Court File and Parties

Court File No.: 2811 998 12 13543 00 Date: 2014-12-19 Ontario Court of Justice

Between: Her Majesty the Queen — and — Kris Allan Gowdy

Before: Justice M.S. Block

Heard: November 7, 2014

Reasons for Judgment on Sentence released: December 19, 2014

Counsel:

• T. D'Eri, for the Crown
• R. Robinson, for the accused K. Gowdy

Reasons for Judgment

BLOCK J.:

[1] On July 7, 2014 I found Mr. Gowdy guilty of the internet luring of a virtual 15 year-old boy contrary to s. 172 of the Criminal Code. In doing so I rejected both his contention that he had been entrapped into the offence by the police and his application for a stay of proceedings consequent to a violation of his right to security of the person under s. 7 of the Canadian Charter of Rights and Freedoms. Crown counsel asks that I impose 18 months jail followed by a significant probationary term. Defence counsel asks that I impose a conditional sentence or, in the alternative, a modest jail sentence in the range of 90 days notwithstanding the one-year mandatory minimum sentence.

[2] The appellate authorities have established well-known sentencing guidelines for this offence. In particular, deterrence and denunciation predominate. Even before legislative changes that barred the use of the conditional sentence for this offence, the Court of Appeal indicated that such a sentence would be appropriate only in the rarest of cases. In this regard see R. v. Folino, [2005] O.J. no. 4737 (C.A.) and R. v. Jarvis (2006), 211 C.C.C. (3d) 20 (C.A.).

[3] Mr. Gowdy is an offender on the lower end of the sentencing continuum. He is a 43 year-old first offender. He lured a virtual youth whose purported age was near the age of consent established by the Criminal Code amendments of May 2008. He sent no pornographic images to the virtual youth, though the language he employed was highly explicit. He did not plead guilty but he conceded the facts of the case and his counsel conducted efficient argument on weighty issues worthy of legal combat.

[4] His life has been devastated by the investigation and prosecution. Prior to his offence, he was a respected pastor in a small Protestant denomination. Mr. Gowdy's apparent sexual orientation is considered deviant by his church. A prosecution for the index offence must surely have destroyed his reputation within his religious community. Despite Mr. Gowdy's years of devoted parish work, particularly amongst youth, and his many professional attainments, he is permanently unemployable in his chosen vocation. He will have to find other employment, perhaps in the horticultural field he worked in prior to his ministry. His real estate and savings have been consumed by his legal costs and his living costs since his arrest.

[5] The evidence at trial suggested that the internet advertisement that attracted the interest of the police and began the investigation was but a few minutes old. There is no indication that Mr. Gowdy made a practice of luring teenagers. In fact the continent-wide reportage of the incident and the investigation of his youth-related activity within the church turned up no similar incidents. The evidence suggested that Mr. Gowdy's prior sexual contacts were furtive, occasional and age-appropriate. The advertisement that inspired the police investigation in this case, quoted in full in the trial judgment, was directed at a broad range of youthful males. There was no evidence that Mr. Gowdy's sexual interests were primarily directed at adolescent males. In fact, Mr. Gowdy testified that he was uncertain that the virtual youth he aspired to meet on the day of his arrest was actually fifteen. I have no reason to doubt the skepticism he expressed in his evidence towards personal details communicated on the internet in this context. Of course, the presumption imbedded in section 172.1(3) required a conviction on the evidence despite that uncertainty.

[6] A large number of letters from Mr. Gowdy's family, friends and co-parishioners entered into evidence on his behalf indicate a high level of community support. Some of the letters confirm that Mr. Gowdy has struggled to reconcile his sexual orientation with his religious beliefs for some years.

[7] Mr. Gowdy also submitted a report from Paul D. Scuse of Emmaus Pastoral Counselling Services. Among other qualifications including ordination as an Anglican priest, Mr. Scuse possesses certification as a registered marriage and family therapist and as a registered sex therapist. Since March 18, 2014, he has provided 18 therapy sessions to Mr. Gowdy. He reports that Mr. Gowdy has responded openly to therapy and has gained understanding of the factors that caused him to enter into anonymous same-sex encounters and that ultimately led to the conviction before the court. Mr. Gowdy has expressed remorse to Mr. Scuse. He recognizes the devastating consequences of his offence on himself. He has indicated in counselling that he also recognizes that his conduct has greatly disturbed his family, his friends and the religious community he once served. He has recognized that his pattern of secretive, anonymous encounters was the product of his inability to reconcile the convictions of his denomination and his religious vocation with his same-sex attraction. I regard Mr. Gowdy as a low risk to re-offend.

Charter Violation and Remedy

[8] In the trial judgment released July 7, 2014 I gave my reasons for finding that the unlawful public dissemination of Mr. Gowdy's HIV status was a most serious breach of his Charter, section 7 right to security of the person. I must now determine the remedy pursuant to section 24(1) of the Charter.

[9] After his arrest, the police searched Mr. Gowdy's car and found personal medical information indicating that he was H.I.V. positive. No argument was raised as to the propriety of the search. Although the police were candid in their evidence and motivated by a concern for public welfare, the actions which caused the breach were deliberate and revealed a wilful ignorance of applicable provincial legislation and a casual disregard for the Charter rights of the accused. Detective Randy Norton caused the information to be publicly disseminated in an official Durham Regional Police Service media release without any consideration of whether the statutory requirements for this action had been met or even whether legislation governing the release of private medical information existed. In his testimony, Detective Norton explicitly stated his indifference to any constitutional rights that Mr. Gowdy might have had in the matter.

[10] The motivation for the release of the personal medical information were two assumptions for which no evidence was provided: that the particular form of sexual activity sought by the defendant posed a risk of infection to his sexual partners and that Mr. Gowdy had a sufficient viral load to pose a risk of transmission. There were certainly no steps taken to determine whether there was a serious risk of HIV transmission. There was no evidence that Detective Norton ever considered speaking to a crown attorney or a public health official prior to arranging the media release. There were no exigent circumstances foreclosing consultation with knowledgeable and responsible officials. There was no suggestion that Detective Norton had conducted any inquiry to inform himself on these issues.

[11] I did not find an immediate concrete consequence of this breach for Mr. Gowdy other than the humiliation the disclosure of his medical status surely brought. His livelihood and career were destroyed by the public revelation of the crime with which he was charged, not the public dissemination of his HIV status. But Mr. Gowdy had a right to make his own choices concerning the disclosure of his HIV status. No doubt he would have chosen his own method and different timing if he ever determined to inform those near to him. Absent evidence of serious risk of transmission and rigorous compliance with statute, no one had the authority to make that decision for him.

Privacy of Medical Information

[12] There can be no serious question that the Canadian public regards the privacy of personal medical information as an important matter. Six employees of Brampton Civic Hospital were discharged in November 2014 for the alleged unauthorized access of the medical records of a teenaged suicide. Recent breaches of patient confidentiality at Lakeridge Health in Oshawa have resulted in the discipline of 14 employees. An employee at Rouge Valley Centenary Hospital in Toronto faces criminal charges in connection with the alleged breach of medical records for profit.

[13] Our courts have upheld rigorous restrictive standards for the disclosure of the medical, psychiatric and counselling records of complainants in sexual assault matters. These standards do not exist because of the material consequences of unauthorized disclosure. The standards exist because our courts have ruled that there is a very high expectation of privacy in personal medical information. In this regard I reiterate the comments I made at an earlier stage of this matter:

In Her Majesty the Queen v. Dyment, [1988] S.C.J. No. 82, the Supreme Court held that the Charter was a purposive document to be interpreted generously and that a purpose of Section 8 is protection of the privacy of the individual. La Forest J. recognized that section 8 of the Charter protects privacy in relation to information:

Finally, there is privacy in relation to information. This too is based on the notion of the dignity and integrity of the individual. As the Task Force put it (p. 13): "This notion of privacy derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit," In modern society, especially, retention of information about oneself is extremely important. We may, for one reason or another, wish or be compelled to reveal such information, but situations abound where the reasonable expectations of the individual that the information shall remain confidential to the persons to whom, and restricted to the purposes for which it is divulged, must be protected. Governments at all levels have in recent years recognized this and have devised rules and regulations to restrict the uses of information collected by them to those for which it was obtained; see, for example, the Privacy Act, S.C. 1980-81-82-83, c. 111.

(At paragraph 22)

The Court considered the particular sensitivity of personal medical information.

This is obviously necessary if one considers the vulnerability of the individual in such circumstances. He is forced to reveal information of a most intimate character and to permit invasions of his body if he is to protect his life or health. The Court emphasized the strict requirement that information obtained in a therapeutic relationship be kept from casual disclosure to police and use in a criminal justice setting.

(At paragraph 29)

Authority for the principle that a very high expectation of privacy in personal medical information can be found in Her Majesty the Queen v. Pohoretsky, [1987] 1 S.C.R. 945; Her Majesty the Queen v. Colarusso, [1994] S.C.J. No. 2 and Her Majesty the Queen v. Dersch, [1993] 3 S.C.R. 768. See also, Wayne Renke, The Confidentiality of Health Information in the Criminal Law, 6 Health Law Review No.3 and John Dawson, Compelled Production of Medical Reports, (1998) 43 McGill L.J. 25.

(Reasons for Judgment at trial, July 7, 2014)

Sentencing Decision

[14] Crown counsel has urged me to regard my judicial denunciation of the police conduct in this matter as a sufficient remedy for the Charter violation. I cannot agree. My job is not to punish the police. But judicial rebuke is an empty exercise unless some tangible change flows from it. There has been no evidence that, in the five months since the conviction in this matter, the Durham Regional Police have instituted a structure to review proposed dissemination of personal medical information. Nor has there been any evidence that the Durham Regional Police has educated the members of the service regarding the Charter implications for the accused in such matters. In my view a judicial rebuke alone would in these circumstances provide Mr. Gowdy with a purely empty remedy. In other aspects of this investigation relating to a statement given by Mr. Gowdy, the Durham Regional Police officers were negligent in the performance of their Charter obligations. As the statement was not tendered at trial I was not obliged to consider any potential remedy for this conduct in isolation. However, I must consider this pattern of conduct as an aggravating factor in determining an appropriate judicial response to the privacy breach.

[15] I am required to meaningfully disassociate the administration of criminal justice from the breach and craft a remedy that will address the prejudice suffered by Mr. Gowdy. The damage to Mr. Gowdy is both inchoate and ongoing. A costs award against the police would appear inappropriate, as the breach did not increase Mr. Gowdy's costs of defence or deprive him of his livelihood. Simply sentencing Mr. Gowdy to the minimum one year sentence required by the Criminal Code will not provide a remedy. I am also obliged to craft a remedy that will denounce Mr. Gowdy's crime and address the public interest in protecting adolescents from internet luring. In my view, balancing all of the facts of the crime and the circumstances of the offender, Mr. Gowdy's conduct does not, absent Charter consideration, warrant a sentence beyond that minimum.

[16] The application of section 24(1) of the Charter to impose the maximum conditional sentence of imprisonment will denounce Mr. Gowdy's crime, deter potential offenders and recognize the grievous violation of his privacy. The course was recently taken in Her Majesty the Queen v. Brian Donnelly, 2014 ONSC 6472. Donnelly was convicted of the production of child pornography for purpose of publication. The Criminal Code provides for a one year minimum sentence. Justice Nordheimer addressed the circumstances of a first offender, an offence at the lowest possible measure of culpability and significant Charter breaches. He found these circumstances to be exceptional. This measure was contemplated, in exceptional circumstances, by the Supreme Court of Canada in Nasogaluak 2010 SCR 6. I also take some comfort in this approach from a decision of this court titled Her Majesty the Queen v. Muthuthamby, 2010 ONCJ 43. In that case Justice O'Donnell reasoned that the exceptional circumstances contemplated in Nasogaluak would exist when a stay would be an unjustified windfall for the defendant but a sentence reduction to the level of the statutory minimum would be an inadequate remedy. Justice Pringle, also of this court, crafted a similar result in Her Majesty the Queen v. Melo [2012] O.J. 5964.

[17] Accordingly, I now impose a conditional sentence of two years less one day to be followed by three years of probation. Appropriate ancillary orders will follow.

Released: December 19, 2014 Block J.