COURT OF APPEAL FOR ONTARIO

DATE: 20000711

DOCKET: C32619

MOLDAVER, FELDMAN AND MACPHERSON JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

(Appellant)

and

DWAYNE RICHARD BATES

(Respondent)

Laurie Lacelle
for the appellant

Bernard Cugelman
for the respondent

Heard: May 4, 2000

On appeal from the judgment of Hogg J. dated July 6, 1999.

MOLDAVER AND FELDMAN JJ.A.:

[1] The Crown appeals the imposition of a suspended sentence and three years’ probation on the respondent for eleven offences, including one count of criminal harassment, one count of uttering a death threat, three counts of assault and six counts of failing to comply with the terms of various judicial interim release orders. The offences, which occurred between September 1, 1998 and December 7, 1998, arose from the breakdown of the respondent’s relationship with his former girlfriend, Kristen Emmett.

[2] By the time of the sentencing hearing on July 6, 1999, the respondent had served seven months in pre-trial custody. Taking this into account and crediting the respondent on a two-for-one basis with fourteen months’ pre-trial custody, the trial judge imposed a suspended sentence and three years’ probation, with the only term, apart from the statutory terms, being that he not associate with the complainant and certain of her friends. He also imposed a prohibition order under s. 100 of the Criminal Code.

[3] The Crown submits that this sentence fails to adequately reflect the principles of denunciation and general and specific deterrence. The Crown further submits that the sentence is manifestly unfit having regard to the gravity and seriousness of the respondent’s crimes. We agree. In our view the trial judge should have imposed a penitentiary sentence of thirty months. For reasons which follow, we would increase the sentence to one of sixteen months, which gives credit for the pre-trial custody. This period of incarceration will be followed by a term of probation of three years including conditions broadening the non- association order and requiring the respondent to undertake counselling.

FACTS

[4] The respondent entered pleas of guilty to three counts of assault, six counts of fail to comply and one count of criminal harassment. He was also found guilty after trial of uttering a death threat. The facts giving rise to these offences are summarized below.

[5] The respondent married Melissa Bates in June 1996. Both before and after the marriage, he dated the complainant, Kristen Emmett.

[6] In September 1998, in the course of an argument between the respondent and Ms. Emmett, the respondent began to use profanity and to call Ms. Emmett names. The situation intensified when he slapped her across the face, knocking her to the floor. Thereafter he picked her up and threw her against a cupboard where she struck her head. Ms. Emmett suffered visible bruising to her face and right hip.

[7] After this incident, Ms. Emmett made it clear to the respondent that she wished to end their relationship and he returned to live with his wife in Wasaga Beach. However, the respondent refused to respect Ms. Emmett’s wishes or to accept her decision. He regularly telephoned her and attended at her home and her workplace in Collingwood. As a result, on October 2, 1998 Ms. Emmett contacted the police and requested protection from the respondent’s persistent harrassment.

[8] Also in early October, the respondent sent Ms. Emmett a long letter, asking her to reconsider their relationship. The letter acknowledged previous physical and verbal abuse and apologized for not leaving her alone.

[9] On October 13, the police were called by a third party to a domestic disturbance between the respondent and Ms. Emmett. Neither reported an assault at that time. On October 22, however, Ms. Emmett reported the September assault to the police. The respondent was arrested and released on a promise to appear with conditions that he not communicate with Ms. Emmett or her friends, Lisa Crowe and Richard Roche, not attend at Ms. Emmett’s home or Mr. Roche’s place of business in Collingwood, not possess a firearm and surrender any firearm presently in his possession.

[10] On October 27, five days after the conditional release order was imposed, Ms. Emmett’s father came home to find the respondent in their apartment looking for Ms. Emmett. The respondent left and Ms. Emmett’s father called the police.

[11] The respondent was arrested but was released again on November 3, 1998 upon entering into a recognizance in the amount of $1000 without deposit but with his wife as surety. The terms of release prohibited the respondent from communicating with Ms. Emmett, Ms. Crowe and Mr. Roche, and required him to stay away from Ms. Emmett’s home and Mr. Roche’s place of business.

[12] On November 19, as Ms. Emmett and her brother were driving to Mr. Roche’s store where Ms. Emmett worked, they were followed by the respondent. The respondent parked across the street and called to Ms. Emmett. He then stood in front of the store, calling for her to come out. She called the police, who looked for the respondent at his home in Wasaga Beach. By that time, however, the respondent was at work. When he learned that the police were looking for him, the respondent called the police saying that he would not come home but would attend the police station in Collingwood the next day with his lawyer. As it turned out, he was arrested later that night outside his home.

[13] The next morning he was again released on a recognizance, this time with two sureties, in the amount of $5000 with no deposit, along with the same non-association and firearm conditions, but with an added condition that he stay out of Collingwood.

[14] Seven days later, on November 27, as Ms. Emmett was getting into her car at her apartment building, she saw the respondent coming into the parking lot through a fence. She turned and ran toward her apartment telling him to stop and stay away from her. He caught up with her and touched her on the arm, telling her he wanted to speak with her. She did not speak to him but went up to her apartment and called the police. The police were not able to find the respondent and a warrant was issued for his arrest.

[15] On December 2, while the warrant was outstanding, Ms. Emmett encountered the respondent waiting for her in her parking lot in the afternoon. She walked toward her apartment and he shouted to her that if she did not talk to him she was “fucked”. She ran up to her apartment and called the police. The respondent then telephoned her and told her that he could not live without her. He left the area without being apprehended.

[16] The respondent remained at large and Ms. Emmett did not hear from him or see him again until December 7. On that day, she was at her workplace with Frank Skelton, a friend of the owner. She had arranged for Mr. Skelton to be with her at work because she was fearful of the respondent and afraid to be alone. Sometime between 1:00 and 1:30 p.m., the respondent entered the store and approached Ms. Emmett. He insisted that she accompany him and talk to him. When she refused, he took a silver-coloured gun from his pocket and ordered her to come with him. Mr. Skelton testified that he believed they would both be shot. The respondent put the gun back into his pocket and slapped Ms. Emmett across the face. He held her by the arm and showed her two bullets, saying that one was for her and one for him. He took her purse and went through her diary. He then asked her why she had given the police the inculpatory letter he had written to her in October. She was crying and shaking. He told her she deserved to die. He also said she was going with him and that he was not going to hurt her. He took her by the arm and moved toward the door, at which point she ran to the washroom and vomited. He again said he did not want to hurt her. After Ms. Emmett and Mr. Skelton promised not to call the police, the respondent left. He had been there for 45 minutes.1

[17] After the respondent left, Ms. Emmett hid and Mr. Skelton called the police. The respondent then phoned the store, telling Mr. Skelton that he did not want to hurt Ms. Emmett and that he did not mean to hit her, but that he wanted to kill himself in front of her. The respondent claimed that the gun was a pellet gun which he said was incapable of causing injury. He said that he showed Ms. Emmett the bullets to try to get her to feel sorry for him and resume their relationship. He maintained that he did not in fact intend to kill himself.

[18] Ms. Emmett and Mr. Skelton were taken to the police station to provide statements. The respondent called Mr. Roche at the store, yelled at him and then hung up. The police contacted the respondent’s wife, who agreed to persuade him to turn himself in. The respondent called the station several times but refused to come in or to divulge his whereabouts.

[19] For the next three days, Ms. Emmett stayed at a women’s shelter, while Mr. Roche and Ms. Crowe did not stay at their home. On December 10 the respondent and his wife attended at the Collingwood O.P.P. station where he was arrested. He remained in custody for seven months until his trial.

[20] During the period between September and November, 1998 (when these offences were being committed), the respondent saw his family doctor many times because of depression. He was treated with anti-depressant medication and showed slight improvement. While in custody, respondent’s counsel arranged an assessment by a forensic psychologist, Dr. Pollock. As well, at the request of the trial judge after trial, the respondent was referred for a risk assessment to Dr. Brace, a staff psychiatrist at the Penetanguishene Mental Health Center.

[21] Dr. Pollock’s report concluded that the respondent did not have serious intellectual deficits or other cognitive dysfunction. He made the following recommendation:

At this point, I believe that Mr. Bates would benefit from counselling to help him re-evaluate his priorities and adjust to the ongoing stresses in his life. He needs to develop a more accurate sense of himself, effective coping mechanisms and a more mature orientation in his relationships. Furthermore, anger management counselling is indicated to decrease the overall intensity of his angry feelings and to increase his ability to recognize and appropriately express angry feelings as they occur. He needs to develop an awareness of his angry behaviour and clarify the origins of and alternatives to aggressive anger. He also needs to come to an awareness and acceptance of angry feelings while developing more control and equanimity.

[22] Dr. Brace concluded that the respondent did not suffer from any psychosis or delusional disorder, antisocial personality or significant psychopathic tendencies, but was just immature and unable to cope with the stress of his failed relationship with the victim. His opinion was: “At the end of the day I do not feel that this man represents a significant risk to his previous victim….” He suggested ongoing monitoring with sanctions to prevent the respondent from contacting Ms. Emmett and from possessing firearms.

[23] Detailed victim impact statements were filed by Ms. Emmett as well as by Mr. Roche and Ms. Crowe. Ms. Emmett described her relationship with the respondent as controlling and abusive. She lived in fear of the respondent, had received counselling, and had at one point taken a drug overdose. She expressed ongoing fear for her future safety. Her two friends were also significantly affected by the respondent’s conduct in pursuing Ms. Emmett, which involved phoning them, coming to their business and following them. They contemplated moving and changing their phone and license numbers out of fear for their lives.

[24] On sentence, the trial judge had available to him the agreed facts on the guilty pleas, the further evidence he had heard and the findings he made on the trial of the other charges, the reports of the three doctors who had seen and assessed the respondent during the relevant period, the victim impact statements, some evidence from the respondent’s father and the submissions of counsel. Counsel for the respondent submitted that the appropriate range of sentence was 9 to 12 months. The Crown asked for a penitentiary term, but if a reformatory sentence was imposed, then three years’ probation with conditions to protect the victim, her family and friends.

[25] In brief reasons, the trial judge stated that it was his practice that the 7 months’ pre-trial custody be counted on the two-for-one basis. Accordingly, he credited the respondent with 14 months. The trial judge then said: “I hope he has learned his lesson from this.” After referring to the fact that the respondent had breached the conditions of three judicial release orders, the trial judge went on: “If the order[s] of the courts are not followed, sanctions will be imposed and the individual will be sent back to jail.” After stating that he was taking into account the submissions of counsel, the reports and the exhibits, he imposed a suspended sentence with three years’ probation including a non-association order covering Ms. Emmett, Mr. Roche, Ms. Crowe and Mr. Skelton, and a firearms prohibition order.

[26] About one month prior to the hearing of this appeal, the Crown sought and obtained from McIsaac J. a variation to the non- association order, extending its ambit to cover members of the families of the named people.

[27] On the appeal, the Crown sought to introduce fresh evidence consisting of the affidavits of two police officers, one dealing with further charges against the respondent since the sentencing (but not relating to the non-association order), and the other a risk-assessment by the Manager of the Criminal Profiling Unit of the O.P.P. Behavioural Sciences Section. The introduction of the new evidence was opposed by the respondent. As we are not satisfied that the proposed new evidence meets the criteria for the introduction of fresh evidence on appeal, the application is denied, the fresh evidence is not admitted and it plays no role in the disposition of the appeal.

ANALYSIS

[28] The basis of the Crown appeal is that the sentence imposed by the trial judge was manifestly unfit in that it failed to give appropriate weight to the paramount principles of sentencing in cases such as this: general deterrence, specific deterrence and denunciation. Where a court on appeal is satisfied that the sentence imposed is clearly inadequate and/or that the trial judge failed to apply the correct principles, then the deference which must normally be accorded to the sentencing judge is no longer appropriate: R. v. Shropshire, [1995] 4 S.C.R. 227 and R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449 (S.C.C.).

[29] The reasons of the trial judge reveal that in imposing sentence, his exclusive concern was to deter the breaching of court orders. He referred to that aspect of the respondent’s misconduct several times in his brief reasons for sentence and indicated that the sentence was directed at that misconduct. The trial judge was correct to stress how critical it is that offenders not breach court orders or their undertakings to the court while on release. This is especially true in cases involving criminal harassment where the breaches involve repetition and escalation of the very conduct for which the offender was arrested. However, a sentence directed only or primarily at that aspect of the misconduct, and not at deterring and denouncing the respondent’s criminal behaviour in the form of uttering a death threat, criminal harassment and assault is based on an error in principle.

[30] The courts have been made increasingly aware of the escalation of domestic violence and predatory criminal harassment in our society. Crimes involving abuse in domestic relationships are particularly heinous because they are not isolated events in the life of the victim. Rather, the victim is often subjected not only to continuing abuse, both physical and emotional, but also experiences perpetual fear of the offender.

[31] In his very comprehensive article on the history of stalking and the criminal law2, Bruce MacFarlane vividly describes the profile of a stalker at p. 43:

Many stalkers are not violent but all are unpredictable. The irrational mania that drives them to pursue their victims is beyond comprehension within the normal framework of social behaviour. It is this unpredictability that generates the most fear, coupled with the knowledge that, in some cases, the stalker’s behaviour may, without warning or apparent reason, rapidly turn violent. Escalation of the level of threat forms one of the most common features of stalking.

[32] Ms. Emmett made this clear in her victim impact statement where she said: “I’m trying to get on with my life, but I can’t help but feel leary about every corner I go around and sets of eyes that stare back a little longer than usual wondering if those eyes are for Dwayne. I will never let my guard down again, whether or not Dwayne is behind closed doors. It is so easy for people to say get over it, and get on, but I will always be cautious.”

[33] And at the conclusion of her victim impact statement, Lisa Crowe summarized her feelings this way: “You ask how this has affected me. It has affected my whole life and probably will for a long time. Our sleeping patterns still haven’t returned to normal and I still feel we must be on the lookout as deep down I know it isn’t over and won’t be for a long time. We are going to change a lot of things in our lives, although we aren’t running scared out of town yet. I am changing my license plates, our phone number and anything personal that he may know about. We still must run the store and things must go on but now we have to do it via a secret code just to keep us safe.”

[34] Although the police were involved in this case from an early point, the respondent was still not deterred. Furthermore, he was able to avoid immediate arrest and to remain at large virtually at his whim, demonstrating vividly the serious nature of the threat posed to the victims.

[35] Domestic violence and harassment cases most often involve conduct directed by a male spouse or partner against a woman. Yet offenders who feel empowered to harass a partner or former partner with impunity will not necessarily confine their behaviour to that person, but may also harass and terrorize her friends and family members. As this case illustrates, the respondent somehow perceived that his love and need for the complainant allowed him to be an unwanted presence in her life and in the lives of her family and associates, and to threaten and terrorize them to achieve his ends. His irrational actions made him a menace to Ms. Emmett and to those close to her.

[36] Consequently, when an offender like the respondent comes before the court for sentencing, it is important for the court to denounce his conduct in the clearest terms by fashioning a heavy sentence. The statement of this court in R. v. Denkers (F.P.) (1994), 69 O.A.C. 391 at 394, where the accused was appealing his sentence for the attempted murder of his former girlfriend, is equally applicable to cases of criminal harassment:

This victim, and others like her, are entitled to break off romantic relationships. When they do so they are entitled to live their lives normally and safely. They are entitled to live their lives free of harassment by and fear of their former lovers. The law must do what it can to protect persons in those circumstances. In this case its order that the appellant not have contact with the victim failed to provide that protection. It follows that the principles of general and specific deterrence must be the overriding considerations in the determination of a fit sentence in this case. Those principles demand a very heavy sentence to act as a general deterrent to other persons who cannot abide their rejection by a person whom they love. The sentence must act as a specific deterrent to this appellant who was not deterred by the victim’s requests that he leave her alone nor by a court order requiring him to do so.

[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. Section 264 provides:

264. (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

(2) The conduct mentioned in subsection (1) consists of

(a) repeatedly following from place to place the other person or anyone known to them; (b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them; (c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or (d) engaging in threatening conduct directed at the other person or any member of their family.

(3) Every person who contravenes this section is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or (b) an offence punishable on summary conviction.

[38] In the case of R. v. Wall (1995), 136 Nfld. & P.E.I.R. 200 at 203, the Prince Edward Island Court of Appeal dealt specifically with the new criminal harassment section, and in particular, the proper approach of a sentencing court in such cases:

The very unsettling aspect of dealing with these offences in the criminal justice system is that, undoubtedly, many offenders will be presenting themselves with no criminal record and with the reputation of being both a good family and community person. The other unsettling aspect of these cases is that if the pattern of harassing conduct continues and is not properly dealt with by the sentence imposed, the result could be very serious physical and/or emotional harm to the victim. In passing sentence trial judges must, therefore, be wary of positive pre-sentence reports depicting the offender as a person whose actions, in respect to the offence, are entirely out of character. The fact an offender shows any propensity toward this kind of conduct, regardless of his unblemished past, is cause for great concern and for a very careful and judicious approach to sentencing. Factors such as the absence of a prior criminal record and expressions of remorse, which must necessarily be considered on sentencing, should not be given undue weight in the sentencing of this offence. The focus of sentences must be to send a message to the offender, and the public, that harassing conduct against innocent and vulnerable victims is not tolerated by society and most importantly, the Court must insure, as best it can, that the conduct of the offender never happens again recognizing that, if it does, a far more serious offence could be committed. The principles of sentencing must be applied with this focus squarely in mind.

[39] In 1997, s. 264 of the Code was amended3. 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….

[40] Most recently, on June 8, 2000, Parliament introduced for first reading Bill C-36, which provides for an increase in the maximum penalty under s. 264 to 10 years.

[41] Within the last year this court has dealt by way of endorsement with two cases of criminal harassment in the domestic context. In both cases, R. v. Elliott, [1999] O.J. No. 3625 and R. v. Prelosnjak, [2000] O.J. No. 234, penitentiary sentences imposed at trial were upheld.

[42] 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.

APPLICATION TO THIS CASE

[43] A fit sentence must always take into account the circumstances of the particular offender. The respondent pleaded guilty to several of the charges and was acquitted on some of the charges to which he pleaded not guilty. The guilty pleas are a factor which stands in his favour on sentencing even though the victims were required to testify at trial. His criminal record consisted of two driving offences: dangerous driving and refusal to provide a sample. The respondent had a job opportunity which was available only for a short period of time. He also has a wife and child to support. His wife continues to stand by him.

[44] The trial judge ordered and obtained a psychiatric report for the express purpose of assessing the respondent’s likelihood of reoffending and the extent of any ongoing risk he posed. Although the report did minimize that risk, the report did not attempt to explain or deal in any way with the fact that the respondent’s harassing behaviour had escalated during the course of a three-month period in spite of police involvement and in the face of three judicial release orders requiring him to stay away from the victim and her friends.

[45] Two other medical reports also spoke to the issue of the risk of reoffence by the respondent. The report of the family doctor indicated that the respondent committed these offences despite continuous medical treatment and despite receiving medication for depression throughout the relevant period. The report of the psychologist obtained on behalf of the respondent concluded that anger management counselling was needed. The sentencing judge did not include a counselling provision in the probationary conditions, nor did his reasons in any way set out how the sentence was intended to address specific deterrence.

[46] In addition to the need to consider the safety and security of the victims, the court was required to consider the victim impact statements and the ongoing effects the victims were suffering as a result of the conduct of the respondent. The sentencing judge failed to do so.

[47] There were also serious aggravating factors that characterized the respondent’s behaviour. These included:

• an escalating pattern of harassment over three months
• including the assault, unauthorized entry of the
• complainant’s home while the family was out, telephone
• calls, physical approaches, lying in wait, threats
• involving profanity, predatory following, harassing
• friends of the complainant;
• the final threat of homicide and suicide with a realistic-
• looking weapon;
• the ineffectiveness of three judicial release orders
• compounded by the respondent’s willingness to put his wife
• in financial jeopardy as his surety; and
• the tweaking of the police by trying to control when and
• where he would be taken into custody.

[48] Thus although there were some mitigating factors in the respondent’s favour, the principles of general deterrence, denunciation and specific deterrence must take precedence in determining a fit and appropriate sentence in this case, together with concern for the safety and security of the victims.

[49] Applying those principles, we are of the view that a penitentiary term of 30 months was called for in this case in order to denounce the predatory conduct of the respondent and to deter him and others from engaging in such conduct with partners, former partners and those associated with them. Giving credit on a two-for-one basis for the 7 months of pre-trial custody, we would set aside the suspended sentence imposed by the trial judge and in its place, substitute a sentence of 16 months’ imprisonment.

[50] The three years’ probation shall remain in place with the conditions imposed by the trial judge, including the non- association order as amended by the variation order of McIsaac J. In addition, with the consent of the respondent, a further condition that he obtain appropriate anger management and other counselling as necessary and as required by his probation officer is added.

[51] The firearms prohibition order should have been made under the new s. 109(1)(b) of the Code and will apply for the period prescribed by that provision.

CONCLUSION

[52] The appeal against sentence is allowed, and the sentence is varied to 16 months imprisonment plus 3 years probation on the conditions set out above. There will also be a firearms prohibition order under s. 109(1)(b) replacing the present order under former s. 100.

“M. J. Moldaver J.A.”

“K. Feldman J.A.”

“I agree. J. C. MacPhreson J.A.”

Released: July 11, 2000

“MJM”

1 The respondent admitted that he was in possession of an imitation firearm. The record indicates that although he was charged with two related firearms offences, he was acquitted after trial based on the trial judge’s finding that the nature of the firearm as specified had not been proved.

2 B. MacFarlane, “People Who Stalk” (1997), 31:1 U.B.C. Law Review 37.

3 S.C. 1997, c. 16, s. 4.