The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(2.1) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(2.1), read as follows:

486.4 (2.1) Victim under 18 - Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

Ontario Court of Justice

Date: 2024 03 11 Court File: Toronto #23 70000683

Between:

His Majesty the King

— AND —

Kemar Clarke

Sentencing Judgment

Before: Justice Brock Jones

Heard on: March 8, 2024 Reasons for Judgment Provided on: March 11, 2024

Counsel: L. Stokes............................................................................................... counsel for the Crown T. Okada-Phillips................................................................................. counsel for Mr. Clarke

Jones J.:

Introduction

[1] On January 20, 2023, at approximately 9 a.m., M.R., then 17 years old, was walking to school by herself. She was approached by a man she had never met before. This man uttered vulgar remarks to her and inquired if she was interested in a sexual encounter with him. Despite being told “No” multiple times, and despite her walking away from him, he followed her and persisted with his conduct.

[2] After a trial, I found Kemar Clarke guilty of one count of criminal harassment by “repeatedly following” M.R. from place to place causing her to fear for her safety contrary to Criminal Code section 264(2)(a). I also found him guilty of one count of failing to comply with a probation order by failing to “keep the peace and be of good behaviour” contrary to Criminal Code section 733.1.

[3] On March 8, 2024, a sentencing hearing was conducted. Mr. Stokes requested a nine-month jail sentence. Mr. Okada-Phillips argued that a four to six-month sentence was sufficient. I decided the case that day, with reasons to follow.

Circumstances of the Offence

[4] A detailed review of the facts is found in my trial judgment: R. v. Clarke, 2023 ONCJ 576. I provide the following summary here.

[5] M.R. was walking to her school, Monarch Park Collegiate when she was stopped at an intersection. She was alone. A man stood close to her and asked if he could “get a piece… of her pussy?” She said, “No”, and walked away from him, crossing the street.

[6] The man followed her. He approached her again and offered her money for sex. She said, “No. Stop following me.”

[7] M.R. was on her way to school but was afraid to go there as the man would know where to find her. Nevertheless, she kept walking. The man continued to make suggestive comments to her and referred to her as “baby.”

[8] When she arrived at her school she noticed other students and yelled out, “Stop following me!” She hoped someone would hear this and come to her aid. Unfortunately, no one did.

[9] M.R. walked straight into her school through the front doors and told a school official what happened. The man followed her inside but lost sight of her. He was stopped by a school safety monitor who considered the man to be an intruder. The man tried to pass her and make his way further into the school when she told him he was not permitted to do so. The man left and walked away down a street in a westward direction.

[10] A police officer, who was at the school for another matter, was provided with a suspect description. He located Kemar Clarke a few blocks away only minutes later and arrested him.

[11] At his trial, I determined that Mr. Clarke was the man who approached M.R. and was satisfied the Crown had proven the offence of criminal harassment by “repeatedly following” M.R.

Victim Input

[12] M.R.’s mother read out her victim input statement in court. She explained how she educated her daughter to be careful given the real-life dangers that exist in this city. After M.R. fell prey to Mr. Clarke’s harassment, her sense of security was shattered. She was anxious to be outside and missed school. She was depressed and generally withdrew from her daily activities.

[13] She began seeing a psychotherapist, which was expensive for the family. She was unable to immediately pursue post-secondary education and has struggled to maintain employment.

[14] Her mother explained that this incident did not just affect her daughter. Her entire family was shaken “to the core.”

Personal Background of Mr. Clarke

[15] Mr. Clarke is 32 years old. He is of no fixed address. He has a long history of severe mental health issues, including schizoaffective disorder complicated by non-adherence to treatment and possible substance use.

[16] I ordered an assessment pursuant to the Mental Health Act. Mr. Clarke only cooperated with the assigned psychiatrist at CAMH for a fifteen-minute interview. However, Dr. Jones had access to Mr. Clarke’s prior health records as he had an extensive prior history with CAMH.

[17] Mr. Clarke completed high school and attended George Brown College briefly before dropping out. He is currently unemployed and supported by ODSP.

[18] Mr. Clarke has been a patient at CAMH since 2014. He has been prescribed medications to treat his illnesses but has often refused to take them. Since his arrest and incarceration at the Toronto South Detention Centre (TSDC), he has been more stable than in the past and is presently adhering to his medication.

[19] Dr. Jones’ conclusion is that Mr. Clarke suffers from severe mental illness. The most likely diagnosis at present is schizoaffective disorder, characterized by impulsivity, disinhibition, grossly disorganized behaviour and auditory hallucinations. He has only been willing to engage with prior assessments in a limited fashion, thus rendering the full extent of his psychopathology unknown.

[20] Mr. Clarke has responded, partially, to antipsychotic medication in the past. However, he typically becomes non-compliant upon his discharge from CAMH and returns to the community. His decompensation is therefore virtually guaranteed.

[21] I heard no evidence of a community support network for Mr. Clarke once he is released from custody. This was of particular concern to Dr. Jones. As he wrote in his report:

Mr. Clarke cycles between incarcerations, brief hospitalizations and decompensation in the community. He is of no fixed address and has no community follow-up as far as can be ascertained. It is highly likely that this cycle will continue under current circumstances.

[22] Dr. Jones did not provide an opinion on the link, if any, between Mr. Clarke’s mental health status and the offences for which he was found guilty. He concluded that further assessment will be required in the future to determine Mr. Clarke’s sexual offending risk and the need for community treatment accordingly.

Prior Transcripts of Court Proceedings

[23] Mr. Clarke was found guilty on December 18, 2023. Nearly three months passed between that date and the sentencing hearing on March 8, 2024. Only one hour prior to the start of this matter on March 8, Mr. Stokes provided the court and Mr. Okada-Phillips with electronic copies of transcripts of Mr. Clarke’s prior findings of guilt. He wished to rely upon these transcripts to demonstrate that certain features of Mr. Clarke’s current offences were similar to offences he has committed in the past. This would complement the CPIC record which only contained the convictions and sentences associated with them.

[24] Mr. Okada-Phillips opposed the introduction of these transcripts. He submitted the Crown had months to provide them to the defence and failed to do so. It would be entirely unfair to expect him to read them and review them with his client on such short notice. If any of the contents of the transcripts could establish an aggravating factor, that might be prejudicial to Mr. Clarke.

[25] Mr. Stokes had no meaningful explanation for why he did not provide these materials to Mr. Okada-Phillips or the court well in advance of the sentencing hearing. While a transcript of a court proceeding is generally admissible, a copy of a transcript that is not exemplified is inadmissible without at least seven days prior notice being given pursuant to section 28(2) of the Canada Evidence Act: see R. v. C. (W.B.), (2000), 142 C.C.C. (3d) 940 (Ont. C.A.); aff’d 2001 SCC 17, [2001] 1 S.C.R. 530.

[26] Furthermore, I agreed with Mr. Okada-Phillips that it would compromise an accused person’s fair trial interests to permit the Crown to introduce evidence of this nature at the last minute with virtually no notice to the defence. I ruled I would not consider the prior transcripts accordingly.

Law and Analysis

[27] Section 718 of the Criminal Code states that the “fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions”.

[28] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: see Criminal Code section 718.01.

[29] General deterrence and denunciation are the primary sentencing principles in cases of criminal harassment: see R. v. Nolan, 2019 ONCA 969, at para. 65; R. v. Sabir, 2018 ONCA 912, at paras. 45-6.

[30] The offence of criminal harassment is primarily aimed at addressing the serious and pressing societal concern of violence against women. Over 20 years ago, in R. v. Bates, the Court of Appeal wrote “the number of recent cases continuing to reach this court emphasizes the extent of the problem of criminal harassment and the need for sentencing courts to respond to this type of offence in the most forceful and effective terms, sending the message of denunciation and general deterrence to the community, and specific deterrence to individual offenders”: see para. 42.

[31] The Court of Appeal noted the following features of the legislative history of section 264 of the Criminal Code at paras. 37 and 39:

[37] In 1993 Parliament enacted s. 264 of the Criminal Code, the criminal harassment section, in order to address a growing concern manifested in this country and elsewhere about people who stalk their victims with escalating intensity, in many cases leading to violence against the victims and sometimes their murder. The purpose of the new section was to criminalize the threatening behaviour and to permit punishment of the offenders in an attempt to restrain their behaviour before it escalates to physical violence against the victims.

[39] In 1997, s. 264 of the Code was amended. The preamble to those amendments expresses Parliament’s view of this offence and the need for courts to communicate that view to the public through their sentences. A portion of the Preamble reads:

WHEREAS the Parliament of Canada wishes to strongly denounce criminal harassment in Canadian Society by strengthening the criminal law in this area, thereby providing further protection to the life, liberty and security of women and other victims of criminal harassment…

[32] Criminal harassment has thus long been recognized as a gendered crime. The vast majority of its victims are women. Sentencing courts must communicate to the public that the harassment of women who are simply going about their daily lives by men who feel they can abuse, objectify and/or scare them is inexcusable. Such conduct must be emphatically denounced. Offenders who engage in this behaviour will face significant penalties.

[33] That message, unfortunately, has not always been heeded. In 2019, Parliament amended the Criminal Code yet again to better reflect Canada’s condemnation of crimes committed against women and girls. Bill C-75 enacted Criminal Code section 718.04, which requires a sentencing court to give primary consideration to the objectives of denunciation and deterrence for an offence that “involved the abuse of a person who is vulnerable because of personal circumstances – including because the person is Aboriginal and female.”[1] By mandating these principles be given primary consideration, harsher sentences are often the result: see R. v. Wood, 2022 MBCA 46, at para. 36.

[34] The harassment that occurred in this case was also of a sexual nature, which I consider to be an additional aggravating factor. In R. v. Barton, 2019 SCC 33, the Supreme Court held that “eliminating... sexual violence against women is one of the more pressing challenges we face as a society”: see para. 1.

[35] While Mr. Clarke did not physically harm M.R. and was not convicted of sexual assault, his conduct and remarks raised the spectre of sexual violence.

[36] As noted by the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9, a modern understanding of the harms of sexual violence against children must inform the contemporary approach to sentencing. The Court held that “the criminal law in general and sentencing law specifically are important mechanisms that Parliament has chosen to employ to protect children from sexual violence, to hold perpetrators accountable, and to communicate the wrongfulness of sexual violence against children”: see para. 46.

[37] Children’s autonomy, bodily integrity, sexual integrity, dignity, and equality rights lie at the heart of the Criminal Code provisions meant to protect them from adult offenders: see para. 50. When adults treat children as sexual objects, they cause harm “that may stay with them for their entire lifetime: see para. 52.

[38] I review these prior decisions to provide appropriate context for Mr. Clarke’s offence of criminal harassment. I am cautious that he must not be punished for an offence he did not commit, or conduct he did not engage in. But Mr. Clarke’s particular form of harassment was nevertheless committed against a child, even if M.R. was on the cusp of adulthood. His actions violated her sense of safety in the community and her dignity. He knew or was reckless to her age. By the time he followed her directly onto the grounds of her high school, there could have been no doubt in his mind she was a teenager.

[39] This entire incident lasted about seven minutes. In that regard, I agree with Mr. Okada-Phillips that Mr. Clarke’s conduct is not nearly as egregious as offenders who stalk their victims multiple times on different days. Yet even a single incident of harassment can not only constitute a criminal offence but can also result in a significant jail sentence depending on the context, the impact on the victim and the offender’s personal circumstances: see for example, R. v. Kohl, 2009 ONCA 100, where the Court of Appeal imposed a two-year jail sentence for one act of harassment.

[40] Mr. Clarke’s prior criminal record includes three prior convictions for sexual assault (2011, 2022 and 2014), and prior convictions for committing an indecent act, assault and threatening bodily harm (2022). He was sentenced to three years in prison for the 2012 sexual assault. He has three prior convictions for failing to comply with a court order.

[41] Criminal Code section 718.01 states that “[w]hen a court imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of deterrence.” Additionally, Criminal Code section 718.2(a)(ii.1.) deems evidence that the offender, in committing the offence, “abused a person under the age of eighteen years” to be an aggravating factor.

[42] Despite these provisions, as the Supreme Court of Canada explained in R. v. Marchand, 2023 SCC 26, sentencing remains an individualized process and rehabilitation must also factor into the court’s final decision. The Court held at para. 123:

[Section] 718.01 directs judges to give primary consideration to denunciation and deterrence when sentencing offences involving abuse against children. At the same time, judges do retain judicial discretion to weigh other relevant sentencing objectives in the circumstances. Courts must individualize the sentence by accounting for the gravity of the offence, the offender’s individual circumstances and the offender’s moral culpability (R. v. Parranto, 2021 SCC 46, at para. 44; Lacasse, at para. 12; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 51). Even where Parliament has directed that the objectives of denunciation and deterrence are paramount at sentencing, judges must apply all the principles mandated by ss. 718.1 and 718.2 to craft a sentence that “furthers the overall objectives of sentencing” (Ipeelee, at para. 51). Deference to Parliament’s objectives is not unlimited; to ensure respect for human dignity, the door to rehabilitation must remain open (Bissonnette, at paras. 46 and 85; Hills, at paras. 140-41; Nasogaluak, at para. 43).

[43] Before turning to Mr. Clarke’s rehabilitative potential, I highlight an additional aggravating feature present in this case. Mr. Clarke followed M.R. to her school and attempted to enter the school itself to continue the offence. It bears repeating that before attending at her school, M.R. explained she was afraid he might follow her there and would therefore know where to find her. That fear, tragically, materialized.

[44] When Mr. Clarke pursued M.R. into her school, he violated not only her sense of safety and security but the entire school community’s. The importance of a safe school environment to a child cannot be overstated. Children spend a considerable portion of their lives at school. They meet their classmates, teachers, and other children’s parents. They create friendships that may last a lifetime and enjoy relationships that are essential to their healthy development. Their lives are inextricably linked to their school experiences. For most children, next to their homes, school is where they will feel the most safety and support.

[45] Prior court decisions have held that denunciation and deterrence must be given great weight when an offence occurs in a school environment and that an offence committed on school property is an aggravating feature: see, for example: R. v. Mulumba, 2011 ABPC 249, at para. 7; R. v. O.D., 2019 NSSC 411, at para. 29; and R. v. A.D., 2022 ONCJ 261, at para. 16.

[46] In R. v. Partridge, 2019 ONCJ 1002, a 14-year-old girl was walking home from school when she was suddenly attacked by a man. He punched her in the face, knocking her to the ground. He punched her again, removed some of her clothing, and sexually assaulted her by placing his fingers into her anus. While the offences committed in that case were very different from Mr. Clarke’s, the following comments of Justice Carlton at para. 52 are worth repeating:

…the attacks were committed in daylight in a public place on a teenage girl who was alone at the time and simply trying to go to school. Offences of this nature not only have a damaging effect on the community’s sense of safety and security, they are a direct challenge to every woman’s right to be freely in the community on her own without fear of being harassed or even attacked.

[47] Mr. Okada-Phillips submitted that Mr. Clarke’s significant mental health concerns are a factor to consider. I am not satisfied there was a sufficient causal link between his mental illness and the commission of this particular offence to constitute a mitigating factor: see R. v. Fabbro, 2021 ONCA 494, at para. 25. I am also very concerned that Mr. Clarke has had the opportunity to comply with appropriate treatment in the community and the report of Dr. Jones demonstrates he has refused to do so in the past. In these circumstances, his mental health diagnosis, however severe, does not mitigate his moral culpability for his offending behaviour: see R. v. Maier, 2015 ABCA 59, at paras. 31-40.

[48] Furthermore, where an offender’s mental illness makes him a continuing danger, the existence of a mental illness by itself is not a reason to reduce an otherwise appropriate sentence: see R. v. Haly, 2012 ONSC 2302, at para. 34.

Conclusion

[49] Mr. Clarke is not a youthful first-time offender. He is a sexual recidivist who chose to prey upon a vulnerable, innocent teen girl. He would not stop even after being told to leave her alone. He followed her into her school, sending a message that she would not be safe from him anywhere she went. The appropriate sentence for Mr. Clarke’s sexual harassment of M.R. given his prior criminal record and the other aggravating factors present in this case is at least one year in jail.

[50] Criminal harassment of a child, especially of a sexual nature, is abhorrent and will be met with stern punishment from the courts. This case is complicated by Mr. Clarke’s significant mental health considerations and his history of non-compliance with treatment including medication. However tragic Mr. Clark’s circumstances and struggles with mental illness, he represents a danger to the safety of the community when untreated. If he does engage with future treatment, his risk will be substantially reduced.

[51] Dr. Jones concluded that Mr. Clarke requires assertive community psychiatric treatment. He recommended ongoing treatment with antipsychotic medication in particular. Yet I cannot order Mr. Clarke to take psychiatric treatment or medication without his consent. That is unconstitutional: see R. v. Rogers (1990); R. v T.W., 2015 ONSC 2167, at para. 57. Mr. Clarke understands the need to address his mental health illness and to stop engaging in further criminal activity. In court, I explained to him the vital importance of following through in this regard.

[52] Mr. Clarke had nearly one full year of pre-sentence custody to apply to these charges on the day of sentencing. However, Mr. Stokes only requested six months of pre-sentence custody be noted. With Summers credit, that is the equivalent of a nine-month sentence. I will not exceed the Crown’s position, as to do so would have been somewhat academic in these circumstances. Nothing in these reasons should be seen as my endorsement that a sentence of less than a year is appropriate, however. That is the bare minimum of what is necessary to reflect the gravity of the criminal harassment that occurred, the impact it had on M.R. and her family, and Mr. Clarke’s prior criminal record.

[53] Nevertheless, Mr. Clarke has served the equivalent of an 18-month jail sentence with Summers credit. I impose a suspended sentence with 3 years of probation. The terms of probation shall include:

• Mr. Clarke is prohibited from having contact with M.R. or any member of her immediate family;
• He is prohibited from attending within 25m of anywhere he knows M.R. to live, work, go to school or happen to be;
• He is not to attend within 25m of M.R.’s former school.

[54] I order a Criminal Code section 109 weapons prohibition order for life. A sample of his DNA shall be taken as criminal harassment is a secondary designated offence.

Released: March 11, 2024

Signed: Justice Brock Jones

[1] My emphasis added.