Court File and Parties

Ontario Court of Justice Date: 2021·05·10 Newmarket

Between: Her Majesty The Queen — And — E.T.

Sentencing

Evidence and Submissions Heard: May 10, 2021. Delivered: May 10, 2021.

Counsel: Ms. Nicole Murphy, counsel for the Crown Mr. Yogesh Gupta, counsel for the defendant

Reasons for Sentence

KENKEL J.:

[1] Mr. ET was convicted at trial of Criminal Harassment contrary to s 264 of the Criminal Code.

[2] Problems in a short relationship led to a final incident after which the victim told ET she no longer wanted contact. Nevertheless, contact started within hours and it was relentless. ET made almost 200 calls to the complainant’s home, he sent dozens of text messages. He repeatedly tried to call at her workplace, and she had to have colleagues walk her to her car for safety. Throughout, the message was plain – ET was not going to let the relationship end. He continued to intervene and assert control over her life regardless of her wishes.

[3] The victim did answer one call from ET that was dialed from a different number at a hotel. ET told the victim that he was going to kill himself. She stayed with him on the phone until paramedics arrived out of simple human decency despite everything that she had endured to that point.

[4] The Crown submits a 60 day jail sentence is required, along with a probation order for 3 years a s 109 order and a DNA order. The defence submits that a conditional discharge would be in Mr. ET’s interest and would not be contrary to the public interest. A DNA order is not required in this case.

[5] In her Victim Impact Statement, read directly to the court, the victim set out the ongoing impact the harassment had on her and her family. Her fear understandably did not end with the arrest of ET, and it’s had an impact on both her work life and her home life. The impact of the offence on the victim is an important factor on sentence.

[6] I agree with the Crown that denunciation and deterrence are the most important sentencing principles in this case. The fact that the offence occurred in a domestic context is also an aggravating factor. I agree with the defence that rehabilitation is also an important factor, particularly for an offender with no prior criminal record. The principle of restraint always applies, especially on the imposition of a first sentence.

[7] Mr. T has taken residential counselling for his long-standing problem with alcohol and he is continuing with counselling at the Canterbury Clinic. He’s now employed and appears to be putting his life back together. He expressed remorse in his remarks on sentencing.

[8] A conditional discharge would always be in Mr. T’s interest, but that form of sentence would do little to address any of the principles of sentence identified by the Crown. It would not be proportionate to the gravity of the offence, the impact on the victim, or the degree of responsibility of the offender.

[9] I agree with the Crown that a custodial sentence is within the range, but given the lack of a prior record, the rehabilitative steps that Mr. T has taken since, and the ongoing COVID pandemic where Mr. T coming from an area with significant COVID numbers may pose a risk to persons already in custody, I find that a fine with probation would be the least restrictive sentence that could address all of the sentencing factors identified. The evidence on this hearing shows Mr. T has the means to pay a fine if given sufficient time. Probation is an essential component of sentence, but given the active steps towards rehabilitation I find a 24 month period would suffice.

[10] Mr. ET will be fined in the amount of $1000 plus Victim Fine Surcharge. He will have 30 months to pay both.

[11] He will also be placed on probation for 2 years on the following conditions:

• Keep the peace and be of good behaviour
• Report to probation via phone within 5 working days and thereafter as directed by probation.
• Have no contact directly or indirectly with the complainant or any member of her immediate family.
• Not attend within 100m of any known place of residence, employment or education of the complainant or any member of her immediate family
• Continue counselling for alcohol abuse as directed by probation and sign any releases necessary for them to monitor compliance with this term
• Not possess any weapons as defined by the Criminal Code.

[12] A s 109 order is both necessary and mandatory. There will be a s 109 order for 10 years.

[13] The defence opposes the Crown’s application for a DNA order. Criminal Harassment is a secondary designated offence. Considering the circumstances of the offence and the domestic context, and considering the limited impact on the accused’s privacy given the protections in the databank legislation, I find it necessary in the public interest to order Mr. ET to provide a sample of his DNA for registration on the national databank.

Delivered: 10 May, 2021. Justice Joseph F. Kenkel