Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2022 09 23 COURT FILE No.: Windsor 20-1198

BETWEEN:

HIS MAJESTY THE KING

— AND —

KATHY JACKSON

Before: Justice S.G. Pratt

Heard on: 1 June, 3, 23 August 2022 Reasons for Judgment released on: 23 September 2022

Counsel: Jayme Lesperance............................................................................ Counsel for the Crown Amanda Tubbs............................................................................ Counsel for the Defendant

Reasons for Sentence

Pratt J.:

[1] On 1 June 2022, Kathy Jackson, hereinafter the Offender, pleaded guilty to the offence of conspiring to obstruct justice. Submissions were heard on 3 and 23 August, and the Court also received a Pre-Sentence Report (“PSR”) and letters of support filed on behalf of the Offender.

Facts

[2] In October 2019, Dylan Mullins-Rabidoux, hereinafter the Victim, was robbed. He had contacted Kaylee Coates through a website called Leo’s List with the intention of hiring her as a prostitute. Shortly afterward, Ms. Coates arrived at the Victim’s residence. She was not alone. With her were Duane Jackson, Kiel Rogers, Emma Hanson, and Devon Cain. Ms. Coates initially entered the Victim’s residence on her own but soon returned to her vehicle. She re-entered the residence followed by Jackson and Rogers. They entered the residence wearing masks and robbed the Victim at gunpoint. Items were taken, as was the Victim’s banking PIN.

[3] A short time later, the vehicle the group was using was spotted by Windsor Police. Hanson and Cain were found inside and were arrested. Subsequent investigation led police to Jackson, Rogers, and Coates. All were eventually arrested. When Jackson was arrested, police found an empty gun holster in his vehicle.

[4] Police obtained a search warrant for Coates’ cell phone. They discovered several text messages that have led to the charge before the Court. These texts were between Coates and the Offender. At the time, Coates was in a relationship with Jackson, the Offender’s son. She was also expecting their child.

[5] The relevant messages were read into the record by Crown counsel. They include:

5 November 2019 Coates: I am so thankful I took that thing out from under the seat Offender: Thank you so much. Love you lady Coates: I guess their sayin on Windsor car spotters on fb that they were searching the car for a gun Offender: LOL didn’t find one Coates: no but they no his address is here Offender: get rid of it, If you can get it here to me

7 November 2019 [Exchange between Coates and the Offender where Coates provided the Victim’s address to the Offender.] Offender: ok tell him he will not be at court

8 November 2019 Coates: I wanna talk to his guy Offender: Why stay away from him it will get Duane in more trouble Coates: Duane and I already talked about it. Were just trying to figure this out Offender: What out. I’m taking care of it ok

11 November 2019 Offender: key lady how are you doing today Coates: i’m okay I talked to duane this morning what’s going on with the guy in Lillian Offender: When does he want him gone. If I do it now it will be a long time I have to hold him. I was waiting for trial. Why, what does he want done: Coates: Hold on I’ll call u in a min I’m grocery shopping Offender: ok

[6] These text messages were acknowledged to be accurate when they were read in on the plea proceedings. While the offence pleaded to relates only to dissuading the Victim from testifying, the texts from 5 November regarding the gun and the Offender’s message “get rid of it, If you can get it here to me” represents an aggravating factor that was admitted by counsel for the Offender.

The Positions of the Parties

[7] The Offender’s counsel argues for a conditional discharge, or failing that, a suspended sentence. She notes the Offender’s lack of a criminal record, her guilty plea, and her positive antecedents in support of her position.

[8] Crown counsel seeks a 90-day conditional sentence followed by probation. But for the effects of the Covid-19 pandemic, the Crown would have been seeking a sentence of incarceration.

The Principles of Sentencing

[9] Section 718 of the Criminal Code sets out the general principles that should guide a judge in fashioning an appropriate sentence. I will not set out the section here but I will note that the fundamental purpose of sentencing is “to protect society and to contribute…to respect for the law”.

[10] As always, a sentence must be proportionate to the gravity of the offence and the responsibility of the offender. Further, an offender must not be deprived of liberty if less restrictive sanctions would be appropriate in the circumstances.

[11] Parliament views conspiring to commit an indictable offence and actually committing it as equally serious. Pursuant to s. 465(1)(c) of the Criminal Code the punishment for conspiring to commit an indictable offence and actually committing it are the same. In the present case, this means the offence of conspiring to obstruct justice carries a ten-year maximum jail sentence.

[12] Conduct that would subvert the justice system and purport to interfere with the ability of witnesses to testify is gravely serious. Even in cases where an offender is otherwise a law-abiding citizen with no criminal background, courts must treat such conduct severely. A sentencing court cannot ignore the positive antecedents of a particular offender, but the gravity of the offence is such that denunciation and deterrence must be given paramount consideration.

[13] Speaking for the Court of Appeal for Ontario, Justice Nordheimer said the following in the case of R. v. Hopgood, 2020 ONCA 608 at paragraphs 22 and 23:

I begin with the principle that efforts by accused persons (whether directly or through others) to interfere with witnesses strike at the very heart of our justice system. There are already very serious concerns regarding the willingness of people, who observe crimes, to come forward and offer themselves as witnesses. Concerns around the "code of silence", and possible repercussions from being considered a "rat" or a "snitch", often lead persons to remain silent when they ought to be coming forward and assisting the authorities to properly investigate and prosecute criminal activities.

Against that backdrop, interference with persons who are prepared to be witnesses only serves to exacerbate the problem. It must be clear to all accused persons that attempting to interfere in any way with a witness represents conduct that will not be tolerated.

[14] In the present case, the Offender made plans to physically prevent an alleged victim from testifying, and she offered assistance in hiding important evidence. Her conduct is of the utmost seriousness.

Caselaw

[15] In support of her argument for a conditional discharge, the Offender’s counsel has filed four cases. Two are from the Ontario Court of Justice and two are from the Superior Court of Justice. As all are trial decisions, none are specifically binding on me.

[16] In R. v. Vongkhamphou (2012, unreported, Ontario Court of Justice) and R. v. Murray, 2018 ONCJ 393, the offenders were police officers who tampered with evidence. Vongkhamphou received a suspended sentence, while Murray received a conditional discharge. It is worth noting that in Murray’s case, the evidence tampered with was narcotics, which the offender stole to feed his own addiction.

[17] Counsel has argued that if police officers, with their increased level of authority and public trust, can receive non-custodial sentences for actually obstructing justice, surely a civilian who merely talks about obstructing justice can as well.

[18] Candidly, it’s a compelling argument.

[19] The cases of R. v. Lu [2013] O.J. No. 1704 (S.C.J.) and R. v. Leblanc, 2022 ONSC 1359 both deal with offenders who initially lied to police to protect a perpetrator in the case of a driving fatality and a homicide, respectively. Lu received a suspended sentence. I note that there is an error in the headnote of the Lu decision. It says the offender received a six-month jail sentence, which was reduced to a suspended sentence on appeal. The text of Justice Ratushny’s decision does not bear that out. Lu was given a suspended sentence by the trial judge, and that sentence was upheld by Justice Ratushny. Her Honour declined to grant a conditional discharge and affirmed the original disposition.

[20] Leblanc was the victim of ongoing domestic violence when she lied to police. Her victimization was a driving factor in that court’s decision to impose a conditional discharge. That is a mitigating factor that the present Offender does not share. A psychological assessment of Leblanc, done over the course of several interviews, found “that Ms. Leblanc was at a high risk of being killed herself before Mr. DeSousa severely assaulted and killed his mother”. That situation is starkly different from the one in which the Offender found herself.

[21] The Crown filed two cases. In R. v. L.C., 2015 ONSC 3039, the offender obstructed justice by trying to get someone who had accused her husband of sexual assault to recant. She went to the complainant’s home and caused a significant scene with the complainant’s father. It does not appear from the decision that this was a guilty plea as that is not listed among the mitigating factors. In the result, she was given a six-month conditional sentence.

[22] The Court in L.C. also cited several other decisions dealing with the obstruction of justice. Sentences vary from one-year conditional sentences to one year of imprisonment. The takeaway from these decisions is that each case is different, and that the 90-day conditional sentence sought by the Crown in the present case is, if anything, towards the low end of the range.

[23] The case of R. v. Dubros, 2022 ONSC 1165 saw a private investigator attempt to dissuade a witness from testifying by threatening to damage the personal and professional reputations of the witness and her co-workers. Dubros was convicted after a jury trial and sentenced to 18 months jail and three years of probation. In reaching that decision, Justice Campbell cited the passage from Justice Nordheimer quoted above. A distinguishing factor in this case from the Offender’s circumstances is that Dubros actually made contact with the witness and others, and clumsily attempted to blackmail them. Those factors are not present in the Offender’s conduct.

[24] In the very recent unreported decision of R. v. Yalda, I sentenced an offender who texted a complainant on the morning of the preliminary hearing. He offered her money in exchange for not going to court. The complainant told the police and Crown about the texts. I sentenced that offender to six months jail and two years of probation.

Pre-Sentence Report

[25] I have had the benefit of a Pre-Sentence Report (PSR) prepared by Kelly MacDonald of Windsor Probation and Parole.

[26] The report is largely positive. It speaks of strong family ties and the Offender’s community-minded disposition. The author confirmed the Offender takes responsibility for her actions, though she framed her conduct as a panicked response to Coates’ emotional upset.

[27] The Offender is willing to abide by whatever order I make.

Aggravating and Mitigating factors

[28] The chief aggravating factor in this case is the effect conduct like the Offender’s can have on the viability of the justice system. Our criminal justice system, indeed the rule of law itself, relies on citizen participation. Yes, the police investigate crimes and turn the fruits of their investigation over to the Crown for evaluation and prosecution. Few cases, however, would proceed without civilian witnesses. Those who want to come forward and testify publicly about criminal wrongdoing must be free to do so. When others conspire to prevent them from doing that, it is an attack on the structure of society. That the Offender discussed getting rid of potentially crucial evidence, and about holding the Complainant to prevent him from testifying at trial, is extremely aggravating.

[29] It is also aggravating that this conduct took place over multiple conversations. It was not, as both counsel and the Offender herself suggested, a moment of panic where she was not thinking clearly. This was an ongoing conspiracy to obstruct the prosecution of her son.

[30] In mitigation, I note several factors: (1) The Offender’s guilty plea and acceptance of responsibility; (2) The lack of a prior record; (3) The support of her community; and (4) A positive PSR.

[31] It is important, particularly when dealing with a first-time offender, that any sentence imposed only be as long as necessary to achieve the principles of sentencing.

[32] There is little reason to expect the Offender to re-offend. That said, there is nothing in her history that would have predicted this offence.

Conclusion

[33] I have considered the aggravating and mitigating factors as well as the caselaw provided. I will address the caselaw provided by the Offender’s counsel.

[34] I noted that counsel’s argument based on the cases of Vongkhamphou and Murray was compelling. It is, however, predicated on my acceptance of those decisions. In my view, cases where a police officer is granted a suspended sentence or conditional discharge for stealing or otherwise tampering with evidence are wrongly decided and should not be followed. It is, to me, abundantly clear that a discharge in cases like that would be contrary to the public interest and that a suspended sentence would be insufficient to hold an offender accountable for their actions. Those cases, when looked at in conjunction with the other authorities related to obstructing justice, are outliers. They do not assist me.

[35] The other two cases are distinguishable in that Lu went to police of her own volition to confess her lie, and Leblanc was acting out of the terror instilled in her by her partner. Those facts were central in those decisions, and they are absent here.

[36] The offence committed by the Offender is extremely serious. While a discharge would be in her best interest it would also be contrary to the public interest. The public needs to know that those who conspire to subvert justice will be dealt with harshly. Similarly, I find that a suspended sentence would not achieve the principles of sentencing in that it would not contribute to respect for the law.

[37] Taking all factors into account, the sentence of this Court is as follows: (1) A 90-day conditional sentence. I will hear from counsel on appropriate conditions; (2) 12 months of probation. Again, I will hear from counsel on appropriate conditions; (3) A s. 109 weapons prohibition for 10 years; (4) There will be a DNA order as the offence charged is a secondary designated offence. The Offender is to attend Windsor Police Headquarters on or before 31 October 2022 to provide a sample of her DNA for inclusion in the national DNA databank;

Released: 23 September 2022 Signed: Justice S. G. Pratt