recommended treatment. After considering all the evidence presented at this hearing, I am satisfied that this path remains viable.
II. The Agreed Statement of Fact and Additional Evidence Regarding the Index Offence
[7] Mr. Gowers harassed Ms. P.M. through repeated phone calls and voicemail messages between December 18, 2023, and February 24, 2024. These messages were left while he was in custody at the Hamilton-Wentworth Detention Centre (“HWDC”), serving a sentence for an unrelated offence. In total, he left 41 voicemail messages for P.M., and on some days he left multiple messages.
[8] P.M. had no prior relationship with Mr. Gowers. She worked for the Office of the Ombudsman of Ontario, which is an independent officer of the Provincial Legislature. On its website, the Ombudsman’s Office describes its role as follows:
Ombudsman Ontario helps keep government and public services accountable and protects the rights of Ontarians. We’re here to resolve your complaints and make sure you are treated fairly.
[9] Anyone can call the Ombudsman’s Office to make a complaint about government services. Mr. Gowers began calling this office to express his frustration with how he had been treated by various government agencies and courts, as well as the mistreatment he experienced while in jail. I received no evidence explaining how Mr. Gowers obtained the specific phone number and extension he used to leave these messages.
[10] A sampling of the messages left by Mr. Gowers on December 18, 2023, demonstrates their general tenor. They include the following:
1:09 p.m.: He threatened that a clerk would be “reported missing” and “no one’s ever going to find him again” for stealing his money;
1:16 p.m.: He complained that correctional officers deserved to be punished, and the punishment “should be beat with a hammer, disappeared, and never returned.”
2:58 p.m.: He warned that if he were to die “because of you snitching I’m going to tell my gang members to retaliate and get revenge.”
[11] Other messages included vulgar language, hostile sentiments, and threatening remarks. Some examples, from various dates, include:
On December 29, 2023, at 1:13 p.m.: “They are robbing me and poisoning me and trying to murder me and I want something done with this or else I’m exposing everyone and I’m going to sue the fucking system for $20 million dollars and I want it now or else I’ll fucking blow up fucking shit.”
January 9, 2024, at 3:27 p.m.: “I noticed you’re all corrupt and working together. You will all burn in hell.”
February 18, 2024, at 12:58 p.m.: “…you’re a liar and delusional… they’re all piece of shits and fucking – I’ll see ‘em when I see ‘em. I’ll be with them my way, I’m picking up my guns.”
February 18, 2024, at 1:56 p.m.: “… and you fuckers are going to hell.”
February 19, 2024, at 11:06 a.m.: “I’m going to find you, I’m going to find you and I’m going to beat you with a hammer and breaking every bone in your fucking body.”
[12] Mixed in with the threatening messages were others expressing remorse and cries for help. Some messages included deluded fantasies about world figures Mr. Gowers believed he could contact. The following are examples:
On December 31, 2023, at 3:21 p.m.: “I’m sorry for how I’ve been speaking to you. It’s just I’m really scared of drying and I feel like I’m dying right now and lately I’ve been trying to see a doctor and go to the hospital and they’re refusing to let me. I’m scared of death and I have children and I want to see my children again. Can you please help me see the hospital doctor, a real doctor… I have children who are only 10 and 9 and they love their dad and they miss their dad and they want to see their dad again and I’m getting scared and I’m worried about my physical health. Can you please help me, please, do everything to help me, please I beg you, I’m sorry. Okay bye.”
January 18, 2024, at 2:23 p.m.: “I’m sorry for saying that, but you know what you’re not helping me and I’m having symptoms for like over a week now and it’s fucking pisses me off bro…”
February 18, 2024, at 1:12 p.m.: “I’m going to call President Putin that he is right about other countries doing biochemical warfare and poisoning their own people and murdering their own people. He is right and he is not delusional, you’re the ones who are delusional and in denial… I’m going to tell him you’re right and have every right to do so and send the nuclear missiles.”
February 19, 2024, at 11:18 a.m.: “I’m sorry for snapping.”
[13] On or about February 21, 2024, Mr. Gowers left a message suggesting suicidal thoughts. That message appears to have prompted the Ombudsman’s Office to report what had been occurring.[1] On February 27, 2024, the IT department at the Ombudsman’s Office assigned P.M. a new extension. She did not receive any further messages from Mr. Gowers.
[14] Mr. Gowers was arrested for the index offence on or about March 2, 2024. He was transferred to the Toronto South Detention Centre (“TSDC”).
[15] Commencing June 22, 2024, Mr. Gowers left 46 additional messages on the Ombudsman’s Office general voicemail system. These messages followed the same pattern as the prior set. In some messages, Mr. Gowers threatened unknown and unnamed staff using vulgar language. In others, he made statements detached from reality, such as referring to himself as a “King”, claiming he could contact President Putin of Russia, or saying he would tell Oprah the truth about his mistreatment in Canada. There are also messages in which Mr. Gowers apologized for his conduct, often noting that he had been off his medication, that he missed his children, and that he did not understand why he might be facing such a significant jail sentence.
[16] After he entered his guilty plea on November 27, 2024, Mr. Gowers informed me that he “wanted to apologize for everything.” I found his expression of remorse sincere. He apologized to Dr. Gray for his conduct when he was interviewed for the Criminal Code section 752.1 assessment as well.[2]
III. Dispute as to the Nature of the Relationship Between Mr. Gowers and P.M.
[17] Right up to the conclusion of the sentencing hearing, a point of contention between Crown and defence counsel persisted as to whether Mr. Gowers and P.M. had any meaningful professional relationship before he began leaving the messages. Similarly, it remained disputed whether the Crown had proven that Mr. Gowers targeted P.M. specifically, or that he was simply leaving threats of a general nature for anyone who might receive them at the Ombudsman’s Office.
[18] At this early juncture, it is important to note that the facts underlying the guilty plea initially presented to the court were later found to be incorrect in material respects. On the date the plea was entered, I was informed that Mr. Gowers knew P.M. from his prior experience at a law firm and that she worked there as a clerk. Mr. Gowers had a falling-out with his prior lawyer and, at least in part, left voicemail messages because he believed he had been mistreated by this firm. I was also informed that he intentionally left her additional voicemail messages after his arrest on March 2, 2024. All of that turned out to be untrue. The file was not assigned to Ms. Moore at the time but to a different Assistant Crown Attorney (“ACA”), and Mr. Gowers was represented by different counsel.
[19] Furthermore, I was originally provided with only a small sample of the voicemail messages recorded by Mr. Gowers. Those were the more alarming examples. The messages that strongly demonstrated that Mr. Gowers was suffering from delusions, or that included his apologies for his outbursts, were not presented to me. That left me with a very different picture of what was occurring than the one I now understand to be accurate.
[20] On October 23, 2025, during litigation of the proposed Criminal Code section 752.1 assessment order, the original ACA provided a slightly updated account of the facts. I was informed that P.M. was not associated with a law firm; rather, she worked at the Ombudsman’s Office. Nevertheless, P.M. was described to me as Mr. Gowers’ personal early resolution officer. The ACA again represented to the court that Mr. Gowers knew her and had a prior relationship with her before he began leaving voicemail messages. Indeed, in the Crown’s written materials filed in support of the 752.1 application, the ACA wrote that P.M. was “his [i.e., Mr. Gowers’] early resolution officer.” The ACA also wrote that “the nature of the relationship between Mr. Gowers… and [P.M.]” was a factor I should consider when deciding whether to grant the application for an assessment order. More specifically, he argued that Mr. Gowers’ index offence fell into a pattern of him inflicting violence towards “women with whom he has some sort of association.”[3] Again, this was not accurate. As I have since determined, there was no prior relationship between Mr. Gowers and P.M. The two had never met or even spoken on the phone.
[21] Crucially, the Crown’s section 752.1 application was premised on the notion that Mr. Gowers had a long history of threatening women and that the index offence was yet another example of him targeting a specific victim, consistent with his history as an irredeemable and violent “chauvinist.”[4] The Crown’s written materials repeatedly referred to Mr. Gowers resorting to violence against women, in both intimate and non-intimate contexts. Due to the “overarching pattern of violence against women,” the Crown submitted that the assessment order should be issued.[5]
[22] I granted the application for an assessment order on the basis that there were reasonable grounds to believe Mr. Gowers might be found to be a DO, or, in the alternative, an LTO. That conclusion was based on my understanding that the Crown would be able to prove a prior relationship between Mr. Gowers and P.M., which would support the Crown’s theory that Mr. Gowers had lashed out, again, against a woman with whom he had a personal history.[6] Mr. Gowers has prior convictions for offences of that nature, and I believed the Crown had a basis to argue that it could establish the offence was a “serious personal injury offence” and that there was a “pattern” of offending behaviour as required by the relevant provisions of the Criminal Code.
[23] Ms. Rochman, I should acknowledge, disputed that the grounds for the assessment order were met and challenged the Crown's assertions. I was unable to resolve this factual dispute at the application stage and drew inferences in favour of the Crown, given the low standard of proof required to order these assessments.[7] In retrospect, and with the benefit of a full record, this was a mistake.
[24] At some point in 2026, Ms. Moore and Ms. Mahal were assigned to this case to represent the Crown. They corrected all factual inaccuracies previously presented to the court when the plea was entered and when the section 752.1 assessment order application was argued. However, Ms. Moore maintained that I could conclude that Mr. Gowers intentionally threatened and intimidated P.M.[8] I asked Ms. Moore during oral submissions on July 24, 2026, how I could reach that conclusion based on the factual record before me.
[25] Ms. Moore agreed that there was no evidence that Mr. Gowers and P.M. had any prior relationship before he began leaving voicemail messages. Rather, she argued that, given the content of some of the messages and the fact that he was leaving voicemails on her personal extension, it was open to me to infer that he was targeting her as an individual. This was not a coincidence.
[26] Ms. Rochman vehemently disagreed that there was any evidence her client knew P.M. at all before he contacted the Ombudsman’s Office or that I could conclude Mr. Gowers was intentionally singling out P.M. with his recorded messages. In her written submissions, Ms. Rochman reviewed the procedural history of this case, highlighting many of the same deficiencies surrounding how the guilty plea was entered that I have identified in this judgment. She took the position that the evidence demonstrated that her client had never met P.M., knew nothing about her, and had no prior relationship with her of any kind whatsoever. P.M. was an employee of a public agency whose purpose is to resolve complaints against the government. Mr. Gowers contacted that agency for that purpose, albeit at times with threatening messages. There was no evidence to explain how he obtained the number associated with her specific extension, and the Crown’s theory was based on speculation.
[27] Section 724(3) of the Criminal Code states that when there exists a dispute with respect to “any fact that is relevant to the determination of a sentence”, the party wishing to prove that fact bears the burden of doing so: see 724(3)(b). Moreover, it has long been settled law that any fact the prosecution seeks to rely upon to increase the punishment imposed must be proven beyond a reasonable doubt: see R. v. Gardiner, 1982 CanLII 30 (SCC); R. v. D.B., 2025 ONCA 577, at para. 29. In R. v. Larche, 2006 SCC 56, para. 43, Justice Fish described a dispute under this section as arising “when the accused refuses to recognize the veracity of such facts”. As explained by the Nova Scotia Court of Appeal in the subsequent case of R. v. Phinn, 2015 NSCA 27, “the Crown’s obligation to prove aggravating factors beyond a reasonable doubt is only triggered by a clear and unequivocal factual dispute”: see para. 50; R. v. Silcoff, 2013 BCCA 47, at paras. 16-24; R. v. Ladue, 2011 BCCA 101, at para. 31.
[28] Mr. Gowers has made it clear for some time that he disputes these pivotal aspects of the Crown’s theory of why he left the harassing voicemail messages. I placed the Crown on notice shortly after Ms. Moore and Ms. Mahal were assigned to the case that I would not rely on any facts underlying the original guilty plea if Mr. Gowers challenged them, given the errors that accompanied that plea. Doing so would be dangerous and fundamentally unfair to Mr. Gowers. Ms. Rochman agreed to continue with the sentencing hearing only on that basis, which was entirely understandable. To conduct the sentencing hearing otherwise would amount to an injustice. As held by the Manitoba Court of Appeal in R. v. Leschyshyn, 2007 MBCA 41, in these circumstances, the sentencing judge is “bound to ignore the Crown submission, unless it leads evidence on the disputed fact”: see para. 7.
[29] Respectfully, I do not find the Crown’s arguments convincing, and I agree with the position taken by Ms. Rochman. I find that P.M. and Mr. Gowers had no prior relationship before he left the impugned voicemail messages. I find that Mr. Gowers did not know P.M. and had never met her. I cannot conclude based on the evidence before me that he targeted P.M. when he began leaving these voicemail messages. Furthermore, I find that he did not leave any voicemail messages that reached P.M. after February 26, 2024.[9] Not a single voicemail message mentions P.M. by name or contains any personal information that could identify her. Nor has the Crown proven that Mr. Gowers even knew he was leaving voicemail messages for a woman. The absence of evidence matters here. For example, I did not receive any evidence of what a caller would hear upon reaching P.M.’s voicemail if she did not answer.[10]
[30] My conclusion is supported by the expert testimony and reports of Dr. Gray, which the Crown has invited me to accept throughout these proceedings.[11] Mr. Gowers told Dr. Gray that he apologized for his conduct and acknowledged that threatening anyone was wrong, but added: “I don’t even know what [P.M.] looks like.”[12] Dr. Gray extensively reviewed the reasons these offences occurred. In his report, he noted that he found it “puzzling” that the Ombudsman's Office did not report the voicemails to the police before February 21, 2024, despite multiple distressing voicemails having been left prior to that date.[13]
[31] I agree that it is difficult to reconcile the delay in the Ombudsman’s Office's decision to report these offences to the authorities with the notion that Mr. Gowers knew P.M. beforehand. If Mr. Gowers had been targeting P.M. because of any prior association with her, the calls would have been reported far sooner, if not immediately. Furthermore, Dr. Gray never questioned Mr. Gowers’ honesty on this point, and no contradictory evidence was presented to challenge this assertion either.
[32] Dr. Gray made the following conclusion in the addendum to his report:
Upon review of his voice messages, they do not appear to be specifically directed at the victim, but rather venting his frustrations about his (delusional) medical concerns over the telephone to a silent listener (the voice message system). In my opinion, the messages may have ceased if he had been warned about this early on in the process. Instead, he was able to leave 87 messages without seemingly being told that there would be consequences to what he was doing, or that they were perceived as threatening.
[33] I accept Dr. Gray’s opinion evidence and reach the same conclusion. As I will explain, that factual determination is of great importance in deciding whether Mr. Gowers should be designated a DO and in determining the sentence he should receive.
[34] I recognize that Mr. Gowers and his former lawyer accepted the erroneous facts as originally presented by the Crown on November 27, 2024, and could have disputed certain aspects of those facts, given their (now-known) obvious inaccuracies.[14] But as I have since learned from the testimony of Dr. Gray, Mr. Gowers has cognitive limitations and significant mental health challenges. He often feels that disputing charges is pointless, simply pleads guilty to everything he is charged with, and allows “the system” to process him as it sees fit. That is a tragic but all too common experience for many disadvantaged persons who repeatedly find themselves caught up in the criminal justice system.
[35] I review these events and this crucial factual dispute to explain why this proceeding took nearly two and a half years to complete, and to remind all counsel that there is always a human life behind each criminal case: see Justice Rand’s decision in Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] SCR 16. Dangerous Offender proceedings are notoriously complex. Time spent in custody can never be regained. When a guilty plea is presented to a court, especially one where the stakes for the accused could not be higher, Crown counsel have a fundamental duty to ensure that how they communicate the facts to the court is reliable and accurate: see, in a similar context, R. v. Robitaille, 2026 QCCA 785, at paras. 194-7.[15] That did not occur in this case, and the failure to do so caused significant and predictable consequences.
[36] There may be an explanation for how and why these errors occurred. But I have never been provided with one, despite Ms. Rochman understandably raising concerns about how the underlying facts of this case were inaccurately presented during the guilty plea and how continued reliance on those errors may have affected the case’s trajectory.[16] That some of the most basic aspects of this case have remained in dispute for over two years is regrettable. Whether Mr. Gowers knew P.M. and whether she could be appropriately characterized as his personal resolution officer was of obvious significance from the beginning.
[37] Ms. Moore and Ms. Mahal have been forthright and honest since they took over the file, and I commend them for their commitment to the truth and to a fair proceeding for Mr. Gowers. Indeed, their work on this case has been nothing short of exemplary and a shining example of the role of the Crown as a Minister of Justice.[17] Nevertheless, I find that the factual conclusion they ask me to draw regarding Mr. Gowers and P.M. is not supported by the evidence. All this uncertainty was entirely avoidable had due care and attention been paid to the original presentation of the guilty plea to the court. Errors of this nature create a real risk of a miscarriage of justice.
IV. Victim Impact Statement (“VIS”)
[38] In her VIS, P.M. described feeling “incredibly anxious to begin work every day” because she did not know “what threatening or abusive voice messages would be waiting for me.” She lived in fear of the man’s release and wondered whether he would be able to locate her at her office. She has been left with “anger, sadness, and fear” that she continues to have difficulty processing.
V. Prior Criminal Record of Mr. Gowers
[39] Mr. Gowers has a prior criminal record that began as a young person. His first findings of guilt were on March 18, 2002, in youth court. He has an unbroken record of criminal convictions from that date to the present. Many of these prior convictions were for crimes of violence against women, including former intimate partners. In total, he has 15 prior convictions for crimes of violence, 4 for criminal harassment, and 21 for failing to comply with a court order. The longest sentence he previously received was for robbery on March 4, 2008, when he was sentenced to two years in the penitentiary, in addition to 59 days of pre-sentence custody.
VI. Background Information of Mr. Gowers / Criminal Code s. 752.1 Report
[40] Dr. Jonathan Gray was qualified as an expert in forensic psychiatry. He interviewed Mr. Gowers as part of his assessment report, completed pursuant to section 752.1 of the Criminal Code. I have relied heavily on his report to summarize the evidence in the next few sections of this judgment.
[41] Mr. Gowers is 40 years old and was born in Hamilton, Ontario. Children’s Aid Society (“CAS”) documents indicated that his father left his mother, Sandy, during her pregnancy. His birth was complicated. He exhibited significant behavioural issues from an early age, including aggression, defiance and swearing. He was placed in special classes in elementary school due to academic and behavioural issues. He was suspended many times, as early as kindergarten, for fighting and “cruelty” to other children.
[42] He supports himself through ODSP when he is out of custody. He has also sold drugs. He held only one job of any duration, at a door installation company, but he was fired for anger-management issues.
[43] He has two children with his ex-girlfriend, Sarah Lang. He has visited them every Sunday over the last few years when he’s not in custody. He has been able to speak to them by phone while he’s been detained on the index offence.
[44] Mr. Gowers was diagnosed with schizophrenia in 2007. He has been prescribed a variety of medications over the years as part of his treatment. Some of these medications have been taken orally, and some have been administered by injection. He has been noted as non-compliant or inconsistently compliant with his medications at times. When asked about his past refusal to take medication, Mr. Gowers informed Dr. Gray that, while he would continue to take his medication even if not legally required to do so in the future, he was not sure whether it benefited him. Rather, he stated that he had been told that others believe the medications help him. He expressed a strong preference for an oral medication, as opposed to an injectable medication, because he did not like the side effects of injections. The injections would cause him fatigue, and he often chose to use drugs (such as crystal methamphetamine) to overcome those feelings.
[45] He acknowledged that he has a problem controlling his use of crystal meth. He began using it in his late 20s, and since then, his pattern has been to go on a four-day binge of almost continuous use. During these binges, he would not sleep, and his paranoia would increase. He denied being addicted to the drug, relying on periods of abstinence he’s experienced in the past as evidence to the contrary. He justified some of his prior drug use by explaining that he does not feel the need to use crystal meth when he is taking Abilify, an oral medication. When he is administered injectable medication, he sometimes does feel the need to use crystal meth. When he made that remark to Dr. Gray, he was prescribed Abilify while in custody.
[46] Regarding his future treatment, Mr. Gowers told Dr. Gray that he would comply with any conditions imposed on him to see a psychiatrist and take prescribed medications. He hopes to resume attending his previous schizophrenia outpatient service with his former psychiatrist, Dr. Cook. While he did not want to be returned to an injectable medication, he would submit if compelled. When informed that he might be subject to a Community Treatment Order (“CTO”) for life and therefore required to take medications, even against his will, he was not opposed. He has previously been subject to a CTO. He also welcomed a term in any sentencing order prohibiting him from consuming illegal substances (such as crystal meth). He would comply with urinalysis requirements if they were also ordered.
[47] If he is released from custody following the disposition of this case, Mr. Gowers intends to live with his family in Hamilton. He believes he could live in a basement apartment provided by his half-brother. Alternatively, he could live with his mother. Either option would be temporary until he could find his own apartment. However, when confronted with the suggestion that the terms of his release, as set by the Parole Board of Canada, might require him to reside in a Community Correctional Centre (CCC), he indicated he would comply. He expressed concern that he might be treated unfairly and, if he “unintentionally” broke a rule, be returned to prison.
[48] Dr. Gray asked him whether he would comply with programming while serving a sentence. Mr. Gowers stated that he would do so and was “going to change [his] life”. He acknowledged that he had not been successful in past substance abuse programs because he “wasn’t paying attention.”[18]
[49] During his interview with Mr. Gowers, Dr. Gray noted that Mr. Gowers was apologetic for his conduct towards P.M. He accepted that threatening someone was inappropriate and wrong. He did not know P.M. and sent the messages to express his frustration. He “took it out” on her at the time. He did not believe he was properly medicated and was not sleeping well.
VII. Responsiveness to Programming and Medical Treatment, and Willingness To Take Prescribed Medications
[50] Mr. Gowers has a long history with both the criminal justice system and mental health service providers. Understanding that history is essential to determining the outcome of the Crown’s application.
[51] On August 17, 2005, Mr. Gowers began serving a sentence at the Monteith Correctional Centre. Substance abuse was identified as his most pressing concern. Institutional records indicate that he was considered motivated for treatment and expressed remorse. He completed the Intensive Substance Abuse Program in the fall of 2005. He also received individual counselling for alcohol addiction from August 8 to October 3, 2006.
[52] During his involvement with the Paradigm Program, he worked on developing alternative coping strategies and on reducing his consumption of alcohol and cannabis. He was noted to be “receptive to counselling and actively participated.”
[53] Mr. Gowers also completed the Catholic Family Services of Hamilton-Wentworth Men’s Anti-Violence and Abuse Program from May 25 to September 14, 2006. He attended all 16 sessions and acknowledged his abusive behaviour towards his former partner. However, he had difficulty demonstrating an understanding of the impact of that behaviour on his partner.
[54] In 2008, he was scheduled to participate in the National Substance Abuse Program. He was suspended from the program on October 1, 2008, after missing five of the first twelve sessions. During the session he attended, he did not contribute and showed little effort. He stated that substance use was not linked to his offending.
[55] He was expected to begin the Violence Prevention Program following an intake interview on December 10, 2008. The program facilitator noted that Mr. Gowers was unmanageable in group settings and that his comprehension was limited. He withdrew from the program on February 11, 2009.
[56] A psychological discharge summary by Dr. J. Mamuza, dated September 14, 2009, indicated that psychological counselling would not be beneficial unless Mr. Gowers was medicated. His mental health status and medication compliance were the primary risk-management factors. Dr. Mamuza recommended that Mr. Gowers take injectable rather than oral medications.
[57] In 2014, while in the community, Mr. Gowers was again recommended for the Catholic Family Services of Hamilton Men’s and Women’s Anti-Violence and Abuse (PAR) Program. He began on August 26, 2014, but was suspended after missing three sessions. Dr. Gray noted in his report that the missed sessions coincided with Mr. Gowers discontinuing his injectable antipsychotic medication.
[58] Mr. Gowers’ history of compliance with his prescribed medication, even while in custody, has been inconsistent. When he was sentenced to a two-year federal term of incarceration for robbery in 2008, he was treated by Dr. Epelbaum, a psychiatrist. He was prescribed oral antipsychotics, Olanzapine and Quetiapine. On August 26, 2009, Mr. Gowers was noted to be non-compliant with his medications and to have decompensated. His prescription was altered at his request.
[59] In 2011, after returning to the community, Mr. Gowers had an open file with the Crisis Outreach and Support Team (“COAST”). His mother contacted COAST because she was concerned that he was no longer taking his medications. He refused to speak to COAST, and his file was closed on February 4, 2011.
[60] While incarcerated in 2013, Mr. Gowers restricted his intake of food and liquids, believing they were poisoned. He lost 20 pounds. On May 10, 2013, he was forced pursuant to the Mental Health Act (“MHA”) to take part in an involuntary psychiatric examination. He was assessed as acutely delusional, paranoid, and hostile. Dr. Bibr found him incapable of making treatment decisions. He challenged this finding at the Consent and Capacity Board hearing on May 21, 2013, but was unsuccessful.
[61] He was then admitted to the psychiatric unit at St. Joseph’s Healthcare (SJHC). He received injections of the antipsychotic Haloperidol. He improved and was discharged back to jail on May 29, 2013, with a prescription for Olanzapine.
[62] His file with COAST was reopened on July 31, 2013. COAST was involved with Mr. Gowers until January 8, 2014.
[63] Mr. Gowers worked with the Community Schizophrenia Service outpatient clinic. He appeared compliant with his injectable antipsychotic medication, Fluanxol, with injections every two weeks. It was discontinued in July 2014 because he was thought to be doing well. He then took an oral version of the medication inconsistently, but was returned to injections in August 2014.
[64] On October 23, 2014, he was readmitted to SJHC after refusing his injectable medication for six weeks. He became paranoid and articulated a plan to bomb buildings. While admitted, he started a new medication, Haldol Decanoate Long-Acting, and was discharged on October 29, 2014.
[65] On October 30, 2014, he was placed under a Form 1 under the MHA and readmitted to SJHC. It was noted that he sometimes became irritable when asked to follow ward rules and had particular difficulty with female staff. He was discharged on November 13, 2014, after committing to continue with the Community Schizophrenia Service and COAST. He appeared to be compliant with an injectable antipsychotic medication until August 14, 2015.
[66] He missed an appointment with his probation officer on September 4, 2015, and was reincarcerated on September 10, 2015. He was released from jail on November 8 and attended a community clinic for his medication on November 11.
[67] On January 22, 2016, he met with a social worker, disclosed that he had been using crystal meth daily for the past two years, and expressed a desire to stop. He agreed to meet weekly with the social worker and to attend Narcotics Anonymous. On March 10, 2016, he later saw a mental health worker at SJHC and again stated his desire to cut down on his use of crystal meth.
[68] He continued to take his injectable antipsychotic medication regularly until April 14, 2016. On May 11, 2016, he was reincarcerated and remained incarcerated until June 27, 2016. While in jail, he was not taking his medication and was becoming paranoid.
[69] At a July 11, 2016, meeting with Dr. Bibr, he refused to take his injectable medication. An oral medication was prescribed instead. On August 8, 2016, Dr. Bibr saw Mr. Gowers again. He appeared stable. However, on September 27, 2016, he told Dr. Bibr he had “forgotten” to take his medication. On October 3, 2016, he refused to attend a scheduled appointment.
[70] On October 11, he was taken into custody and was not released until June 9, 2017. He returned to Dr. Bibr’s clinic on June 19, 2017. He requested an oral antipsychotic, Olanzapine. He was noted to have no psychotic symptoms during scheduled appointments with Dr. Bibr on July 18 and August 29, 2017.
[71] In September 2017, Mr. Gowers had become increasingly upset, agitated, and paranoid. His mother believed he was non-compliant with his oral antipsychotic medication. He was seen by Dr. Bibr on September 18, 2017, who expressed these concerns. On September 20, 2017, he was returned to SJHC pursuant to a Form 1.
[72] Dr. Zipursky treated him and found him incapable of making treatment decisions. That finding was challenged, first before the Consent and Capacity Board, and then before the Superior Court of Justice. He was referred for a CTO on October 20, 2017, with his mother's substitute consent. He was discharged on November 6, 2017.
[73] Mr. Gowers was eventually returned to an injectable antipsychotic, Haloperidol Decanoate, on January 9, 2018. On January 13, 2018, he appeared “more settled.” By February 16, 2018, his mother reported that he was not doing well. He presented to the SJHC emergency room with his mother on February 23, 2018, and was admitted to the Acute Mental Health Unit under the care of psychiatrist Dr. Ofosu pursuant to a Form 1. He was later placed on a Form 3. While at the hospital, his threatening behaviour towards staff escalated, and he refused to participate in treatment. He ultimately admitted to using crystal meth for the four days preceding his admission.
[74] He left the hospital for four days. During that time, he committed offences against his intimate partner, Ms. Ruscka. He was incarcerated until March 2, 2019. A social worker, Ms. Hallas, found no evidence of thought disorder or paranoia during that period. He was compliant with his injectable antipsychotic medication for an entire year while in jail.
[75] After being released from custody, he attended an appointment with Dr. Bibr on March 5, 2019. He declined Dr. Bibr’s recommendation to resume an injectable medication in the community. On March 11, 2019, he attended the SJHC emergency room and was admitted under a Form 1. He was restarted on an injectable antipsychotic. He was discharged on April 26, 2019, with a new CTO, and substitute consent was provided by the Public Guardian and Trustee.
[76] On October 1, 2019, Mr. Gowers saw Dr. Bibr, who did not notice any signs of psychosis. Mr. Gowers’ CTO was renewed. His care was transferred to Dr. Cook.
[77] Dr. Cook saw Mr. Gowers on November 1, 2019. Mr. Gowers was considered to be doing well. He continued to receive his Haloperidol injections as scheduled and did well until the spring of 2020. On March 9, 2020, he was placed on a Form 1 due to disturbing remarks he made to a psychiatrist and was admitted to SJHC. He was discharged the next day because he was not exhibiting symptoms of an acute mental illness.
[78] Between August 12 and 24, 2020, he was admitted to SJHC under Dr. Lough and had paranoid thoughts. His injectable antipsychotic was switched to Invega. His care was transferred to Dr. Cebrian on August 25. He continued to have paranoid thoughts and began stating that he would murder his girlfriend. He left the hospital on September 16, 2020, without permission and was discharged on September 18, 2020.
[79] On September 19, 2020, he presented outside an ex-girlfriend’s apartment, disoriented and expressing delusional thoughts of being stabbed. The COAST team responded and assessed him. He did not meet the criteria for involuntary admission.
[80] On September 22, 2020, he attended the SJHC emergency room and reported having thoughts of killing his neighbour. He was admitted under a Form 1. On September 30, 2020, Mr. Gowers received an injection of Invega. He denied having a mental illness. He was discharged on October 8, 2020.
[81] He next presented to SJHC on January 21, 2021, requesting a medication change. He saw Dr. Caropreso at a clinic on January 27, 2021. He refused his regular Invega injection and stated that he would kill his neighbour if he was not admitted to the hospital. He was admitted under a Form 1 and left against medical advice on February 11, 2021.
[82] Mr. Gowers attended the clinic for his Invega injection on February 26, 2021. His CTO was also renewed. On March 23, 2021, his medication was changed to Haloperidol.
[83] On May 28, 2021, Mr. Gowers was brought to the SJHC emergency room under a Form 47 pursuant to his CTO. His mother believed he was paranoid and had threatened her. He was discharged after evaluation by a psychiatrist.
[84] Mr. Gowers appeared to comply with his injectable medication throughout 2021 and for most of 2022. On September 7, 2022, Mr. Gowers was brought to SJHC under a Form 1. He stated that he had asked police officers to kill him. The assessing psychiatrist found no evidence of paranoia or other psychosis at that time. His urine tested positive for crystal meth.
[85] He presented well at an appointment with Dr. Cook on September 15, 2022. He received his regular Haloperidol injection the day before, and his CTO was renewed.
[86] Mr. Gowers was returned to custody from September 29, 2022, to February 9, 2023. He attended a clinic once while out of custody on February 19, 2023, and received his injection. He also attended for injections on March 31 and April 20, 2023.
[87] He was arrested and returned to custody between May 9, 2023, and July 19, 2023. After his release, he received his injections through November 2023, until his recent period of incarceration began.
VIII. Compliance With Medication While Incarcerated (November 2023 - Present)
[88] Mr. Gowers was incarcerated on November 19, 2023, to serve a sentence. He was held at the HWDC until his transfer to the TSDC. On March 4, 2024, he was arrested in connection with the index offence and remained in custody at the TSDC.
[89] Dr. Gray reviewed the institutional records of both institutions (including medical records) and concluded that Mr. Gowers was taking appropriate antipsychotic medication and that the dosage was generally adequate. Mr. Gowers agreed to monthly Haloperidol injections starting on November 19, 2023, and continuing until July 2, 2024. Dr. Gray further concluded that Mr. Gowers remained capable of acting in a threatening manner, even while taking antipsychotic medications and abstaining from substances (e.g., crystal meth). Nevertheless, Dr. Gray formed the opinion that Mr. Gowers’ risk could be controlled in the community.
[90] Mr. Gowers was never informed by jail staff that leaving threatening voicemails was inappropriate. As Mr. Gowers’ cognitive functioning is below average, he at times has difficulty understanding the harmful nature of his conduct. For unknown reasons, the Ombudsman’s Office did not notify the jail that Mr. Gowers was leaving these voicemails until many months had passed. Dr. Gray believed that, had Mr. Gowers been told that the messages he was leaving were inappropriate or causing distress to the victim who received them, he could have been stopped. Mr. Gowers did not display aggressive behaviour towards the staff at the jail. Instead, he was venting his frustration by communicating paranoid thoughts into a silent, open line when he left messages.
IX. Dr. Gray’s Diagnosis and Evaluation of Mr. Gowers
[91] Dr. Gray diagnosed Mr. Gowers with schizophrenia. The first such diagnosis was made by a psychiatrist in 2007. Mr. Gowers has exhibited symptoms of paranoid delusions, possible auditory hallucinations, and disorganized speech on and off in the years since. The intensity of his symptoms has depended, in part, on whether he has been compliant with a sufficient dose of an antipsychotic medication.
[92] Mr. Gowers has limited insight into his illness. Crucially, he understands that antipsychotic medications reduce his paranoia and auditory hallucinations. As documented in his medical history, he has repeatedly sought antipsychotic medication or requested a change to a different medication when experiencing symptoms. However, at times he has also asked for lower doses of a medication and/or to switch to an oral form rather than the injectable form. When this occurs, he often becomes non-compliant shortly thereafter and then psychiatrically unwell.
[93] In Dr. Gray’s opinion, Mr. Gowers’ clinical history indicates that his psychotic symptoms are highly treatable and respond well to medication. He can be compelled to take antipsychotic medication for years at a time while on a CTO. He can be followed by a specialized treatment team in the community. Dr. Gray further opined that Mr. Gowers is likely to be found incapable of making medication decisions on his own in the future and will therefore be able to remain on a CTO with forced injections of appropriate medication. This strengthens the value of a CTO, as Mr. Gowers will not be able to rescind the order himself.
[94] If Mr. Gowers’ schizophrenia-related symptoms are left untreated, he perceives others as threats to himself and, in turn, responds with threatening behaviour. His level of anxiety increases with his paranoia, often resulting in a greater propensity to use aggression against other persons.[19] While medication reduces the frequency and seriousness of Mr. Gowers’ violent actions, Dr. Gray was clear that it would not completely extinguish Mr. Gowers’ tendency to threaten others to get what he wants.
[95] Dr. Gray also diagnosed Mr. Gowers with stimulant use disorder, severe, with sustained remission in a controlled environment. Mr. Gowers has used large quantities of crystal meth throughout his adult life, despite the negative effects it has on the symptoms of schizophrenia he has experienced. He has struggled to reduce his use of crystal meth at times. This affects his risk of violence, as his consumption increases the intensity of his symptoms of schizophrenia, including paranoid and disorganized thinking.[20]
[96] By way of a third diagnosis, Dr. Gray concluded Mr. Gowers met the diagnostic criteria for an antisocial personality disorder. Mr. Gowers has failed to comply with social norms regarding lawful behaviour and has a history of impulsivity. He has been aggressive and committed violent crimes. He has shown reckless disregard for the safety of others during many of his offences, including prior acts of intimate partner violence involving the use of a knife.[21] This diagnosis poses challenges for his likely engagement in treatment that could meaningfully address his risk factors.[22]
[97] Dr. Gray applied standard risk-assessment tools to assess Mr. Gowers’ likelihood of future violent offending. He assigned Mr. Gowers a score of 27 on the PCL-R. Scores above 25 are associated with higher risk and lower success rates for treatment interventions. On the VRAG, Mr. Gowers received a score of +32, which suggests he is at very high risk of reoffending. During his testimony, Dr. Gray agreed that Mr. Gowers’ prior convictions for assault or assault-related offences did not involve violence that caused serious physical injuries requiring hospitalization to his victims, and that there was no reason to expect significantly more serious violent behaviour in the future. The VRAG’s risk of reoffending encompasses a broad range of behaviour that qualifies as “violence.”[23]
[98] Dr. Gray remained optimistic about Mr. Gowers’ ability to be successfully treated in the community. He concluded that the circumstances of the index offence were unlikely to be repeated if Mr. Gowers were supervised. In a controlled environment, those supervising him could restrict his liberties or adjust his medication as necessary. He described there being a “[g]ood prospect of control of his risk in the community”. That is the case even though his psychotic traits could interfere with his ability to benefit from treatment.[24]
X. Positions of the Parties
[99] Ms. Moore and Ms. Mahal submit that the Crown has proven beyond a reasonable doubt that Mr. Gowers should be designated a DO under Criminal Code sections 753(1)(a)(i) and (ii). He has been convicted of a “serious personal injury offence”. His criminal history demonstrates that he has exhibited the requisite “pattern of behaviour” under either subsection. His conduct is intractable. He reoffended despite treatment, community supervision, and appropriate mental health support. His risk factors are “entrenched and chronic.”[25]
[100] However, the Crown no longer seeks an indeterminate period of incarceration. An appropriate sentence is a four-year penitentiary term followed by a 10-year Long-Term Supervision Order (“LTSO”). Ms. Moore agreed that Mr. Gowers is entitled to a reduction for the time he has already served. With Summers credit, that is approximately 44 months. She seeks a further sentence of at least six months so there is a transition period for Mr. Gowers before he is released into the community. Ms. Moore did not dispute that if I were to award Mr. Gowers Duncan credit in addition to Summers credit, he would have served the four-year proposed sentence.
[101] Ms. Rochman submits that Mr. Gowers does not meet the criteria for either a DO or an LTO designation. He is well past “time served.” Indeed, she submits that the Crown’s office appears to have misunderstood what this case was about originally, which resulted in the request for a DO assessment. Mr. Gowers’ offending behaviour is worth no more than six to nine months' custody.
[102] While Mr. Gowers has a lengthy criminal record, in nearly all the incidents underlying his prior convictions, he did not physically harm his victims. The degree of violence – attempted or threatened – associated with these convictions must be considered in its proper context. As noted by Dr. Gray, Mr. Gowers often threatens individuals in a crude attempt to achieve an end, but he does not carry out those threats.
[103] The index offence occurred while Mr. Gowers was in jail and in the midst of a mental health crisis. He was seeking help. Most of the voicemail messages were not grounded in reality, and any recipient would have recognized the caller was delusional. This case of criminal harassment does not qualify as a “serious personal injury offence.”
[104] Dr. Gray concluded that Mr. Gowers had insight into his mental illness and recognized the need for treatment. He has been successfully treated with medication in the past and is willing to take medication again. His schizophrenia symptoms can be managed. Even if I were to conclude that the offence is a serious personal injury offence, the remaining criteria for a designation as a DO have not been established beyond a reasonable doubt.
[105] Pursuant to the relevant provisions of the Health Care and Consent Act, S.O. 1996, c. 2, Mr. Gowers will inevitably be found incapable of consenting to his own medical treatment. As a result, he can be forced to take medication. Ms. Rochman asked me to consider that Mr. Gowers has previously been subject to a CTO, and I can conclude that he will be again in the future. The court must consider a CTO as a risk-management tool that will reduce Mr. Gowers’ risk of reoffending. There is no need for further incarceration.
[106] Ms. Rochman submits that a probation order is the appropriate sentence. Mr. Gowers has regularly attended meetings with his assigned probation officer throughout his life and has generally complied with all orders.
XI. Dangerous Offender Application
[107] In Boutilier, the Supreme Court of Canada reaffirmed that four primary criteria exist for a dangerous offender designation. At paras. 26-7, Justice Côté wrote:
In Lyons, Justice La Forest read the objective element of the designation — the requirement that the predicate offence be a “serious personal injury offence” — together with the subjective element — the “threat” assessment — and concluded that four criteria were “explicit” from the language of s. 753(1): (1) the offender has been convicted of, and has to be sentenced for, a “serious personal injury offence”; (2) this predicate offence is part of a broader pattern of violence; (3) there is a high likelihood of harmful recidivism; and (4) the violent conduct is intractable (p. 338). The last three criteria are part of the assessment of the “threat” posed by the offender. The last two of these are future-oriented, and Justice La Forest explained them as follows:
Thirdly, it must be established that the pattern of conduct is very likely to continue and to result in the kind of suffering against which the section seeks to protect, namely, conduct endangering the life, safety or physical well-being of others or, in the case of sexual offences, conduct causing injury, pain or other evil to other persons. Also explicit in one form or another in each subparagraph of s. [688, now 753] is the requirement that the court must be satisfied that the pattern of conduct is substantially or pathologically intractable. [Emphasis added; p. 338.]
92Justice Côté further commented on the requirement that the offender’s pattern of conduct is “substantially or pathologically intractable.” Intractable conduct refers to “behaviour that the offender is unable to surmount.” A finding of dangerousness requires the Crown to prove, beyond a reasonable doubt, a “high likelihood of harmful recidivism and the intractability of the violent pattern of conduct”: see para. 46. The offender's treatability must be considered at the designation phase in determining whether the Crown has met its heavy burden: see R. v. A.B., 2026 ONCA 361, at para. 44. If an offender can be successfully treated through reasonably available means while in the community, that may preclude a finding that he suffers from intractable conduct or at least leave the court with reasonable doubt in that regard.
[108] In this case, as previously noted, the Crown argues that Mr. Gowers meets the statutory criteria for a dangerous offender designation pursuant to Criminal Code sections 753(1)(a)(i) or (ii).
(i) Does the Index Offence Constitute a Serious Personal Injury Offence?
[109] Criminal harassment may constitute a “serious personal injury offence” in certain contexts. A serious personal injury offence is defined as “an indictable offence… involving (i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, and for which the offender may be sentenced to imprisonment for ten years or more”. Endangering the safety of another person may include emotional and psychological harm. However, severe psychological damage must be more than severe psychological harm. The court must find substantial interference with the victim’s “physical or psychological integrity, health, or well-being”: see R. v. Cook, 2020 ONCA 809, at para. 20.
[110] Ms. Rochman disputes that the criteria have been met in this case. While P.M. filed a VIS about the impact of receiving the messages, it should be given limited weight. I have the benefit of the full record of this proceeding. P.M. received fewer than half the voicemail messages. P.M. did not know Mr. Gowers. If P.M. had been under extreme psychological distress when the first tranche of messages was received, the Ombudsman’s Office would have reported the calls much sooner. But it did not. Her VIS should not be accepted uncritically.
[111] I agree with Ms. Rochman. I am not satisfied beyond a reasonable doubt that Mr. Gowers’ index offence meets these criteria, given the nature and content of the voicemails, viewed in their totality. Repeatedly receiving threatening voicemails could understandably terrify many people. But these voicemails are qualitatively very different from many other reported cases of threatening behaviour. They are the rantings of a delusional person, and nothing about the Ombudsman’s Office’s response suggests they were ever taken seriously until there was a concern about the caller’s possible attempts at self-harm.
[112] P.M.’s VIS may establish that she subjectively claims to have suffered substantial interference with her psychological integrity due to the voicemails she received. That, by itself, is insufficient to prove the offence is a serious personal injury offence. Criminal Code section 722(8) provides that, when considering a VIS, a sentencing court “shall take into account the portions of the statement that it considers relevant.” In R. v. Gabriel, 1999 CanLII 15050 (S.C.J.), at para. 22, Justice Hill stated the following about how a VIS should be considered:
Without, in any fashion, diminishing the significant contribution of victim impact statements to providing victims a voice in the criminal process, it must be remembered that a criminal trial, including the sentencing phase, is not a tripartite proceeding. A convicted offender has committed a crime – an act against society as a whole. It is the public interest, not a private interest, which is to be served in sentencing.
[113] Justice Hill cautioned against accepting certain elements of a VIS without careful consideration. These included “[a]ttempts to state, or presumably to restate, the facts of the offence”, which might conflict with the “facts read in, and agreed to, on the guilty plea appearance”: see para. 31. Justice Hill further wrote that the “independent neutrality of the judiciary requires that the court not react to public opinion as to the severity of sentences”: see para. 32. These remarks were endorsed by the British Columbia Court of Appeal in R. v. Bremner, 2000 BCCA 345, at paras. 25-7.
[114] I do not mean to diminish what P.M. experienced after receiving the first tranche of voicemail messages. She is entitled to sympathy and compassion. What she felt is obviously real to her. That is a factor I must consider, but it is only one factor. The question of relevance raised by section 722(8), and the weight to be given to the contents of the VIS, is for the court to decide, given the factual record before the court at the time of sentencing: see Cook at para. 12. Moreover, a sentencing court’s determination of whether “severe psychological damage” has been established should consider all the evidence presented and is not limited to a single source of evidence: see Cook at paras. 12-13.
[115] In that regard, I note that some portions of the VIS are inconsistent with the facts I have found. P.M. wrote that Mr. Gowers threatened “me” and would harm “me.” She may have felt that way when she authored her VIS, or may have been given information that led her to believe she was his specific target. But in none of the messages does Mr. Gowers mention P.M. by name, because he did not know who she was or what she looks like. I have found that he was not threatening her specifically, even if she was the unfortunate recipient of the messages. He was leaving threatening messages on a voicemail system open to members of the public to vent his frustration. A VIS cannot be used “improperly to aggravate or increase the length of a sentence”: see R. v. Benjumea, 2022 ABQB 44, at paras. 46-7; R. v. Theriault, 2020 ONSC 6768, at para. 17, affirmed 2021 ONCA 517. Aspects of a VIS that stray beyond a judge’s findings should have no weight associated with them: Theriault, supra.
[116] P.M. has attended court on many dates during this proceeding via Zoom.[26] I hope that, with a full understanding of what has occurred in this case and of Mr. Gowers’ background, she now appreciates that she was not a specific target of his anger and that he struggles daily with a significant mental illness. That will hopefully ease her anxiety.
[117] To be designated a serious personal injury offence, a court must consider whether the offender’s conduct was “likely” to endanger another person’s safety or to inflict severe psychological damage. Mr. Gowers is mentally ill and has cognitive limitations. According to Dr. Gray, he would not have appreciated the full extent of his offending behaviour. I find that, when considered in their proper context, his voicemail messages do not meet this threshold.
[118] The implications of an offence being characterized as a serious personal injury offence are profound. Courts must exercise great care not to allow any offence to qualify: see R. v. Morgan, 2005 CanLII 7254 (Ont. C.A.), at para. 13. The impact the offences had on a victim may often be sufficient to cross this threshold. But not always: see, for example, R. v. Thompson, 2009 ONCJ 359, at para. 20.
[119] On that basis alone, the Crown’s application cannot succeed. However, if I am wrong about whether the offence qualifies as a serious personal injury offence, I continue with my analysis.
(ii) Criminal Code Section 753(1)(a)(i) and a “Pattern of Repetitive Behaviour”
[120] Criminal Code sections 753(1)(a)(i) and (ii) state that an offender may be designated a DO when the Crown proves the offender constitutes “a threat to the life, safety or physical or mental well-being of other persons based on evidence establishing:
(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,
(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour…”
[121] A “pattern of repetitive behaviour” should not be assessed by reference to the number of prior offences alone but also with consideration for the elements of similarity of the offender’s behaviour: see R. v. Langevin, 1984 CanLII 1914, [1984] O.J. No. 3159 (Ont. C.A.) at para. 29. As the Crown correctly argued in its written materials, the requirement for a pattern focuses on behaviour generally, not just prior offences: see R. v. Wong, 2023 ONCA 118, at para. 42.
[122] This is Mr. Gowers’ fifth conviction for criminal harassment. I will review the facts of his prior convictions for criminal harassment to assess the Crown’s argument that his criminal history establishes a pattern. While his entire criminal history is relevant, these prior offences are particularly probative in light of the facts underlying the index offence.
November 2, 2012 – Criminal Harassment
[123] On July 22, 2011, while detained in custody and subject to an order prohibiting contact with the victim, Mr. Gowers called her and said, “If I don’t get out on bail, I’m going to kill myself.” The victim was his former intimate partner, and he was in jail for offences he committed against her.
[124] He called her again, and this time her daughter answered. He said, “You fucking bitch, you put me in here, you set me up.” The victim took the phone from her daughter and heard Mr. Gowers say, “I don’t care how long I’m in here, a year or two. When I get out of here, I will find you and kill you myself.”
[125] The Crown also read into the record other facts. Between July 5 and July 16, 2011, the victim and her daughter received approximately 50 phone calls from Mr. Gowers. These calls were made while he was in custody.
[126] For this offence and others, the court imposed a sentence of 15.5 months of pre-sentence custody (credited for 22 months), and a three-year probation order.
June 24, 2013 – Criminal Harassment
[127] In January 2013, Mr. Gowers’ former friend reported receiving three text messages from Mr. Gowers that she considered threatening. Mr. Gowers was not charged but was cautioned by the police. On February 3, 2013, she reported another 13 messages from Mr. Gowers. They included, “You’re dead, bitch.”
[128] Mr. Gowers pleaded guilty to this offence and others and was sentenced to 1 day in custody, in addition to 139 days of pre-sentence custody. He was also placed on probation for three years.
April 5, 2017 – Criminal Harassment
[129] The victim of this offence was a former intimate partner. After the victim ended the relationship, Mr. Gowers repeatedly sent her threatening text messages. The threats included statements that he was going to stab her, that he had a shotgun, and that he would send his friends to harm her. He sent over 200 text messages, forcing the victim to change her phone number multiple times. He also referred to various motorcycle gangs he could enlist to further these purposes.
[130] The court sentenced Mr. Gowers for this offence, and others, to 177 days of pre-sentence custody (credited for 266 days) plus 99 more days in jail, and a three-year probation order.
January 22, 2019 – Criminal Harassment
[131] The victim of this offence was in a relationship with Mr. Gowers at the time it occurred. She was 19, and he was 32.
[132] From December 1, 2017, to January 30, 2018, he committed various acts of violence against her. These included accusing her of being unfaithful on December 25, 2017. He then brandished a kitchen knife from his mother’s kitchen, pointed the tip to her stomach, and said, “I should beat the crap out of you to teach you not to screw around with me.” On January 1, 2018, he was again angry at her for being unfaithful. He brandished a knife, placed it against her face, and said, "I am going to kill you.” Ms. Ruscka calmed him by talking to him. She suffered no physical injuries as a result of either assault.
[133] Other instances of assaultive behaviour were presented to the court in relation to events in 2018. Mr. Gowers was arrested for these offences and detained in custody pending his trial. He was subject to a court order prohibiting contact with Ms. Ruscka.
[134] While in custody, he sent Ms. Ruscka letters in the summer of 2018. The letters were offensive, and Mr. Gowers accepted that they were sufficient to ground a finding of guilt for criminal harassment. The sentencing court accepted a joint position of 14 months' imprisonment, less time served, resulting in an additional two months' custody. The court also imposed a three-year probation order.
[135] Ms. Rochman argued that the Crown has failed to establish a pattern as required by this subsection of the Criminal Code. The absence of a relationship between Mr. Gowers and P.M. makes this case different from his prior convictions. Ms. Rochman submits that the Crown cannot even establish that Mr. Gowers knew he was leaving messages for a woman. As previously explained, I agree with Ms. Rochman on these factual points. As Ms. Rochman explained in her written submissions, in prior cases Mr. Gowers has used threats to obtain the outcomes he desired, targeting women with whom he had a prior relationship. In this case, he left voicemails for an unknown person that were ultimately expressions of frustration about his plight in jail. He was in no position to make demands of anyone and could not influence whoever received the messages. These distinctions matter.
[136] I find that the Crown has failed to prove, beyond a reasonable doubt, the existence of a pattern of repetitive behaviour required by Criminal Code section 753(1)(a)(i). Mr. Gowers’ history of using threats of violence to influence others into meeting his demands is relevant but insufficient. This case is fundamentally different from Mr. Gowers’ prior convictions. He did not know P.M. or that she was receiving the messages. He did not know that any woman was receiving the messages he left. He did make demands in some of his voicemails for something to be done to assist him. I conclude that he left some of the threatening messages in an attempt to influence whoever was receiving them. But I cannot conclude that the recipient of the messages would have reasonably believed that they had to comply with those demands, or that the caller could do anything to them if they did not comply. Many of the messages demonstrate that the caller is delusional, and many also demonstrate that the caller is remorseful.
[137] Dr. Gray testified that Mr. Gowers has an established pattern of using threats of violence to “solve” his problems when he does not know how to otherwise get his victims to provide him with what he wants.[27] While he did not know who was specifically receiving his messages when he left them from jail, his intent was to intimidate whoever that person was into assisting him. I accept these portions of Dr. Gray’s evidence. However, it must be remembered that, from the outset of the DO application, the Crown relied upon its theory that Mr. Gowers has always intentionally targeted women. In the Crown’s final written arguments, Ms. Moore and Ms. Mahal wrote that Mr. Gowers “has repeatedly engaged in persistent harassment and threats against women, both intimate partners and not. This behaviour is at times retaliatory, at other times manipulative. He has consistently engaged in aggression towards these women with no thought given to the harm he has caused”.[28] Ms. Moore and Ms. Mahal also wrote that Mr. Gowers “marked targeting of female victims” must be considered.[29]
[138] To be clear, I do not find that Mr. Gowers was targeting P.M. specifically or any woman at all when he left these voicemail messages. The threats of violence to intimidate another person into providing him with a benefit, when considered in their full context and juxtaposed with his prior criminal record, do not support a finding that a “pattern” exists as required by this subsection. At a minimum, I am left with reasonable doubt.
(iii) Criminal Code Section 753(1)(a)(ii) and a “Pattern of Persistent and Aggressive Behaviour”
[139] The Crown also argues that Mr. Gowers should be designated a dangerous offender pursuant to Criminal Code section 753(1)(a)(ii), which requires a pattern of “persistent and aggressive behaviour” showing a “substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his… behaviour.”
[140] In R. v. Villeneuve, 2022 ONSC 2188, Justice Aitken held that the “persistence” required for the Crown to establish a pattern under this subsection requires proof of behaviour that is “enduring, continuous, obstinately persevering, interminable or sustained”: see para. 103; see also R. v. Smith, 2023 ONCA 575, at para. 56; R. v. Williams, 2018 ONSC 2030, at para. 252. Aggression is a broadly defined concept that encompasses both physically and/or sexually aggressive conduct. It does not require the use of physical force: Wong, at paras. 52-3.
[141] There must also be proof of a “substantial degree of indifference”. In Williams, Hill J. equated “indifference” with “disregard, lack of sympathy or empathy, callousness and coldness, and lack of concern or sensitivity”. That “indifference” must be examined through the lens of whether the offender has demonstrated any concern about how his actions “will impact others, are impacting others, or have impacted others”: see Villeneuve at para. 105.
[142] Dr. Gray concluded that Mr. Gowers minimized his prior violent offences and their potential impact on his victims. He showed “little remorse” for his threatening behaviour. The minimization of his past offences and the dismissal of some as “joking” suggested indifference to the likely psychological effects of his sometimes graphic threats of physical violence against others. Certainly, it cannot be disputed that Mr. Gowers has used threats of violence or sometimes actual violence throughout his life against his victims. He has been warned by courts countless times about the harm his conduct has caused his victims. While he has apologized for some of his crimes, including the index offence, he struggles with empathy and an appreciation of how hurtful his criminal conduct has been.
[143] However, I cannot conclude that Mr. Gowers has failed to demonstrate any concern for the impact his behaviour has had on others: Villeneuve, supra. While Dr. Gray’s assessment that Mr. Gowers demonstrates “little remorse” troubles me, he still shows remorse. Regarding the index offence, when he apologized to me in court for his harassment of P.M., I found him sincere. Dr. Gray did not suggest that Mr. Gowers was attempting to deceive anyone with his expressions of remorse. That he struggles to regulate and correct his behaviour and dismisses some of his offences as “jokes” does not necessarily mean he is plagued by a “substantial degree of indifference” to his victims’ well-being.
[144] Overall, Mr. Gowers’ characterization of his offences, together with his cognitive limitations, leads me to conclude that he does not exhibit the “callousness and coldness” required for a designation under this subsection. Rather, he needs help recognizing the extent of the harm he can cause. But once he realizes he has harmed someone, he can change his behaviour accordingly. Regarding the index offence, after being notified of the inappropriateness of his calls through his arrest, he ceased making them for several months (and what caused him to leave more messages later was never explained to me). Dr. Gray’s opinion evidence was that if Mr. Gowers had been informed promptly that his voicemail messages were inappropriate and causing harm to their recipient, he would have stopped leaving them.
[145] I deny the Crown’s application under this subsection as well, accordingly.
(iv) High Likelihood of Harmful Recidivism / Intractable Nature of the Offender’s Conduct
[146] Even if I am wrong and the “pattern” required for a DO application has been established under Criminal Code sections 753(1)(a)(i) or (ii), the Crown must do more than merely prove the existence of a pattern of offending behaviour, as previously discussed. In Boutilier, the Supreme Court held that the Crown must establish a high likelihood of harmful recidivism to ground a dangerous offender application: see paras. 26-7 and 45-6. This requires the court to engage in an assessment of prospective risk, considering “all retrospective and prospective evidence relating to the continuing nature of this risk”: Boutilier, at para. 43; A.B. at para. 44. The Crown must prove that Mr. Gower’s conduct is nothing short of intractable.
[147] At the outset of my analysis of this issue of intractability, I note that I generally accept Dr. Gray’s evidence regarding his assessment of Mr. Gowers’ mental health afflictions, and his determination of Mr. Gower’s risk level and amenability to future treatment. He is an experienced forensic psychiatrist who has conducted many hundreds of prior DO/LTO assessments. His report and testimony were thorough and comprehensive. He interviewed Mr. Gowers directly and spoke with his family members. He reviewed Mr. Gowers’s extensive medical and institutional records. However, on the subject of intractability, I respectfully am not persuaded by his opinion evidence.
[148] Mr. Gowers’ criminal record is troubling and shows that he has not always followed through on these commitments. Dr. Gray noted that Mr. Gowers has an antisocial personality disorder, which suggests that his personality traits will be difficult to change and that his risk level may be entrenched. That is obviously very relevant when determining if the Crown has proven that Mr. Gowers’ criminal behaviour is intractable. Yet Dr. Gray accepted that traits of an antisocial personality disorder tend to diminish with time.
[149] Mr. Gowers has a mixed record in responding to treatment opportunities. At times, he has refused to take medication (in one form or another) and has returned to violent, threatening behaviour. However, there have also been long periods when he has complied with the medical advice of his psychiatrist, taken his medication, and refrained from committing further offences. Considering his entire history, and primarily because Mr. Gowers has at times failed to follow through with necessary programming and has denied his substance use problems, Dr. Gray was of the opinion that Mr. Gowers lacked meaningful insight into his afflictions and what was causing him to offend. That, in turn, would affect his treatability prospects and would increase the likelihood of him reoffending.[30]
[150] Dr. Gray determined that it was highly unlikely that Mr. Gowers would develop sufficient internal controls to manage his risk of future violence. Successful management of his risk would rely almost entirely on external structure and control. Dr. Gray ultimately held the view that there is a “good prospect of control of [Mr. Gowers’] risk in the community” with an appropriate support network, which would have to include stable housing and supervision.[31]
[151] Nevertheless, Dr. Gray was satisfied that there was “strong psychiatric evidence” supporting a finding of intractability, as required for a DO designation.
[152] It is important to remember that a finding of intractability is a legal, not a psychiatric determination. And it is one that must be made on the strictest burden of proof – that of “beyond a reasonable doubt”: see A.B. at para. 49. I need not accept all facets of Dr. Gray’s opinion evidence, and a trial judge must make their own determination about whether the evidence as a whole supports a finding of intractability: see R. v. S.W., 2026 ONCA 531, at para. 100. Uncritically adopting Dr. Gray’s statement in this regard and then concluding that the Crown has met its heavy burden on that basis alone would be improper. Indeed, doing so would, in my view, lead to an error similar to that committed by the trial judge in R. v. Sohal, 2023 BCCA 256.
[153] In Sohal, the appellant was convicted of sexual assault with a weapon, unlawful confinement, and uttering threats. The Crown sought to have him designated as a DO. The trial judge designated him as a DO under sections 753(1)(a)(i) and 753(1)(b) of the Criminal Code and sentenced him to a determinate six-year jail term, followed by a ten-year LTSO.
[154] The British Columbia Court of Appeal found that the trial judge erred by failing to consider whether the evidence met the correct standard for assessing the appellant’s future risk. This error stemmed from the trial judge’s acceptance of the opinion of the forensic psychiatrist who completed the Criminal Code section 752.1 assessment, but the trial judge did not properly apply that opinion to the legal test under the relevant provisions of the Criminal Code: see para. 122. The forensic psychiatrist concluded that Mr. Sohal posed a “chronic risk,” that his risk was “difficult to eradicate or reduce,” and that his conduct was “deep-seated and intractable.” The doctor also concluded that the appellant was “likely” to reoffend with sexual violence.
[155] However, as noted by the British Columbia Court of Appeal, a low or moderate risk of harmful recidivism can also be chronic, difficult to eradicate, deep-seated, and intractable. Because the trial judge’s designation was explicitly based on the doctor’s determination that the appellant was “likely” to reoffend, she did not “set her mind to or answer the necessary question of whether Mr. Sohal was “very” or “highly” likely to reoffend with sexual violence”: see para. 122. That was an error of law, and the DO designation was set aside: see para. 124.
[156] In this case, Dr. Gray concluded that there was “strong evidence” that Mr. Gowers’ conduct was intractable. Dr. Gray further concluded that Mr. Gowers’ risk of recidivism was very high if he were left untreated. Yet he also concluded that Mr. Gowers’ symptoms were treatable when he was compliant with medications, which would reduce his risk of violence. An injection of 75 mg of Haldol, or an equally effective medication, every three or four weeks is currently the best-known treatment for Mr. Gowers, and he has complied with this injection schedule in the past. In cross-examination, Dr. Gray left open the possibility that Mr. Gowers may also be responding well to Maintenna, which he was recently prescribed while in custody, but he would need to examine him again to be certain. Regardless, Dr. Gray concluded that Mr. Gowers responds well to certain medications. Unlike other patients with schizophrenia, Mr. Gowers has not been prescribed Clozapine, which is required in more severe cases of treatment-resistant schizophrenia.
[157] In my assessment, Mr. Gowers’ future treatment prospects are compelling. He told Dr. Gray that he would take his medication when out of custody, even if not compelled to do so. This is generally consistent with some periods of his more recent history in the community, such as in 2019 (when Mr. Gowers had his Haloperidol dosage increased to 75 mg), from 2020-2021 (when Mr. Gowers was placed on Invega and requested that he be switched back to Haloperidol), and 2021-2023 (when Mr. Gowers continued to be largely compliant with Haloperidol injections). In addition, since his incarceration on November 19, 2023, Mr. Gowers has generally complied with injections of either Haloperidol or Maintenna.
[158] In addition, Dr. Gray agreed that Mr. Gowers shows some insight into his illness and the need for treatment. In early 2024, while incarcerated, he sought medication to prevent himself from becoming unwell. During cross-examination, Dr. Gray agreed that this evidence showed Mr. Gowers knew he needed help. When he exhibited unusual behaviour in custody or made threatening remarks during this period, he was neither punished nor charged with new offences. Rather, jail staff reported their concerns to the doctor who saw Mr. Gowers. On January 29, 2024, the frequency of his medication was increased from every four weeks to every three weeks. He complied, and that seemed to improve his condition.
[159] I acknowledge that even when Mr. Gowers has been compliant with injectable medications, it has been difficult for him. In 2019, at his outpatient clinic, he expressed reluctance to take his medication at least once, but was subject to a CTO and thus complied. He later told his probation officer that he had been misdiagnosed with schizophrenia and should not be on medication at all. He often attempted to bargain with his doctors for oral medication instead, which he may or may not have taken as required. In 2021, he left the hospital against his doctors' advice.
[160] I also acknowledge that Mr. Gowers’ history of maintaining his medications while in the community on his own is, in the words of Dr. Gray, “not good.”[32] In addition, even since 2019, when there has been a fairly consistent (though not flawless) record of Mr. Gowers complying with injectable medications, he was convicted of criminal offences on five separate dates (including the index offence). Being properly medicated is not a guarantee that Mr. Gowers will not re-offend. That being said, I note, as Dr. Gray did, that for most of the threatening offences on Mr. Gowers’ record, he was under-medicated or not on any medications to treat symptoms of schizophrenia at the time.[33]
[161] To address Mr. Gowers’ inconsistent willingness to comply with injectable medications and his ongoing risk factors, Dr. Gray determined that supervision was essential. Compliance with medication, stable housing, and continued abstinence from substances are crucial to reducing his risk and improving his ability to benefit from programming.[34] He has the support of his family, including his mother, who has devoted her life to caring for him since his birth.[35] Mr. Gowers is furthermore incentivized to maintain a relationship with his children, which he understands requires abstaining from violent behaviour to avoid being returned to jail. Dr. Gray testified that there is evidence that Mr. Gowers can form caring relationships and demonstrate empathy for others. In my determination, Mr. Gowers shows insight into his behaviour, understands why he has acted out, and knows how to prevent this from happening in the future.
[162] I place limited weight on Mr. Gowers’ past failure to comply with certain programming in a correctional setting. During his testimony, Dr. Gray clarified that Mr. Gowers has borderline intellectual functioning. That might explain why some treatment programs did not work as intended. Mr. Gowers needs programming tailored to his particular needs, and the programming he previously received was not designed for him.
[163] Considering all the evidence presented in this case, I am left with reasonable doubt as to whether Mr. Gowers’ conduct is “behaviour that he is unable to surmount” or “substantially or pathologically intractable.” He can overcome the factors that cause him to act out in a violent or threatening manner, as he struggles with his mental health needs. He understands his illness and that he needs help and medication to manage it.
[164] His success in this regard will undoubtedly depend heavily on the support structure in place for him in the community and the conditions placed upon him. Ms. Rochman submits that Mr. Gowers will be subject to a CTO and will have a substitute decision maker who can compel him to take medication. I agree that this must be considered and should be given considerable weight in this case. The future treatment plan for Mr. Gowers is not fanciful and has a proven history of meeting his needs for extended periods in the past. Succinctly put, Mr. Gowers may have a difficult path ahead, but his pattern of offending behaviour can be and likely will be broken if he continues to engage with treatment and medication in the community, under the supervision network that will be in place for him.
(v) Conclusion on Dangerous offender Application
[165] For all of these reasons, the Crown’s application to have Mr. Gowers designated a DO is dismissed.
XII. An Appropriate Sentence
(i) Sentencing Law – General Principles
[166] A sentence must be proportionate to “the gravity of the offence committed and the moral blameworthiness of the offender”: Criminal Code section 718.1. There are various factors to consider when assessing an offender’s moral culpability. As explained in R. v. Hills, 2023 SCC 2, at para. 58:
The offender’s moral culpability or degree of responsibility should be measured by gauging the essential substantive elements of the offence, including the offence’s mens rea, the offender’s conduct in the commission of the offence, the offender’s motive for committing the offence, and aspects of the offender’s background that increase or decrease the offender’s individual responsibility for the crime, including the offender’s personal circumstances and mental capacity …
[167] This is Mr. Gowers’ fifth conviction for criminal harassment, which increases his degree of moral culpability. As Ms. Moore and Ms. Mahal noted in their written materials, Mr. Gowers’ four previous convictions for criminal harassment all involved continuous, repetitive threats of violence against his victims. He knows that threatening others is wrong. At the same time, there is a qualitative difference between knowingly leaving angry, threatening voicemail messages for someone who was or remains an intimate partner and leaving them on a voicemail system for a stranger.
(ii) Aggravating and Mitigating Factors
[168] Criminal Code section 718.2(a) requires that a "sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender." The following aggravating factors are present in this case:
The content of messages, some of which are quite violent at times;
The quantity of the messages;
The duration – they were left over months, in two separate groupings;
Mr. Gowers was arrested and informed to cease leaving messages yet left the second set of messages months later;
Mr. Gowers’ prior convictions for using threats and/or repeated contact in an effort to obtain something that he wants; and
Mr. Gowers’ high likelihood of violent recidivism absent appropriate treatment.
[169] The following mitigating circumstances must also be considered:
Mr. Gowers’ guilty plea;
His expressions of remorse;
His acknowledgement of the harm he caused to P.M.;
His mental health diagnoses;
The support he has in the community from his family; and
His ability to be treated.
(iii) Pre-Sentence Custody (“PSC”)
[170] Mr. Gowers has been in custody for this offence since his arrest on March 3, 2024. As of August 10, 2026, he had accumulated 890 days of PSC. At the standard 1.5:1 credit, he has therefore the equivalent of 1,335 days, or 44.5 months, in custody.
(iv) Criminal Harassment Decisions
[171] Prior criminal harassment decisions offer some guidance on an appropriate sentence for Mr. Gowers. Penitentiary sentences, as recommended by the Crown in this case, have typically been reserved for offenders with long criminal histories of violent offences (especially those against women) and for cases with other serious aggravating factors.
[172] In R. v. O’Connor, 2008 ONCA 206, the appellant was convicted of criminal harassment, assault, and breach of a probation order. In addition to 414 days’ credit for pre-sentence custody, he was sentenced to five years’ imprisonment for criminal harassment. The victim and the appellant had a pre-existing relationship. She allowed him to live with her shortly before the offences, despite his probation order prohibiting contact with her.
[173] The appellant frightened the victim’s twelve-year-old son while the boy was alone in the basement. The victim told him she did not want to speak to him, and he tried to break into her house. She left her house with her son, and he pursued them. He caught up to them, grabbed the telephone from her, and punched her in the arm. She and her son went to a convenience store, and he followed them.
[174] The trial judge found that the appellant had a history of preying on vulnerable women. The Court of Appeal found the sentence justified in light of the appellant’s lengthy prior criminal record, even though the criminal harassment conviction stemmed from a single incident: see para. 20.
[175] In R. v. Beckwith, 2015 ONCA 588, the Ontario Court of Appeal upheld Ramsay J.’s decision of the Superior Court of Justice, which imposed a two-year sentence for criminal harassment: see para. 4. This was another case involving former intimate partners. Ramsay J. described the relationship between the complainant and the appellant 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 that a sentence of three years might have been justified.[36]
[176] In R. v. Myles, 2017 ONCA 375, the appellant pleaded guilty to one count of criminal harassment. The trial judge rejected a joint submission of 9 to 12 months and imposed a three-year sentence. The Court of Appeal of Ontario affirmed the sentence. The appellant surreptitiously downloaded the victim’s cell phone data to his computer and threatened to send intimate photographs to her friends, co-workers, and son.
[177] The appellant had 36 prior convictions. The trial judge found that he lacked empathy for his victims and insight into his offending behaviour. The Court of Appeal held that it was reasonable for the trial judge to emphasize specific deterrence, denunciation, and the need to separate the offender from society: see para. 9.
[178] The Crown cited R. v. Kohl, 2009 ONCA 100. In that case, the complainant was jogging when the accused, a stranger to her, jumped out from behind some bushes and blocked her way in a threatening and frightening manner without touching her or speaking to her. She ran away, and he chased her down the dark and lonely street. When she ran up to a house to seek help, he stood at the end of the driveway and stared at her.
[179] The Court of Appeal varied the trial judge’s three-year sentence to two years and probation: see para. 44. The appellant was 33 years old and had 12 prior convictions. He had a serious drug addiction.
[180] Ms. Moore and Ms. Mahal argue that Mr. Gowers’ campaign of harassment was far more serious than what occurred in Kohl, thus justifying a penitentiary sentence.
[181] The Crown also cited R. v. Cornish, 2016 ONCA 578. The appellant was convicted of counts of criminal harassment against an innocent member of the public who was a passenger on a bus. His offending occurred over 10-15 minutes. He was described as a “dedicated recidivist” with six prior convictions for criminal harassment. The trial judge sentenced him to three years. The Court of Appeal deemed a two-year sentence, at most, appropriate: see para. 7.
[182] Again, Ms. Moore and Ms. Mahal argue that Mr. Gowers’ offending behaviour was “a broader and more entrenched pattern of threatening and violent conduct”, over a “far longer period.”[37]
[183] In a case with somewhat similar facts, they cited R. v. Dingillo, 2004 CarswellOnt 8014. The offender was convicted of criminal harassment, uttering threats, and breach of probation. He made numerous calls to the complainant from jail and made it clear that he intended to contact her after his release from custody. He also threatened to harm others in her life. It was a case of ongoing domestic violence against a former partner. He was sentenced to 3.5 years.
[184] In R. v. Cook, 2017 ONSC 1434, the offender demonstrated obsessive conduct directed at a former intimate partner over several months. The victim had a brief intimate relationship with the offender. The offender refused to accept the termination of the relationship. He had eight prior criminal harassment convictions. He received a three-year sentence. However, the offender was also designated a dangerous offender, a noteworthy difference from Mr. Gowers: see para. 87.
(v) Conclusion
[185] In my view, Mr. Gowers’ offence lacks some of the aggravating factors present in these other reported cases. He did not have a prior relationship with the victim, romantic or otherwise. Indeed, he never met her.
[186] I agree with the Crown that Mr. Gowers has a lengthy criminal record for violent offences, including criminal harassment. That heightens his moral culpability, even if he did not know the specific person who would receive his voicemails. Furthermore, the content of many of these messages was graphic and highly disturbing. Mr. Gowers was aware of, or at least wilfully blind to, the fear these messages could have caused in their recipient, whoever that recipient might be.
[187] Yet Mr. Gowers also apologized in some of the messages. Others contain fantastical remarks (such as knowing President Putin of Russia), which would likely have led the recipient to wonder whether the person leaving them was mentally ill. To repeat, Dr. Gray’s opinion was that Mr. Gowers was not specifically directing them at the victim, but rather “venting his frustration about his (delusional) medical concerns over the telephone to a silent listener (the voicemail system).”[38] None of these factors excuses Mr. Gowers’ behaviour, but they do cast it in a different light. In the decisions I reviewed, the offenders' actions were qualitatively dissimilar, and there were not equivalent concerns that a mental health condition explained the offending behaviour.
[188] I also note that, in cross-examination, Dr. Gray agreed that Mr. Gowers uses threats to influence individuals to get what he wants, but not that he intends to carry them out. He has significant cognitive limitations as well, which may contribute to his resorting to inappropriate behaviour despite past sanctions. It is harder for him than other adults to learn how to process his emotions and respond to frustration in a healthy manner. This is an additional mitigating factor that reduces his moral culpability: see R. v. Ghadghoni, 2020 ONCA 24, at para. 45.
[189] What caused Mr. Gowers to possibly decompensate and to leave the additional voicemail messages with the Ombudsman’s Office general voicemail line after June 24, 2024, was never made clear to me. He received scheduled doses of his medication on May 25, 2024, in June 2024, and on July 2, 2024.[39] However, the content of these messages appears to be entirely consistent with Dr. Gray’s opinion that Mr. Gowers was leaving angry voicemails on a system simply to air his anger about his ongoing detention and his concern that the Crown was seeking to have him designated as a DO (which he viewed as unfair). I cannot conclude, as I have stated, that he was targeting P.M. or any other individual specifically. Furthermore, as the Crown conceded during the sentencing hearing, P.M. never received any of the messages left after February 21, 2024. I do not know who, if anyone, received them or if they had any impact upon that person.
[190] For mental health to be considered a mitigating factor in sentencing, the offender must establish a causal link between their illness and their criminal conduct. There must also be evidence that a lengthy sentence would have a serious adverse effect on the offender, such that it should be reduced on compassionate grounds: see R. v. Fabbro, 2021 ONCA 494, at para. 25. I am satisfied that both criteria are met in this case.
[191] Dr. Gray testified that Mr. Gowers left the voicemail messages in part because of his mental illness and symptoms of paranoia. Moreover, Mr. Gowers is particularly vulnerable, and a prolonged period in custody will certainly have an ongoing negative effect on him: see R. v. Perry, 2025 ONCA 241, at para. 27. At times, he has been concerned that his food is poisoned and has not eaten. He has not seen his children in years. He cannot meaningfully connect with his family, who continue to love and support him. He has also had to endure the well-known, terrible conditions in our provincial jails caused by overcrowding and staff shortages.
[192] Furthermore, the principle of general deterrence, often given prominence in sentencing for criminal harassment, should carry far less weight when an offender’s conduct is driven by an underlying mental illness: see R. v. Dedeckere, 2017 ONCA 799, at para. 14. An offender’s mental health status may also diminish their moral culpability and permit other sentencing concerns to be given greater prominence: see the dissenting reasons of A.C.J.O. Fairburn in R. v. J.C., 2026 ONCA 383, at para. 102.
[193] I recognize that when an offender’s mental illness renders him an ongoing danger to the community, the illness alone is not a reason to reduce an otherwise appropriate sentence: see R. v. Haly, 2012 ONSC 2302, at para. 34. However, Mr. Gowers has a treatment plan awaiting him, is willing to take his medication and has the love and support of his family. I am satisfied that his risk to the community can be effectively managed.
[194] The Crown’s alternative to a dangerous offender designation was an LTO designation. One requirement for an LTO designation is a prison sentence of at least two years. I do not find such a penalty appropriate for Mr. Gowers. Mr. Gowers previously received upper reformatory sentences for criminal harassment when he knew his victims and threatened them. For this very different case, I will note four months of pre-sentence custody and credit that for six months, applying Summers. This is far less time than he has already served. I consider the full amount of time he has spent in pre-sentence custody to be grossly disproportionate to his moral culpability for this offence. Reflecting the full time he has served would suggest to anyone reviewing this criminal record that he should have been sentenced to that amount of custody. Indeed, permitting all the time served to be reflected on his record would risk future courts, should he re-engage with the criminal justice system, having a distorted view of this case of criminal harassment. That, in turn, might unduly affect future sentencing decisions to his detriment.
[195] In addition, the time Mr. Gowers has spent in custody has been much more difficult for him than for other inmates. In R. v. D.B., 2025 ONCA 577, the Ontario Court of Appeal clarified that an offender’s mental health challenges, depending on their nature, may be relevant to determining an appropriate jail sentence because those challenges “increase the severity of incarceration and intensify the impact of other collateral consequences, which favours a sentence reduction to achieve proportionality, promote rehabilitation, and protect the public in the long-term”: see para. 38.[40]
[196] Crafting an appropriate sentence for Mr. Gowers, given his needs, presents a difficult exercise in judicial discretion. As noted by A.C.J.O. Fairburn in J.C., at para. 54:
…sentencing those with serious mental health challenges can be a complex and difficult exercise. It calls for understanding and it demands nuance. This is particularly true where an accused’s mental health played a role in their offending conduct or where their mental health informs how to best protect the public on a go-forward basis.
[197] Mr. Gowers can avoid reoffending if he adheres to an appropriate treatment plan. He has demonstrated the ability to comply with his psychiatrist’s directions for extended periods in the past. His future success will depend largely on his willingness to take his prescribed medication. Despite that fact, I cannot order Mr. Gowers to take medication under a probation order, as the decision to take medication requires his consent: see R. v. Rogers, 1990 CanLII 432 (B.C.C.A.), R. v. L. (J.J.), 2001 MBCA 21; Leonardo c. R., 2025 QCCA 1035, at para. 53.
[198] Nevertheless, I find it nearly certain that he will be subject to a CTO in the future, as he has been in the past, with a term requiring him to take medication. In R. v. Hess, 2017 ONCA 220, the Court of Appeal held that a sentencing judge is entitled to consider treatment and reintegration options outside the criminal justice system when assessing the likelihood of controlling an offender’s risk. If an offender can be effectively managed through dispositions under the MHA, that must be considered: see para. 63.
[199] A CTO compels a person to attend appointments with their physician or other health-care practitioners and requires the person’s compliance with obligations set out in a Community Treatment Plan (CTP). To be validly issued or renewed, a CTO must satisfy all substantive and procedural requirements in section 33.1 of the MHA. Under section 33.7 of the MHA, a CTP must include a treatment plan for the person subject to the CTO, as well as any conditions relating to the person’s treatment, care, and supervision.
[200] A patient subject to a CTO is obligated to comply with the terms of the CTP: MHA section 33.1(9)(b). If a physician who issued or renewed a CTO has reasonable cause to believe that the person subject to the order has failed to comply with their obligations, the physician may issue an order for the person's examination: section 33.3(1). This is done via a Form 47, which authorizes the police to bring the person to the hospital for an examination. After the examination, the physician can issue a new CTO, place the person on a Form 1 (Application for Psychiatric Assessment), or release them: section 33.3(4).
[201] It bears repeating that Dr. Gray’s opinion was that Mr. Gowers would likely be deemed incapable of making his own medical decisions, and could be placed on a CTO, with a condition to enforce injectable medications.[41] Mr. Gowers told Dr. Gray he would comply with these requirements if they were in place. That would substantially mitigate his risk of reoffending, with adequate supervision. Whether the substitute decision-maker is a member of Mr. Gowers’ immediate family (such as his mother), or the Public Guardian and Trustee, a CTO can be enforced.[42]
[202] The form of supervision that Mr. Gowers requires will be provided through his family, the probation office, and the terms of a CTP. I strongly encourage Mr. Gowers to work cooperatively with his psychiatrist and take any medication as directed, as this is undoubtedly the best way to prevent him from re-offending. He must demonstrate his commitment to managing his mental illness.
[203] I emphasize an observation made earlier in this judgment: Mr. Gowers may have a difficult path ahead. However, his pattern of offending behaviour can be and likely will be broken if he continues to engage in treatment and medication while in the community, under the supervision network that will be in place for him.
[204] I conclude by acknowledging that nothing I write can give Mr. Gowers back the time he has lost. I hope that his judgment will serve to place him on the best future track possible, promote his long-term rehabilitation, and help to prevent anything of this nature from occurring again.
[205] The terms of the probation order I impose today will be in place for three years:
Keep the peace and be of good behaviour;
Report to a probation officer within two business days of your release from custody and thereafter as directed;
Reside at an address approved by your probation officer;
Do not possess any weapons as defined by the Criminal Code;
Do not have any contact, directly or indirectly, with P.M.
Do not attend within 100m of anywhere you know her to live, work or happen to be;
Do not leave threatening messages for anyone who works at the Provincial Ombudsman’s Office;
Do not attend within 100m of the Ombudman’s Office without the prior, written, revocable consent of a manager or other senior official at the Ombudsman’s Office;
Take counselling or programming as directed by your probation officer;
Sign any consents or releases required for your probation officer to monitor your compliance with the terms of this order;
Within one week of your release from custody, arrange an appointment with a psychiatrist in the community;
Do not consume any alcohol, non-medically prescribed drugs, or any other intoxicating substance; and
To provide, for the purpose of analysis, a sample of a bodily substance, on the demand of your probation officer (or designate), at the place and time and on the day specified by the person making the demand, if your probation officer (or designate) has reasonable grounds to believe that you have breached a condition of this order requiring you to abstain from the consumption of drugs, alcohol or any other intoxicating substance.
[206] The following ancillary orders are not disputed:
A weapons prohibition order under section 109 of the Criminal Code for life; and
A DNA order pursuant to section 487.051(1) of the Criminal Code, as criminal harassment is a secondary designated offence
[207] The victim fine surcharge is waived.
Released: August 10, 2025
Signed: Justice B. Jones
1Addendum to the report of Dr. Gray at page 2.
2Report of Dr. Gray at page 75.
3My emphasis added in italics.
4Page 2 of the Crown’s 752.1 application materials.
5Page 5 of the Crown’s 752.1 application materials (my emphasis added).
6I would not have granted the application for 752.1 assessment order if I had been given an accurate understanding of the facts of the case including having evidence before me of all the voicemail messages, and that there was not a prior relationship of any kind between P.M. and Mr. Gowers.
7I considered the situation analogous to making a decision on committal at the conclusion of a preliminary inquiry, or an application for a directed verdict, where all reasonable factual inferences must be drawn in favour of the Crown: see, for example, R. v. Arcuri, 2001 SCC 54.
8Written submissions of the Crown at page 14.
9The parties filed a new, agreed statement of facts clarifying many of the factual details of this case on May 25, 2026. Furthermore, I note that Mr. Gowers was charged with criminally harassing P.M., not the staff of the Ombudsman’s Office in general.
10Perhaps it was a generic voicemail message that informed the caller they could leave a message for the recipient who was not available. Or perhaps it was a personalized message for callers recorded by P.M. herself. I simply do not know.
11In the Crown’s written submissions, Crown counsel described Dr. Gray’s report as “thorough, careful and fair”: see page 28.
12Report of Dr. Gray at page 5.
13Addendum of Dr. Gray, at pages 2-3.
14After the guilty plea was entered, Mr. Gowers discharged his original lawyer and subsequently retained Ms. Rochman.
15For example, the Public Prosecution Service of Canada Deskbook, “Resolution Discussions”, Section 3.4, states that “Crown counsel should rely on facts that are provable by admissible evidence.” The Ontario Crown Policy Manual has specific guidance for Prosecutors when a Dangerous Offender application is being contemplated, including surrounding resolution discussions: see “D. 8 Dangerous / Long-Term Offenders.”
16Ms. Rochman informed me that, while she considered filing a motion to strike the guilty plea after she became aware of the inaccuracies presented to me when the plea was entered, she received instructions to proceed with the sentencing hearing.
17In Boucher v. The Queen, supra, Justice Rand established that the role of the Crown prosecutor “excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.”
18Similarly, he attributed his failure to complete a spousal violence program in 2014 to not doing well mentally at the time, which made attending the sessions difficult.
19Report of Dr. Gray at page 76.
20Report of Dr. Gray at page 77.
21Report of Dr. Gray at page 78.
22Report of Dr. Gray at page 79.
23Testimony of Dr. Gray on April 22, 2026
24Report of Dr. Gray at page 80.
25Written submissions of the Crown at page 4.
26She has always kept her camera off, wisely, so that Mr. Gowers cannot see her.
27Report of Dr. Gray at page 83.
28Written submissions of the Crown at page 2.
29Written submissions of the Crown at page 52.
30Report of Dr. Gray at page 87.
31Report of Dr. Gray at pages. 87-8.
32Testimony of Dr. Gray on April 21, 2026. The Crown filed a “medication compliance summary” chart in its compendium of materials (Tab 3c), which I find is accurate and comprehensive. It is greatly appreciated that Crown counsel went to the effort to create this document to assist with my review of the evidence.
33Report of Dr. Gray at page 83.
34Report of Dr. Gray at page 91.
35She attended virtually every day of these proceedings to demonstrate her support for her son.
36I was able to provide counsel with a transcript of the trial judgment.
37Written submissions of the Crown at pages 59-60.
38Addendum of Dr. Gray at page 3.
39Addendum to Dr. Gray’s report at page 2
40My emphasis added.
41Report of Dr. Gray at page 90; Testimony of Dr. Gray on April 22, 2026.
42Testimony of Dr. Gray on April 21-22, 2026.