ONTARIO COURT OF JUSTICE

CITATION: R. v. Kubinec, 2019 ONCJ 47

DATE: 2019 01 22

COURT FILE No.: 18-150006272

Toronto Region – Old City Hall

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

BRYAN KUBINEC

Before Justice H. Pringle

Heard on November 15, 2018 and January 9, 2019

Reasons for Judgment released on January 22, 2019

Carla Agatiello..................................................................................... counsel for the Crown

Janelle Belton............................................................................. counsel for the defendant

PRINGLE J.:

Evidentiary Overview

[1] The defendant Bryan Kubinec and the complainant Angela Fedele were married, briefly, in 2016. The two never lived together during this marriage, instead residing close by one another in the [edited - Toronto neighbourhood] area.

[2] The relationship ended by divorce in 2017 and, shortly afterwards, Mr. Kubinec was charged with criminal harassment. On this prior matter, it was alleged he stood outside his ex-wife’s home to watch her. Identification of the perpetrator as Mr. Kubinec was obviously a contested issue, and the charge was withdrawn on November 8, 2017, after he completed some type of counseling.

[3] Mr. Kubinec had, during the lifespan of that charge, been prohibited from contacting Ms. Fedele. However, he wrongly perceived that her input had assisted in getting that charge withdrawn. Shortly after court proceedings ended, he reached out to re-establish contact, repeatedly texting, emailing, and calling for approximately one month. All of his attempts at contact were met with silence.

[4] This contact was attempted by email, by voice mail including calls to Ms. Fedele’s mother, and by over one hundred text messages sent between January 7 and January 27, 2018. After attempting to reach out by phone on January 7 and 8, leaving approximately six unreturned voice mails, Mr. Kubinec sent a text message which included a photo of his health card. Ironically, part of Mr. Kubinec’s agenda in repeatedly contacting the complainant was to plead his innocence of the earlier criminal harassment charge. To this end, he believed the photograph on his health card proved his appearance was materially different than the person who stood outside her home on the offence date. At a later date in January 2018, he left his health card in the complainant’s home mailbox.

[5] Mr. Kubinec’s other agenda, at least from January 7 to January 25, was to persuade Ms. Fedele to renew their relationship. His tone was desperate in this regard. He repeatedly threatened suicide if she did not respond to his attempts at contact. He messaged her what he intended to bequest her in his will.

[6] The text messages also acknowledged breaching his no-contact order while on his prior bail. For example, on January 13, 2018, he said:

I understand mistakes. I made them in the ways I tried to notify you that wasn’t me back there. You were worth the risk because you mean so much to me.

On January 16, he described an encounter which may have arisen by chance, where the two were inside the same neighbourhood store and she ran from him. He admitted leaving her a love note, while on the prior bail, in some place of significance to their prior relationship, and waited fruitlessly for her to call. She did not, but the police did. As Mr. Kubinec asserted, he then “went to jail for a love note”. Another text included the admission that, while on the prior bail and knowing she would get off work at a certain time,

…I walked to the corner and there you were across the street. I held up the sign and seen you read it.

The sign was an assertion of his innocence of criminal harassment.

[7] On January 16, 2018, he sent two emails to the complainant, essentially repeating the same thoughts and pleading for her to respond. The next day, Mr. Kubinec texted the complainant, asking her to read the email he sent and adding, “I left my card”. I found this to be a reference to the health card found in Ms. Fedele’s mailbox. For approximately one week, Mr. Kubinec waited for a reply from Ms. Fedele. None came.

[8] Thus on January 25, 2018, ten minutes after leaving a voice mail, the incessant text messages began again. From this point until the defendant’s arrest a few days later, the message content and tone discernibly changed. To highlight a few aspects of this later series of messages, Mr. Kubinec described the complainant as evil, a narcissist, a fraud, paranoid, the dumbest woman on earth, an asshole, a bitch, and a monster. He depicted a miscarriage, if true, as “God’s grace” because of her inability to hold a minimum wage job. He demeaned her age and her ability to attract any other man because of that. His text messages did not contain any overt or implicit threats to Ms. Fedele’s life or safety.

[9] The Defendant surrendered himself on January 28, 2018, after police contacted him. He was released on a surety bail the next day. Since that time, Mr. Kubinec has been on bail without incurring further charges. Although Ms. Fedele alleged more breaches have occurred, police investigated this allegation and concluded there was no basis for additional charges. Accordingly, Ms. Agatiello correctly agrees I must disabuse myself of any allegations of post-arrest breach in Ms. Fedele’s victim impact statement.

[10] Mr. Kubinec comes before this court, at age forty-three, with no prior criminal record. He has been stably employed, as an environmental services partner, for approximately thirteen years. His employment does not require vulnerable person checks. He also works part-time, as a janitor, at his apartment building. Since his arrest, he has been receiving some form of counseling with a psychotherapist, attending five sessions between March 22 and October 4, 2018. The psychotherapist’s letter does not disclose what type of issues have been addressed in counseling.

[11] On November 15, 2018, Mr. Kubinec pled guilty to criminal harassment for repeatedly engaging in unwanted communications with Ms. Fedele, causing her reasonable fear for her safety. Ms. Fedele read a lengthy victim impact statement to the Court, describing the effect that his communications had on her self-esteem and sense of self-worth. She has lost trust in others, is guarded in relationships, and changed significant aspects of her life as a result of Mr. Kubinec’s harassment. This included changing her contact information, her social media use, and even her travel routes given the continued proximity between her residence and the defendant’s.

[12] Ms. Fedele has isolated herself from her friends, is afraid of physical harm, feels traumatized, and has had to receive counseling to deal with the after-effects of this experience. I should add that while the victim impact statement also alleged physical abuse, both counsel correctly agree that this would not form part of the evidentiary record, and that I must disabuse myself of them. Even setting this aspect aside, it is clear Ms. Fedele feels traumatized and fearful, as a result of the criminal harassment alone.

Position of the Parties and Prevailing Sentencing Principles

[13] The sentencing position of Crown and of defence are widely disparate. Ms. Agatiello, on behalf of the Crown, sought to incarcerate Mr. Kubinec for sixty days intermittently. Ms. Belton, on behalf of the defendant, sought a conditional discharge. Both positions are within an available sentencing range. Both counsel agree a two-year period of probation is appropriate, and that an ancillary order under s. 109 should issue. An application for DNA was resisted. The Crown elected to proceed by summary conviction, which attracts a maximum sentence of six months in jail and carries no minimum sentence.

[14] Numerous appellate and trial decisions establish that the principles of general deterrence and of denunciation are paramount here: see R. v. Swierszcz, 2006 CanLII 8713 (ON CA), 208 O.A.C. 300 at para. 3. No one in this case disputes that fact, nor disagrees with the notion that, as the Court of Appeal held in R. v. Dewan, (2014) ONCA 755 at para. 13, “[i]ntimate partners must be free to terminate a relationship without fear of abuse, whether physical or psychological, or retaliation of any kind”.

[15] Counsel helpfully provided me with case law to demonstrate sentence range. Of these cases, I found the most pertinent to be:

• R. v. Dewan, supra. This was a guilty plea to criminal harassment and mischief, where suspended sentence and probation was imposed for the mischief count and 90 days jail for the criminal harassment count. Five months pre-sentence custody had also been served. The Court of Appeal for Ontario upheld these sentences, which were imposed for separate incidents years apart. In 2001, the appellant had committed mischief by contacting a co-worker every day, expressing his romantic interest up until the point where she called police. He then sent an email to her co-workers that degraded her sexually, physically, and professionally. The criminal harassment which attracted 90 days jail in addition to the pre-sentence custody, was far more serious. It included sending a naked picture of a former romantic partner to her HR department, her doorman, her property manager and her neighbours. The message attached suggested she used drugs and degraded her, again, sexually, physically, and professionally. The victim impact was significant upon both women.

• R. v. Palermo, (2006) CarswellOnt 4825 (S.C.A.C.), affirming a sentence of suspended sentence and probation for a post-trial conviction of criminal harassment. Following an earlier acquittal on criminal harassment, and while waiting for the same trial judge to consider imposing a peace bond, the appellant contacted the complainant to say “you can’t win with me”. He called two more times without answer, and had punched in the phone number of someone else to get around the complainant’s call privacy service. On appeal, Durno J. upheld the sentence of suspended sentence and probation, stating at para. 61, “I am not persuaded the sentence was unfit or unreasonable. The offence was committed while a determination was being made whether or not he should have any contact whatsoever with the complainant who was his former girlfriend. Having regard to the time of night the call was made, the words spoken, the subterfuge the appellant went to to get the call through, and the past conduct between them, I cannot conclude the sentence was demonstrably unfit.”

• R. v. May, (2012) ONSC 6797 (S.C.A.C.), a sentence of suspended sentence and probation was overturned in lieu of a conditional discharge. The offending conduct had included unwanted phone calls threatening to assault any new boyfriend and begging to reconcile. The defendant’s conduct was attributable to cocaine and alcohol abuse. He pled guilty on the day of trial, had no criminal record, and took pre-sentencing steps, described as positive, to deal with his substance abuse which underlay the offending conduct. There was no victim impact evidence submitted, and on appeal a conditional discharge was imposed.

• R. v. B.(H.), 2016 ONSC 2145 was a trial level decision. The accused, who had no criminal record, was convicted of criminal harassment after a contested trial. He had sent a series of text messages to his ex-wife, which included an overtly threatening message and ended with the message that he was coming to her house. Conlan, J. rejected a conditional discharge, largely due to those two messages, and despite the defendant expressing remorse and insight into the impact of his actions.

Aggravating and Mitigating Factors

[16] None of the statutorily aggravating factors in s. 718 are present here. Neither did the evidence establish the statutorily aggravating factors in s. 264(4). Mr. Kubinec was not on a court order which prohibited contact when he sent this deluge of communications to the complainant. However, he had just, two months prior, completed counseling which led to the withdrawal of the first criminal harassment charge before initiating repeated contact. This may not, technically, be an aggravating factor but it is concerning.

[17] In addition, the defendant’s text messages did admit to obsessive and even stalking behaviour, in relation to the same complainant, while on bail. Thus although he has no criminal record and never threatened Ms. Fedele, I can hardly characterize this as the first incident or as an isolated event. In particular, after seeing her run from him in the store, knowing she was afraid and knowing contact was prohibited, he then waited when and where he expected to see her coming from work to hold up a sign.

[18] The most significant aggravating factor, here, is the impact on Ms. Fedele. At the end of the series of text messages, Mr. Kubinec clearly struck at issues he knew would be sensitive, in an overt effort to be cruel. It is not illegal to be cruel. But in terms of the psychological impact occasioned by his repeated text messages, the deliberate cruelty in those messages was intended to best wound Ms. Fedele psychologically, which it did. Those wounds remain today. Her self-esteem has been weakened. She has changed the route to her home and other patterns of normal behaviour. She feels helpless, isolated, and emotionally and mentally decimated.

[19] Factors which mitigate the sentence include the fact that there was no violence proven in the evidence before me, and no threats communicated to the complainant. Despite his prior incursion into the criminal justice system, at age 43 Mr. Kubinec has no prior criminal record. This factor is key. As a first offender, the Court of Appeal has instructed me, I cannot lose sight of Mr. Kubinec’s specific deterrence and prospects for rehabilitation – even where general deterrence and denunciation are paramount. He is stably employed. To his credit, he has sought some form of counseling. His release on bail resulted in no further charges. Most importantly, Mr. Kubinec has pled guilty without setting a trial date, which is always indicative of remorse and reflects his acknowledgement of responsibility. It saved Ms. Fedele from having to testify, from being cross-examined, and from the anxiety of an unknown result at trial.

[20] However, after anxious consideration I remain concerned that Mr. Kubinec still lacks meaningful insight into the impact of his actions. There was fertile ground for this conclusion in the facts as well as Mr. Kubinec’s comments to this Court. He has acknowledged no actual remorse, outside of the fact of the guilty plea. He reported that allegations made by Ms. Fedele sent him into panic attacks and that he is terrified of her. But Mr. Kubinec, despite seeing the complainant flee from a public store on a past occasion, does not seem to understand the effect his repeated behaviour has had on her.

[21] His lack of meaningful insight does not aggravate his sentence in any way, but it did impact on my assessment of his rehabilitative potential. The counseling letter submitted did nothing to alleviate my concerns. I have no idea, from the letter’s contents, what Mr. Kubinec is receiving counseling for, or if he is making any progress in this counseling. Mr. Kubinec advised me, verbally, that he was seeking counseling to deal with this situation. I took this to mean his counseling was addressing the emotional wreckage from this relationship generally, as opposed to his prior obsessive thoughts and behaviours. Some of his text messages, moreover, communicated that on more than one occasion he saw breaching a court order as worth the risk.

[22] When I balanced these aspects of Mr. Kubinec’s case with the aggravating and mitigating factors, and considered the controlling principles of sentencing, I concluded a discharge was contrary to the public interest. It cannot be imposed here. To use the proper but linguistically awkward terminology, I was not convinced that a conditional discharge was not contrary to the public interest.

[23] Yet I was similarly unconvinced that jail was an appropriate sanction. I accept that Mr. Kubinec’s experience at the Metro South Detention Centre had a significant impact on him, and has quashed any desire to risk going back there. I also accept that Mr. Kubinec now understands this marriage is over and that, as he told me, he wants nothing to do with Ms. Fedele ever again. Mr. Kubinec has not breached, on the evidence before me as accepted by the Crown, the terms of his bail since his release in January 2018. The two parties have continued to live in close proximity without proven incident.

[24] Finally, I return to the fact that Mr. Kubinec has pled guilty and has no prior criminal record. A suspended sentence and a lengthy term of probation, which must include an order for counseling that actually addresses his criminal harassment of Ms. Fedele, will be imposed. This sentence does meet the paramount sentencing principles, but will also assist Mr. Kubinec’s rehabilitation. It is imperative that he gains better insight than he has shown to date. To this end, I will ask Ms. Agatiello to provide a copy of these reasons to Mr. Kubinec’s probation officer.

[25] The terms of the probation order were largely undisputed, except for a contested boundary restriction. Ms. Agatiello sought Mr. Kubinec be restricted from a wide segment of west Toronto unless traveling home or to work. I appreciate her submission that in 2017, there were incidents of physical contact. But when I balanced the fact that Mr. Kubinec’s proven criminal harassment, in 2018, was limited to electronic communication, I could not make a strong enough link between that and prohibiting him, in 2019, from physically being in such a large area.

[26] Ms. Belton conceded that a smaller geographical “bubble” could be created, in the area where Mr. Kubinec and Ms. Fedele both live, where Mr. Kubinec could be prohibited from. I accept her submissions on this point, although I have broadened the “bubble” somewhat given the close proximity of the two residences and the apparent inability of either person to move.

[27] Accordingly, Mr. Kubinec is ordered to serve two years of probation. The terms will be to keep the peace and be of good behaviour, to appear before the court when required to do so, to notify your probation officer in advance of any change of name, address, employment, or occupation. Mr. Kubinec must attend for all assessments and counseling directed by his probation officer, including counseling for anger management and psychiatric or psychological issues. He must sign all releases of information requested by his probation officer. He cannot have any contact, no exceptions, with Angela Fedele or any member of her immediate family. To be clear, this includes a prohibition on contact with her electronically. Indirect contact, which is prohibited by this order, can include sending messages through a third party, or even commenting or liking a post on social media that she has posted. This is not an exclusive list, but I wish to be clear that the no-contact order includes these aspects.

[28] Mr. Kubinec is not to be on the premises of [address]. He is not permitted to travel on [street], beginning anywhere north of his current address of [address] and ending at [street]. He is not to be permitted inside the geographical area between [street] to the east, [street] to the west, [street] to the north, and [street] to the south, except while on the premises at his current address of [address], and except while directly traveling, on [street] and the permitted area of [street] south of his home at [address] to and from his home.

[29] To be very clear, the intent behind this order is to create an area north of Mr. Kubinec’s home on [street], and bounded by [street] and [street], where Mr. Kubinec is not allowed to be for any reason whatsoever and a limited area where he is permitted to go in order to leave and return to his home.

[30] Mr. Kubinec is not permitted to be within 50 metres of [address]. Any future address the [business] moves to will have to be addressed by a variation of this probation order brought by the Crown. He is not to attend within 50 metres of [address]. He is not to possess any weapons as defined by the Criminal Code. A section 109 weapons prohibition order will issue, prohibiting possession of weapons and ammunition for a period of five years.

[31] Finally, balancing the absence of any prior criminal record with the nature of this offence, the circumstances underlying its commission, and the impact a DNA order would have on Mr. Kubinec’s privacy and security of the person, I am ordering he provide a sample of his DNA. Appellate courts have held the privacy and security of the person interest to be minimal, and the commission of criminal harassment which includes both repeated communication and prior physical contact, while subject to a bail order on these facts, clearly outweighs the other aspects of this test.

Released: January 22, 2019

Signed: Justice H. Pringle