ONTARIO COURT OF JUSTICE

DATE: 2021-11-18 COURT FILE No.: 184212 & 184228

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

PETER DZIAK

Before Justice P.F. Band

Reasons for Sentence released on November 18, 2021

Counsel: Ms. A. Serban ......................................................................................... counsel for the Crown Mr. A. Marchetti ....................................................... counsel for the accused Dr. Peter Dziak

BAND J.:

Introduction

[1] Dr. Peter Dziak pleaded guilty to criminally harassing K.S. and to breaching the no contact condition of an Undertaking given to an Officer in charge. Dr. Dziak, a physician, met Ms. K.S., a nurse, in Kasabonika First Nation, where they both provided healthcare from time to time. The offences took place in mid-to-late 2018.

[2] The parties’ positions on sentencing are far apart. While the Crown acknowledges that rehabilitation plays a role in this case, she submits that a Conditional Sentence of 6 months followed by a lengthy period of probation are required, largely to pay tribute to the objectives of deterrence (of both kinds) and denunciation, and in light of aggravating factors. The Defence seeks a conditional discharge, owing to the causal role that Dr. Dziak’s serious psychiatric disorder played in the commission of the offences, together with other important mitigating factors. The parties agree as to ancillary orders and most terms of probation.

[3] It is clear from the appellate authorities that in an ordinary case of this nature, the debate would be between a reformatory sentence and a conditional sentence of imprisonment. The Ontario Court of Appeal has made it plain that the paramount principles of sentencing are general deterrence, specific deterrence and denunciation: see R. v. Swierszcz, 2006 ONCA 8713, [2006] OJ No 1088; R. v. Bates, 2000 ONCA 5759, [2000] O.J. No. 2558 at para. 28. In Bates, the accused was found guilty of 11 offences including criminal harassment, assault, uttering threats and failing to comply with terms of release. His wife told him that she wanted to end their relationship after he assaulted her. Mr. Bates then engaged in harassing and assaultive behaviour towards her over a period of approximately three months. During that time, he “somehow perceived that his love and need for the complainant allowed him to be an unwanted presence in her life and in the lives of her family and associates, and to threaten and terrorize them to achieve his ends” (para. 35).

[4] While Mr. Bates had been suffering from depression, the Court noted that he did not suffer from psychosis or a delusional disorder; rather, he was “just immature and unable to cope with the stress of his failed relationship with the victim” (para. 22). The Court concluded that “when an offender like [Mr. Bates] comes before the court for sentencing, it is important for the court to denounce his conduct in the clearest terms by fashioning a heavy sentence” (para. 36).

[5] Dr. Dziak also engaged in a prolonged course of conduct that threatened and terrorized K.S. and her boyfriend. However, as I will explain below, Dr. Dziak is not an offender like Mr. Bates. What is more, in my experience, this case is exceptional if not unique.

Facts of the Offences

[6] For a period of approximately five months in 2018, Dr. Dziak criminally harassed K.S. The conduct began when Dr. Dziak started to believe that he and KS were in a romantic relationship. This was not true. K.S. told him so and added that she had a boyfriend. A month later, when K.S. invited him to join her, her boyfriend and other friends at a bar, Dr. Dziak attended and proposed to her. She left with her boyfriend. A short time later she wrote to Dr. Dziak on WhatsApp to tell him he had to stop and reminded him that she had a boyfriend. He then sent her unwanted emails. She told him that the contact was unwanted and blocked him. In November, she found 40 emails that Dr. Dziak had sent her in her junk mail folder. They were bizarre, frightening and degrading. They included threats of rape and other violence against her. Other emails included graphic and disturbing sexual imagery. The also were threatening towards her boyfriend. Between October 18 and November 24, Dr. Dziak sent 125 messages to K.S. They were attached to the Agreed Statement of Fact that was filed during the proceedings.

[7] The emails also made it clear that Dr. Dziak had attended K.S.’s neighbourhood and had observed her home. Believing that they would be living together, Dr. Dziak had his license plates registered to K.S.’s address.

[8] In one of the sexually threatening emails, Dr. Dziak copied another physician. This prompted K.S. to make a complaint to their employer. Along with other complaints about his professional judgment, this led to his dismissal.

[9] Aside from being asked to stop more than once by K.S., Dr. Dziak was also cautioned by a police cadet on November 22. At that time, he told the cadet that his relationship with K.S. was “complicated” and that she had proposed to him. He changed his car registration back to his own address; however, on the next day, he attended K.S.’s address (she was not home). She called the police again. When officers went to an Airbnb that he had been occupying, the owner told them that Dr. Dziak had moved out. Prior to that, he had been “acting paranoid,” claiming that people were following or watching him. Police found him on November 24, and arrested him pursuant to the Mental Health Act (MHA). He was released on an Undertaking with conditions on November 25, but confined to hospital on the strength of a Form 1 under the MHA. While in hospital and bound by conditions of his Undertaking, Dr. Dziak emailed K.S. again, attaching a flight confirmation in his name for travel from Sioux Lookout to Kasabonika. He also sent K.S. a disturbing email telling her of a surgical procedure he would subject her to should she commit adultery (cricothyroidotomy – a procedure that involves establishing an airway through an incision in the throat).

[10] In some of the messages, Dr. Dziak displayed some awareness that he was decompensating, and told K.S. that his family doctor was worried about his mental health.

[11] Dr. Dziak was arrested on November 24 and released on bail on December 12, 2018. He spent 35 months under house arrest.

Circumstances surrounding the Offences

[12] The defence relied on a report of Dr. Julian Gojer, a forensic psychiatrist who assessed Dr. Dziak. The report is lengthy and thorough. In it, Dr. Gojer reviewed the facts of the offences, Dr. Dziak’s account of them and collateral sources such as his medical records and interviews with others who know him, including his parents, a physician colleague and his treating psychiatrist. The Crown did not seek to cross-examine Dr. Gojer or challenge the contents of his report.

[13] In the period leading up to the offences, Dr. Dziak suffered a number of stressful events. In 2016, his partner ended their relationship of 10 years, citing the fact that he was working too much. This had a devastating effect on him and he sought help through the OMA for depression. In the fall of 2017, Dr. Dziak was in Las Vegas with colleagues at the time of the notorious mass-shooting incident. He was forced to seek safety in an elevator and is lucky to have survived. Unfortunately, they did not receive a debrief or counseling following this traumatic event. That fall, he was also preparing for exams relating to his ability to practise emergency medicine.

[14] Dr. Dziak met K.S. in December 2016. In the summer of 2017, he went on a fishing trip with a group that included her. It is there that he began to develop feelings for her. From October 2017 to January 2018, his mood was elevated. A colleague told him that he was “hypomanic.” Friends told him similar things. His family doctor, on the other hand, told him that he was “simply in love.” It was during this time that he was dismissed from his employment. In the Spring of 2018, he was spending more money and engaging in risky sexual behaviours. He believes now that he was hypomanic at that time.

[15] In May 2018, he believed that K.S. had proposed to him and that they were in a relationship. In September 2018, when she told him to stop messaging her, he took that as an affirmation. He believed that K.S. was played a joke on him by getting police involved. In November, he believed that she was stalking him. He also espoused delusional beliefs that things in the environment, such as people’s vanity plates, were messages K.S. was sending him to show her love.

[16] During his 11 days in hospital in Thunder Bay after his arrest, Dr. Dziak was seen pacing his room completely nude and voicing suicidal ideas. He had no insight and displayed poor judgment. He was in an acute manic episode and was diagnosed with a delusional disorder, erotomanic type. This disorder explains why Dr. Dziak believed that he and K.S. were in a romantic relationship. He responded well to antipsychotic medication and was discharged on December 7.

[17] After being charged with breaching the conditions of his Undertaking in November, Dr. Dziak was detained in jail for one week. He believed that other inmates were messengers sent by K.S. He told his mother that he was not retaining counsel because K.S. would arrange everything for him.

[18] After his release on bail, Dr. Dziak returned to Toronto with his mother as surety. He was taken to the emergency department at CAMH in a psychotic state consistent with the diagnosis made in Thunder Bay.

Dr. Dziak’s Progress Since 2019

[19] In the context of stress caused by his ongoing criminal proceedings, Dr. Dziak decompensated at home and was rehospitalized voluntarily in March 2019. Again, the diagnosis was delusional disorder, erotomanic type, as well as a query regarding bipolar disorder. The discharge summary indicates that his harassing behaviour was “mostly in the context of a manic episode with psychotic features.” He responded well to medication despite side-effects and was discharged, this time with a diagnosis of bi-polar disorder.

[20] By October 2019, Dr. Dziak was no longer displaying delusional thinking and his insight and judgment had improved. He voluntarily attended the emergency department in August 2020. By that time, he had not had manic symptoms or delusional thoughts about K.S. for approximately one year. His insight was “reasonable” and there was no evidence of psychosis.

[21] In January 2021, Dr. Dziak presented at the emergency department with suicidal ideation. It was felt that his ongoing house arrest was an acute stressor leading to despondency, hopelessness and suicidal ideation. He was believed to have good insight into the nature of his erotomanic delusions.

[22] In March 2021, Dr. Dziak was struggling with ongoing house arrest. He told doctors that his mental health was “terrible” and that he was “bored out of [his] mind.” He did not display any delusional thinking and his insight was good. In May 2021, he attended the emergency department due to suicidal ideation. His mood was terrible, and he had “no hope.” There was no evidence of delusions, mania or psychosis.

Dr. Gojer’s Conclusions and Recommendations

[23] During the period of offending, Dr. Dziak’s actions and beliefs about K.S. were delusional. He underwent a significant mood change after the breakup of his relationship and the Las Vegas shooting. His infatuation with K.S. began a short time afterward, in the context of elevated mood, poor judgment, errors at work and engaging in risky behaviours. This mood state lasted for most of 2018, during which time he developed erotomanic delusions, delusions of persecution and was misinterpreting events around him. This culminated in his charges in November 2018.

[24] This pattern of psychotic features only abated with the assistance of antipsychotic medication. After approximately three months, his delusional thinking abated. He has not had any delusions since that time. He has good insight and understands that his thoughts concerning K.S. were related to delusional misinterpretations.

[25] However, since then, depression has taken hold. Dr. Gojer is of the view that bipolar disorder is a more apt diagnosis because “it is also possible that, now that the manic phase of his bipolar disorder has been resolved” he is in the depressive phase. He continues to be under the supervision of Dr. Wood Hill at CAMH. He has no history of antisocial behaviour, psychopathy, substance or alcohol dependency.

[26] As a result, Dr. Gojer’s opinion is that he does not pose a risk to K.S. He also believes that Dr. Dziak’s mood will improve once his criminal matters are resolved. Dr. Gojer recommends that Dr. Dziak continue to see his psychiatrist and have no contact with K.S.

Dr. Dziak’s Personal Circumstances

[27] Dr. Dziak enjoyed a stable upbringing in a supportive family and did well in school. Until these events, he was practising medicine in his field of choice. During his time on bail, he has been isolated as a consequence of his house arrest conditions and his mental illnesses. According to his mother, it took over a year for him to become “fully functional” again. While he has recently begun to socialize with friends and engage in hobbies, he is suffering from depression.

[28] In January 2019, he voluntarily gave up his license to practise medicine, but hopes to re-enter the profession in the future. That, of course, will be up to the College of Physicians and Surgeons of Ontario.

Additional Legal Principles

[29] The overarching principle of proportionality applies to this and all cases in order to ensure that the punishment reflects the seriousness of the offence and the moral blameworthiness of the offender. A proportionate sentence is one that is individualized. In other words, it is one that is deserved by the offender.

[30] The Supreme Court of Canada’s decision in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 serves as a strong reminder that the principle of proportionality is fundamental, even in cases in which the principles of deterrence and denunciation are of central importance.

[31] Proportionality requires that the court consider the gravity of the offence and the moral blameworthiness of the offender. It is determined both on an individual basis – that is in relation to the accused herself and the offence she committed, and by comparison to sentences imposed on other offenders for offences committed in similar circumstances.

[32] This last factor is known as the principle of parity, which requires that like cases be treated alike. The Court also reminded us of the importance of restraint, particularly when dealing with a first offender.

The Role Played by Dr. Dziak’s Mental Illness

[33] In R. v. Batisse, 2009 ONCA 114, [2009] O.J. No. 452, the Ontario Court of Appeal has told us that, where an offender’s “mental health problems played a central role in the commission of the offence deterrence and punishment assume less importance.” This is because

where offenders commit offences while they are out of touch with reality due to mental illness, specific deterrence is meaningless to them. Further, general deterrence is unlikely to be achieved either since people with mental illnesses that contribute to the commission of a crime will not usually be deterred by the punishment of others. As well, severe punishment is less appropriate in cases of persons with mental illnesses since it would be disproportionate to the degree of responsibility of the offender. In such circumstances, the primary concern in sentencing shifts from deterrence to treatment as that is the best means of ensuring the protection of the public and that the offending conduct is not repeated (at para. 38).

See also: R. v. Robinson, 1974 ONCA 1491, [1974] O.J. No. 545 (C.A.); R. v. Prioriello, 2012 ONCA 63, [2012] O.J. No. 650 (C.A.); and R. v. Fabbro, 2021 ONCA 494.

[34] Dr. Dziak’s mental illness played a very significant and central role in his offending. It is clear to me that he was out of touch with reality at the time of the offences. None of the cases that the Crown relied upon involved such a profoundly intrusive mental illness; nor did they refer to Batisse or other similar authorities. For these reasons, the principles of general deterrence, specific deterrence and denunciation assume much less importance in this case than in other cases of similar conduct.

Seriousness of the Offence and Dr. Dziak’s Moral Blameworthiness

[35] Dr. Dziak’s offences were very serious. His behaviour towards K.S. was extremely disturbing and frightening. In her Victim Impact Statement, she explained its lasting impact on her personal and professional life. She has become withdrawn and fearful. She feels unable to return to her work in Kasabonika First Nation for fear of encountering Dr. Dziak. She suffers from insomnia. At the same time, she understands that he was mentally unwell at the time, and hopes that he receives the help he needs so that he will not harm anyone else. While regrettable, the impact on K.S.’s life is understandable and unsurprising.

[36] What makes this case unusual, however, is Dr. Dziak’s level of moral culpability. Because of the delusional disorder under which he was operating, it is extremely low.

Aggravating and Mitigating Factors

[37] For the most part, the parties agree about the aggravating and mitigating factors in this case; however, they disagree about the weight that some of them ought to bear.

Aggravating Factors

[38] The aggravating factors in this case are:

• The extremely disturbing and frightening content of Dr. Dziak’s messages and behaviour toward K.S.;
• Its duration and persistence;
• Its impact on K.S.;
• The fact that it also involved her boyfriend;
• The fact that, as a nurse in the same workplace, K.S. was in a vulnerable position.

The Crown referred to one message, in which Dr. Dziak referred to K.S.’s boyfriend as a “brown guy” and threatened to feed him to some pigs, and submitted that this constitutes an aggravating factor pursuant to s. 718.2(a)(i) of the Criminal Code. The terms Dr. Dziak used are racist and offensive; however, in all the circumstances, I am not satisfied beyond a reasonable doubt that Dr. Dziak’s conduct – the threats – was motivated by bias, prejudice or hate based on race or ethnic origin.

Mitigating Factors

[39] In addition to Dr. Dziak’s mental illness, the main mitigating factors in this case are:

• The guilty pleas;
• The absence of a prior record;
• A prior history of good character;
• The 19 days Dr. Dziak spent in pre-trial custody (the equivalent of 30);
• The 35 months Dr. Dziak spent under house arrest;
• The consistent and rehabilitative work he has done to address his mental illness, including remaining medication-compliant despite side-effects;
• His pre-sentence law-abiding behaviour for almost three years; and
• His strong support in the community, including family and peers.

[40] The Crown cautions against giving undue weight to the guilty pleas, Dr. Dziak’s prior good character and time spent under house arrest. She argues that the guilty pleas were made in the face of an overwhelming Crown case, and that they were not made early. That is true. However, they are nonetheless deserving of significant credit. Aside from taking responsibility and expressing genuine remorse, Dr. Dziak spared K.S. the trauma of having to testify. I also note that the transfer of the matter from one jurisdiction to another entailed the intention to plead guilty. What is more, Dr. Dziak remained unwell for approximately one year after the offences, and Mr. Marchetti was not retained until after that period.

[41] The defence filed numerous letters of support in this matter. I agree with the Crown that these must be approached with caution. As the P.E.I. Court of Appeal explained in [R. v. Wall (1995), 135 Nfld. & P.E.I.R. 200](R. v. Wall (1995), 135 Nfld. & P.E.I.R. 200), “the fact that an offender shows any propensity towards this kind of conduct, regardless of an unblemished past, is cause for great concern and for a very careful and judicious approach to sentencing” (at para. 38). The difference here, however, is that it would not be fair to say that Dr. Dziak displayed a propensity towards harassing conduct. It was not an immature or angry and controlling reaction to a breakup or perceived slight; rather, it was highly mediated by a delusional disorder.

[42] This matter was adjourned for a lengthy period for Dr. Dziak to obtain Dr. Gojer’s report and then, again, when counsel chose to file that report at the eleventh hour. For this reason, the Crown urges me to give Dr. Dziak proportionately less “Downes credit.” I reject the Crown’s argument. First, it must be remembered that the guilty plea in this case took place during the pandemic, which has tended to slow the pace of litigation across the board. I disagree with the Crown’s submission that because it was known that Dr. Dziak had mental health issues from the get-go, he ought to have proceeded to the sentencing stage without Dr. Gojer’s report. That report was a legitimate and enormously informative step in the proceedings. Second, the impact of counsel’s decision to wait until his sentencing record was complete to file the report ought not to be visited on his client. Third and most importantly, not only was Dr. Dziak’s liberty curtailed by the lengthy period of house arrest, but his mental health also suffered as a result (and beyond what can reasonably be attributed to the pandemic alone). This is not a case in which an accused person sought adjournments to benefit from career or educational opportunities (E.g. R. v. Dodman, 2021 ONCA 543). Dr. Dziak is entitled to significant credit for the 35 months he spent under house arrest.

Conclusion

[43] Despite the seriousness of Dr. Dziak’s offending conduct, a conditional discharge is the just sanction in this case. It is a proportionate response to the seriousness of the offence when viewed in light of Dr. Dziak’s very low moral culpability and the other important mitigating factors. It is clearly in his interests to avoid a the potentially permanent stigma of a criminal record, which would also interfere with his ability to travel and work in the future. It is not contrary to the public interest in these unusual circumstances. A lengthy reporting probationary period during which Dr. Dziak continues to receive treatment and rehabilitate himself will be sufficient to protect the public in general, and K.S. in particular.

[44] Mr. Dziak will be placed on probation for a period of three years. During the first 12 months of that period, he will report to a probation officer at least once per month. Thereafter, he will report as required. He will have no contact, direct or indirect, with K.S. or her boyfriend, who will both be named in the order. He will remain at least 1 kilometer away from where K.S. or her boyfriend live, work, study, worship or are otherwise known to be. He will attend for assessments, counseling or rehabilitative programs at the direction of his probation officer regarding his mental health and sign releases to allow for monitoring. He will not possess any weapons as those are defined by the Criminal Code. For the first six months of his probationary period, he will abide by a curfew from 10 p.m. to 6 a.m. each and every day, except in the event of a medical emergency involving himself or a member of his immediate family.

[45] In addition, Dr. Dziak will be prohibited from possessing the weapons listed in s. 109 of the Criminal Code for a period of 10 years and will provide a sample of his DNA for the purposes of the DNA database.

Released: November 18, 2021

P.F. Band