Court File and Parties

No.: 11-1287

Ontario Court of Justice

Her Majesty the Queen v. Sylvia Chaulk

Reasons for Sentence

Before the Honourable Justice B.E. Pugsley

on November 20, 2014, at Orangeville, Ontario

Appearances

• M. Balogh, Counsel for the Crown
• S. Rose, Counsel for Sylvia Chaulk

Thursday, November 20, 2014

Reasons for Sentence

Pugsley, J (Orally):

Sylvia Chaulk has entered a plea of guilt to a single count of extortion, contrary to paragraph 346(1.1)(b) of the Criminal Code. She is before me today for sentencing.

Facts

The facts are briefly as follows: In the fall of 2011, Ms Chaulk and the complainant were co-workers and had been in a relationship of sorts for about one year-and-a-half years. The accused characterized the relationship as one of friendship; the complainant characterized the relationship as a casual affair.

On September 29th, 2011, they stayed together overnight at the defendant's home in Caledon. At 5:00 a.m., they woke up in bed together. The defendant accused the complainant of attempting to have sex with her and slapped his face. He left the residence.

Over the next several days, the defendant contacted the complainant. She demanded that he give her $2,000 or she would tell the police that he had sexually assaulted her. The complainant called the police. He denied any sexual contact on the date in question. The police gathered evidence, including a message from the defendant to the effect that the complainant should call her or she would charge him with rape. The defendant was arrested and charged on October 5th, 2011.

The defendant entered a plea of guilt before me on June 13th, 2014. A Victim Impact Statement and a Pre-Sentence Report have both been filed. The complainant's Victim Impact Statement is a clear statement of the chilling effect of an innocent person threatened with potential criminal consequences. No criminal investigation was commenced against him however.

The Pre-Sentence Report is generally a favourable one. The defendant has had a troubled and fragile psychological past, which she's now trying to emerge from.

Crown and Defence Submissions

The Crown seeks a period of six months' incarceration. The defendant submits that a suspended sentence is appropriate. Both agree that a period of probation would be helpful here.

Availability of Conditional Sentence

The offence date here was before the amendment to the Criminal Code in November of 2012, which expanded the number of offences for which a conditional sentence is unavailable. The offence and facts here are very serious. The maximum sentence is life in prison. After the date of this offence, Parliament made it clear that a conditional sentence of imprisonment should be unavailable for this offence. A suspended sentence is and was available upon a conviction for this offence, both before and after the amendments to the Criminal Code under the Safe Streets Act.

Before considering the Crown and defence submissions, I will canvass the availability of a conditional sentence. As it read on the date of this offence, s. 742.1 of the Code made a conditional sentence available as a sentencing option, except in certain circumstances. This sentencing option was not available in cases of:

1. a serious personal injury offence as defined by s. 752 of the Code; or
2. a terrorism offence; or
3. a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is 10 years or more; or
4. an offence punishable by a minimum term of imprisonment.

Whether extortion is a serious personal injury offence as defined by s. 752 of the Code depends on the context. The recent case of R. v. Steele in the Supreme Court of Canada, 2014 SCC 61, dealt with the s. 752 definition in the context of a dangerous offender application. In that case, Mr. Steele told a cashier at a drug store during a robbery that he had a gun. This threat of violence was held to be sufficient to found a conclusion that the offence was a serious violent offence.

In R. v. Walls, Justice Beaman considered whether extortion was a serious violent offence. In that careful analysis, she concluded that it depended on the circumstances of the offence. In Walls, there were threats made to engage in forced sex with the complainant. No steps were taken to put the extorted threats into effect. Her Honour held that in the context of that case, the conviction under s. 346(1.1)(b) of the Code was not a serious personal injury offence. In that case, a conditional sentence of imprisonment was imposed.

Before the November 2012 amendments, there was no general prohibition on conditional sentences based on the maximum length of sentence for offences other than terrorism or a criminal organization offence. Both of those are defined and neither apply on the facts before me.

In my view, the wording of s. 742.1, as it existed at the time of this offence, does not preclude a conditional sentence of imprisonment. As previously noted, the Crown seeks a sentence of imprisonment in the range of six months. The defendant submits that a suspended sentence is appropriate or, failing that, a conditional sentence.

Sentencing Analysis

A suspended sentence for this offence and this offender is not appropriate under the sentencing principles of s. 718 and following of the Code. While the defendant has no record and is amenable to a rehabilitation, the offence and the circumstances of the offence require a considerable component of general and specific deterrence. The defendant threatened to bring the full impact of the criminal justice system down upon the complainant if he did not pay her money. She persisted in her attempt to extort money. Luckily, that persistence by the defendant, after his complaint, tolled against the laying of charges against this complainant by the police. In the normal course of events, the complainant stood in extreme jeopardy of arrest and prosecution. General deterrence, in particular, must be considered here, notwithstanding the defendant's acceptance of responsibility, her contrition and her prior good character. A suspended sentence and probation is, frankly, of little deterrence, considering the circumstances of this offence.

The Crown position, and that of the defendant, clearly encompasses a sentence of less than two years in jail. I agree that at most the defendant would be sentenced to a term of jail in the six-month range, given her plea and the positive Pre-Sentence Report. A conditional sentence is, therefore, an available sentencing option here. I also agree with counsel that supervision in the community is a necessary component of this sentence, and that as suggested by the author of the Pre-Sentence Report, the defendant is amenable to such supervision.

In spite of her extortive criminal acts here, the defendant is properly characterized as a non-violent person. The potential for harm to the complainant was quickly stopped by the police here, within days, and never threatened physical harm, although the impact upon the complainant is clearly set out in his Victim Impact Statement.

As set out in R. v. Priaulx, Supreme Court of Canada 2000, a conditional sentence of imprisonment is a sentence of imprisonment. As such, I find it has a significant deterrent effect. In my view, the defendant is the type of offender for whom the conditional sentence regime was designed. To place her into a bricks and mortar jail would block the progress of her rehabilitation and serve no more deterrent effect than a conditional sentence of imprisonment. Most importantly, the defendant, having accepted responsibility for her offence, will be held to account for this offence.

Sentence

I would ask you now to stand up, please, Ms Chaulk?

The sentence of the court is, therefore, as follows:

Conditional Sentence Order (House Arrest)

You are sentenced to six months of incarceration to be served in the community under the terms of a conditional sentence order, or what's called house arrest.

Terms of the Conditional Sentence Order:

Under that order, you will:

1. Keep the peace and be of good behavior;
2. Appear before the court when required to do so;
3. Report to a supervisor within two working days of today and thereafter when required by your supervisor and in the manner directed by your supervisor;
4. Remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or from the supervisor;
5. Notify the supervisor and the court in advance of any change of your name or address, and promptly notify the court or your supervisor of any change of employment or occupation;
6. Seek and maintain employment and/or education and provide proof of this to your supervisor upon request;
7. Not possess any weapon as defined by the Criminal Code;
8. Attend such counselling, assessment and/or treatment as may be directed by your supervisor and co-operate in the supervising obtaining information about your progress in such counselling, assessment and/or treatment, including signing any releases to allow the supervisor to communicate directly with your service providers;
9. Abide by a curfew to be in your residence between the hours of 9 p.m. and 6 a.m. from Sunday to Thursday inclusive, and 11 p.m. and 6 a.m. on Friday and Saturday, unless you have the prior written consent of your supervisor, or it is a genuine serious medical emergency;
10. Not associate with the complainant directly or indirectly except through legal counsel.

Do you understand the terms of this order?

SYLVIA CHAULK: Yes, Your Honour.

THE COURT: It's a serious matter to breach this court order. One of the possible penalties, if you're found to have intentionally breached this order is that the entire remaining amount of your six-month sentence be converted to real jail with clanging steel doors, do you understand that, ma'am?

SYLVIA CHAULK: Yes, I do. Yes.

THE COURT: If this order needs to be reviewed or changed, you can bring the matter back before the court and ask the court to consider changing the terms of the court order, as can the Crown. That can be done through your lawyer or by a request to your supervisor, or by making the request yourself up at the counter and a judge will consider whether the order should be changed. In a few minutes you'll get a copy of this conditional sentence order, it sets out your rights but also your obligations. Make sure you understand those rights and duties. If you have any questions, clear them up by talking to Ms Rose or your supervisor.

Probation Order

At the end of your sentence of incarceration, you will be placed on probation for one year.

Terms of the Probation Order:

The terms of that probation order are as follows, and they'll sound similar to the conditional sentence order. You will:

1. Keep the peace and be of good behavior;
2. Return to court as required;
3. Report to and be under the supervision of a probation officer forthwith upon the completion of your conditional sentence and thereafter as required by your probation officer;
4. Take such counselling, assessment and/or treatment as may be directed by your probation officer, and co-operate in information going back to that officer so they know how you're doing with that counselling, assessment or treatment, including signing releases so they can talk to the service providers directly;
5. Not associate directly or indirectly with the complainant except through legal counsel;
6. Not possess any weapons as defined by the Criminal Code;
7. Reside where directed by your probation officer;
8. Complete 60 hours of community service before the end of your probation to the satisfaction of your probation officer.

Again I ask if you understand those terms of probation?

SYLVIA CHAULK: Yes, Your Honour, I do.

THE COURT: Again, I warn you that if you are found to have voluntarily intentionally breached those terms, one of the possible sentencing options is that you go to jail. Do you understand that warning?

SYLVIA CHAULK: Yes, I won't break the order.

THE COURT: Again, if this order needs to be reviewed or changed, you can ask to have it changed, as can the Crown. You can go through your lawyer or your probation officer to make that request, or you can attend here at the courthouse and make a written request which a judge will review and decide whether to implement or not. In a few minutes, you will get a copy of this order as well. Please make sure you understand your rights and your obligations under this court order. If you have any questions, talk to your probation officer or Ms Rose to clear those questions up.

DNA Order

In addition, this is a primary DNA matter. You will report within the next three working days to the Caledon East Detachment of the OPP for the purpose of providing a sample of your DNA to the National DNA Databank.

Withdrawal of Count

And I believe there is another count that needs to be addressed by the Crown, Ms Balogh?

MS BALOGH: Yes, it can be marked withdrawn, please, Your Honour?

THE COURT: Yes, the plea was to Count 2, so Count 1 is withdrawn at the request of the Crown. There will be considerable paperwork for your client to sign up in the main court office before she leaves the courthouse today.

MS ROSE: Thank you very much, Your Honour.

THE COURT: All right, thank you. Good luck, ma'am.

SYLVIA CHAULK: Thank you.

Transcript Ordered: November 20, 2014

Transcript Completed: January 25, 2015

Returned by Justice: January 27, 2015

Ordering Party Notified: January 28, 2015