R. v. Korbut

Court Information

Court: Ontario Court of Justice

Before: Justice P. Harris

Judgment Type: Sentence Judgment

Date Released: November 2, 2012

Parties and Counsel

Crown: Her Majesty the Queen

• Counsel: Ms. Christine McGoey, Crown Attorney

Accused: Oleg Korbut

• Counsel: Mr. Vladimir Semyonov, Defence Counsel

Background

[1] On August 10, 2012, the accused was found guilty of two offences:

1. Theft under $5,000 (s. 334(b) of the Criminal Code) – stealing diaries, an address book, and a cellphone belonging to the victim, valued at not exceeding five thousand dollars, on or about January 7, 2010.

2. Criminal Harassment (s. 264(1) of the Criminal Code) – repeatedly communicating directly or indirectly with the victim between February 16 and March 5, 2010, thereby causing the victim to reasonably fear for her safety.

In the trial judgment, the court concluded that the accused utilized personal journal content and contact information derived from the stolen items to publish to the victim's relatives, friends, and associates highly embarrassing text and website links to numerous sexually explicit photos and videos in order to cause fear and dissuade the victim from continuing in a new relationship.

Facts

[2] The victim immigrated to Canada in 2007 to join her husband, with whom she had begun a relationship over the internet and married in Russia in 2005. They lived together in Canada until June 2009, when they separated. While living with her husband, the victim met the accused in 2007, and they commenced a relationship involving travel to destinations such as Quebec City and Cuba, as well as meetings at the accused's office on Bloor Street West in Toronto, where he worked as an Osteopathic Manual Practitioner and Acupuncture Specialist. The accused ended the relationship in 2009. During their time together, nude photos and videos were taken of the victim by the accused.

[3] Both the victim and the accused downloaded the nude photos and videos onto their respective computers. The victim stated that after they "broke up," she deleted all of the nude videos and photos from her computer "completely," and the accused promised her that he would delete them as well. This did not occur. Some of the recorded material would generally be considered pornography. The victim gave evidence, which was accepted, that she never shared those images or videos with anybody other than the accused, and that in January 2010, after they had separated, he stated that "he had saved them all and if he wanted to, he would show them to everybody."

[4] The victim commenced a new relationship in late 2009, to which the accused objected. He told her, "I want you to be alone for a year or more." When she would not discontinue, the accused began a well-orchestrated campaign to engender fear in an attempt to sabotage the relationship.

[5] On January 7, 2010, the accused came to the victim's residence. On learning that she had become intimate with another male, he became abusive, "saying nasty things." When he left, her diaries, her address book, and her cellphone were missing, and nobody else had visited her at her residence that day. She stated that four days later she found her cellphone in her mailbox with all their common friends deleted. She gave evidence that the cellphone and address book provided access to email addresses of relatives, friends, and acquaintances, and that her diaries contained personal and sensitive information. That same day, she moved from that residence because, as she stated: "I had a feeling Oleg was going to come back. I didn't want to see him anymore."

[6] On January 25, the accused sent the victim an email in which he wrote, "I am not to be treated like some cheap piece of crap" and "You set the engine of a powerful machine in motion. God will not keep you waiting too long." On February 6, 2010, he sent her an email that began: "Hello you Shameful and Cowardly Bitch" and contained "Let it all be returned to you in full measure" and ended with "You still have no inkling of what it means to hurt a Magical Scorpion" (he gave evidence that his zodiac sign was "Scorpio").

During the period from February 16 to March 6, 2010, the victim became aware that fake emails were being sent to 20 to 30 relatives, friends, and acquaintances in her church community purporting to have been sent by her under her maiden name. These emails contained personal and highly embarrassing text and website links to numerous sexually explicit photos and videos she had made with the accused. In addition, on February 14, a Valentine's gift of a sexually explicit DVD was left at the residence of the victim's new partner.

[7] The final chapter in this saga took the form of a posting to a dating website under her maiden name, which stated that she would like to meet a man between the ages 21 and 60 and described how frequently she would like to have sex: "several times a day." The victim testified that this fake profile in her name, which included naked photos, resulted in men calling late at night who would "introduce themselves and ask when they could meet." She stated: "And once around 11 p.m., a man came and knocked on the door." She said, "It was unpleasant and I was scared. I was repulsed and I felt defenceless, unprotected."

The victim then reported what had occurred to police, and the accused was charged. After trial, the court found that the accused was responsible for all of the above intrusions into the life of the victim, which were designed to generate fear and dissuade her from continuing with the relationship.

Circumstances of the Accused

[8] The accused married Svetlana Korbut in 1990, and they presently have a 21-year-old daughter and a 6-month-old son. Between 1992 and 1998, he graduated from medical school in Ukraine and began a practice as an orthopaedic surgeon. He immigrated to Canada in 1998. Because he was unable to obtain a medical residency position in Canada, he began a practice in alternative medicine in 2006. In May 2007, in Canada, he met the victim on the internet, and the meeting evolved into a relationship that lasted about two years. As a result of the extra-marital relationship, he and his wife separated for approximately 6 months from May 2009. They have since reconciled.

Based on the accused's pre-sentence report and seven written character references, one can readily conclude he is generally considered an honourable and reputable family man and a caring and devoted father to his two children.

[9] The accused is the sole provider for his wife and family. His mother describes her son as a good, respectful, polite, and helpful person who is a good father. Many references describe the accused's charges as appearing "out of character." His wife states she has seen a great improvement in the accused and believes that their relationship is better than before. She states that the accused is family-oriented and caring and that the family needs his support.

In conclusion, the accused appears to have considerable family and community support. According to the pre-sentence report, "the current matter before the court appears incongruous with [the subject's] reliability and family oriented qualities."

A psychological assessment was prepared by Dr. J. Pilowsky for sentencing, which described how his psychological functioning and lifestyle has been negatively impacted by his "legal-related circumstances." The report states that he has developed pronounced anxiety and grave difficulties sleeping and breathing at times. In treatment, the focus was "on how to attain appropriate and respectful relationship with women, anger as well as teaching the accused how to cope with his psychological distress."

Impact of Offences on Victim

[10] In the pre-sentence report, the victim is quoted as indicating that she has moved on and has no safety concerns "at this time." In a victim impact statement, the victim describes how the accused's actions affected her: "I was completely lost, physically exhausted and couldn't function and participate in social activities properly." She stated she suffered spiritual injury and faced a lot of stress and pressure "because my friends and relatives were involved in my personal and intimate life."

The victim referred to information taken from her diaries that had been twisted into "dirty made up facts" and said that this made her "life even more miserable." She also mentioned the fake dating website profile that resulted in a "total stranger" coming to her residence, causing her to feel "so embarrassed."

Position of Counsel

[11] The Crown Attorney, Ms. McGoey, takes the position that the paramount sentencing principles in this case—deterrence and denunciation—call for a sentence of imprisonment of 6 months. Counsel for the accused, Mr. Semyonov, on the other hand, argues that based on the offences and offender, the court should consider imposing a conditional sentence in the range of 6 months with conditions requiring house arrest for a substantial portion of that sentence.

Applicable Principles of Sentence

[12] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1) and further, ss. 718.2(b), (c), and (d) of the Criminal Code provide that:

• A sentence should be similar to sentences imposed on similar offences for similar offences committed in similar circumstances;
• Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; and
• An offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances.

[13] Section 742.1 states that a conditional sentence may be imposed if:

(a) The offender does not fall within certain categories or require a minimum term of imprisonment; (b) The sentence to be imposed is less than two years; (c) The court is satisfied that the service of the sentence in the community would not endanger the safety of the community; and (d) Such a sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.

[14] In addition, the principles that pertain to offences such as criminal harassment are noteworthy. In R. v. Finnissey, the court reached the following conclusions (note: this is a case involving charges of criminal harassment that proceeded by indictment, thereby extending the range of sentence available).

In R. v. Bates, the court dealt at some length with the principles of sentencing to be applied in cases like this one. The court said, at paragraphs 35-36:

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 [the complainant] and those close to her. 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 court concluded its statement of the applicable principles of sentencing at paragraph 42 of the judgment with these words:

The number of recent cases continuing to reach this court emphasizes the extent of the problem with 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.

Those principles apply with full force even where there is no physical violence. The absence of physical violence is not a mitigating factor on a conviction for harassment. The psychological violence done to the complainant and her friends over a prolonged period by the respondent's conduct is the very evil that Parliament sought to punish by creating the crime of harassment. The fact that the respondent did not commit additional crimes involving physical violence cannot mitigate his sentence on the harassment charge.

[15] Finally, under s. 718.2(a)(ii) of the Criminal Code, evidence that the offender, in committing the offence, abused the offender's spouse or common law partner, shall be deemed to be an aggravating factor. In the court's view, this principle is applicable to the instant case on the grounds that the offending behaviour arose in the context of a domestic relationship and the breakdown of that relationship.

Mitigating and Aggravating Factors

Mitigating Factors

[16] There are several mitigating factors in this case:

1. The accused is a first offender and enjoys a solid reputation in the community for reliability as well as care and devotion to his family; any sentence will have a heavy impact on his career and his ability to support his family.

2. Since the charges were laid, there have been no further instances of harassing behaviour, and the victim has no safety concerns "at this time."

3. He is a health care practitioner and a health-related service provider and, presumably, will not likely put his career in any further jeopardy.

Aggravating Factors

[17] The aggravating factors are as follows:

1. Unquestionably, the accused's premeditated, escalating campaign in the form of deliberate, callous, and vindictive harassment has had a profound and devastating impact on the victim's reputation, her pride, her integrity, and sense of self-worth. As the victim states, this protracted attempt to frighten her and curtail her freedom has left her miserable and "so embarrassed."

2. The harm done is unquantifiable in that the posted images and the fake profile (which apparently can still be seen on the dating website) are irretrievable and may continue to be accessible on the internet in perpetuity, with the potential to re-victimize the complainant at some time in the future.

3. The accused continues to present as an individual who lacks insight and respect for others; even as he pleaded not guilty and testified at trial, his unbalanced perspective on gender equality and sensitivity was apparent. He was unable to restrain his scornful attitude towards the victim, and referred to her as a "whore" and "fucking scum" while testifying in his defence.

Analysis

[18] In R. v. Proulx, the Supreme Court held that the principles of general deterrence and denunciation can be met by a conditional sentence and that s. 742.1 does not exclude any offences from the conditional sentencing regime except those with a minimum term of imprisonment. In cases involving criminal harassment, other courts have held that conditional sentences may be imposed. (See R. v. Moss, 2011 ONSC 5143; R. v. Mandell).

[19] A significant feature of this sentencing decision is the fact that the Crown proceeded by summary conviction on the charges on which the accused will be sentenced. Consequently, under the Criminal Code, the mode of procedure selected has the effect of capping the maximum sentence that can be imposed on each charge at 6 months imprisonment.

[20] There are two further sentencing principles that require articulation. First, based on well-established case law, the typical sentence for a first offender would not be the maximum sentence available (in this case—6 months) because of the need to address the higher level of rehabilitative potential. Even in the case of a serious offence for which imprisonment is required, the fact of being a first offender will in most cases mitigate the severity of the punishment: R. v. Q.B.; R. v. J.B..

Second, in the court's view, the sentences in this case should run concurrently (in other words, simultaneously) because the acts that have resulted in the offences charged generally arose in the course of the same transaction or endeavour and are closely linked together. In this case, they are all part of the escalating campaign to engender fear in order to control the victim: see R. v. Auerswold; R. v. Turner.

[21] In terms of eligibility for a conditional sentence, the court has concluded that:

(a) There is no minimum sentence for the offences the accused is facing;

(b) A total sentence of six months is the appropriate sentence of imprisonment for these offences based on the offences, the offender, and sentencing case law having regard to the mitigating and aggravating circumstances of the particular offences and offender;

(c) The accused represents a low risk for re-offending given his antecedents, family and community support, and the need to avoid any further jeopardy to his career and his ability to support his family. The court has concluded that the safety of the public would not be endangered by a conditional sentence;

(d) The most important principle of sentencing—the protection of the public—would be best served in the longer term by a sentence most conducive to eliminating the risk of re-offending by encouraging and facilitating the accused's reformation by permitting him to work and continue to support his family.

[22] The case the court found of most assistance was R. v. Desilva, a charge of criminal harassment in which the accused made a sexually explicit video of the female complainant without her knowledge and, when the relationship "went sour," he posted the video on his Facebook page and invited 13 friends and family of the complainant to view the video. The court found that the Crown had not proven that the posting had resulted in a general release of the video to the internet. The court held that while a conditional sentence could adequately address the need for deterrence and denunciation, it would fail to strike the right balance in emphasizing and placing appropriate weight on the paramount principles. The court held that a period of incarceration to be served in jail was the appropriate sentence. While there may be some basis upon which to distinguish this case—such as a prior record for assault causing bodily harm—still, the court imposed a sentence of two months imprisonment in respect to a charge of criminal harassment.

Having regard to the fact that in the instant case the sexually explicit videos were posted to the internet, the starting point for an appropriate sentence in the court's view should be three months imprisonment.

[23] In imposing sentence, the court must incorporate all of the circumstances of the offences and the offender's personal situation, including his prospects in the immediate and far future. The accused has a strong support network and gainful employment available to him. He has a solid reputation in the community and has contributed extensively to his family's welfare. He is an important care-giver to his two children, particularly his 6-month-old son. As Belleghem J. in R. v. Mundle so eloquently put it:

All of these factors that I have outlined have varying weights, relative to the existence and extent of related factors. We are dealing in sentencing, here, as in many other cases of this sort, with a careful weighting in the balance, on the scales of justice, of two "clusters of competing values" and concerns, made up of factors, which themselves are variable in significance, and therefore of weight. In the end, sentencing particularly in a case of this sort, where it is a "close call", as I have indicated—demonstrates as much as anything the need for an exquisitely careful balance. It is difficult, if not impossible, to put any specific weight on any of the particular factors which are relevant in the case. It is impossible to point, with any specificity, to any particular pivotal factor.

[24] This is a close and difficult case. Both Crown and defence positions are not unreasonable. On balance, the court is satisfied that a sentence is required that both recognizes the seriousness of these offences and the need for deterrence and denunciation, while at the same time addresses the principle of rehabilitation in a meaningful fashion. After carefully balancing all of the pertinent factors, the court has concluded that given the serious nature of these crimes and the need to demonstrate that theft of one's most private and personal information and criminal harassment and its attendant negative social repercussions will not be tolerated, a blended sentence of both incarceration and a conditional sentence is required to give effect to all relevant sentencing principles.

The Ontario Court of Appeal in R. v. Ploumis, has confirmed that when sentencing for more than one offence, provided the overall sentence does not call for a penitentiary term, a custodial sentence may properly be blended with a conditional sentence.

[25] And of course there is one last significant issue: the fact that the accused is the sole supporter of his family, particularly a family with a six-month-old child, is a major factor that the court has had to struggle with in terms of the rehabilitative and restorative elements of sentencing. This is important in two ways, in the court's view.

The accused's family responsibilities represent a very important issue in terms of his rehabilitation. They will provide him with some continuing vital purpose in life, and it will likely, in the court's view, encourage him to strive to live in a way that would set a good example for his son and daughter in the future.

Secondly, there is a valid social purpose in attempting to prevent this unfolding tragedy in which the victim has become a victim from causing other collateral damage in the form of the loss of his family's financial and emotional support should the accused be sentenced to a six-month term of actual custody. Consequently, the court has endeavoured to identify a deterrent, denunciatory yet somewhat restorative sentence that will constitute a rough equivalent to a six-month carceral sentence while at the same time permit the accused to remain employed and capable of supporting his family.

The Sentence

[26] The court has determined that the appropriate total sentence is six months (in one form or another), as previously indicated having regard to concurrency and totality principles. While the court certainly respects the positions adopted by counsel, the court disagrees with the notion that sentencing choices are limited to the starkly differing alternatives of either a six-month jail sentence or a six-month conditional sentence involving house arrest in this case. The need for a deterrent sentence for these crimes does not loom so large that every opportunity for a house arrest component of sentence must be entirely dismissed. Yet, an entire sentence of "house arrest in the community" seems an inadequate response to the profoundly damaging impact of the accused's conduct on the victim's life and personal relationships.

[27] The court notes that in R. v. Middleton, 2007 ONCA 538, the Ontario Court of Appeal held that a blended sentence composed of an intermittent sentence in combination with a conditional sentence can be a fit sentence where the court's intention is to impose "real jail time" without the loss of employment and support for a family. The trial court had imposed a 90-day intermittent sentence along with a concurrent conditional sentence to be followed by three years' probation. The Court of Appeal approved the blended sentence in principle, but noted that unless the sentencing court specifically orders that s. 732(3) does not apply, the intermittent sentence collapses and must be served on consecutive days. The court therefore expressly orders that s. 732(3) of the Criminal Code does not apply in this case.

[28] This case calls for a careful balancing of all sentencing purposes and principles, while at the same time treating deterrence and denunciation as the foremost considerations. The court first recognizes the seriousness of the theft offence as the source of not only private and intimate details of the victim's life, but also the source of distribution information by which the damaging materials could be published to family and friends, by imposing a conditional sentence served in the community of six (6) months concurrent to the sentence for the criminal harassment offence.

On the charge of criminal harassment, to give effect to the primacy of deterrence and denunciation goals as well as rehabilitative/restorative principles, the sentence will be ninety (90) days imprisonment to be served intermittently (once again s. 732(3) does not apply). This of course means that the latter carceral sentence will be served at the same time as the conditional sentence, the terms of which are set out below in Schedule 1. The cumulative total of both the intermittent and conditional sentences will be six months. These sentences will be followed by a period of probation for three years. The terms of the probation order are set out in Schedule 2.

Schedule 1: Conditions of Conditional Sentence

The conditions of the conditional sentence imposed are as follows:

[1] Abide by the mandatory conditions of the conditional sentence order.

[2] House arrest; for the first three months of the conditional sentence, you will remain in your place of residence at all times except while travelling to and from and attending at your place of employment, medical appointments, religious services, and reporting pursuant to this order and any other reasons for which permission may be obtained from your supervisor. You are permitted to be out of your residence every Tuesday and Thursday between the hours of 6:00 p.m. and 7:30 p.m. to obtain the necessities of life. During the second three-month period of the conditional sentence, you will abide by curfew—be in your place of residence between the hours of 8:00 p.m. and 6:00 a.m. daily, except for medical emergencies.

[3] You will not own, possess, or carry any weapons or firearms.

[4] You are required to carry this order on your person at all times when outside your residence and produce it on demand to any peace officer.

[5] No contact directly or indirectly with the victim or any member of her family, her parents, or her grandmother. You are not to be within 500 metres of her residence, any place where, to your knowledge, she attends for religious or educational purposes, and any place of employment.

[6] You are to have no contact directly or indirectly with Kirill Shiff. You are not to be within 500 metres of his residence or place of employment.

[7] You are not to publish, post, or communicate directly or indirectly with anyone using any form of technology, including phone, text, email, internet communication, or electronic information in any form or by any means, any information that could identify the victim (including any information relating to her maiden name and any other married name).

[8] You are to destroy all photographs and videos of the victim in your possession, or that you may have access to, within 48 hours of this decision. You are not to have in your possession any photographs or videos that contain images of the victim.

[9] You are to remove from any computer you or your family own or have access to, any and all information relating to the victim.

Schedule 2: Terms of Probation Order

The terms of the probation order are as follows:

[1] Keep the peace and be of good behaviour.

[2] Report until all counselling is completed.

[3] You are to enrol in and complete Partner Abuse Counselling within the first two years of your probation.

[4] You are to attend for counselling as directed by your probation officer and sign any waivers or releases necessary to permit your probation officer to monitor your attendance and progress in any such counselling.

[5] Paragraphs 5 to 9, above (referring to the conditions in Schedule 1).

Additional Orders

In addition, there will be a Criminal Code s. 109 order imposed for a period of 10 years.

Even though a DNA sample order is not mandatory, these being secondary designated offences, the court has determined that in the circumstances of this case, the community interest in the taking of a sample considerably outweighs your privacy interest, and a DNA sample will be ordered.

Justice Peter Harris

Released: November 2, 2012