ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. L.C., 2015 ONSC 3039
COURT FILE NO.: 1729/12
DATE: 2015-05-13
B E T W E E N:
HER MAJESTY THE QUEEN
Tyler Powell, for the Crown
- and -
L.C. a.k.a. L.C.
Kevin McCallum, for the Defence
Defendant
HEARD: May 11, 2015
REASONS FOR SENTENCE
M. J. Donohue, J.
Subject to any further Order by a court of competent jurisdiction, an Order pursuant to s. 486.4 of the Criminal Code has been made in this proceeding directing that the identity of the complainants and any information that could disclose such identities, including the names of other Crown witnesses, shall not be published in any document or broadcast in any way.
Overview
[1] Ms. L.C. stands to be sentenced after conviction on one count of attempted obstruction of justice.
[2] A sentencing hearing took place on February 20, 2015. These are the reasons for the sentence imposed in the circumstances of this case.
The Facts
[3] In August 2010, Ms. L.C.’s husband, A.G., was arrested and charged with two counts of sexual assault. The charges were regarding incidents that allegedly occurred with Ms. L.C.’s daughter, K.S., and with her daughter’s friend, A.D.
(a) Circumstances of the Offence
[4] Following the arrest, in a discussion at K.S.’s father’s apartment, Ms. L.C. questioned K.S. about whether her daughter had lied to police. K.S. ultimately stated that she had lied.
[5] On August 31, 2010, Ms. L.C. took a friend, her daughter K.S., and her younger daughter to the D. residence where A.D. lived. Her purpose was to speak to A.D. to see if she was lying.
[6] At the D. residence she was met with A.D.’s father who would not allow her in the house nor let her speak with A.D.1 Mr. D. also stated that he would not ask A.D. if she was lying.
[7] Ms. L.C. became very upset and told him that he needed to talk to his daughter to see if she was lying. She progressed to yelling at him and complaining that her husband would be going to jail and that they would lose their house. She threatened a civil lawsuit against him and finally accused him of “fucking his daughter”.
[8] This occurred outside the D. residence in a manner that Mr. A.D.2 felt could be heard by the neighbours. He felt intimidated by her behaviour. He called the police right after to ensure she did not return.
[9] Ms. L.C. was found guilty of obstruction of justice.
(b) Circumstances of the Offender
[10] Ms. L.C. is 38 years of age. She arrived in Canada at the age of 13 with her parents. Nine months later, however, her mother returned to Romania, and she was subsequently raised by her father and his new wife. Due to difficulties in her relationship with her step-mother, she left home and dropped out of school at the age of 15.
[11] She has remained actively employed since then in various positions. Currently, she is living in Quebec and is enrolled in a French immersion class on a full-time basis. She plans to seek training as an orderly in Quebec.
[12] She has had three significant romantic relationships. The first and second relationship ended due to her partner’s infidelity. Her third relationship was to Mr. A.G., whom she married in 2007. This relationship ended following disclosure of sexual offences allegedly committed by Mr. A.G. against her older daughter and one of her friends.
[13] She has three children – two children (a boy and girl) were born as a result of her first relationship and the third child (a girl) was born out of her relationship with Mr. A.G..
[14] According to the pre-sentence report, Ms. L.C.’s actions “appear to have been directly related to the specific circumstances and to have occurred when she was in an emotional state.” The report indicates that “she is not the kind of person who typically adopts problematic behavior, [and] she appears to have acted impulsively without thinking of the consequences of her actions.”
[15] The pre-sentence report suggests that Ms. L.C.’s criminal behavior in this case was triggered by a wave of panic after finding out that her husband committed sexual offences towards her daughter. This behavior is said to constitute “an isolated action in her life.”
[16] In 2013, Ms. L.C. was offered courses by the Department of Youth Protection to manage her anger and emotions, develop her parenting skills, and make choices in her social relationships. She successfully completed these courses in November 2014.
[17] Since the charges were filed against her, she has separated from Mr. A.G. and lives with her seven-year-old daughter. She intends to continue living in Quebec in order to rebuild her life. Her 16 year old daughter has now come to live with her since the charges relating to the attempt to obstruct regarding this daughter have been disposed of.
[18] The pre-sentence report also indicates that, despite the fact that Ms. L.C. has not fully assumed responsibility for her illegal actions, she presents an unlikely risk of recidivism “in the context of a situation that is similar to the one described in the case file.” However, in order to avoid new problematic situations, she must still understand the inappropriateness of her actions and apply the training she received from the courses offered by the Department of Youth Protection.
[19] Finally, the pre-sentence report indicates that Ms. L.C. is socially isolated and has little or no personal resources to support herself.
[20] Ms. L.C. was offered a right of allocution but declined to address the court at the sentencing hearing.
(c) Impact on the Victim and/or Community
[21] Mr. A.D.2, on behalf of his ten-year-old daughter, was threatened and intimidated by Ms. L.C.. A loud combative argument occurred on his front lawn within earshot of his neighbours. He was upset by Ms. L.C.’s accusations of him and her threats of a lawsuit as he believed his family were the victims of Ms. L.C.’s family’s actions.
Legal Parameters
[22] Attempt to obstruct justice is an indictable offense. Section 139(2) of the Criminal Code provides for a maximum sentence of ten years’ imprisonment.
Positions of Crown and Defence
[23] The Crown seeks a term of imprisonment in jail of six months with a two year probation order and the mandatory order of possessing no weapons. He seeks a probationary term that Ms. L.C. have no contact with K.D., A.D.1, or A.D.2.
[24] The Defence seeks a conditional sentence of between three and six months served on house arrest, except between the hours of 7:00 a.m. and 6:00 p.m. to allow for schooling and work; plus two hours for shopping on Saturday; and attendance at any emergency medical or dental appointments scheduled for herself or her two daughters. The Defence has no objection to the suggested terms and duration of the probation order sought by the Crown.
Case Law
[25] The range of sentences for the offence of attempt to obstruct justice is one year conditional sentence to one year imprisonment.
[26] In R. v. Thomas, 2011 ONSC 4050, the accused was convicted after a trial of two counts of sexual assault, attempt to obstruct justice, and breach of recognizance. The latter two charges arose when the accused breached his recognizance by begging the complainant’s friend to ask her to drop the charges in exchange for money, which violated a court order not to communicate with the complainant. The accused had no criminal record and supported a family. At the sentencing, he expressed remorse for his crimes. The trial judge sentenced him to six months’ incarceration for the charge of attempt to obstruct justice. This sentence was ordered to be served consecutively with the defendant’s sentence for sexual assault. The reasons were stated at para 43 as follows:
“[T]his offence strikes at the heart of the justice system and is of particular concern considering the vulnerability of a sexual assault complainant who faces the prospect of a public trial. However, there was only one attempt to communicate a bribe to the complainant and when K.T. told Mr. Thomas. not to do this, he did not persist. No threats were made…..This sentence must run consecutively to the other sentence to bring home to Mr. Thomas and other like-minded individuals that this kind of conduct will be treated seriously by the courts.
[27] In R. v. Maynard, 2008 ONCJ 445, the defendant pled guilty to two counts of aggravated assault and one count of breaking and entering. Despite a non-communication order, he contacted one of the complainants several times to persuade her not to testify against him. He subsequently pled guilty to additional charges of disobeying a court order and attempt to obstruct justice.
[28] On sentencing, the trial judge took into account the fact that the defendant grew up in poverty and had a long history of drug abuse. This was reflected in his criminal record, which involved several property and fraud-related offences. Aggravating features on sentencing included: the fact that the defendant had two prior convictions for obstructing the police and one of attempting to obstruct justice; the spousal context of the assaults; and the corrupt purpose of the communications underlying the obstruct offences in issue. On the other hand, the trial judge took into account the fact that the defendant pled guilty and expressed remorse to the victims. The trial judge ultimately sentenced the defendant to six months’ incarceration for the charge of obstructing justice, which was to be served concurrently with his sentences for assault and breaking and entering.
[29] In R. v. M.H., [2006] O.J. No. 3631, 70 W.C.B. (2d) 717, the accused was convicted of nine counts, including sexual assault and obstruction of justice. The first obstruction charge related to threats the accused made to the complainant, his developmentally challenged daughter, over the course of approximately eight years, indicating that he would harm her if she told anyone about what was happening to her. The second obstruction charge arose when, prior to the preliminary inquiry, the accused coerced the complainant into signing a letter authored by him stating that the complainant was recanting her allegations.
[30] On sentencing, the trial judge considered the fact that the accused had a relatively minor, dated, criminal record for petty theft and driving offences, and that he had been steadily employed for 25 years as a spray painter. The trial judge also found that there were no exceptional circumstances in the case, and that the accused showed no remorse for his actions.
[31] On the charge of attempt to obstruct justice relating to the eight years of threats, the trial judge sentenced the accused to one year imprisonment to be served concurrently with the various sentences imposed for the other sexual assault charges. On the charge of attempt to obstruct justice relating to the coerced letter, the trial judge sentenced the accused to one year imprisonment. Because this offence arose well after the sexual assault charges had been laid, and because it was said to strike at the heart of the administration of justice, the trial judge ordered that it be served consecutively with the defendant’s other sentences.
[32] In R. v. S.V., 2005 ONCJ 520, the accused was charged with threatening to cause death to his wife, breaching a recognizance, and attempting to obstruct justice. The latter two charges arose when the defendant, through his mother-in-law, gave the complainant, his wife, a civil contract prohibiting her from testifying and requiring her to withdraw all proceedings against him. Following trial, the accused was convicted of breach of recognizance and attempt to obstruct justice, and acquitted of threatening his wife. He had no criminal record. The trial judge sentenced him to a global sentence of time served, being 160 days in custody (80 days with enhanced credit at a ratio of 2:1, equating to roughly five months and ten days), plus one day concurrent, and two years’ probation. The trial judge found that it was a serious aggravating factor for the defendant to have contacted his mother-in-law in preparing and delivering the contract. His reasons for the sentence emphasized the objective of promoting specific and general deterrence.
[33] In R. v. Werda, [2004] O.J. No. 2598, 62 W.C.B. (2d) 119 (Ont. C.A.), the appellant, a paralegal and private investigator, was charged with attempting to obstruct justice following his dealings with a complainant in a domestic assault case in which he had been retained by the accused. The accused was released on an undertaking, which prohibited him from contacting the complainant. Despite this, the appellant, acting for his client, contacted the complainant in person at her residence to obtain a statement. At trial, the appellant was convicted and received a one year conditional sentence. The appellant appealed on grounds unrelated to the sentence, and the appeal was dismissed.
[34] In R. v. L.H.B., 2006 NLTD 87, [2006] N.J. No. 149, the accused was convicted of uttering death threats and attempting to obstruct justice by threatening a witness. The witness he threatened was his young daughter, who was being interviewed by social workers in relation to a child protection matter. The accused approached her with a piece of wood in one hand and a hand-saw in the other. He exhorted her to be careful what she was saying to the social workers, and he drew the hand-saw across his throat twice in a cutting fashion.
[35] The offender had a prior criminal record and had serious substance abuse problems in the past. He was admitted to hospital several times for nerve problems and was diagnosed with having, amongst other things, subnormal intelligence, schizophrenia, hebephrenic-type alcoholism, and psychopathic personality disorder. At the time of the alleged offences, however, the accused had converted to the Adventist faith and stopped using drugs and alcohol. He had no criminal incidents for 18 years.
[36] On sentencing, the Crown argued that the offender should receive a term of incarceration. The trial judge, however, granted him a conditional discharge for each offence, and placed him on probation for three years. This sentence was based on the fact that the pre-sentence report provided that the offender was not a threat to his children, to social workers, or to society more generally. His criminal record was found to be “quite dated,” and evidenced a lifestyle he disavowed years ago before discovering the Adventist faith. Further, the trial judge noted that the offender acknowledged that his actions were inappropriate and he expressed remorse for his actions.
[37] In R. v. Proulx, 2000 SCC 5, the Supreme Court of Canada reviewed in depth the availability and use of a conditional sentence. Writing for a unanimous bench, Lamer C.J.C. noted at the outset that, by passing the Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22 (“Bill C-41”), Parliament “has sent a clear message to all Canadian Judges that too many people are being sent to prison” (para 1). In order to remedy the problem of over-incarceration, and in order to give effect to the principles of restorative judge, Parliament introduced the conditional sentence of imprisonment.
[38] The Court noted that conditional sentences are available for all offences, save those which attract a mandatory minimum term of imprisonment. In order to impose a conditional sentence, the sentencing judge must first make a determination that a reformatory sentence (i.e., a term of imprisonment of less than two years) is within the appropriate sentencing range. Once this determination is made, the sentencing judge should then consider whether it is appropriate that the offender serve his sentence in the community.
[39] Before imposing a conditional sentence, the trial judge must be satisfied that the conditions outlined in s. 742.1 of the Code are met. This includes a determination that the public safety would not be jeopardized by the offender serving his sentence in the community, having regard to appropriate factors such as the risk of reoffending and the seriousness of the consequences of any possible re-offending. Once the conditions outlined in s. 742.1 of the Code are found to be met, the judge must then engage in an analysis of the principles of sentencing in s. 718 to s. 718.2 in order to conclude whether a conditional sentence is appropriate in the circumstances.
[40] Generally speaking, while a custodial term of imprisonment will express more punitive objectives, such as denunciation and deterrence, a conditional sentence will better express the restorative objectives of rehabilitation, reparation to the victim and the community, and promotion of a sense of responsibility in the offender. Where both the punitive and restorative objectives are equally applicable in a given case, then a conditional sentence will generally be preferable.
Mitigating and Aggravating Factors
[41] There are a number of aggravating factors.
[42] Ms. L.C. brought along her young daughter, K.S. to the D. residence.
[43] She sought to influence a child of ten years of age.
[44] There are mitigating factors.
[45] Ms. L.C. sincerely felt she was seeking the truth of these criminal charges. She apologized for her behaviour to the court.
[46] Ms. L.C. has moved to another city and is seeking education and training to begin a new life. She is the care-giver for her two daughters.
[47] Ms. L.C. has no criminal record. She has taken courses since the offence to manage her anger and emotions, to develop her parenting skills, and to make better choices in her social relationships.
Principles of Sentencing
[48] The Criminal Code sets forth the purpose and principles of sentencing as follows:
- The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,
(ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner,
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or
(v) evidence that the offence was a terrorism offence
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
[49] The availability of a conditional sentence is set out in s.742.1 of the Code, which reads:
742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if
(a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2;
(b) the offence is not an offence punishable by a minimum term of imprisonment;
(c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life;
(d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more;
(e) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years, that
(i) resulted in bodily harm,
(ii) involved the import, export, trafficking or production of drugs, or
(iii) involved the use of a weapon; and
(f) the offence is not an offence, prosecuted by way of indictment, under any of the following provisions:
(i) section 144 (prison breach),
(ii) section 264 (criminal harassment),
(iii) section 271 (sexual assault),
(iv) section 279 (kidnapping),
(v) section 279.02 (trafficking in persons — material benefit),
(vi) section 281 (abduction of person under fourteen),
(vii) section 333.1 (motor vehicle theft),
(viii) paragraph 334(a) (theft over $5000),
(ix) paragraph 348(1)(e) (breaking and entering a place other than a dwelling-house),
(x) section 349 (being unlawfully in a dwelling-house), and
(xi) section 435 (arson for fraudulent purpose).
Reasons
[50] As I have determined that the range of sentence for this offence is less than two years imprisonment, it is appropriate to consider a conditional sentence, which replaces jail time with house arrest but allows a person to continue their schooling and work. In this case, involving a mother care-giving for two daughters, it deserves careful consideration, in light of the conditions set out in s. 742.1 of the Code.
[51] There is no suggestion that the safety of the community would be endangered. Ms. L.C. has no criminal record and has been of good behaviour since this offence occurred in 2010. Her threats in this case were of civil suit.
[52] There is no mandatory minimum of the offence of obstruct, nor is there a maximum term of imprisonment of 14 years or life. The offence is not a terrorism offence, nor did it involve bodily harm, use of a weapon, or the drug trade.
[53] On these facts I am satisfied that a conditional sentence of six months of house arrest on the terms proposed will achieve both the punitive and restorative objectives for an offender who is in school, employed, and a care-giver to minor children.
Ancillary Orders
[54] A mandatory weapons prohibition order under s. 109(1)(a)(i) of the Criminal Code shall issue for a period of ten years from the date of Ms. L.C.’s conviction.
Final Decision
[55] Accordingly, I order Ms. L.C. to serve a conditional sentence under house arrest for six months, allowing her to leave between: the hours of 7:00 a.m. and 6:00 p.m. Monday to Friday; two hours on Saturday; and for any emergency medical/dental appointments required for herself or either of her two daughters.
[56] In addition, I order her to serve a term of probation for two years, during which time she is not to communicate with K.D., A.D.1, or A.D.2.
[57] Finally, a weapons prohibition under s. 109(1)(a)(i) shall issue for a period of ten years from the date of Ms. L.C.’s conviction.
M. J. Donohue, J.
Released: May 13, 2015
CITATION: R. v. L.C., 2015 ONSC 3039
COURT FILE NO.: 1729/12
DATE: 2015-05-13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
L.C. a.k.a. L.C.
Defendant
REASONS FOR SENTENCE
M.J. Donohue, J.
Released: May 13, 2015