Court File and Parties

Court File No.: 14-919 Orangeville Date: April 1, 2016 Ontario Court of Justice Central West Region

Between: Her Majesty the Queen — and — John Paul Hammond

Before: Justice Richard H.K. Schwarzl

Heard on: January 22 and April 1, 2016 Reasons released on: April 1, 2016

Counsel:

• Mr. David King for the Crown
• Mr. Richard Allman for the Offender

SCHWARZL, J.

REASONS FOR SENTENCE

1.0: INTRODUCTION

[1] John Hammond (the Offender) and Mary Walter (Walter) are former domestic partners. Following the breakdown of their relationship, Walter complained to the police that the Offender perpetrated a number of incidents of domestic violence upon her while they cohabited. The Offender was subsequently charged and released on bail including a condition not to contact Walter either directly or indirectly. A Preliminary Inquiry was held. During Walter's cross-examination at the Preliminary Inquiry by the Offender's counsel, the Offender made a gesture to Walter and uttered the words, "indication you're slitting your own throat." Walter told the presiding justice what the Offender had done and the Preliminary Inquiry was suspended at that point. I was informed by both counsel in this case that Walter finished her Preliminary Inquiry evidence by means of closed-circuit television at a later date. The Offender was committed to the Superior Court, where the domestic violence charges were resolved by the Offender entering into a five-year peace bond.

[2] As a result of his behaviour at the Preliminary Inquiry, the Offender was charged with three offences: attempting to obstruct justice, intimidating a justice participant, and breach of recognizance. He was released on bail two days after being charged with these offences. A trial on these three charges was held before me on January 22, 2016. I found as fact that the Offender made a cut-throat gesture from ear to ear with intent to threaten Walter and I rejected his evidence that he made a staccato gesture to signal, as he testified, "to cut out the bull". Upon hearing all the trial evidence, I found the Offender guilty of all three counts, but I entered a judicial stay on the attempt to obstruct justice (count #1).

[3] I ordered a presentence report and remanded the case to April 1, 2016 at which time full submissions were made regarding my findings of guilt for intimidation of a justice participant (count #2) and for breach of recognizance (count #3). In addition to the presentence report, two other documents were filed: a letter of good character from Cindy Lecky, another former domestic partner of the Offender; and confirmation that the Offender successfully completed a course of anger management therapy between December 2014 and May 2015. This therapeutic course appears to have been by mandated Condition 8 of his recognizance of bail.

2.0: POSITIONS OF THE PARTIES

2.1: Crown

[4] The Crown submits that a global sentence of twelve months in gaol followed by probation for two years is appropriate. They further submit that DNA Orders be made for both offences, and a section 109 Firearms Prohibition Order be made for the intimidation offence.

[5] The Crown submits that these offences represented an abuse of a former domestic partner which is a statutorily aggravating factor: section 718.2(a)(ii) Criminal Code. The Crown further submits that the primary sentencing considerations for the crime of intimidation of a justice participant shall be denunciation and deterrence: section 718.02 Criminal Code.

[6] The Crown submits that in this case, the offences appeared spontaneous, the communication was brief, and the actions of the Offender postponed but did not terminate the Preliminary Inquiry. The Crown also pointed out there while was no application of force against Walter, but submitted the threat was malevolent. The Crown submitted that the offences occurred at a point in the cross-examination of Walter where she was describing controlling and abusive conduct by the Offender and that the offences before me were manifestations of the kind of behaviour of the Offender that she was describing to the Preliminary Inquiry justice.

[7] The Crown submits that notwithstanding that the Offender has no prior criminal record, a strong message of condemnation and denunciation must be made in order to protect witnesses both outside and inside the courtroom.

[8] The Crown submits that Walter remains afraid of the Offender and that any probation order must include non-association and refraining conditions.

2.2: Defence

[9] The Offender submits that in the circumstances of these offences and of this offender, a Suspended Sentence on both counts with probation for two years is a fit sentence. The Offender does not oppose the ancillary orders sought by the Crown.

[10] The Offender is a mature, well-educated professional with a job of great responsibility with a manufacturing company. The presentence report and the character letter of Ms. Lecky show that he is able to engage in, and maintain, pro-social domestic relationships. He has strong support from friends and family and has volunteered within the community. He is willing to perform a substantial number of community service hours.

[11] The Offender suffers from anxiety and has done so for most of his life. He has taken anti-anxiety medication every day since 2011. He said the stress of the Preliminary Inquiry exacerbated his anxiety when he acted out in court. At the sentencing hearing, the Offender continued to deny his criminal responsibility but he also said that, after taking time to reflect on it, his actions were uncalled for but nevertheless impulsive. He stated he regrets what happened and is apologetic.

[12] The Offender submits that given the spontaneous and brief nature of his actions, the modest impact on the Preliminary Inquiry itself, and his personal situation it is not necessary to send him to jail.

3.0: SENTENCE

[13] The Offender has been subject to bail since September 2014. Although his liberty was restricted, the conditions were modest and easily followed. It appears that the Offender has been compliant with his bail since being placed on it.

[14] The Offender endured two days pre-trial custody, but given the nature of these crimes and the short time in pre-trial detention, these two days do not play any meaningful role in the appropriate sentence.

[15] There are a number of mitigating and aggravating circumstances in this case.

[16] The mitigating factors include:

(a) Mr. Hammond is a first time offender;

(b) His behaviour was spontaneous and brief;

(c) There was no actual violence;

(d) His actions delayed the Preliminary Inquiry, but did not stop it;

(e) He suffers from anxiety and did so at the time of these offences;

(f) He is generally a pro-social person;

(g) He has meaningful full time employment;

(h) He has strong family and community support; and

(i) While he does not accept criminal responsibility, he admits his actions were inappropriate.

[17] The aggravating factors include:

(a) Despite being on medication for anxiety and despite his prior knowledge of his impulsivity he did not restrain himself;

(b) By his own evidence at trial, he intended to interfere with the witness while she was testifying;

(c) The witness he intimidated was the principal witness in the charges he faced at the time;

(d) The witness he intimidated was a former domestic partner;

(e) The gesture of drawing his finger from ear to ear was unmistakeably threatening to the witness;

(f) His conduct was a conscious affront to the integrity of the judicial system wherein even the presence of a judge did not deter him;

(g) The context of the threat was compounded by the domestic nature of the offences he was facing at the time;

(h) He was unrepentant at the time, seeking to justify or cover his actions by stating that Walter was slicing her own throat;

(i) He was not deterred by court ordered bail that commanded him to not communicate with Walter; and

(j) While he now says his conduct was inappropriate, he does not accept that his conduct was unlawful.

[18] Both offences are serious in nature as they involve an offence against the administration of justice. The circumstances of their commission was grave: they involved breaching a court order and threatening a witness in the midst of giving evidence at a judicial hearing. Balancing all of the mitigating and aggravating factors, the circumstances of the offences and of the Offender, and in consideration of the submissions of counsel and the applicable sentencing principles, in my view the overarching consideration is to send a very strong message to this Offender and to the community at large that cases like this must involve a heavy sanction.

[19] I must protect the integrity of the judicial process and protect those persons who participate in it. Even upon considering the mitigating factors present, nothing short of a significant period of custody can achieve these ends in the circumstances of this case.

[20] My sentence with respect to Count #2 Intimidation of a Justice Participant, section 423.1 Criminal Code is as follows:

(a) Eight (8) months common gaol;

(b) Upon being released from custody, probation for eighteen (18) months. In addition to the statutory conditions, you shall be bound by the following conditions:

i. Within two business days from your release from custody, report to a probation officer and thereafter as required;

ii. Abstain from communicating, directly or indirectly, with Mary Walter and refrain from being within one hundred (100) metres of any residence, business, school, or any other place or address where you know Mary Walter is present, or is associated with.

iii. Co-operate with your probation officer. You shall sign any release(s) necessary to permit the Probation Officer to supervise you and you must provide proof of compliance with any term of this Order forthwith on request.

iv. Attend and actively participate in such programme of assessment or counselling as directed by your Probation Officer. You shall not leave or discontinue such programme unless or until discharged by the Probation Officer or delegate. You shall complete the said programme to the satisfaction of you Probation Officer or delegate and you shall produce and show proof of compliance and completion to the Probation Officer or delegate forthwith upon request.

v. Reside in or at such place as approved of by the Probation Officer or delegate and do not change your place of residence without first obtaining the written approval of the Probation Officer or delegate.

(c) A Primary DNA Order which will be executed within 48 hours at the Court House such other place of incarceration as you may be taken to.

(d) A section 109 Firearms Order for life on the first part of the Order and for ten (10) years for the second part of the order.

(e) A Victim Fine Surcharge of $200.00 to be paid within sixty (60) days of today.

[21] With respect to Count #3, Breach of Recognizance, section 145(3) Criminal Code, the sentence is as follows:

(a) Two (2) months common gaol, concurrent to Count #2.

(b) Probation for eighteen (18) months, concurrent to Count #2.

(c) A Secondary DNA Order which will be executed within 48 hours at the Court House such other place of incarceration as you may be taken to.

(d) A Victim Fine Surcharge of $200.00 to be paid within sixty (60) days of today.

Original signed by The Honourable Justice Richard H. K. Schwarzl

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice