Citation and Date

CITATION: R. v. Oag, 2021 ONCJ 324 DATE: June 1, 2021 Information No.: 0711 998 19 2406 02

Court and Parties

ONTARIO COURT OF JUSTICE

HER MAJESTY THE QUEEN v. KRYSTLE OAG

Reasons for Sentence

BEFORE THE HONOURABLE JUSTICE G. DONALD, Heard Remotely on June 1, 2021 at ST. THOMAS, Ontario

APPEARANCES: O. Fitzgerald, Counsel for the Provincial Crown R. Farrington, Counsel for Krystle Oag

THE COURT: Good morning Mr. Farrington.

MR. FARRINGTON: Good morning Your Honour.

THE COURT: Good morning Ms. Oag.

CLERK REGISTRAR: They have her muted Your Honour because there was a lot of noise coming from their area.

THE COURT: Okay, if we can just unmute Ms. Oag so I can say good morning to her and make sure she can hear me.

KRYSTLE OAG: Good morning Your Honour.

THE COURT: Good morning Ms. Oag. Ms. Oag, if at any point in time this morning you cannot hear me and you are mute, wave your arms or get the attention of a guard and have them unmute you okay? I need to make sure that you hear everything that I have to say. Okay?

KRYSTLE OAG: Okay, thank you Your Honour.

THE COURT: Thank you Ms. Oag. Good morning Mr. Fitzgerald.

MR. FITZGERALD: Good morning Your Honour.

THE COURT: I am ready to deliver my reasons for sentence.

Reasons for Sentence

DONALD, J. (Orally):

Over a span of about 15 months, 36 residences had been broken into while their occupants attended a funeral. Live to this pattern, the police responded by conducting surveillance on homes left empty due to attendances at funerals.

On October 24th, 2019, police arrested Ms. Krystle Oag as she approached such a residence armed with a hammer, neoprene gloves and a black toque. As she was being placed under arrest Ms. Oag attempted to delete a file on her phone with names and dates that corresponded to obituaries.

While in custody and being interviewed, she was involved in a physical altercation with a police officer.

The police subsequently obtained judicial authorizations which allowed them to search Ms. Oag’s residence for items stolen from the raft of residential break and enters that they suspected her to have been involved in. The execution of these warrants confirmed their beliefs and led to the recovery of about $106,600 of the $291,000 of total property stolen. Items stolen in the various break and enters included jewelry, electronics, antiques, memorabilia from the World Wars, collectibles and currency. Notably firearms were stolen from several different residences and only some of those were recovered.

As their investigation continued the police conducted a lawful search of Ms. Oag’s cell phone which revealed that she had used the internet to search for the addresses of deceased persons from obituaries. Ms. Oag would make search notes by sending herself text messages with relevant information about homes that would be free of their occupants.

The police investigation also revealed that Ms. Oag used her phone to access Google Maps, which provided her further information about the residences that she and her associates targeted.

With the assistance of production orders the police were also able to determine that Ms. Oag’s cell phone had been at the sites of these break and enters at the times that they were being committed.

On November 17th, 2020, Ms. Oag pleaded guilty to 37 offences, all arising from her involvement in the criminal enterprise which for 15 months targeted residential homes which were vacant because their occupants were at funeral services grieving the loss of their friends or loved ones. Through her pleas she acknowledged breaking into 30 different homes.

With the benefit of a Pre-Sentence Report and informed by Victim Impact Statements on April 22nd, 2021 Counsel made their sentencing submissions. The defence also brought an application for Duncan credit, which allows for a reduction in sentence owing to the particularly harsh conditions endured by Ms. Oag while she has been in custody awaiting sentencing.

The Crown seeks a global sentence in the range of five and a half to six years in custody, less credit for pre-sentence custody. The Crown does not oppose the defence application for Duncan credit. After consideration for pre-sentence custody and a reduction in sentence on the basis of the evidence led and materials filed on the Duncan application, defence counsel suggested a time-served disposition. In the alternative, the defence suggests that a conditional sentence of imprisonment be imposed should further custody be required.

I must first determine the appropriate length of the sentence to be served for the offences to which Ms. Oag pled guilty. Then I must determine the appropriate sentence reduction on the unopposed application for Duncan credit. Finally, should any additional custody need to be served, I must determine whether it can be served in the community through the imposition of a conditional sentence.

The principle of proportionality lies at the heart of a fit sentence. A proportionate sentence examines the gravity of the offence and degree of responsibility of the offender. An examination of the Victim Impact Statements provides insight into the significant far-reaching and long lasting impact that these offences have had on their victims. How could it be otherwise?

On days that people were already grieving the death of their spouses, friends or family members, Ms. Oag entered their vacant homes to steal from them. Ms. Janet Peters’ Victim Impact Statement reveals that she had lost her husband of 40 years mere days before Ms. Oag broke into her home. Owing to the profound invasion of privacy at a moment of extreme emotional vulnerability, Ms. Peters never spent another night alone in the place that she had lived with her deceased husband for 21 years. According to her victim impact statement, what was already a “traumatic time” for her was made “so much worse” by Ms. Oag.

It should not be forgotten that in addition to the devastating emotional impact for many, these offences also left a significant financial impact. In some cases families were left to wonder how the bills would be paid. In other cases, stolen laptops meant that businesses struggled to operate. Insurance companies provided their obligatory relief once deductibles were paid, but of course insurance companies do not pay for security systems which many victims chose to have installed in order to return to some sense of tranquility of the homes they once viewed as their sanctuaries.

Over the course of 15 months Ms. Oag treated obituaries as invitations to break into the homes of people grieving the death of a loved one. She preyed upon people and their property when they were already emotionally vulnerable. The devastating consequences for the victims was entirely predictable.

If I had needed one, s. 718.2(3.1) affords a statutory reminder that in the circumstances of this case emotionally vulnerable people being preyed upon represents an aggravating circumstance which pulls towards a lengthier sentence.

Ms. Oag pleaded guilty to 30 offences where the maximum sentence in each instance is life imprisonment. In my view, breaking into the homes of people you know to be attending a funeral is among the most aggravating ways in which these offences can be committed. In terms of proportionality, I find the gravity of these offences to be extremely high.

The facts reveal that Ms. Oag was involved in every stage and each aspect of these offences: planning, executions, storage and sale of stolen goods, thus making her highly responsible for these offences. While there is no suggestion whatsoever that anyone “put her up to this” or applied pressure to her in order to get her to commit these offences, Mr. Farrington suggests that Ms. Oag’s addiction to opiates attenuates her moral blameworthiness. As a general proposition, I accept that offences committed solely to support one’s out of control addiction can have that effect.

The evidence of addiction emanates entirely from Ms. Oag, who says that she fell into her addiction years ago as a result of being falsely accused of a crime. The combination of these circumstances caused her to retreat from her connections to society, her family and her children, for several years. The Pre-Sentence Report supports the suggestion that Ms. Oag cut herself off from her parents and children for many years.

Ms. Oag claims that her time in custody provided a necessary interruption from her addiction. I accept that Ms. Oag, over a period of several years, having been accused of a criminal offence that she did not commit, isolated herself from important family connections.

As it relates to an active addition such that Ms. Oag’s only concern was “getting her next fix”, other evidence in its absence pulls in the opposite direction:

1. No drugs were recovered on Ms. Oag upon her arrest and none were recovered in her residence.
2. Leaving aside the arresting officer’s inadmissible opinion on the issue, Ms. Oag appears to have been executing a plan when she was arrested. Not only was she well equipped, she also had the acuity to make an immediate effort to delete relevant evidence from her phone upon her arrest. I take from this that at least on the day of her arrest she was functioning at a relatively high level.
3. This is not the only date upon which Ms. Oag appears to have been functioning at a high level. In this regard, the Victim Impact Statement from Mr. Ostrander is noteworthy. In it he explained how Ms. Oag had the presence of mind, in the middle of a break and enter, to speak to the alarm company while pretending to be the homeowner who had forgotten her password for that alarm, with a view towards delaying notification of the police.

While I am skeptical about the extent of Ms. Oag’s opiate addiction, the fact is that whatever addiction if any she had, could easily have been satiated by the stolen assets she had at her ready disposal. Instead of selling stolen property to get her “next fix” she went out intent on committing another break and enter. Put another way, the facts made plain that Ms. Oag was interested in something more than simply her next fix. She had more than $100,000 in stolen property at her disposal at the time of her arrest.

I conclude, therefore, that these were not crimes of desperation. Therefore, her moral blameworthiness for these offences is high and will not be reduced because of any addiction she may have had.

I note that Ms. Oag pled guilty to seven charges of break and enter where a firearm was stolen and not all of the stolen firearms were recovered by police. Without speculating, what I can say is that firearms have been put into the hands of persons unlawfully, with the only effect being an overall decrease in public safety.

The crimes committed by Ms. Oag over a 15 month period are serious and denunciation and general deterrence must be the paramount sentencing principles. In these sorts of cases, the focus is more on an offender’s conduct than on any circumstances particular to Ms. Oag. That is not to say that Ms. Oag’s antecedents are irrelevant. It is simply to say that they play a lesser role in this sentencing than they otherwise would.

Ms. Oag has an extremely limited criminal record. The last substantive entry is from more than two decades ago. She has, before these matters, effectively never spent any time in a custodial facility. She is 46 years of age and did not have the benefit of a stable home during her childhood or adolescence. By 15 she had moved out on her own and was pregnant with the first of her three children. Despite the obstacles that life had presented her, by 2010 Ms. Oag was, according to her mother “a good mother focused on raising her children” at a job that she had held for some five years. Unfortunately that same year Ms. Oag was falsely accused of a crime and when she learned of this, rather than dealing with the court process, she spent years disconnected from her parents and children, while living a transient lifestyle which she says allowed an addiction to opiates to spiral out of control.

Despite the seriousness of these matters, it is impossible for me to conclude that Ms. Oag cannot be rehabilitated. I must also acknowledge that Ms. Oag comes before me having entered pleas to these matters in the midst of a global pandemic. Not only is this an expression of her remorse but her acceptance of responsibility has resulted in the savings of a significant amount of trial time when that commodity has never been scarcer. This is a significant mitigating feature.

I am also mindful that Ms. Oag would continue to serve any further period of custody while the pandemic rages on and in a setting that is obviously not conducive to social distancing nor good personal hygiene. That is to say that I appreciate that a conditional sentence served in the midst of a pandemic is much harsher than one served in its absence, despite the good faith host of efforts in place to attenuate the spread of the virus in all of our custodial facilities.

Having considered both the aggravating and mitigating features through a lens focused on denunciation and deterrence but ever mindful of the principles of rehabilitation and restraint, in my view a fit sentence for the break and enter offences is six years. On the remaining seven charges, the sentence will be three months concurrent to each other and concurrent to the six year sentence on the break and enter owing to the application of the totality principle.

Turning to the issue of pre-sentence custody, it is clear that Ms. Oag must be given full credit for her 586 days of pre-sentence custody. Enhanced at the usual rate of one and a half to one, Ms. Oag has 879 days of pre-sentence custody.

The defence application for Duncan credit was for a further year of effective credit given the harshness of Ms. Oag’s time in custody and the resulting effect this has had on Ms. Oag’s physical and mental health. Given the combined effect of the Criminal Code and the Supreme Court of Canada in their decision on Summers, it seems to me that this additional credit must come in the form of a sentence reduction, although the result is the same from Ms. Oag’s perspective.

The Crown does not dispute that Ms. Oag’s sentence ought to be reduced as a result of the particularly harsh conditions of her pre-sentence custody and their adverse effect on Ms. Oag. The Crown did not attempt to quantify the sentence reduction that should flow as a result of the defence application.

I note that Ms. Oag found herself on lockdown due to staffing issues as frequently before the pandemic as afterwards. For Ms. Oag, the consequence of her pre-sentence custody are well itemized in her affidavit. The lack of programing and exercise, a consequence of lockdowns and related staffing issues has caused her to gain 60 pounds and become a diabetic. Interruptions to visitations have exacerbated feelings of loneliness and isolation, although I do note that Ms. Oag had effectively cut herself off from her supports years before she began committing the offences that brought her before me. However, I accept that her circumstances have been particularly harsh and that she has suffered as a result physically and mentally. I have no doubt that the efforts of Correctional Supervisors and the front line Officers during the pandemic have been anything short of exemplary. However, the pattern of lockdowns makes plain that they were short staffed before the pandemic and they remain short staffed throughout it. It seems to me that the low staffing levels in jails are a significant cause of the unsanitary, dangerous and inhumane conditions that have long existed, at least at the Elgin Middlesex Detention Centre.

I have read carefully the very recent decisions provided to me by Counsel in both Zamora-Doxtator and Borden, decisions of the Superior Court of Justice in London. In each of these cases, similar pre-sentence custody issues caused two learned jurists to exercise their discretion to reduce the sentence they would otherwise have imposed as a result of these types of collateral consequences.

While it is difficult to readily discern the formula either Justice Thomas or Justice Templeton used to arrive at their collateral consequence driven sentence reduction, I note that Justice Thomas’ reduction amounted to one year for a similarly situated but Indigenous offender. I am mindful of the words of Justice Moldaver’s decision in Suter:

The question is not whether collateral consequences diminish the offender’s moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances.

I agree with the Court of Appeal that the fundamental principle of proportionality must prevail in every case. Collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportional to the gravity of the offence or the moral blameworthiness of the offender.

In my view a sentence reduction for collateral consequences related to Ms. Oag’s pre-sentence custody which results in a sentence of less than five and a half years, risks Ms. Oag’s sentence no longer being proportionate to the gravity of her offences, given her high moral blameworthiness in their commission.

I appreciate that my discretionary sentence reduction is half that of Justice Thomas’ in Zamora-Doxtator, and is also less than Justice Templeton’s in Borden. However, at each step of the process sentencing remains a highly individualized one.

A six year sentence on all of the break and enter offences will be reduced to five and a half years, or 66 months owing to collateral consequences. Sixty-six months translates into 1,980 days, with all rounding done in a manner that favours Ms. Oag. From 1,980 days I must deduct pre-sentence custody of 879, leaving a net sentence of 1,101 days. The custodial sentence left to be served statutorily eliminates the possibility of the remainder of this sentence being served in the community by way of a conditional sentence.

I must say that given my findings as they relate to the seriousness and gravity of these offences over the protracted length of time that they were committed, along with the high moral blameworthiness, I would not have allowed any portion of the sentence here to be served on a conditional sentence. This, notwithstanding the fact that I accept that in many instances, especially those involving a near first offender like Ms. Oag, that conditional sentences can provide a significant amount of deterrence and denunciation.

I will make the following ancillary orders.

A s. 110 order for 10 years on the 270 offence.

DNA will be ordered on all of the primary designated offence as well as where there are secondary designated offences.

The Crown has asked me to consider making a restitution order with a view towards making victims of this matter whole, at least from a financial standpoint. In my view, given the sentence that I have imposed, while I certainly appreciate the Crown’s good intentions, it is simply not an appropriate order.

I also find that the imposition of the Victim Fine Surcharge on the counts where it would be available would constitute an undue hardship in light of the sentence and Ms. Oag’s antecedents and I will waive them.

A 743.21 order will go with the names of some 68 victims that I have provided to Madam Clerk through the Crown.

In light of the inappropriate comments from the investigating police officers found in the Pre-Sentence Report, I have edited them to remove those impugned comments. While I have disabused my mind of what is inadmissible from those comments, because they are inadmissible they should not follow Ms. Oag around when she appears before the Parole Board so I am going to provide an edited copy to the Clerk of the Court. It will be made the next numbered exhibit and the original Pre-Sentence Report will be sealed.

Thank you everyone for your careful submissions.

Ms. Oag, good luck to you.

MR. FITZGERALD: Your Honour ...

THE COURT: Yes.

MR. FITZGERALD: ... there was just one more note, the Crown had also sought a forfeiture order as well and provided a fairly lengthy document, seeking forfeiture of the items seized and found in relation to Ms. Oag.

THE COURT: I will make the 490 order. I am not even sure it is necessary given the items that were found, they weren’t hers to begin with but I will sign that order.

MR. FITZGERALD: Thank you very much Your Honour.

THE COURT: Thank you everyone. That completes this matter.

MR. FARRINGTON: Were there any charges to be withdrawn?

MR. FITZGERALD: Yes Your Honour, any remaining charges on the Information before the court against Ms. Krystle Oag and Ms. Krystle Oag only, those remaining charges can be withdrawn.

THE COURT: Thank you, Madam Clerk those remaining charges will be marked withdrawn at the request of the Crown.

CLERK REGISTRAR: Thank you.

MR. FITZGERALD: And Your Honour, as Your Honour can see as well, there are a number of individuals on the line as well. I would just indicate – normally I would do this off the record but seeing as how I won’t be able to speak to them, if they would like to contact or have any questions answered either by myself or by Detective Constable Sneddon who I believe is also on the line, I would encourage them to reach out to the Crown’s Office. I am happy to provide them with any information or explain anything that has occurred today for their further benefit.

THE COURT: Thank you Mr. Fitzgerald, thank you Mr. Farrington.

CLERK REGISTRAR: For the record Your Honour, the redacted PSR will be Exhibit 38.

THE COURT: Thank you very much Madam Clerk.

EXHIBIT NUMBER 38: Redacted Pre-Sentence Report – produced and marked

... COURT CONCLUDED