ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 4/12
DATE: 2012-11-29
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – DONALD ALBERT MAY Appellant
Sandra Kent, for the Crown (Respondent)
James Battin, for the Defendant (Appellant)
HEARD: November 23, 2012 at Woodstock
HEENEY R.S.J.:
[ 1 ] This is an appeal as to sentence only, from the decision of Rogerson J. dated January 4, 2012. At that hearing, the accused pleaded guilty to one count of criminal harassment, contrary to s. 264(2) (b) of the Criminal Code . That particular form of criminal harassment involves “repeatedly communicating with, either directly or indirectly, the other person or anyone known to them”. The sentencing judge imposed a suspended sentence, as requested by the Crown, with probation for a period of 12 months.
[ 2 ] It is submitted by the Appellant (“the accused”) that the sentencing judge erred in failing to impose a conditional discharge, as sought by his counsel. It is agreed by both sides that the term of probation imposed was entirely appropriate, so the only question before this court is whether that probation should have been imposed in the context of a conditional discharge or a suspended sentence.
[ 3 ] The facts that were read in by the Crown can be summarized as follows. The accused and the complainant were involved in an intimate relationship from March of 2006 to January of 2010, and resided together. The relationship was tumultuous from the start, with jealousy and insecurity on the part of the accused, and many verbal altercations between them. The Crown indicated that the accused accepted responsibility for having a substance abuse problem with alcohol and cocaine, which led to unpredictable behaviour on his part while under the influence of those substances.
[ 4 ] After they separated, the accused made a comment to her that they were still boyfriend and girlfriend (when they were not), and that if he ever saw her with a new boyfriend, he was going to assault the new boyfriend. The complainant reported to the police that she received several unwanted phone calls, and was in fear such that she felt she should get a restraining order against the accused. The messages stated that he knew she had a new boyfriend and that if he saw them in public, he would assault the boyfriend.
[ 5 ] In March of 2011 the complainant told the accused not to contact her while he was under the influence of alcohol. In July of 2011, he called her at 6:00 p.m. and asked for a place to stay. She refused and hung up. He repeatedly called her and was asking to re-establish the relationship. She instructed him again at 8:00 p.m. not to call her, and turned off her cell phone. She turned it back on 2 hours later and found 3 voice mails from the accused.
[ 6 ] Those facts were admitted by the defence to be correct, with one qualification. Mr. Battin, for the accused, advised the court that the accused had left some of his chattels with the complainant, and was calling for that purpose as well. He made about 5 calls in that regard.
[ 7 ] No victim impact statement was submitted by the Crown.
[ 8 ] The accused relied on the following factors in support of his request for a conditional discharge:
He is 46 years of age, and has no criminal record;
He pleaded guilty and thereby saved a 13 year-old child witness from testifying;
His main source of income had been tobacco farming, which declined to the point where he lost his farm and his source of income. Over time, this caused him to turn to alcohol and cocaine;
The accused never made any direct threats to the complainant, nor did he commit any act of violence against her. All of the telephone calls were made while the accused was under the influence of alcohol and cocaine;
After the July 2011 incident, the accused took positive steps to deal with his substance abuse issues. He attended the Renaissance Program in Toronto as a full-time resident for 25 days, and continued in the aftercare program, attending one day with them every 10 weeks;
The accused plans to retrain as a heavy equipment operator, and was concerned about the impact of a criminal record on his ability to get bonded and cross the border;
The accused fully abided by the terms of his release while on bail.
[ 9 ] The sentencing judge gave credit to the accused for the guilty plea, although he appropriately discounted its impact given that it was not offered by the accused until the date set for trial. He credited the accused for having arrived at the age of 46 without ever being convicted of a criminal offence. He characterized the harassment “as at the lower end of the criminal harassment” spectrum. He pointed out that criminal harassment is a serious offence that often results in the incarceration of those who are convicted, but indicated that that was not going to happen here because of the personal circumstances of the accused as well as the actions the accused had taken.
[ 10 ] As to the request for a conditional discharge, he had this to say:
For me to do so, I must find there’s two tests satisfied. First of all, that it would be in your best interests not to be convicted, but to be discharged. Secondly, I must find that it would be in the public interest as well. I quite agree that it would be in your best interest that you not be convicted but be discharged. Having said that however, I am of the view that it would not be in the public interest for a discharge to be granted, given the serious nature of the offence even though this is on the lower end of the spectrum.
[ 11 ] The sentencing judge did, however, consider that a suspended sentence was appropriate, and proceeded to impose a suspended sentence and place the accused on probation for 12 months. I need not review the terms of probation because they are acknowledged to be appropriate.
[ 12 ] Neither counsel takes issue with the finding of the sentencing judge that the first criterion for a conditional discharge had been met, i.e. that it was in the best interests of the accused not to be convicted. The focus of argument was on the manner in which the sentencing judge dealt with the second criterion.
[ 13 ] A sentence imposed by the court of first instance is to be afforded a great deal of deference. The Supreme Court of Canada succinctly framed the standard of review on a sentence appeal in R. v. C.A.M. , 1996 230 (SCC) , [1996] 1 S.C.R. 500, [1996] S.C.J. No. 28, at para. 90 :
Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.
[ 14 ] The question before this court is whether the sentencing judge committed an error in principle, or failed to consider a relevant factor, or both, in coming to the conclusion that a conditional discharge should not be imposed.
[ 15 ] Section 730(1) of the Code states the following:
Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).
[ 16 ] I note at the outset that the sentencing judge misdirected himself with regard to the second criterion to be met. He stated that “I must find that it would be in the public interest” in order to grant a discharge. With respect, that is not what the Code requires. To satisfy the second criterion, the court must conclude that it would be “not contrary to the public interest” to grant a discharge. The distinction is subtle, but potentially important. As framed by the sentencing judge, a higher standard is imposed, which would require the conclusion that the public interest would be positively advanced by granting a discharge. The Code, on the other hand, merely requires that the public interest not be negatively impacted in some way.
[ 17 ] More importantly, the sentencing judge articulated one reason only for declining to grant a discharge: the serious nature of the offence. He went on to emphasize again that the actual crime before the court was at the lower end of the spectrum, and I therefore infer that in considering the “nature of the offence”, the sentencing judge was considering the nature of the crime of criminal harassment generally, as opposed to the particular facts before him, in declining to impose a conditional discharge.
[ 18 ] If my interpretation of the sentencing judge’s reasons is correct, it would be an error in principle to categorically rule out the availability of a conditional discharge, where an accused is charged with criminal harassment. Since an offence under s. 264(2) (b) carries no minimum punishment, and is punishable for a maximum of 10 years imprisonment, a conditional discharge is available for that offence as a matter of law.
[ 19 ] Aside from that one reference to the nature of the offence, there was no analysis as to why it would be contrary to the public interest to grant a discharge. It is here that the accused submits that the sentencing judge failed to consider a relevant factor.
[ 20 ] In R. v. Sanchez-Pino , 1973 794 (ON CA) , [1973] O.J. No. 1903 (C.A.), Arnup J.A., speaking for the court, outlined some of the factors that should be taken into account in determining whether a discharge should be granted. At para. 17 he said this:
The trial Judge in this case was right in saying that the guide-lines are meagre. The section does not apply to corporations, nor to offences for which a minimum sentence is prescribed, nor to offences punishable, in the very proceedings, by imprisonment for 14 years or for life or by death. The granting of some form of discharge must be “in the best interests of the accused”. I take this to mean that deterrence of the offender himself is not a relevant consideration, in the circumstances, except to the extent required by conditions in a probation order. Nor is his rehabilitation through correctional or treatment centres, except to the same extent. Normally he will be a person of good character, or at least of such character that the entry of a conviction against him may have significant repercussions. It must not be “contrary to the public interest” to grant some form of discharge. One element thereby brought in will be the necessity or otherwise of a sentence which will be a deterrent to others who may be minded to commit a like offence – a standard part of the criteria for sentencing.
[ 21 ] This focus on general deterrence when considering the second criterion is reflected in the reasons of Clark J. in R. v. King , [2006] O.J. No. 5389 (O.C.J.) . At para. 24 he said the following:
The public interest is the more problematic consideration in this sentencing exercise. This includes society’s interest in the general deterrence of the offence. The Court must consider a sentence that will be a deterrent to others who may be like-minded to commit such offence. It is common sense that the more serious an offence, the less likely it will appear that a discharge is not contrary to the public interest. In some cases, the trivial nature of the offence will be an important consideration. In others, unusual circumstances peculiar to the offender may lead to an order that would not be made in the case of another offender. It should also be noted that deterrence can be achieved in alternative ways short of imposing a conviction. The speedy apprehension of an individual and the processing of the individual through the Court process can have a salutary effect. In this particular case, the weight of this process has been hanging over the head of Mr. King, like the “sword of Damocles”. Public, personal and familial disgrace is often sufficient deterrent.
[ 22 ] The need, or lack thereof, to deter others from committing a like offence was not considered at all by the sentencing judge. I conclude that this amounts to a “failure to consider a relevant factor” with respect to the second criterion. Combined with the error in principle identified above, I am persuaded that the decision of the sentencing judge must be set aside. It therefore falls to this court to determine the appropriate disposition.
[ 23 ] Criminal harassment can, of course, be a very serious offence. It can involve following a victim from place to place, watching and besetting their homes or places of business, or engaging in threatening conduct. It can often be a prelude to more serious crimes against the victim.
[ 24 ] In this case, however, it involved nothing more than a handful of unwanted telephone calls, which related, at least in part, to a legitimate concern as to personal property left with the complainant. While the messages that were left did include an indirect threat to the complainant’s new boyfriend, there were no direct threats to the complainant herself, and the accused never acted on any of the threats. I agree completely with the sentencing judge that this conduct is at the lower end of the spectrum. Indeed, I would put it at the lowest end. In considering the second criterion, one of the important considerations is whether a conviction would be necessary to deter others from engaging in like behaviour. The issue is not whether a conviction is necessary to deter others, in general, from committing the crime of criminal harassment.
[ 25 ] An analogy can be drawn with domestic assault. As the Ontario Court of Appeal observed in R. v. Carson , [2004] O.J. No. 1530 (C.A.), at para. 37 , “there is a societal interest in seeking to deter domestic violence and to protect the victims of domestic violence.” Nevertheless, on the particular facts of that case, the court found that the accused, a police officer, should receive a conditional discharge arising out of his conviction for assaulting his fiancée.
[ 26 ] That decision emphasizes that each case is fact-specific. Without doubt, it is in society’s interest to deter criminal harassment in general, just as it is in society’s interest to deter domestic violence in general. The relevant question, though, is whether the imposition of a discharge, as opposed to a conviction, would not be contrary to the public interest, having regard to the need to deter others from engaging in behaviour similar to that engaged in by the accused.
[ 27 ] There is an element of proportionality to deterrence. Where the conduct in question is serious criminal behaviour, a stiff sentence is often required to deter others from engaging in similar behaviour. Where the misbehaviour is relatively minor, moderate measures may suffice.
[ 28 ] I agree with Clark J. in King that deterrence can be achieved in ways short of imposing a conviction. Given the relatively minor nature of the conduct in question, deterrence of similar conduct could, in my view, be achieved simply by the threat of being charged, processed by the criminal justice system, exposed to the public humiliation that goes with such a prosecution, having one’s liberty restricted by terms of bail, and being bound by terms of probation for a year. In short, I conclude that it would not be contrary to the public interest to impose a discharge, on the facts of this particular case. To borrow the words of Clark J., I “cannot be satisfied that deterrence of others would in any way be diminished by failure to impose a formal conviction.”
[ 29 ] In practical terms, granting a conditional discharge amounts to giving an accused a second chance, following an isolated transgression of the law. Considering the nature of the offending conduct, and given that the accused has been a law-abiding citizen for 46 years, has pleaded guilty and accepted responsibility for what he has done, and has been proactive in dealing with the substance abuse problems that led to his transgression, he has shown himself worthy of a second chance.
[ 30 ] The appeal is allowed. The conviction is set aside, and a conditional discharge is substituted. The accused will be placed on probation for 12 months, on the same terms as imposed by the sentencing judge.
“T. A. Heeney RSJ.”
Heeney R.S.J.
Released: November 29, 2012
COURT FILE NO.: 4/12
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN – and – DONALD ALBERT MAY
REASONS FOR JUDGMENT ON AN APPEAL
Heeney R.S.J.
Released: November 29, 2012