COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Simoes, 2014 ONCA 144

DATE: 20140225

DOCKET: C56220

Hoy A.C.J.O., Pepall and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marisol Simoes

Appellant

Sean J. May and Samir Adam, for the appellant

Susan Magotiaux, for the respondent

Heard and released orally: February 11, 2014

On appeal from the convictions entered by Justice Diane Lahaie of the Ontario Court of Justice, dated September 6, 2012, and the sentence imposed on November 16, 2012.

ENDORSEMENT

[1] The appellant appeals her conviction on two counts of defamatory libel and seeks leave to appeal the 90-day custodial portion of the sentence imposed by the trial judge.

Conviction

[2] Briefly, the background is as follows.

[3] The appellant is a restauraunteur. The complainant was dissatisfied with the service at one of the appellant’s restaurants. The complainant repeatedly called the appellant’s restaurants to complain and posted negative reviews on an online restaurant review site. This triggered a flurry of online postings, e-mails and letters from the appellant, the complainant and her lawyer.

[4] E-mails inviting sexual activity were sent to the complainant’s employer from fake e-mail accounts set up in the complainant’s name. The same sexually explicit message was posted on an adult cyber-dating website. That posting also included the complainant’s photo.

[5] The cyber-dating website gave police the IP address from which the posting had originated. It was registered and billed to the appellant’s home address. A user I.D. and password were required to log into the appellant’s internet connection.

[6] At trial, counsel conceded that the e-mails to the complainant’s employer and the posting on the cyber-dating website amounted to defamatory libel as defined in s. 298 of the Criminal Code. The issue at trial was whether the Crown had proven beyond a reasonable doubt that the appellant was the author of the communications. The trial judge concluded that it had, and accordingly convicted the appellant of two counts of defamatory libel.

[7] Counsel for the appellant argues that the verdict was unreasonable and should be set aside for two reasons. First, the trial judge compared the writing style and tone of the defamatory communications to that of the final e-mail that the appellant sent to the restaurant review site, in the absence of expert evidence and without cautioning herself about the risk of doing so. Second, the trial judge failed to appreciate that other employees of the appellant’s restaurants could have sent the defamatory communications and had a motive to do so.

[8] We are not persuaded that the verdict was unreasonable.

[9] This was a circumstantial case. The similarity of the writing style and language of the defamatory communications to that of the appellant’s final e-mail to the restaurant review site was only one of several factors that led the trial judge to conclude that the appellant had sent or posted the defamatory communications. The trial judge did not err in noting the observable similarity in writing style and language, or by failing to expressly caution herself as she made that observation.

[10] Other than the appellant, only her husband had access to the password required to log into the appellant’s internet connection. The trial judge appreciated that if the appellant or her husband logged into the appellant’s home internet connection remotely from one of the restaurants, the connection would remain open for a period of time. However, the evidence was that employees could access the internet from restaurant computers, and therefore had no need to log into the appellant’s home internet connection remotely, and, moreover were not allowed to do so. The few persons (including the appellant’s husband) who were aware of the complainant’s complaints and could have accessed the appellant’s computer testified that they did not do so. Further, the evidence of the manager of one of the restaurants was that, apart from the appellant, no one at the restaurants had any malice towards the complainant. The trial judge’s conclusion that the Crown had proven beyond a reasonable doubt that the appellant created and sent the defamatory communications is amply supported by the record and was reasonably reached.

[11] We accordingly dismiss the appeal as to conviction.

Sentence

[12] The appellant seeks leave to appeal sentence on the grounds that the 90-day custodial sentence imposed was unduly harsh, and that the trial judge improperly gave weight to two convictions – one for uttering a forged document and one for attempt to obstruct justice – entered after the present offences.

[13] The sentencing judge is owed deference both as to duration and the form of the sentence: see R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61. Having regard to the long term negative consequences to the complainant, the sentencing judge did not err in imposing a custodial sentence, or in concluding that a conditional sentence would not adequately address the need for general and specific deterrence and denunciation.

[14] However, in our view, the sentencing judge erred by failing to consider the impact of the sentence upon the appellant’s children when she refused to order that the sentence could be served intermittently. The appellant is the mother of three young children now approximately 4, 9 and 11 years old. Separation from their mother for 90 days would likely have a serious detrimental effect on the children. The consequences of a sentence for an offender’s children may be a relevant factor on sentencing: see R. v. Middleton, 2009 SCC 21, [2009] 1 S.C.R. 674. The deterrent and denunciatory effects of the 90-day sentence would not be diminished by allowing the appellant to serve it on an intermittent basis.

[15] As to the two convictions entered after the present offences, the sentencing judge expressly indicated that she would “not enhance the sentence in this case by considering the last two entries”. We are not persuaded that the subsequent convictions had any impact on the trial judge’s conclusion that a conditional sentence would not be appropriate or on the duration of the custodial sentence imposed. Moreover, in our view, 90 days is the appropriate duration of sentence.

[16] Leave to appeal sentence is accordingly granted, and the sentence is varied to be served on an intermittent basis, beginning February 14, 2014 at 6:00 p.m. at the Ottawa Carleton Regional Detention Centre, to be served from Fridays at 6:00 p.m. until Mondays at 6:00 a.m.

“Alexandra Hoy A.C.J.O.”

“S.E. Pepall J.A.”

“G. Pardu J.A.”