Court File and Parties

CITATION: R. v. Carr, 2010 ONCA 290

DATE: 2010-04-20

DOCKET: C51205

COURT OF APPEAL FOR ONTARIO

Weiler, Simmons and Watt JJ.A.

BETWEEN

Her Majesty the Queen Appellant

and

Jeffrey Carr Respondent

Counsel: Holly Loubert, for the appellant Donald F. Angevine, for the respondent

Heard and released orally: April 8, 2010

On appeal from: the sentence imposed by Justice W. Brian Stead of the Ontario Court of Justice on October 5, 2009.

Endorsement

By the Court:

Overview

[1] This is a Crown appeal from sentence. The respondent plead guilty to administering the chemical, Kathlon, to the victim with intent to cause bodily harm to her contrary to s. 245(a) of the Criminal Code and to criminal harassment under s. 264(2)(b).

[2] The primary issue is whether the respondent’s conduct constituted a “serious personal injury offence”, (SPIO) pursuant to s. 752 of the Criminal Code such that a conditional sentence was unavailable. Alternatively, the Crown submits that the sentence is demonstrably unfit.

Facts

[3] In 1999, the respondent began having an extra-marital affair with his co-worker, the victim, which lasted almost five years.

[4] After the relationship had ended, in June 2004, the victim began to suffer from burns on the bottom of her feet. This was diagnosed as contact dermatitis. In December 2004, the victim left work for a year of maternity leave and the problem subsided during that period.

[5] When the victim returned to work in January 2005, the problem with the burns and blisters on her feet returned almost immediately and became almost debilitating. The situation got worse. The blisters started to appear on her back and thighs.

[6] The victim went on another maternity leave in September 2006, and during this time she had no problems. However, when she returned to work in September 2007, the blisters on her feet reappeared and also on her arms and abdomen. The situation became so severe that she had difficulty walking. She was off work for six weeks.

[7] Eventually the victim and others became suspicious that she was somehow being targeted. The victim had been reporting to her employer that her desk had been “messed with”, memos had gone missing from her desk, papers were moved, her computer was damaged and notes were left on her desk.

[8] In addition, several anonymous calls and letters sent to the Children’s Aid Society alleged that the victim had neglected and abused her children. These allegations were found to be unfounded. Two anonymous notes were sent to the victim’s employer, alleging that she was faking her illness.

[9] The victim began to notice and report finding liquid on her desk and work area in the mornings when she arrived at work.

[10] In late August 2008, a private investigator was hired. He installed hidden surveillance cameras monitoring the victim’s work station. The surveillance disclosed that the respondent was tampering with items in the victim’s work area in the early morning hours and going through her files, drawers and accessing locked drawers. He was observed spraying a substance on the arm rests of her chair, mouse and keyboard of her computer. He left love letters in the drawer of her desk, began showing up in her office and sending messages to her at work and he was turning up wherever she was in the plant. He began calling her at home. He was also sending her numerous emails and professing his love for her and expressing anger at her for ending their relationship.

[11] The investigation disclosed that the respondent had been spraying Aciticide SPX Kathlon on the victim’s desk and other areas which was the cause of all the burns and blistering which she had been experiencing on and off over the four year period.

[12] Kathlon is a chemical which causes severe itching, burning and blistering on contact with human skin. The chemical is cumulative in its effects. The more contact there is with the chemical, the worse the effects get and the more serious the injury becomes.

[13] The respondent plead guilty to administering the chemical, Kathlon, to the victim with intent to cause bodily harm to her contrary to s. 245(a) of the Criminal Code and to criminal harassment under s. 264(2)(b).

[14] Stead J. of the Ontario Court of Justice sentenced the respondent to an 18 month conditional sentence, starting with six month of house arrest, and to two years probation.

Issues on Appeal

1) Did the respondent’s conduct constitute a “serious personal injury offence” pursuant to s. 752 of the Criminal Code such that a conditional sentence was unavailable?

[15] In his Reasons for Sentence, Stead J. found that the respondent’s conduct did not constitute a SPIO.

[16] The Crown submits that the trial judge erred in law. It submits that the offence, specifically administering a destructive thing with intent thereby to cause bodily harm under s. 245(a) of the Criminal Code is, by its very nature, a SPIO because the accused necessarily endangers the safety of another person in administering the substance.

[17] Although that may well be the case, it is clear that the respondent’s particular conduct in the circumstances of this case, constitutes an SPIO because he plainly endangered the victim’s safety on any definition of endangerment and harm. He intentionally exposed her to a corrosive chemical that caused her serious bodily injury. Accordingly a conditional sentence was unavailable for this offence.

[18] In his factum, the respondent submitted that the SPIO considerations were irrelevant given the timeframe of the indictment. This submission was made on the basis that the amendment to s. 742.1 that eliminated the availability of conditional sentences for SPIO’s was not proclaimed in force until July 2, 2008.

[19] The start date of the indictment was July 1, 2008 for the destructive thing charge and April 1, 2008 for the criminal harassment charge. Tremear’s Criminal Code and Crankshaw’s legislative history indicate that the section was proclaimed in force on November 30, 2007 and, therefore, a conditional sentence was not available.

[20] The respondent also submits that the court ought not to take into consideration anything outside the time frame of the indictment. As part of this submission, counsel for the respondent argues that the Crown did not prove that the respondent repeatedly sprayed the victim’s work station.

[21] The court is entitled to have regard to aggravating factors outside the time of the indictment read in as part of the facts to which the respondent plead guilty. The facts read in indicate that in 2004 the victim began to suffer a reaction to a destructive thing. The inference from the facts read in is that, on at least one occasion, at some time prior to the time frame alleged in the indictment, the respondent put some of that chemical on the victim’s work place station and work clothes. By his pleas the respondent acknowledged he was the one who was spraying the destructive thing. He again sprayed the chemical during the time frame of the indictment.

[22] With respect to the submission that the respondent was not aware of the harm he was causing, we note that in order to handle this substance, special equipment, gloves, were required and used by the respondent. That would send a message to even the most obtuse that the substance was capable of causing serious bodily harm. The evidence is clear that in the spring of 2008 there was a workplace meeting about the victim’s difficulties at work that he attended. The facts read in also indicate that after she returned to work after a vacation in July 2008 the victim began to have skin rashes to her face, arms, legs and stomach. Rashes, blisters and burns developed in these areas. The respondent was clearly aware or wilfully blind to the harm he was causing yet, despite this, the respondent sprayed the victim’s workplace station again.

2) Regardless of the SPIO holding, was the 18 month conditional sentence disproportionate to the gravity of the offences and the degree of responsibility of the offender, making it demonstrably unfit in all the circumstances?

[23] The Crown’s position at trial was that an appropriate sentence was three to four years actual imprisonment. The Crown submits that the conditional sentence imposed by Stead J. reflects errors in principle and was demonstrably unfit.

[24] We agree with this submission. The trial judge minimized the extent of the victim’s injuries. Having regard to the intimate relationship between the victim and the respondent, the respondent committed a significant breach of trust. He engaged in controlling and manipulative behaviour, knew of harm caused or was wilfully blind to it yet continued to engage in this conduct. His conduct shows extensive planning and deliberation. The respondent engaged in the conduct he did for a selfish motive. He wanted the victim to quit her job so he would no longer see her.

[25] The appeal as to sentence must be allowed. The offence deserves a penitentiary sentence. Giving the respondent credit of six months for the time he has served under house arrest on his conditional sentence, and, bearing in mind that he is a first offender, we are of the opinion that in the circumstances a sentence of two years less a day is a fit sentence. We would maintain the two year probationary period on the terms imposed by the trial judge.

[26] Accordingly, leave to appeal sentence is granted, the Crown’s appeal as to sentence is allowed and the sentence is varied to a period of imprisonment of two years less a day. All other terms and conditions of the sentence imposed by the trial judge remain.

“K.M. Weiler J.A.”

“Janet Simmons J.A.”

“David Watt J.A.”