Her Majesty the Queen v. Patryk Myszka, 2021 ONCJ 586

DATE: October 13, 2021 Information No.: 1211-998-20-3973-00

ONTARIO COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

PATRYK MYSZKA

Reasons for Sentence

BEFORE THE HONOURABLE JUSTICE D. A. HARRIS

on October 13, 2021, at Burlington, Ontario

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO S486.4 OF THE CRIMINAL CODE OF CANADA BY ORDER OF HIS WORSHIP P. MACPHAIL, ONTARIO COURT OF JUSTICE, DATED JANUARY 28, 2021

Appearances:

H. Apel, Counsel for the Crown D. Butt, Counsel for Patryk Myszka

HARRIS, J. (Orally):

Patryk Myszka pled guilty to the charge that between January 1, 2019, and December 31, 2019, at the Town of Milton he did observe or make visual recordings of AP, a person in circumstances that gave rise to a reasonable expectation of privacy, and the observation was done for a sexual purpose, contrary to Section 162 (1) of the Criminal Code of Canada.

Crown Counsel elected to proceed summarily with the consent of Mr. Myszka, who waived any limitation periods.

Mr. Myszka is before me today to be sentenced.

Crown counsel suggested that I should impose a conditional sentence of imprisonment for 5 months followed by probation for 18 months. Counsel for Mr. Myszka suggested that I impose a conditional discharge with probation.

It is agreed that the Sexual Offender Information Registration Act and DNA are not applicable here. It is also agreed that I should make a forfeiture order.

I found that a suspended sentence with probation for 18 months is the appropriate sentence. My reasons for this are set out under the following headings: (1) the law regarding conditional discharges; (2) the fundamental purpose and principles of sentencing; (3) the facts underlying the offence; (4) the impact on the victim; (5) the background of Mr. Myszka, and (6) analysis.

I have previously dealt with the law regarding conditional discharges in the context of a similar offence in R. v. Eastwood, [2018] O.J. No. 3816, particularly at paragraphs 8 through 17. I will not repeat myself here, but simply say that I have considered what I said earlier and applied those principles in this case.

In addition to referring to R. v. Eastwood, counsel for Mr. Myszka referred me to, and I have considered, three other cases where conditional discharges were granted for this offence. They were R. v. Laskaris, 2008 BCPC 130, R. v. Pan, 2012 ABPC 203, and R. v. RHC, 2010 BCPC 470.

Counsel also referred to R. v. MG, 2008 ONCJ 476, before Justice Pugsley, who suspended sentence and placed MG on probation for 18 months. Counsel also referred to R. v. Jarvis, 2019 ONSC 2505 where Justice Goodman imposed a 6-month jail sentence. Counsel referred specifically to paragraphs 51 and 52 of that decision, where Justice Goodman wrote:

“[51] Both counsel concede that there is no range for sentence that they can suggest to this Court for this offence and offender. It seems that the authorities provide for a wide range and variety of sentences, albeit principally non-custodial. It is not disputed that most, if not all, of the case law referred to by both counsel proffers the imposition of either a conditional or suspended sentence for this stand-alone offence. Where jail has been imposed, it was in conjunction with another serious offence, like sexual assault, extortion or possession of child pornography.

[52] I can only conclude that the range of penalty is very broad and the particular circumstances of this case must be carefully considered.”

I agree that those comments are applicable here. I also note that all of the cases referred to, can be distinguished in one or more ways from the current case.

I also reviewed the fundamental purpose and principles of sentencing in paragraphs 18 through 27 in Regina v. Eastwood. Again, I will not repeat myself here but note that I have considered what I said earlier and applied those principles in this case.

In addition, I have noted that Section 718.2(a)(ii) of the Criminal Code provides that evidence that an offender in committing any offence, abused a spouse or common-law-partner shall be deemed to be an aggravated circumstance the sentence should be increased to reflect that.

Finally, Section 718.2 (a)(iii.1) of the Criminal Code provides that evidence that the offence had a significant impact on the victim considering her age and other personal circumstances, including her health and financial situations, is also an aggravating circumstance and the sentence should reflect that.

Before applying these principles, I must take into account the facts underlying the offence, the impact on the victim and the background of Mr. Myszka.

The Offence

I was told that the two had lived common-law for 12 years. They have two children together, ages 9 and 4. They separated in January 2020. They share custody of the children.

During the period set out in the information, they resided at a residence in Milton. Mr. Myszka placed cameras and recording devices around the home, to record her.

She found one under the bathroom counter, it was pointed at the toilet and into the bedroom. There were other cameras as well. These caught pictures of her walking around naked. There was one recording of her sitting with him in the bedroom while she was topless. There was one showing her sitting on the bed masturbating.

Impact on the Victim

I was provided with a victim impact statement, which A.P. read to the Court. Counsel for Mr. Myszka argued that this victim impact statement contained unproven allegations against Mr. Myszka and that I should disabuse myself of those allegations. I agreed with this submission. I also agreed with comments by Counsel that the victim impact statement did make it clear that the offence here impacted her significantly and that her reaction was completely justified in the circumstances.

Background of the Offender

I was provided with a letter from Mr. Myszka, one from a counsellor and information from his counsel. From these, I learned the following.

Mr. Myszka was born in Poland. He and his family moved to Canada when he was 11 years old. He had been sexually abused by a cousin prior to this move. He and AP were a couple for a goodly number of years. They have been separated since January 2020. They have two daughters, aged 9 and 5. They share custody of these girls. Mr. Myszka is devoted to his daughters.

He has been employed at a major bank for almost 20 years. He is the IT Manager, providing support to senior management at the bank. His employer is aware of the offence before me. He has no prior criminal record.

He has been seeing a psychotherapist since April 2021. Since then, he has seen her weekly or twice weekly, on a consistent basis. She reported that he was open, honest, and up front about his crime. Clearly and unabashedly expressing remorse and acknowledging the invasion of privacy that he caused his ex-wife and the potential lasting effect that such an invasion can have on a victim.

He reported symptoms of stress and anxiety, that place him on the scale of depression at a level that can be manic. He brought up memories of the sexual abuse he experienced as a child. He has been a “therapy enthusiast.” He plans to continue with this, and she recommends that he do so.

She made certain comments about the potential impact of certain sentencing options that went beyond her role as therapist and entered instead into the realm of advocate. I will be giving no weight to her submissions in that regard.

Mr. Myszka’s letter provided some background information and expressed his remorse for his actions.

It is somewhat ironic, however, in light of his counsel’s objections to certain comments in the victim impact statement, that Mr. Myszka make a number of unproven allegations against AP, in this letter. I will say more about these later but for now simply state that just like I have disabused myself of allegations by her that were both unproven and irrelevant, I have also disabused myself of allegations by him that were also unproven and irrelevant.

Analysis

Justice Doherty of the Ontario Court of Appeal aptly described my task here when he began the judgment in Regina v. Hamilton by stating, “The imposition of fit sentence can be as difficult a task as any faced by a trial judge.”

Sentencing is not an exact science. The determination of the sentence that is just and appropriate in a given case, is a highly individualized exercise that goes beyond a purely mathematical calculation.

General deterrence and denunciation are important principles of sentencing in this case but I must not lose sight of the other principles.

I must craft a sentence that is proportionate to the gravity of the offence committed and the degree of responsibility of Mr. Myszka and yet at the same time one that is responsive to his unique circumstances.

I must consider both the aggravating factors and the mitigating factors in determining the appropriate sentence.

The aggravating circumstances can be found in the facts surrounding the offences. This was not an impulsive or spontaneous act by Mr. Myszka. It was planned. He installed a number of recording devices around the house. He continued to record his wife on a number of occasions over an extended period of time. He abused any trust he enjoyed as her husband. He invaded her privacy in her own home, a place where she should have been able to feel secure. The impact on her has been significant. It is uncertain when, if ever, she will fully get over this.

The nature of his employment should have made Mr. Myszka especially aware of the unethical nature of his acts.

He claimed that he did this to determine if his wife was “cheating” on him and that he had obtained some proof of this by means of his recording.

First of all, I need to point out that this does not mitigate his crime, even if true. Second, there is much to contradict this assertion. He recorded her sitting on his lap. She was clearly not “cheating” on him at that time. He recorded her alone in the bathroom. She was not “cheating” on him here. He recorded her masturbating. Again, she was clearly not “cheating” on him then, unless he viewed her taking any sexual pleasure without him as “cheating.”

He kept these and other recordings despite the absence of any signs of cheating. Keeping the recordings would be totally unnecessary to accomplish his stated purpose of simply satisfying himself that she was in fact cheating.

He did however used them for sexual purpose, masturbating while watching them. There is no evidence before me of her being recorded together with any other person.

He also claimed, in his letter, that she had gambled away thousands and thousands of dollars and that she had rejected his entreaties to seek help about this. The therapist’s reports states that he has expressed concerns to her that she has spoken to the children about him in negative terms. Again, these are unproven allegations. They are also irrelevant in the sentencing process. Accordingly, I am disregarding them.

I am concerned however, that they do suggest that he might be attempting in his own mind, to shift some blame away from himself. Despite these concerns, I am giving him the benefit of the doubt on this.

There are some factors that can be both aggravating and mitigating.

Mr. Myszka had no prior criminal record. He was a trusted and respected member of the community. This would usually be a mitigating factor when determining an appropriate sentence. It is a mitigating factor. However, I note that similar things can be said about virtually everyone who is charged with a breach of trust offence. It is only trusted and respected people who are put in a position where they are able to breach that trust. On the other hand, they are the people with the most to lose if they are caught. The loss of reputation is significant for these people. It certainly has been for Mr. Myszka. On the other hand, again, they are the people who can best be deterred by a significant sentence.

That brings me to the mitigating factors that are present here.

Mr. Myszka pled guilty. I take that to be an expression of remorse and admission of responsibility. It also made it unnecessary for the victim to relive these events while testifying in court before strangers. I have given Mr. Myszka a great deal of credit for this. Otherwise, the sentence would have been more onerous than it is.

There have been collateral consequences. Others are now aware of his offending and his reputation has suffered accordingly. This has not affected his employment however, even though his employer is aware of what happened. Counsel argued that if he does lose his current position for any reason, a conviction could make it more difficult for him to find another job. I recognize that this would likely be the case but there are too many “ifs” in this submission for me to give it too much weight.

Mr. Myszka has taken steps to obtain counselling and he has been diligent in following through with this. It speaks well of his likelihood of rehabilitation. I hope that the absence in the therapist’s report of any reference to him using the recordings for sexual purpose reflects an oversight on her part in preparing the report, rather than a failure on his part to tell her this. It should certainly be made known to any counsellor in the future.

Having regard to all of the above I am satisfied that a conditional discharge would be in Mr. Myszka’s interest, but I am also satisfied that it would be contrary to the public interest.

I will specifically refer to my earlier decision in Regina v. Eastwood. I am satisfied that Eastwood can be distinguished for a number of reasons. In particular, I find the offence here to be more serious. I also note that Mr. Eastwood suffered actual collateral consequences that are not present here.

I am also satisfied, however, that I should not impose a conditional sentence of imprisonment. Simply entering a conviction is very significant for someone like Mr. Myszka. It will satisfy the need for the denunciation and for the deterrence of Mr. Myszka and any other like-minded individuals.

Further, a suspended sentence and probation can do as much as a conditional sentence of imprisonment in keeping Mr. Myszka away from the victim and in requiring him to continue with counselling. I am satisfied that Mr. Myszka will comply with the probation order, just as much as he would comply with a conditional sentence of imprisonment. This will provide ongoing protection for the victim. It will also contribute to Mr. Myszka’s rehabilitation.

Finally, I note that Mr. Myszka is, of course, entitled to the least respected sentences consistent with the fundamental purpose and principles of sentencing.

Sentence

For all of the above reasons, I sentence Mr. Myszka as follows. Sentence is suspended. He will be placed on probation for 18 months. The terms of the probation will require that:

(1) he 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 and the probation officer in advance of any change of name or address and promptly notify the Court or the probation officer of any change in employment or occupation. (4) report to a probation officer within two working days and after that, at all times and places as directed by the probation officer or any person authorized by the probation officer to assist in the supervision. (5) cooperate with his probation officer in the signing of releases necessary to permit the probation officer to monitor his compliance. He must provide proof of compliance of any condition of this order to his probation officer, on request. (6) not contact or communicate, in any way, either directly or indirectly with any physical, electronic or other means with A.P. except, (a) pursuant to a Family Court order made after today’s date or for the purpose of conducting or defending Family Court proceedings or (b) in the presence of or through legal counsel or (c) for the purpose of making contact arrangement for his children by text message or email or through a mutually agreed upon third party.

Mr. Myszka, I want to address that last exception with you, to point something out. It says, “for making contact arrangements for you children by text message or email.” You have to look at that sentence in its entirety. I am not making it such that you can talk about “anything” by text message or email. You can talk to her about those specific subjects by that means. I include those as a method of communication because if there is any suggestion, later on, that you went beyond the proper scope, there would be a record of what was said by you. That saves some judge, down the road, having to decide whether she is right about what she said, you said. Or, whether you are right about what you say you said. But that’s not an open ticket. It is permission to communicate for specific purposes.

(7) you will not be within 20 meters of any place you know her to live, work, go to school, frequent. Or any place you know her to be, except as stated above. (8) you will attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer.

I give Mr. Myszka four months to pay the Victim Fine Surcharge.

Finally, I am signing the forfeiture order that was provided to me. This provides that a number of items will be forfeited to her Majesty, to be disposed of. These include: a black rectangular camera containing a SanDisk 64GB Ultra Memory Card, red and grey in colour, 2, a silver and black USB audio recorder, 3, a Seagate BarraCuda 1000GB hard drive, 4, a black Adata external hard drive and 5, a black wired microphone. All of these items had been seized by the police.

END OF TRANSCRIPT

Form 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2)) Evidence Act

I, Diane Westcott (Name of Authorized Person) certify that this document is a true and accurate transcript of the recording of R. v. Patryk Myszka in the Ontario Court of Justice (Name of Case) (Name of Court) held at Burlington, Ontario (Court Address) taken from Recording 1211_15_20211013_092206__6_HARRISDAV.dcr, which has been certified in Form 1. November 5, 2021 (Date) (Signature of Authorized Person(s))