R. v. A.C.K.T., 2015 ONSC 1169
COURT FILE NO.: 14-0295
DATE: 20150224
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
A.C.K.T.
Appellant
JUDITH McDONALD and MURRAY DEVOS, for the Respondent/ Crown
On her own behalf
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable N.S. Douglas,
dated May 31, 2012]
DURNO J.
[1] Roughly one month after being given a conditional discharge for criminal harassment, with a term that she have no contact directly or indirectly with a Catholic priest in Guelph and not to attend at his church, the appellant went to the church and knocked on the door. She was arrested and held in custody for ten days. The trial judge appointed counsel to act on her behalf.
[2] The appellant entered a guilty plea to two counts of breaching her probation order, by associating or communicating directly or indirectly with the priest and by attending Holy Rosary Church. Her counsel asked for time served and a period of probation. At the judge’s suggestion counsel agreed that it would be efficient to impose one day in jail to enable the appellant to return to Vanier Correctional Centre to obtain her belongings. The trial judge sentenced Ms. A.C.K.T. to one day in jail and three years probation on both counts.
[3] The appellant sought leave to extend the time in which to appeal the sentences which I granted. She is also seeking an early termination of her probation period.
[4] On the appeal, representing herself, Ms. A.C.K.T. argued that she should have been given a conditional discharge. She relies on her psychiatric records and submits that the conviction is impacting on her ability to go on school outings with her children, potential job opportunities and inferentially based on the last material filed, that it might have some impact on her current Child Welfare proceedings involving her children. The Crown, while sympathetic to Ms. A.C.K.T.’s mental health issues, argues the sentence was fit and there is no basis upon which to interfere at this time.
The Evidence
[5] The appellant came to know the priest about two and a half years earlier when she attended his church in Ottawa wanting to convert to Catholicism. It appears she had developed a fixation with the priest sending packages to him, delivering packages in person, and frequently attending his parish. The Ottawa police became involved.
[6] When the priest was transferred to Guelph, she traveled to Guelph from Ottawa to see him, continued to email him and made daily phone calls leaving him voicemail messages.
[7] She was cautioned a number of times that he did not want her coming to the church or having contact with him. In January 2012, she travelled to Guelph and began knocking on the church door and peering into the windows. She was apprehended under the Mental Health Act and when released from hospital was charged with criminal harassment and released on a promise to appear with a condition that she have no communication directly or indirectly with the priest.
[8] On April 19, 2011, she was back at the church and was arrested. After spending five days in custody, she pled guilty to failing to comply with the release order and criminal harassment and received a conditional discharge and 18 months probation with conditions that included she was to have no contact directly or indirectly with the priest and not to attend the church.
[9] On May 22, 2011, the priest called police when he saw the appellant’s car parked near the church and saw the appellant with children, ages 4 and 11. Police attended and the priest directed the officers to the rear entrance to the church where they saw the appellant standing at the front door of the rectory. The appellant said she had stopped as her children had to use the washroom. She was arrested.
[10] On May 31, 2011, after spending ten days in custody on a detention order, the appellant pled guilty to two counts of failing to comply with the probation order and was sentenced to one day in jail and probation for 36 months.
The Conviction Appeal
[11] While the appeal was framed as a sentence appeal, in the course of preparing the Reasons, it became apparent that on the guilty pleas, the facts read by the Crown did not include any reference to the appellant communicating or associating with the priest. He had seen her and her children and called police. A further court appearance was arranged and the Crown given an opportunity to show what evidence was presented to support a finding of associating or communicating with the priest. Mr. de Vos suggested that it might be possible to infer the appellant was associating with the priest. I disagree.
[12] While it is a reasonable, and perhaps the only inference that that was the appellant’s intention, there was no evidence she communicated or associated with the priest. In the circumstances, it is appropriate to extend the time to appeal that conviction and allow the appeal on the charge of communicating or associating. The appellant is found not guilty of the breach alleging she communicated or associated with the priest.
The Sentence Appeal
Sentence Appeals
[13] An appellate court can intervene on sentence appeals in limited circumstances. Those circumstances do not include that the appellate court would have imposed a different sentence. Intervention is only warranted where the sentence is: unfit, clearly unreasonable, outside the acceptable range, a substantial, marked departure from sentences customarily imposed on similar offenders who committed similar offences in similar circumstances thereby permitting the appellate court to minimize disparity, where the sentence is clearly excessive or inadequate, or if the trial judge applied the wrong principles, failed to consider a relevant factor or placed an overemphasis on appropriate factors. R. v. M.(C.A.), (1996), 1996 CanLII 230 (SCC), 105 C.C.C. (3d) 327 (S.C.C.).
[14] A sentence appeal may also proceed on the basis of additional evidence that was not introduced at the trial with leave of the appeal court. Section 822(6) of the Criminal Code provides that the appeal court on a sentence appeal shall consider the fitness of the sentence appealed against and may “on such evidence, if any, as it thinks fit to require or receive” dismiss the appeal or vary the sentence. Here, since it is apparent that counsel had attempted to get evidence regarding the appellant’s mental health from Ottawa it was not available on the sentencing date.
The Additional Evidence
[15] Ms. A.C.K.T. has filed extensive written material that outlines her background with particular emphasis on her mental health issues and dealings with the police and Children’s Aid Societies since the birth of her second child in 2008. She has also filed copies of two baptism certificates showing the priest is her children’s godfather. Finally, within the last few weeks sent a lengthy letter regarding her children recently being apprehended by Children’s Aid in Ottawa and transferred to the care of the York Region Children’s Aid, a plea to assist her in having her children returned and a letter from her 14 year old son. I have read and considered all of the material filed.
Analysis
[16] The appeal raises several issues that I will address in turn.
[17] The first is the significance, if any, of the fact the appellant was sentenced for two offences, albeit receiving concurrent sentences, and one had now been dismissed. While it is a factor to consider, I am not persuaded that the change from two to one conviction has a significant impact on the appropriateness of the sentence. I reach that conclusion as a result of the following exchange that occurred immediately after the Crown read out the allegations:
THE COURT: so the two counts are what then?
MR. DE VOS: The counts relate to her having contact, communications with Father Boyd, and for attending the church.
THE COURT: One act though, right?
MR. DE VOS: part of the same.
THE COURT: Same delict, right. Are those facts admitted …?
[18] In these circumstances, it is readily apparent that His Honour proceeded as though this was one act.
[19] The second issue is whether applying the above noted criteria for sentence appeals without the new evidence, the appellant has shown that the trial judge erred. I am not persuaded she has done so. While the appellant suffers from significant mental health issues, I cannot say that a conviction and one day sentence was demonstrably unfit, that it reflected an error in principle or offended any sentencing principle. The appellant had repeatedly been warned not to contact the priest, went to his church, was charged, released with a term that she have no contact, went back in violation of the term, spent five days in jail, pled guilty and was placed on probation and shortly thereafter violated the probation. She simply continued to offend in relation to the priest. A short time in jail and a conditional discharge did not deter her. I can find no error on the trial record that would merit appellate intervention.
[20] The third issue raised was the appellant’s appointed counsel’s submission that she should receive a one day sentence in addition to ten days time served. As I understand it, the appellant feels that the one day prevented her from obtaining a discharge. I am not persuaded that was so. First, it was the trial judge who first mentioned one day. In discussions with counsel His Honour asked if it would be easier to impose a one day sentence so that the appellant got a ride back to Vanier to obtain her belongings and return to Ottawa. Counsel said that disposition would create “a certain efficiency.” His Honour imposed one day and probation. Given the history of the appellant’s dealings with the priest neither counsel nor the trial judge mentioned a discharge.
[21] The next area is whether the additional material the appellant has filed as fresh evidence on the appeal results in this court being able to assess the sentence afresh. The only references to mental health issues at the sentencing hearing were His Honour’s inquiry whether there was a mental health issue. Counsel confirmed that there was. The trial judge asked for the current status and was told the defence position was that ten days pre-trial custody was within the appropriate range regardless of the mental health component. He told His Honour that the appellant had provided consents to get her medical information from her Ottawa psychiatrist but nothing had been obtained. While the appellant had spoken to a psychiatrist at Vanier “there was no consent forthcoming to get anything formal in terms of the diagnosis.”
[22] The Court and both counsel were in a difficult situation. Ms. A.C.K.T. had been in jail for ten days. Her counsel submitted there were mental health issues upon which he had tried to obtain reports. Regrettably, none were available although everyone knew there were issues. It also appears that it was the appellant who refused to give her consent at Vanier. In those circumstances, it was understandable that His Honour, counsel, and I can infer the appellant, who no doubt wanted to be released from jail, proceeded with the sentencing.
[23] On the appeal, I have the benefit of reading the background information regarding the appellant’s mental health challenges before and after the offence. They continue to this date with her recent hospitalization in Ottawa and her children again being apprehended by Children’s Aid. The history is one of hospital admissions, medications prescribed, police and CAS involvement, and allegations of harassment. There can be no disputing that Ms. A.C.K.T. suffers from mental health issues and has an unfortunate background.
[24] Where there is a demonstrated link between an offence and a mental health issue, the sentence may be reduced as rehabilitation can play a more prominent role in the sentencing and general deterrence may play a less prominent role where there are mental health issues that caused or contributed to the commission of the offence. In addition, the offender’s moral culpability would not be as high as other persons committing the same offence without a link to a mental illness. R. v. Shahnawaz (2000), 2000 CanLII 16973 (ON CA), 149 C.C.C. (3d) 97 (Ont.C.A); R. v. Prioriello, 2012 ONCA 63, [2012] O.J. No. 650 (C.A.). It is not automatic that a link results in a reduced sentence. R. v. Corpus 2000 CanLII 1226 (ON CA), [2000] O.J. No. 549 (C.A.)
[25] The challenge here is there is no evidence providing a direct link between her mental health at the time of the offences. The various reports note that at some time she had erotomaic delusions and was hospitalized in Ottawa, that recently she had been diagnosed with Anxiety Disorder NOS (Not Otherwise Specified) and in 2012, with Psychosis NOS. The appellant has been on psychiatric medication for some time as outlined in the December 22, 2014, letter from the Milliken Medical Centre in Scarborough. She had been prescribed Risperidone in the past but had stopped taking it before her most recent hospitalization.
[26] As the Crown argued, what was missing was evidence regarding the offence and a link.
[27] What is the impact of the additional information about the appellant’s mental health at the time of this offence? While most cases involved direct evidence of a link or both counsel agree there is a link and in some cases it may be possible to infer a link in the absence of an agreement between counsel, I am not persuaded that link is shown here or should be drawn.
[28] However, a sentence must be fit for the offence and the offender. Accordingly, I am persuaded the additional information is such that I should consider it in assessing the fitness of the sentence.
Should the appellant receive a discharge?
[29] Pursuant to s. 730 of the Criminal Code:
where an accused 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 more, the court may, if it considers it to be in the best interest 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.
[30] As regards the first criteria, that a discharge is in the best interest of the offender, it presupposes that specific deterrence is not a relevant consideration, except to the extent required in a probation order, nor is the offender's rehabilitation through correctional or treatment centers required, except to the same extent. Normally the offender is a person of good character, without previous conviction, it is not necessary to enter a conviction to deter them from future offences or to rehabilitate them, and that the entry of a conviction may have significant adverse repercussions: R. v. Sanchez-Pino (1973), 1973 CanLII 794 (ON CA), 11 C.C.C. (2d) 53 (Ont. C.A.); R. v. Fallofield (1973), 1973 CanLII 1412 (BC CA), 13 C.C.C. (2d) 450 (B.C.C.A.) However, it is not essential that there be significant adverse consequences: R. v. Myers (1997), 1977 CanLII 1959 (ON CA), 37 C.C.C. (2d) 182 (Ont. C.A.).
[31] Usually, the problematic area is the second - that it would not be contrary to the public interest to grant a discharge. The concern for general deterrence, while it must be given due weight, does not preclude the judicious use of the provisions: Fallowfield, supra. If there is a necessity for a sentence that will deter others, it is a factor telling against the imposition of a discharge: R. v. Sanchez-Pino, supra. Where an offender has spent time in pre-sentence custody it is important to recall that days spent in jail are properly "deemed part of the punishment following" a finding of guilt on the part of the offender: R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, at para. 41.
[32] In R. v. Hayes, [1999] O.J. No. 938, Hill J. provided the following helpful outline in relation to discharges:
Discharges are not restricted to trivial matters: Regina v. Vincente (1975), 18 Crim. L.Q. 292 (Ont. C.A.). Where an offender has acted entirely out of character, perhaps in the context of unusual pressure or stress, a discharge may be a fit sanction: Regina v. Taylor (1975), 1975 CanLII 1447 (ON CA), 24 C.C.C. (2d) 551 (Ont. C.A.), at 552. Where a criminal record will have a tendency to interfere with employment, a discharge should be given serious consideration: Regina v. Myers (1978), 1977 CanLII 1959 (ON CA), 37 C.C.C. (2d) 182 (Ont. C.A.) at pp. 184-5; Regina v. Culley (1977), 1977 CanLII 1965 (ON CA), 36 C.C.C. (2d) 433 (Ont. C.A.), at p. 435 per. A suspended sentence is not necessarily a greater deterrent to others than a conditional discharge: Regina v. Cheung and Chow (1976), 19 Crim. L.Q. 281 (Ont. C.A.).
[33] When considering whether a discharge is within the appropriate range of sentence, it was appropriate to consider “any notable passage of time since the date of the offence together with post-sentence law-abiding behaviour on the part of the offender” which may favour leniency, siting R. v. MacDonald, 2013 ONCA 295 at para. 4-5.
[34] Hill J. continued,
The presence of a prior criminal record is an aggravating factor in sentencing (R. v. Larche, 2006 SCC 56, [2006] 2 S.C.R. 762, at para. 28; R. v. Taylor, 2004 CanLII 7199 (ON CA), [2004] O.J. No. 3439 (C.A.), at paras. 39-40) and particularly where the prior convictions are for related offences: R. v. Andrade, 2010 NBCA 62, at para. 24. A significantly relevant gap in a criminal record is worthy of consideration: R. v. Nembhard, 2010 ONCA 420, at paras. 3-6; R. v. MacLeod, 2004 NSCA 31, at para. 25; R. v. Ashberry (1989), 1989 CanLII 7230 (ON CA), 47 C.C.C. (3d) 138, at p. 145 per Dubin C.J.O. dissenting in the result (leave to appeal refused, [1989] S.C.C.A. No. 136). The "jump" principle of imposing progressively more severe sentences upon an offender requires the court to consider the current offence on its own and in relation to the types of offences for which he or she has been sentenced in the past and the sanctions previously imposed: R. v. Catenacci, 2012 ONCA 187, at para. 1; R. v. Yeck, 2011 ONCA 768, at para. 6. There is no invariable rule that a present sentence must be no shorter than a previous disposition: R. v. Vincent, 2010 ONCA 332, at para. 3.
[35] I accept that it would be in Ms. A.C.K.T.’s best interest to receive a discharge. While the evidence is not as strong as in some cases, I accept that a conviction may have some adverse consequences for the appellant, not that there are significant adverse consequences. There is the potential for some impact on employment issues but that could apply to many offenders. In relation to school policies, I am not aware if any distinction would be drawn by school boards between parents with discharges as opposed to convictions. Finally, as I understand the current CAS involvement, it deals with recent events and is not based upon this conviction that occurred several years ago. I am unable to see how a conviction or discharge would impact on the current child welfare proceedings. However, I am prepared to proceed on the basis that a discharge is in the appellant’s best interest.
[36] The problematic area is the second, whether a discharge would be contrary to the public interest. While not determinative, Ms. A.C.K.T. had received a previous conditional discharge and breached it within a month. It also has to be kept in mind that she served ten days in jail. The message to others would include that she served ten days and was given three years probation.
[37] I am not persuaded that a conditional discharge is an appropriate disposition notwithstanding the new material that the appellant has filed throughout the appeal, including documentation regarding her recent attendances at medical and psychiatric institutions. While there can no dispute that Ms. A.C.K.T. suffers from significant psychiatric issues, that she has faced difficult challenges in her life, that she dearly loves and is a devoted mother to her children on this record, and that the general deterrent component of a sentence imposed on an offender with mental health issues is diminished, the other factors noted by the respondent tell against a discharge.
[38] Where there is a link to mental health issues it can reduce the need for a sentence to address general and specific deterrence. However, as Crown noted there is no psychiatric evidence regarding her condition at the time of the commission of the offence. There is no link showing that she committed the offence because of a mental health issue such that it would result in a reduced sentence. A conviction for breaching a non-attendance term of a probation order within 30 days of receiving a discharge and probation for criminal harassment could have resulted in at least a 30 to 60 day sentence. I find that the sentence imposed, even without medical reports, had to have taken into account that there were mental health issues even there was no evidence of a link, given the 10 days time-served plus one day and probation. I am not persuaded there should be a discharge.
[39] With respect to the appellant’s wish to have the probationary period reduced so that it is terminated at this time, I am not persuaded that a reduction is appropriate. Three years was an appropriate period given the background and all the circumstances. In addition, the probation period will end in two months. I note from the material filed that the appellant is doing well on her probation as her probation officer says that she has been co-operative, respectful and she is to be commended for her compliance.
[40] Finally, with respect to the appellant’s requests to assist in relation to the recent apprehension of her children, while Ms. A.C.K.T.’s desperation and her son’s anguish about his foster home are understandable, those issues will be for another judge to determine.
DURNO J
Released: February 24, 2015
CITATION: R. v. A.C.K.T., 2015 ONSC 1169
COURT FILE NO.: 14-0295
DATE: 20150224
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
A.C.K.T.
Appellant
REASONS FOR JUDGMENT
[ON APPEAL FROM THE JUDGMENT OF THE HONOURABLE N.S. DOUGLAS, DATED MAY 31, 2012]
Durno J.
Released: February 24, 2015