Amended Reasons for Judgment

Ontario Court of Justice

Date: February 11, 2020

Court File No.: London 17-10694

Between:

Her Majesty the Queen

— AND —

Todd Rogers

Before: Justice Mark Poland

Heard on: September 24, 2019, November 14, 2019, November 29, 2019, January 14, 2020

Reasons for Judgment released: February 11, 2020

Counsel:

• J. Moser, counsel for the Crown
• The Defendant, Todd Rogers, on his own behalf

POLAND J.:

Introduction

[1] Mr. Todd Rogers appeared before this court on September 24, and November 14, 2019, for a two-day trial on charges of Uttering Threats and Mischief, contrary to sections 264.1(2) and 430(4) of the Criminal Code. He represented himself through the entirety of proceedings.

[2] Mr. Rogers was convicted on both counts on November 29, 2019. The sentencing hearing was conducted on January 14, 2020.

Facts of the Offence

[3] At approximately 12:48 PM on Tuesday, 29 August 2017, Mr. Todd Rogers made a phone call to the London Abused Women's Centre ("LAWC") located at 797 York Street in the City of London. The phone call was not answered, but instead it was directed to the voice mail system of the Centre. The message was saved in the voicemail system of the Centre, but it was not accessed until the morning of August 30, 2017.

[4] When a person calls into LAWC, and the voicemail system is engaged, the caller is greeted by a message identifying the agency, and inviting the caller to leave a message after the tone.

[5] When Jennifer Dunn, a worker at the LAWC retrieved the messages from the Centre's voicemail on the morning of Wednesday, August 30, she heard Mr. Roger's message that had been left the day previous. It said as follows: "I have planted a bomb at 797 York Street. It will explode on Wednesday at 11 am."

[6] Upon hearing the threatening message, Ms. Dunn contacted 911. Ms. Dunn also made a phone call to the executive director of the LAWC, Megan Walker.

[7] Ms. Walker attended to the Centre. The Centre was closed for the day while the police investigated. All clients with appointments that day were called, and all appointments were cancelled. Members of the staff had to remain at the LAWC in case walk-in clients arrived, or in case clients did not receive appropriate notification.

[8] Upon arriving at LAWC, Ms. Walker listened to the message and was able to ascertain the time and telephone number that was associated with the incoming call that left the bomb threat. She determined, using the phone system, that the call had originated at phone number 519-473-7502, and that the call had come into the agency the previous day at 12:48 PM. This information was passed on to London Police Service, P.C. Adamovitch, who had been dispatched to investigate.

[9] P.C. Adamovitch, in turn, contacted Bell Canada Corporate Security. Denise Murley, a security associate with Bell Canada testified that she provided a "customer name and address" report for a phone number that she had been requested to look up. That number was 519-473-7502. Ms. Murley determined that this number was associated with a pay phone that was located at the Springbank Mini-Mart & Video store that was located at 360 Springbank Drive in London.

[10] P.C. Adamovitch attended the Springbank Mini Mart store later that afternoon. While there, he spoke to the manager of the store. The store's surveillance camera footage was accessed. The officer was unable to make a direct recording from the surveillance system, so he recorded the playback on his own cell phone.

[11] The captured video shows Mr. Rogers attend at the payphone that is located on the exterior wall of the plaza, outside the Springbank Mini Mart. He was on the pay phone for about 2 minutes at approximately 12:48 to 12:50 PM. He was the only one who used the phone for some period before and after the relevant time.

[12] P.C. Adamovitch testified that the video surveillance showed Mr. Rogers at the Riverdale Restaurant, located in the same plaza, after the call. He stayed there for nearly an hour before exiting. Mr. Rogers then entered a silver or grey Toyota Matrix motor vehicle and drove away. On August 31, P.C. Adamovitch conducted what is referred to as an "offline search" for motor vehicles of that description registered to London owners. He determined that Mr. Rogers was the RO of a silver Toyota Matrix, licence MYXY 410 and that he resided at 17 Franklin Avenue in London.

[13] PC Adamovitch later attended at Mr. Rogers home, in the company of another officer. In speaking with the attending officers, Mr. Rogers advised that he had been at the Riverdale restaurant eating lunch on the day in question. He denied making the threatening phone call to LAWC.

[14] The issue at trial was identification. I found that the Crown proved that element, and all other elements of the offences before the Court beyond a reasonable doubt.

Circumstances of the Offender

[15] Mr. Rogers is 64 years old. He had no prior criminal record at the time this offence was committed. He declined to participate in the creation of a Pre Sentence Report ("PSR"), but did consent to the use of a PSR that had been prepared for an earlier proceeding. That PSR describes some challenging circumstances in Mr. Rogers' early years.

[16] Mr. Rogers was an only child. At the age of three he witnessed his childhood friend pass away after being struck by a motor vehicle while playing in the front yard. He recalls being bullied throughout his childhood by his peers as they blamed Mr. Rogers for this friend's passing. Around the age of nine Mr. Rogers was abused by a person known to him three or four times over the course of one year. He declined to provide any further information about the abuse. The trauma sustained from these events appears to have had a lasting effect. Mr. Rogers never left the familial home. He has never been involved in a meaningful or romantic relationship. Mr. Rogers' father passed away in 2004. His mother passed away in 2015. He is described as being not significantly connected to his extended family and appears to have few peers or acquaintances. Although he used to spend considerable time browsing the Internet on his computer, he now claims to have disconnected his Internet. Mr. Rogers told the author of the PSR that he prefers to spend his time alone.

[17] Mr. Rogers obtained a three-year Bachelor of Arts Degree in 1977, a college certificate in 1979, and a college diploma in 1984. He has a somewhat limited employment history. The PSR suggests that he has been unemployed since 1988. He does not appear to suffer from addiction to alcohol or drugs, although he was hesitant to discuss this. He referred to his possible history of substance use as a "state secret." Mr. Rogers has been diagnosed with congestive heart failure and takes medication for this.

[18] Despite having no confirmed mental health diagnoses, Mr. Rogers was described as having paranoid thoughts, and behaviours consistent with the presence of potential mental health challenges. He reports that in 1987, on the recommendation of his employer at the time, he visited his family doctor and then a psychiatrist about potential mental health issues. He was diagnosed with an anxiety disorder. He was not medicated and ceased attending appointments with the psychiatrist because "it was a waste of his time." There is a family history of mental illness.

[19] Mr. Rogers stated that he does not believe that he struggles with mental health challenges, yet he repeatedly refused to answer questions or give details about his life because they were "state secrets." For example, Mr. Rogers described his teenage years as "abnormal." When asked to explain this characterization, Mr. Rogers stated that information was a "state secret". He advised the author of the PSR that there was "a file" on him, and that a senior official in the provincial and federal government should be able to clarify. According to the author of the PSR, Mr. Rogers reported experiencing "unusual things," and also expressed concern that people were watching and following him.

Position of the Parties

[20] The Crown seeks a jail sentence in the range of 4 to 6 months. In addition to any sentence of jail, the Crown seeks 36 months' probation. Ms. Moser argued that this was a planned and deliberate sex- or gender-based hate crime that normalizes violence against women. She asserted that Mr. Rogers specifically targeted one of the most vulnerable segments of society—abused women. His actions were intended to instill terror in these already victimized women, and disrupted an agency dedicated to protecting them. Ms. Moser compared Mr. Rogers' targeting of women to the École Polytechnique massacre.

[21] Mr. Rogers, in contrast, argues for an absolute discharge. At the sentencing hearing Mr. Rogers continued to assert his innocence. He asserted his opposition to any restrictive terms of probation but did note that if Ms. Walker wanted him to avoid 797 York Street then he would do so because "I'm not this guy."

Purpose of Sentencing

[22] The Criminal Code instructs that the fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful, and safe society.

[23] Sentencing judges seek to achieve this goal by imposing just sanctions that address the sentencing principles that are contained in the Criminal Code. These principles include denunciation, general and specific deterrence, rehabilitation, making reparations to victims of crime, and promoting a sense of responsibility in offenders and an acknowledgment of the harm they have caused to the community and to specific victims in the community; see s. 718(a)-(f) CC. I will return to these principles later in my analysis.

[24] Ultimately, the fundamental principle of sentencing is that any proposed sanction must be proportionate to both the gravity of the offence committed and the degree of responsibility of the offender; see s. 718.1 CC. This means that for the sentence I impose to be just, it must both properly address the crime that has been committed and appropriately reflect Mr. Rogers' moral blameworthiness.

[25] In determining an appropriate sentence I must consider the aggravating and mitigating circumstances of this offence. This requires me to evaluate features of Mr. Rogers' background, features of the crimes he has committed, and any other evidence I have received during the sentence hearing. Listing the applicable aggravating and mitigating factors assists me in evaluating this case properly and imposing a sentence that is just and appropriate. I note the following aggravating and mitigating features in this case.

Mitigating Factors

[26] The mitigating circumstances in the present case are relatively clear. In addition to the challenging issues in his background, Mr. Rogers comes before the court as a first offender. As I consider his circumstances, I note that for more than 60 years of his life, Mr. Rogers presented as a law-abiding citizen.

[27] As the PSR indicated, Mr. Rogers demonstrates thoughts and behaviours consistent with significant mental health issues. Although I have been provided with no evidence of a formal contemporaneous diagnosis, the mental health concerns that were mentioned in the PSR, the absence of evidence suggesting a clear motive to have committed these offences, and Mr. Rogers' many years of law abiding behaviour prior to these offences are all suggestive of the possible influence of a mental health issue.

Aggravating Factors

[28] At sentencing, the burden remains with the Crown to prove all aggravating factors beyond a reasonable doubt; see s. 724(3)(e) CC. Aggravating factors are both articulated at common law and entrenched in statute. Section 718.2 (a) of the Criminal Code sets out the aggravating factors that court must consider in passing a sentence. In this case, the Crown alleges two primary statutory aggravating factors: the existence of significant victim impact and motivation based on bias, prejudice, or hate directed at women.

Victim Impact

[29] In support of the first factor, I have received Victim Impact Statements from Ms. Jennifer Dunn and Ms. Megan Walker, two women who worked at the LAWC at the time of the offence. The Crown relies on these statements as evidence that establishes the first statutory aggravating factor. Both statements were well written and compelling. I am grateful to both Ms. Dunn and Ms. Walker for taking the time to express so well the clear impact that this crime has had upon them, and upon LAWC.

[30] Ms. Dunn's statement conveyed the continuing fear and anger she experienced as a result of Mr. Rogers' actions. She described fearing for her own safety and the safety of her family, colleagues, and clients, both at LAWC and off-site. On the day the bomb threat was discovered Ms. Dunn called clients to cancel their appointments. As she did, she was tormented by the thought that "a woman or girl coming in that day was scheduled to come in because their life literally depended on it." She continued to experience fear and distress for some time after the offence.

[31] Ms. Walker stated that the offence "shook me to my core" and compared it to the École Polytechnique massacre and the misogyny-motivated 2018 Toronto van attack. As a result of Mr. Rogers' actions Ms. Walker reports that she has withdrawn from engaging with unknown people who approach her in public venues and she continues to experience anxiety, sleeplessness, and hypervigilance.

[32] Section 718.2(a) (iii.1) CC specifically lists as an aggravating circumstance "evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation". Based on the emotional and psychological distress that both victims experienced and continue to experience I find the Crown has established this factor beyond a reasonable doubt.

Hate-Motivated Criminality

[33] The second statutorily aggravating circumstance the Crown seeks to establish is listed in s. 718.2(a)(i) CC: Evidence that the offence was motivated by bias, prejudice, or hate based on, inter alia, sex or gender. There is simply no doubt that hate speech is a vile scourge that continues to impede the elimination of discrimination and substantive inequality in our society.

[34] It is the Crown's position that the fact that Mr. Rogers called in a bomb threat to a women's shelter, specifically, with the intent to harm LAWC and disrupt its business, to scare the public, and to target women because of their sex and/or gender, requires me to find, inferentially, that this was a hate crime. She noted that Mr. Rogers' antipathy need only rise to the level of animus and not actual hate in order to make out the statutory requirement.

[35] The evidence of Mr. Rogers' motivation is circumstantial. Accordingly, I must be guided in my analysis by R v Villaroman, 2016 SCC 33. Villaroman concerned the treatment of circumstantial evidence in relation to the requirement upon the Crown to shoulder the ultimate burden of proving guilt beyond a reasonable doubt. While the context is different here, the burden is the same: Just as the Crown must prove guilt beyond a reasonable doubt, so must the Crown prove an aggravating factor in the sentencing context to the same standard. Accordingly, I find that I am bound by the ratio in Villaroman in terms of the proper methodology for assessing circumstantial evidence in this case.

[36] According to Villaroman, the inferences to be considered must include "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt (para 37). Inferences consistent with innocence (or inconsistent with the finding of an aggravating fact) do not have to arise from proven facts.

[37] Villaroman also concludes that because of the significant burden of mustering proof to the standard of beyond a reasonable doubt, in order to satisfy that high threshold, "…the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative" [emphasis added] (para 41).

[38] The Crown's submission at sentencing about Mr. Roger's motivation was not unreasonable on its face: Again, the Crown asserts that because Mr. Rogers targeted an agency that is specifically, solely and unequivocally dedicated to advancing the interests of abused women, his actions were therefore necessarily motivated by animus.

[39] There was also no evidence tendered, and no proven facts found that would suggest the existence of any other motive on the part of Mr. Rogers. But that does not end the analysis. For the reasons expressed in Villaroman, while "other plausible theories" and "other reasonable possibilities" must be based on logic and experience (para. 37), there is no requirement that they be founded in evidence or based upon proven facts.

[40] In terms of assessing "other plausible theories", this case is somewhat unusual. During the cross-examination of Ms. Walker (conducted by Mr. Rogers personally), the following exchange occurred:

Mr. Rogers: Have you ever tried to record people saying or doing something to you in a public place that could be considered inappropriate?

Ms. Walker: Yes.

Mr. Rogers: Have you ever attempted to record me saying something to you in a public place that could be considered inappropriate?

Ms. Walker: I don't believe that until this morning I have ever met you or seen you Mr. Rogers, so I would have to say no.

Mr. Rogers: Actually we have met before.

Ms. Walker: Oh, I'm sorry.

Mr. Rogers: So you don't know why I would be one of the people that she was [sic] attempted to record me saying something inappropriate to you then because you don't remember even coming face to face with me at all.

Ms. Walker: That's accurate, I don't remember you.

[41] Ms. Walker averted to this unusual exchange in her Victim Impact Statement. In fact, Ms. Walker drew a conclusion from this interaction that Mr. Rogers' actions in making the bomb threat were not motivated by animus towards women, or towards LAWC, but rather that Mr. Rogers actions were motivated by his antipathy towards her. In her statement, Ms. Walker stated the following:

Until my testimony on September 24, 2019, two years after the threat, I didn't know why Mr. Rogers threatened LAWC….It was only when Mr. Rogers cross-examined me on September 24th that I came to believe that Mr. Rogers was threatening to hurt all of these people because of some alleged interaction with me years ago. For a period of time, like many women who abused and threatened, I blamed myself and questioned what I possibly could have done to anger Mr. Rogers to the point of threatening to blow up our building. I no longer do that. I know only one person is responsible for the bomb threat and that is Mr. Rogers. However, I remain impacted.

[42] The Crown's theory of the case—that Mr. Rogers was motivated by bias, prejudice, or hate based on sex and/or gender—is certainly possible and perhaps even likely. On the unique circumstances of this case however, I find that the unusual interaction that occurred during the trial, and Ms. Walker's own conclusions about this interaction as set out in her Victim Impact Statement support the plausible theory or reasonable possibility that Mr. Rogers was not motivated by hate, prejudice or bias, but rather was motivated by personal animus directed at Ms. Walker.

[43] Alternatively, I cannot reject the possibility that the motive for this crime was related to the disordered thought processes that the author of the PSR observed in Mr. Rogers. To be clear: The existence of a mental health issue does not necessarily excuse hate-motivated actions where the two exist together. For example, had Mr. Rogers left a message that said "No more women. I have planted a bomb that will go off at 11 am on Wednesday", the existence of a hate-based motivation would not be obviated by the possibility of a mental illness. The hate-based motivation would be obvious irrespective of whether or not a mental illness was also operational. A good example of a finding of this nature occurred in the case of R v. Porco, [2017] O.J. No. 5252 at para 30 and 33. In that case, Mr. Porco scrawled the message "No More Muslims" on a bus shelter in the Durham Region. The Court found that Mr. Porco committed the crime of mischief while using specific and unambiguous language that necessarily connoted hate, bias or prejudice based on religion.

[44] A further example may be found in the case of R v. Bissonnette, 2019 QCCS 354 at paras 519-524. In that case, the accused killed 6 worshippers at a mosque in Quebec, and grievously injured 5 others. The evidence showed that Mr. Bissonnette clearly suffered from ongoing mental health issues. He was just as clearly motivated in his actions by hate. The Crown mustered significant evidence about Mr. Bissonnette's pre and post-offence utterances, online activity, and interactions with others. His actions were unfathomably hateful and his pre and post-offence conduct supported the drawing of that obvious inference.

[45] This case at bar is not an example of a circumstance where the actions of the accused are clearly unequivocal and unambiguously hate based. In a case such as this, where there is a complete absence of animus towards the identified group (other than the fact that the crime was directed at an agency that is designed to help vulnerable women), there is an evidentiary void that leaves open at least the possibility that Mr. Rogers' actions were driven by disordered thinking that was not necessarily based on a hatred, bias or prejudice towards women.

[46] In light of the fact that I am bound by the ratio in Villaroman, and in view of the existence of one or more reasonable possibilities that present themselves, and which have not been negatived, I cannot find that the Crown has met the burden of proving that Mr. Rogers' actions were motivated by hate, bias or prejudice towards women to the standard of beyond a reasonable doubt.

Common Law Aggravating Factors

[47] Finally, in addition to the statutorily aggravating circumstances, I find that Mr. Rogers engaged in behaviour that demonstrated a degree of planning and a concerted effort to avoid detection by law enforcement. In that respect, it must be remembered that Mr. Rogers did not use a phone or device that was traceable to him. Rather, in leaving the bomb threat, he used a payphone at a public plaza that he believed was going to permit him to commit this crime anonymously. This is a further aggravating feature of this offence.

Achieving a Just Sentence

[48] Mr. Rogers did not submit any cases to support his position that an absolute discharge is a fit sentence in this circumstance.

[49] Section 730(1) of the Criminal Code sets out the statutory test that the court must apply in deciding whether to grant a discharge. The test is twofold. The court must be satisfied that it is in the best interests of the accused and that it is not contrary to the public interest that the accused receive a discharge. I am mindful of the guidelines set out for the imposition of a conditional discharge by the Ontario Court of Appeal in the case of R. v. Sanchez-Pino (1973), 11 C.C.C. (2d) 53. Discharges can be absolute or conditional. If a discharge is appropriate it should be absolute unless conditions are necessary to achieve an appropriate sentence; R v Holder-Zirbser, 2018 ONCJ 59, at para 16.

[50] Though a discharge may be in Mr. Rogers' best interest, I am of the view that to grant him either an absolute or a conditional discharge would clearly and obviously be contrary to the public interest. The reality is that for the reasons I will set out below, a case of this nature requires a sentence that has a more significant denunciatory and deterrence-based effect than can properly be mustered by a discharge. A discharge is simply not an appropriate sentence in this case.

Sentencing Principles Applied

[51] As I consider the sentencing principles, I am reminded that "no one sentencing objective trumps the others. It falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case" (R v Nasogaluak, 2010 SCC 6, at para 43). The determination of a just and appropriate sentence is a highly individualized process in which the trial judge has considerable discretion in fashioning a fit sentence (R v Proulx, 2000 SCC 5, at para 82; R v Lacasse, 2015 SCC 64, at para 58).

[52] The principles of denunciation and deterrence certainly each have a role in Mr. Rogers' sentence. Where an offence violates the underlying values of our community, the objective of denunciation requires that a sentence should communicate society's condemnation of the offender's conduct (R v M(CA), [1996] 1 SCR 500 at para 81). Threatening to bomb a centre for abused women, even where there is no attempt to make good on that threat, is conduct that cries out for denunciation. Both Mr. Rogers, specifically, as well as the general public must know that if they harm or unjustly interfere with the operation of such an important institution they will not escape the societal condemnation that is expressed in a criminal conviction and the imposition of a sentence that carries with it a criminal record.

[53] Against the important principles of denunciation and deterrence, I must also incorporate the restraint principle. That principle requires that I impose the least restrictive appropriate sanction in the circumstances. Section 718.2 (e) of the Criminal Code provides that "all available sanctions, other than imprisonment, that are reasonable in the context and consistent with the harm done to the victims or to the community should be considered for all offenders".

[54] With this in mind, I note again that Mr. Rogers has no criminal record. He has well over 6 decades of crime-free existence in our community to his credit. Accordingly, while individual deterrence and rehabilitation become significant sentencing considerations in this case, these objectives are best achieved by either a suspended sentence and probation or a short term of imprisonment followed by a term of probation; R. v. Priest (1996), 110 CCC (3d) 289 (Ont. C.A.).

[55] In passing an appropriate sentence, I must also consider the parity principle that is embedded in s.718.2 (b). This principle requires that I impose a sentence that is similar to that imposed upon similar offenders who have committed similar offences, in similar circumstances. The difficulty with applying the parity principle was well expressed by the Supreme Court in R v. M(C.A.), [1996] 1 S.R.R. 500 S.C.C. at para. 92:

Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.

[56] Notwithstanding the challenge, in an effort to ensure appropriate parity, I have reviewed the cases provided by the Crown, and other cases. The cases cited by the Crown were largely focused on an effort to achieve an appropriate sentence where the crime was motivated by hate, prejudice or bias. The case of R v. Hawkes, [1994] N.B.J. No. 21 (C.A.), stood as the one exception. In that case, the court imposed a sentence of 4 months jail where a bomb threat had been called into a mall by a youthful recidivist offender who was being sentenced as an adult for the first time.

[57] The case of R v. Boissoneau, 2016 O.J. No. 916 (S.C.J.), also presented a circumstance where the court imposed a jail sentence. In that case, the summary conviction appeal court overturned a 13 month sentence and imposed a sentence equivalent to 6 months jail (which included convictions for two unrelated property crimes). The threatening language and behaviour engaged in by the offender in that case was objectively much worse than the circumstances of this case. Mr. Boisseneau also had a significant criminal record, including a prior entry for uttering threats.

[58] The low end of the sentencing range for cases involving bomb threats or mass killing threats is marked by cases including R v. Ratmanski, 2016 ONCJ 752, R v. B.S., 2018 ONCJ 904 and R v. Richardson, 2018 ONCJ 171. Each of these cases involved threats by persons without significant criminal records. In each case, a conditional discharge was imposed.

The Sentence of the Court

[59] Section 731(1) of the Criminal Code permits the court to, in appropriate circumstances, suspend the passing of sentence and direct that the offender be released on the conditions prescribed in a probation order. Where an offender has been granted a suspended sentence and they are subsequently convicted of an offence while on probation, including the offence of breach of probation, the court that suspended the passing of sentence may, on application by the prosecutor, require the offender to appear for a further hearing. After hearing the prosecutor and the offender, the court may revoke the original disposition and impose any sentence that originally could have been imposed, including a period of incarceration; see s. 732.2(5)(d).

[60] In the circumstances of this case, and particularly considering Mr. Rogers background, I am satisfied that a jail sentence is not required in order to appropriately address the requirement to denounce and deter this type of conduct. A non-custodial sentence falls clearly within the appropriate sentencing range. Accordingly, having previously rejected the possibility of imposing a discharge under s.730 of the Code, and having applied the parity and restraint principles I find that a suspended sentence and the maximum period of 36 months' probation is the appropriate sentence.

[61] A suspended sentence means that Mr. Rogers will have these convictions entered on his criminal record. The lengthy term of probation, combined with the enforcement mechanisms available for any breach of his probation terms, will ensure that the sentencing objectives of rehabilitation and deterrence are met. If Mr. Rogers wishes to address his mental health and the other factors that brought him into conflict with the law, he will be able to access counselling and other services through his probation officer. Conversely, if Mr. Rogers manifests an unwillingness to comply with probation, he potentially faces the prospect of further punishment. Should the Crown elect to bring an Application under s.732.2, Mr. Rogers may even be re-sentenced for these offences.

[62] Mr. Rogers is sentenced to a suspended sentence, to be followed by 36 months' probation.

The Probation Order

[63] The terms of probation are as follows:

1. Keep the peace and be of good behaviour;

2. Appear before the court when required to do so by the court;

3. Notify the court or the probation officer in advance of any change of name or address, and promptly notify the probation officer of any change of employment or occupation;

4. Report to a probation officer today in the manner directed by your probation officer, and after that at all times and places and in such manner as directed by the probation officer or any person authorized by a probation officer to assist in your supervision;

5. Cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of your compliance with any condition of this Order to your probation officer upon request;

6. Live at a place approved of by your probation officer and do not change that address without obtaining the consent of the probation officer in advance;

7. Abstain from communicating, directly or indirectly, by any physical, electronic or other means with Ms. Megan Walker or Ms. Jennifer Dunn, or any member of their immediate family;

8. Do not attend within 100 meters of 797 York Street, London, Ontario;

9. Do not attend within 25 meters of the person of Megan Walker or Jennifer Dunn or any member of their immediate family;

10. Attend and actively participate in such counselling, assessment and rehabilitative programs as directed by your probation officer and complete them to the satisfaction of the probation officer. This shall include, but is not limited to counselling for psychiatric or psychological issues;

11. You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed;

12. Perform 100 hours of community service on a rate and schedule to be directed by the probation officer your community service must be completed within the first 18 months of the start date of this Order. Any time spent in counselling as directed by your probation officer will be credited toward the community service order portion of this probation order at a ratio of 4:1.

DNA Order

[64] The Crown also seeks a DNA Order. Uttering threats is a secondary designated offence. Pursuant to s. 487.051(3) CC, if the Court is satisfied that it is in the best interests of the administration of justice to do so, it may make an order for the taking of the offender's DNA. Whether such an order is in the "best interests of justice" requires the court to consider: (1) the offender's criminal record; (2) the nature of the offence; (3) the circumstances surrounding its commission; and (4) the impact of the order on the person's privacy and security (R v Briggs, [2001] OJ No 3339 C.A.). Given the nature of the offence, and that it was perpetrated against a particularly vulnerable segment of the public, such an order is clearly in the best interests of justice. Notwithstanding the absence of an offending history, Mr. Rogers' privacy interests are here outweighed by the public's need to be protected. The Crown's application for a DNA order is granted.

Section 110 Order

[65] Pursuant to s. 110 CC, Mr. Rogers is also prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for 10 years from today.

Released: February 11, 2020

Signed: Justice M.T. Poland