Court File and Parties

COURT FILE NO.: 0411-998-12-1296 DATE: 2016/04/27

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – ROGER NEVILLE TOWNSEND Appellant

Counsel: Moiz M. Karimjee, for the Crown R. Mitchell Rowe, for the Appellant

HEARD: August 10, 2015

REASONS FOR DECISION

L. Sheard J.

1The Appellant appeals from the sentence imposed upon him following his conviction of one count of criminal harassment and two counts of breaching an order of the Ontario Superior Court of Justice. All counts related to the conduct of the Appellant toward his spouse (hereinafter “the Complainant”).

2The convictions followed a 10-day trial in which the court heard the evidence of 30 witnesses. For the purposes of this appeal, and without prejudice to his ability to appeal his convictions, the Appellant accepts the facts as determined by the trial judge and contained in her Reasons for Decision (the “Decision”) and her Reasons for Sentence (the “Sentence”).

3The Appellant appeals his sentences of:

i) six months in jail on the count of criminal harassment;

ii) six months in jail, consecutive, on the count involving the breach of the first Superior Court Order and three years’ probation concurrent; and

iii) five months and 27 days in jail, consecutive, on the count involving the breach of the second Superior Court Order. The Appellant was given credit on a 1.5 to 1 basis for his three days in pre-sentence custody. This sentence was also subject to a probationary term of three years, concurrent.

4The Appellant was self-represented throughout the trial but was represented by counsel on this appeal.

5The Appellant appeals on the basis that the cumulative sentence of almost 18 months is “harsh and excessive” and that the totality of the sentences amounts to an error in principle.

6The Crown’s position is that the sentence was reasonable and that, absent an error of law, deference is owed to the trial judge. The Crown further asserts that the trial judge committed no errors of law: the sentence was in keeping with appellate decisions; the trial judge properly exercised her discretion in imposing consecutive sentences; there was no breach of “the totality principle”; and three years’ probation was reasonable.

7For the reasons set out below, I dismiss the appeal.

Factual Background

8The following facts can be found in the Decision:

i) the Appellant realized his marriage was coming to an end in 2012 and that his wife was planning to leave him. He knew this because he monitored her cell phone records;

ii) the atmosphere in the home was toxic. The Appellant insulted and belittled his wife, telling her she would lose everything if she left him. He threatened that, if she left him, he would charge her with assault as he had done in 2006 (those charges were withdrawn);

iii) the Appellant threatened his wife with losing custody of her children, and losing her job and her professional licence;

iv) he tape-recorded his wife and orchestrated arguments to provoke her. He attempted to surround himself with as many well-respected, credible people as he could, so as to create a list of witnesses who could vouch for his alleged victimization;

v) he saw multiple doctors to report bruises, scratches, etc. that he claimed had been caused by his wife, solely for the purpose of creating a record of his injuries. He demanded that these be photographed and documented and charted. So frequently did he see doctors for matters not requiring treatment that he was referred to a psychiatrist; and

vi) as part of his plan, the Appellant befriended a lawyer, a businessman, an accountant, a school vice-principal, and a member of the Armed Forces, all of whom testified at the trial. He ensured that all were told of the abuse he had allegedly endured at his wife’s hands.

Chronology of Events

9On July 1, 2012 the Appellant wore a hidden recording device and orchestrated his final encounter with the Complainant. He pushed her and further assaulted her, bruising her arms. The couple argued and the Appellant narrated on the tape the assault he was allegedly suffering at the hands of the Complainant, none of which was actually occurring. “As part of his plan, he telephoned 911 and ran out of the house, cloaked in his persona of the concerned father, hoisting his four-year-old son on his shoulders as he walked down the street awaiting police arrival” (Decision, p. 7).

10The police arrived. One officer noted a bruise on the Complainant’s wrist and on her upper arm. No injuries were noticed on the Appellant. The Appellant told an officer about the alleged assault by the Complainant. The other officer heard from the Complainant, who reported that the Appellant assaulted her. Both were arrested and released later that evening.

11The Appellant and the Complainant agreed that the children - the Complainant’s daughter and the couple’s then four-year-old son, Daniel - could stay with their friend, Mr. Leblanc, that evening. The Complainant did not return to the matrimonial home. She had de facto custody of her daughter and Daniel, who stayed with Mr. Leblanc while the Complainant was at work.

12Two days prior to July 1, 2012, the Appellant convinced a lawyer friend to contact the Children’s Aid Society (“CAS”) to make a complaint about the Complainant. On July 1, 2012 the CAS determined that the Appellant was not to have contact with the children until further notice.

13On July 4, 2012, the Complainant returned to the matrimonial home to collect some work clothing. The Appellant refused her entry and contacted police. An officer came to the home. The trial judge found that the Appellant tried to have this officer testify at trial that the Appellant was afraid of the Complainant when she attended the home on July 4. The trial judge found that to be untrue and found that the Appellant “intentionally called police to be able to call upon a record of their attendance at the residence in response to his call” (Decision, p. 11).

14The Appellant contacted the CAS on July 6, 2012. Upon learning that the CAS had no protection concerns, he went to Mr. Leblanc’s house and removed Daniel. Daniel knew Mr. Leblanc, who lived nearby, and had spent overnights at Mr. Leblanc’s home in the past.

15That same day, the Appellant filed a detailed and lengthy application with the Ontario Superior Court of Justice Family Branch. The trial judge found that the Appellant had been gathering evidence and planning to file this material well before July 1, 2012. The Appellant had worked in the field of family law for years and the trial judge found that he had anticipated that the Complainant would seek an order for sole custody of the children; a restraining order; and exclusive possession of the matrimonial home (Decision, p. 14).

16After taking Daniel from Mr. Leblanc, the Appellant drove him to the home of Mr. and Mrs. Riel, an hour and a half away. Mr. Riel was a well-respected businessman and a trial witness for the Appellant.

17The court found that the Appellant “found in Mr. Riel an ideal witness who would be called upon by him sometime in the future to testify that he was a caring and careful parent” (Decision, p. 13). The court further found that there was “no reason to bring the child such a distance away other than to add another respected person” to the Appellant’s list of witnesses.

18On July 10, 2012 Justice Minnema made an order (the “Minnema Order”) in favour of the Complainant. She was granted exclusive possession of the matrimonial home and a restraining order against the Appellant, who was restrained from annoying, molesting or harassing the Complainant or her children and from contacting the Complainant or the children, directly or indirectly by phone, email or any other means and from attending within 500 meters of the home, the Complainant’s place of work, or the children’s school, daycare or other activities or anywhere he might reasonably expect to know the children would be.

Breaches of the Minnema Order

19The court found that the Appellant clearly understood the Minnema Order, but went from the courthouse the day it was made to the matrimonial home. He was seen entering and leaving the home with a bag. The Appellant then retrieved Daniel from the Riels’ and turned him over to the CAS. That same day the Appellant telephoned the Complainant on more than one occasion. She did not answer.

20The court concluded that the Appellant intended to harass the Complainant over the telephone and that he repeatedly called her number, despite knowing that he was prohibited from doing so by the Minnema Order. The Appellant also sent the Complainant text messages and blamed her for the decision to place Daniel in the care of the CAS: he described to her how Daniel cried when he was turned over to the CAS worker.

21The Appellant returned to the home a second time on July 10, 2012. When the Complainant returned to the home at 10 p.m. she saw the Appellant’s car in her driveway and him trying to enter the house. She was frightened and fled in her car. The Appellant then chased her in his car. The Complainant managed to hide from him near a mall.

22The Complainant telephoned her daughter from her car to warn her to stay away from the home. The Complainant then proceeded to the Leblanc residence. En route, she saw that the Appellant had been stopped by the military police. She approached the police to tell them about the Minnema Order because she was afraid of the Appellant. He walked towards her while shouting at her.

23When the Complainant returned to the matrimonial home on July 11, 2012, she noticed that the screen door of the house had been bent. The trial judge concluded that the Appellant returned to the residence on that date and attempted to enter the home by force to leave a “message” that he had been there and to show the Complainant that “he was in control”.

Second Order is Made and then Breached by Appellant

24On July 13, 2012, Superior Court Justice Aitken issued an order (the “Aitken Order”) granting temporary care of Daniel to the CAS. This order also contained a restraining order, with wording similar to the Minnema Order.

25On July 14, 2012 the Appellant again returned to the home and tried to gain entry. He left and called the police to ask for help to enter the home to retrieve his personal belongings. He returned to the home at 10 p.m. that evening accompanied by police. The Complainant returned at that time with her daughter. Both were upset to find the Appellant there. The Appellant failed to tell the police officer about the Minnema and Aitken Orders, which had not yet been entered into the Canadian Police Information Centre. The Complainant gathered some belongings and gave them to the Appellant.

26The trial judge found that on July 14, 2012 the Appellant knew that he was not to attend the matrimonial home, failed to disclose this to the police, and enlisted the help of the police in order to lend some legitimacy to his actions.

The Law

Scope of Review

27The standard of review on this sentence appeal is found in section 687 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (“CCC”) and in the common law. Under the former, the court must consider the fitness of the sentence appealed against and may vary the sentence or dismiss the appeal.

28Under the common law, a court of appeal may intervene to vary a sentence, whether or not it is unfit, if there has been an error in principle, a failure to consider a relevant factor or an overemphasis of appropriate factors: see [R. v. C.A.M., [1996] 1 S.C.R. 500].

29Both the Appellant and Respondent rely upon the Supreme Court of Canada decision in [R. v. Ipeelee, [2012] 1 S.C.R. 433]. That case provides a clear statement that the fundamental principle of sentencing is proportionality. At paragraph 37, the Court quotes from Wilson J. in [Reference re s. 94(2) of Motor Vehicle Act (British Columbia), [1985] 2 S.C.R. 486], at p. 533:

It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a “fit” sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender “deserved” the punishment he received and feel a confidence in the fairness and rationality of the system.

Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.

30Section 718.1 of the CCC mandates the principle of proportionality: “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. Section 718.2 also lists the sentencing principles that a court must consider. The Appellant acknowledged that the factors set out in ss. 718.2(a)(ii) and (iii.1) would apply as aggravating circumstances.

31The Appellant argues that his combined sentence was longer than sentences imposed on similar offenders for similar offences and that the consecutive sentences were unduly long and harsh in contravention of ss. 718.2(b) and (c). He further argues that failure to properly consider and apply those sections amounted to an error in principle which entitles the appellate court to set aside the sentence and to impose whatever reduced sentence it deems fit.

Was the Sentence Fit or Proportionate?

32I find that the trial judge did consider ss. 718.2 (b) and (c) and conclude that the exercise of the trial judge’s discretion in ordering that the sentences be served consecutively did not lead to an unduly long or harsh sentence. I further find that the sentences were within the range of sentences imposed on similar offenders and conclude that the Appellant’s sentence was fit and proportionate.

Aggravating Circumstance: Domestic Relationship and Acts of Physical Violence to Complainant and Children

33In the Decision, Justice Lahaie reviewed the evidence of each witness. She concluded that the Complainant feared the Appellant and that she had been physically and mentally abused by him for years. The court further found that contributing to the Complainant’s fears was her knowledge of the Appellant’s previous marital relationship and the restraining order obtained by his prior spouse. This was an aggravating circumstance listed in s. 718.2 (a) ii of the CCC.

34The trial judge noted that there was evidence of violence perpetrated against the Complainant and the children as a result of the Appellant’s behaviour; that he used the children, primarily Daniel, to orchestrate the situations referenced in her Reasons for Decision. She further found that the Appellant used the children to instill fear in the Complainant that she would lose her children if she went to the police (Sentence, pp. 4-5).

Pre-planned, Psychological and Emotional Harm to the Complainant

35At page 24 of the Decision, the trial judge concluded that the Appellant: “was an obsessed, manipulative, controlling and intelligent man who hoped to follow through on his own plan and deprive Mrs. Townsend of everything which was dear to her”. She found that the Complainant was reasonable to fear for her safety and the safety of her children.

36Pages 57 to 58 of the Decision summarize, in part, the trial judge’s factual findings:

The actions of the Accused in continually calling his spouse, sending her text messages, damaging her back door, chasing her vehicle through the streets, returning to the residence with police on July 14th while knowing that he was not permitted to do so and while omitting to advise police of the restraining order, amounted to threatening conduct and criminal harassment in the circumstances of this case.

In addition, I find that the Accused’s actions on July 1 when he falsely accused Mrs. Townsend of assaulting him and brought his manipulated plan to fruition is to be included in the behaviour which constitutes criminal harassment.

Mr. Townsend, by his conduct, threatened Mrs. Townsend’s security, liberty and well-being. I find that Mr. Townsend engaged in the conduct prohibited in Section 264 within the charging period; that the complainant was harassed; that the accused new and intentionally harassed Mrs. Townsend and that the accused’s conduct caused Mrs. Townsend to fear for her safety and the safety of her children. In all of the circumstances, the Complainant’s fears were reasonable…

No Insight, No Remorse and No Hope of Rehabilitation

37The judge concluded that the Appellant had no insight into his offending behaviour and that, rather than accept that his actions harmed others, he focused on his many complaints against all the agencies with whom he interacts, including the CAS and the police, whom he blames for his loss of access rights to his children and “whom he harasses with complaints and subpoenas” (Sentence, p.4). This is properly considered in sentencing: see R. v. Opsitnik (1986), 13 O.A.C. 50 (C.A.) and [R. v. S. (R.N.), [2000] 1 S.C.R. 149].

38The trial judge concluded that the Appellant’s behaviour will not change until “he takes the first step toward rehabilitation, which is accepting that he must change his ways. This has not happened” (Sentence, p. 4).

Trial Judge is Entitled to Deference because of her Ability to Observe Appellant

39The Ontario Court of Appeal in [R. v. Doherty, 2012 ONCA 855], 298 O.A.C. 396, at para. 16, confirmed that deference should be given to the trial judge in sentencing:

The sentences imposed by the trial judge are entitled to deference in this court. It is worth noting that the trial judge conducted a four-day trial on the harassment and obstruction charges. She heard from Ms. Mikulska firsthand about the fear and trauma she had experienced. She was able to observe the Appellant throughout the proceedings and engaged him in discussion during the sentencing hearing. She was in a good position to assess his attitude, demeanor and his potential for rehabilitation.

40Doherty has direct application. Given the ten-day trial and the fact that the Appellant represented himself, the trial judge was in a good position to assess his attitude, demeanor and potential for rehabilitation. The trial judge determined that the Appellant was not a good candidate for rehabilitation. She found that he had no insight into his offending behaviour and blamed the agencies with which he had interacted for the termination of his access rights to his children. She determined that he showed a disregard for court orders and no remorse for his actions. She accepted the evidence of violence perpetrated against the Complainant and the children. She concluded that the Appellant used the children to instil fear in the Complainant. She noted that he had not worked for 17 years and would likely not work in the future.

41The trial judge also looked objectively at the events: she noted that the Appellant’s actions were repetitive and escalating and, therefore, focussed on deterrence and denunciation in her sentence. She noted that the Appellant had been declared a vexatious litigant by the Superior Court of Justice. While giving it “limited weight”, the trial judge did note that the Appellant had appeared to have similarly harassed his first spouse, who had to obtain multiple restraining orders to keep the Appellant from her and her daughter.

42In short, the observations of the trial judge put her in a much better position than this Court to determine the Appellant’s potential for rehabilitation, a proper factor in sentencing.

43The trial judge noted that the Appellant had shown a disregard for court orders and had shown no remorse for his actions, but instead “promises that he will pursue further complaints against Crown counsel with the Law Society” (Sentence, p. 4). Those factors may also be considered by the sentencing judge, who, in the Appellant’s case, found those justified placing weight on specific deterrence in sentencing: see [R. v. A. (B.), 2008 ONCA 556].

Deliberate and Knowing Breach of Orders to Further Plan to Terrorize

44The Sentence, at p. 2, briefly summarizes the Decision. Again, the trial judge referred to the actions taken by the Appellant prior to the events on and after July 1, 2012:

His entire scheme, which culminated in a call to police on July 1, was an orchestration designed to achieve his desired goals. Mr. Townsend engaged in a systematic, persistent campaign to harass and annoy Mrs. Townsend, behaviour which was excessive and which terrorized her.

There was an escalation to his actions which saw the Defendant using the children and, in particular, young Daniel … to cause Mrs. Townsend to fear him, as the Defendant repeatedly threatened that the complainant would lose custody of her children, that she would lose her job, her home, her reputation. In short, Mr. Townsend created an atmosphere of fear and violence in the home which was oppressive and upsetting to Mrs. Townsend and her children.

45The trial judge referred to the above facts in finding the Appellant guilty of breaching the Minnema and Aitken Orders. She also specifically found that the Appellant had knowingly breached the Orders on July 10, 2010 when he returned to the house twice and repeatedly telephoned and text messaged the Complainant, when he damaged the back door, and when he later attended the residence on July 14 prior to contacting the police to accompany him.

Consideration was Given to Mitigating and Aggravating Factors

46The trial judge reviewed the following mitigating and aggravating factors (Sentence, p. 3):

Mitigating factors:

(a) the Appellant did not have a criminal record;

(b) although there were no issues of fitness or criminal responsibility, the Appellant exhibited strong signs of mental health difficulties, given how his obsessions and compulsions drive his daily life; and

(c) he has not worked in 17 years and could likely not work.

Aggravating factors:

(d) the offences occurred in the context of a domestic relationship;

(e) the victim impact statement was very compelling and confirms the evidence of the Complainant at trial, accepted by the trial judge;

(f) the Complainant fears that the Appellant will never stop harassing her or her children, which fears are well-founded in the view of the trial judge; and

(g) the Pre-Sentence report, which included identical views expressed by the Appellant’s first wife.

47As it was raised in argument before me, I note that the trial judge was clear that she gave “limited weight” to the information received from the Appellant’s prior spouse that was referenced in the Pre-Sentence report (Sentence, pp. 3 - 4).

Fresh Evidence Argument Not Pursued

48The trial judge considered that the Pre-Sentence Report was very negative. Again, as this was raised in argument before me, I note that, although she noted a “troubling fact” that the Appellant apparently tried to deceive the author of the Pre-Sentence Report by falsifying a journal that provided him with accolades in the field of aeronautics, she clearly stated that “[t]his point plays no role in my assessment of the sentence to be imposed, as this sentence will be limited only by statute given the seriousness of the offenses and the other aggravating factors” (Sentence, p. 5).

49The Appellant’s motion for an order to admit fresh evidence on the “apparent” deception was not pursued at the hearing before me, after he accepted that the trial judge gave no weight to the facts referenced above.

Denunciation and Protection are Proper Objectives of Sentencing

50The Appellant’s sentence reflects the consideration given by the trial judge to proper sentencing principles. The jail sentence imposed was intended to clearly denounce the Appellant’s conduct and the maximum probationary period was set in order to protect the Complainant from the Appellant “who is clearly obsessed with her, and with the manipulation of people, institutions and the Children’s Aid Society, the police and the courts in order to further harass the Complainant and instill fear in her” (Sentence, p. 6).

51The trial judge referred to the Pre-Sentence Report, which contained many examples of the Appellant’s obsessions, consistent with the trial evidence that led the trial judge to conclude that the Appellant would never likely abandon his relentless pursuits. She noted at pages 6 to 7 of the Sentence that the Appellant had been declared a vexatious litigant by the Superior Court of Justice and that:

Eloquent, organized and intelligent, Mr. Townsend orchestrates situations in order to advance his obsessive goals. This is Mrs. Townsend’s reality as she moves forward. In my view, there is, at best, very little rehabilitative potential given the complete absence of insight and persistent nature of Mr. Townsend’s conduct.

This case is alarming. This is a case of domestic violence with a history of violence and repetitive and relentless harassment. The sentence of this court must seek to protect the …victim and others like her by sending the clearest possible message [that] the torturous harassment and intimidation, which this was, will not be tolerated.

52In the Decision and the Sentence, it is clear that the trial judge gave consideration to the fact that the events of July 1, 2012 were the culmination of months of advance planning and groundwork by the Appellant.

Victim Impact Statement

53The trial judge considered the Victim Impact Statement, as required by s. 718.2 (a) (iii.1), in which the Complainant reported that from approximately 2006 to the date of her separation from the Appellant, the Complainant’s life was spent “in constant fear and anxiety”. She was particularly scared because the Appellant was the only close person she had living in Canada at the time. The Complainant documented physical and psychological abuse at the hands of the Appellant and his threats that she would lose custody of both her children as well as her professional licence. The consequences to the victim is a proper factor in sentencing: see [R. v. Dunn (2002), 156 O.A.C. 27 (Ont. C.A.)].

Terms of Probation: Minor Variation on Consent

54In his submissions before me, counsel for the Appellant acknowledged his instructions to seek a reduced period of probation, but did not strenuously argue that point and did not provide any legal basis for changing the probationary period. However, he did ask for the deletion of paragraph 11 of the Probation Order. That paragraph prohibited the Appellant from using a computer for anything other than business and from accessing the Internet. Upon the consent of the Crown, that paragraph was deleted from the Probation Order.

Similar Sentences Imposed on Similar Offenders

55The Appellant referred to a number of cases that he argues reflect penalties similar to that imposed on the Appellant based on much worse acts or in which a lesser penalty was imposed for similar acts. Those cases included:

(i) [R. v. Jafarian, 2014 ONCA 9], a case in which the accused was sentenced to 15 months incarceration for breach of court orders and criminal harassment. The court orders all related to forbidding direct or indirect contact with the accused’s former wife. The Appeal Court found that 15 months was an appropriate sentence for those offences.

56This case is similar to that of the Appellant, except that in Jafarian, the accused, pleaded guilty which mitigating factor is not present in this case;

(ii) [R. v. Dextras, 2008 ONCA 666]. In this case the Appellant pleaded guilty to criminal harassment and was sentenced to 17 months incarceration and three years’ probation. The Appellant argues that this sentence was less than that of the Appellant despite that in Dextras, the accused had been convicted of two prior assaults against the complainant, his former spouse. The convictions related to the Appellant twice attending at the house of his former spouse and, given his previous assaults against her, she was terrified. On appeal, the court did not vary the sentence and at para. 9 stated:

It is trite law that this court owes considerable deference to the sentence as imposed by the sentencing judge. It is not to be interfered with unless the sentencing judge has committed an error in principle, failed to consider a relevant factor, placed an inappropriate emphasis on a factor or where it is demonstrably unfit. In our view, the sentencing judge committed no such error.

57I find that the facts in Dextras can be distinguished: although it is true that in Dextras the accused had a criminal record, the convictions did not have the elements of violence and threats of loss of custody of children and livelihood, nor was there evidence of the pre-planning by the accused that is present in the Appellant’s case;

(iii) [R. v. Korbut, 2012 ONCJ 691], in which the accused was sentenced to a 90-day intermittent sentence for having stolen his girlfriend’s diary, address book and cell phone and then published embarrassing texts and website links to sexually explicit photos and videos on the Internet.

58I am not bound by Korbut but, in any event, find that it is distinguishable from the Appellant’s case. In Korbut, the court found that the acts that resulted in the offences generally arose from the course of the same transaction or were closely linked. In the Appellant’s case the trial judge found that the criminal acts on and after July 1, 2012 were a culmination of many months of preparation and planning.

59Further, in Korbut the accused had a solid reputation in the community, had not engaged in any other harassing behaviour and was the sole supporter of his family. The same cannot be said of the Appellant;

(iv) [R. v. Lauzon, 2009 ONCJ 666], in which the accused was charged with criminal harassment of his former spouse. He called her, walked past her workplace, followed her, drove by her house and sometimes stopped on the highway and honked at her. The accused’s behaviour frightened his former spouse. The accused was given a suspended sentence and two years’ probation. In imposing that sentence, the court considered that the accused’s behaviour followed the parties’ breakup and was out of character.

60This Court is not bound by Lauzon, but more importantly, its facts are distinguishable. In particular, in Lauzon there is no mention of any physical or psychological abuse or the threat of the loss of custody of children or professional career. This case is further distinguishable from the Appellant’s case in that the accused abided by the Common Law Peace Bond;

(v) [R. v. Said, 2009 ONSC 13035]. Its facts are disturbing. The accused pleaded guilty to assault, criminal harassment, threatening bodily harm and threatening death.

61Again, although this Court is not bound by the sentence in that case, it was longer than the sentence imposed on the Appellant. In Said, although the accused was sentenced to a total of 8 months in jail, he was given a 3 month credit for 47 days in custody, but only 3 months credit for 22 months under house arrest. The 22 months of house arrest appear to have been taken into account by the court in imposing its sentence. If the time under house arrest is considered, then the sentence in Said well exceeds the sentence that was imposed on the Appellant; and

(vi) R. v. Furey, [2007] O.J. No. 1487 (Ont. C.J.), the sentence imposed was between 24 to 25 months. The acts of which the accused was convicted are arguably more serious that those committed by the Appellant: three assaults, criminal harassment, uttering death threats and threats to cause bodily harm, mischief and breach of recognizance.

62The facts in Furey are not comparable to the Appellant’s case. Also, unlike in the Appellant’s case, the court took into account the mitigating factors of guilty pleas to some offences, lack of physical harm sustained by the victims, and time spent in pre-trial custody. None of those mitigating factors apply in this case.

63The aggravating factors were the accused’s criminal record, the domestic nature of the crimes, recidivism, lack of remorse, non-compliance with court orders and a relatively high risk of reoffending in a violent manner. Some of those aggravating factors do apply in this case, but overall, I do not find this case to be helpful as a comparable sentencing example.

64The Appellant also relied on the case of [R. v. White (2003), 176 C.C.C. (3d) 396 (Ont. C.A.)]. In that case the accused pleaded guilty and was convicted of criminal harassment, five counts of breach of probation and breach of recognizance. All of the offences occurred as a result of his attempt to reconcile with his family after his marriage ended. The trial judge imposed a sentence of 18 months’ imprisonment followed by three years’ probation in addition to 80 days in pre-hearing custody for which he was given a credit of 160 days. On appeal, the court reduced the accused’s sentence to an effective sentence of 12 months. In determining that the sentence imposed was excessive, the court considered the following factors:

a) The absence of violence in the offences;

b) The Appellant’s lack of a criminal record prior to the breakup of his family;

c) The significant increase in sentence;

d) The Appellant’s emotional and psychological problems;

e) The fact that the Appellant had taken steps to receive counselling.

65In the Appellant’s case, there was violence involved in the offences and in the behaviour that led up to the events of July 1, 2012. Here, there was no clinical conclusion or findings of emotional or physiological problems and there is no evidence that the Appellant has taken any steps to receive counselling for his behaviour. In White, at para. 30, the court concluded that the Appellant’s time in pre-hearing custody impressed upon him the need for rehabilitation and his further incarceration for 7 months will have reinforced that need. The Appellant’s pre-hearing custody was only 27 days. It is also worth noting the dissent of McPherson J.A. who concluded that there had been no error in principle and that the sentence was not excessive and would have dismissed the appeal.

66The basis of McPherson J.A.’s dissent was the Supreme Court of Canada’s decision in [R. v. Proulx, [2000] 1 S.C.R. 61]. In Proulx, the court stated that the sentence imposed by a trial judge is entitled to considerable deference from appellate courts. The Crown also relies on [R. v. Proulx, [2000] 1 S.C.R. 61]; [R. v. C.A.M., [1996] 1 S.C.R. 500]; and [R. v. Shropshire, [1995] 4 S.C.R. 227], all of which direct that an appellate court should give deference to the sentencing judge in the absence of an error in principle.

Error in Principle: Sentence “Unfit”

67A sentencing judge commits an error in principle if they fail to take into account a relevant factor, take into account an irrelevant factor, failed to give sufficient weight to relevant factors, overemphasized relevant factors and includes an error of law. See [R. v. Rezaie, [1996] O.J. No. 4468 (Ont. C.A.)].

68Proulx makes it clear that whether or not the Appellate Court would have made a different assessment than that of the trial judge, unless there is evidence that the sentence imposed by the trial judge was demonstrably unfit, the Appellate Court should not interfere to substitute its own opinion for that of the sentencing judge: see [R. v. Proulx, [2000] 1 S.C.R. 61], at paras. 125, 130-131.

69I accept the arguments of the Crown on this appeal that it is very difficult to accurately compare sentences imposed in other matters to the sentence imposed in this case. It is for that reason that the Supreme Court of Canada has made it clear that sentencing judges are entitled to deference.

Was the Sentence Imposed Reasonable?

70Again, the trial judge considered the factors set out in s. 718.2 of the CCC which included domestic violence; criminal harassment against the victim and her children, including the Appellant’s own son aged four years; the Appellant’s attendance at his spouse’s home at least five times; chasing his spouse by car; the breaching of two court orders which took place at least 6 different times; a history of domestic harassment; and the fact that the Appellant was unrepentant and had no insight in his behaviour.

71The trial judge imposed the proper principles of denunciation and specific to terms, which were applicable in this instance given that the Appellant did not acknowledge responsibility and showed no insight: see [R. v. A. (B.), 2008 ONCA 556], and [R. v. S. (R.N.), [2000] 1 S.C.R. 149], at para. 18.

Was it an Error to Impose Consecutive Sentences?

72It is within the discretion of the trial judge to impose consecutive sentences. As an exercise of discretion it warrants a high degree of deference absent an error of principle: see [R. v. Osman, 2016 ONCA 64], at para. 8.

73The facts of this case show that the Appellant breached two separate court orders on the very day the order was made, and that a second restraining order was required and deliberately breached. I conclude that it was in the discretion of the trial judge and the evidence would support her treating these breaches as separate events and not a continuation of one set of circumstances. While the culminating events began on July 1, 2012 and ended by July 26, 2012, the Court concluded that the actions of the Appellant that led to the first criminal act of harassment began much earlier than July 1, 2012 and were part of an overall scheme to instill fear and control over his spouse.

74I agree with the submissions of the Crown that the offences of criminal harassment and the breaches of court orders are different and separate events for which the trial judge was permitted to sentence the Appellant separately.

Breach of Totality Principle?

75Addressing the Appellant’s assertion that, in its totality, 18 months is too long a sentence, I find that none of the cases to which the Appellant referred this Court demonstrate that the total sentence of 18 months is unfit in the circumstances. While it is fair to say that 18 months is on the high end, given the factual findings of the trial judge and the application of those findings to the sentencing principles, her sentence falls within the sentencing goals approved by the Supreme Court of Canada in [R. v. C.A.M., [1996] 1 S.C.R. 500], at para. 94:

With the greatest respect, I believe the Court of Appeal erred in this instance by engaging in an overly interventionist mode of appellate review of the "fitness" of sentence which transcended the standard of deference we articulated in Shropshire. Notwithstanding the existence of some empirical studies which question the general deterrent effect of sentencing, it was open for the sentencing judge to reasonably conclude that the particular blend of sentencing goals, ranging from specific and general deterrence, denunciation and rehabilitation to the protection of society, required a sentence of 25 years in this instance. Moreover, on the facts, the sentencing judge was entitled to find that an overall term of imprisonment of 25 years represented a "just sanction" for the crimes of the respondent.

Length of Probation

76Beyond communicating his client’s request that the period of probation be reduced, no argument was advanced by counsel for the Appellant to justify a reduction in the length of probation. A probation order is intended, in part, to protect the community. In the circumstances of this case, I see no basis for varying the length of probation, which is appropriate to protect the Appellant’s spouse and family.

The Honourable Madam Justice Liza Sheard

Released: April 27, 2016

COURT FILE NO.: 0411-998-12-1296 DATE: 2016/04/27 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent – and – ROGER NEVILLE TOWNSEND Appellant REASONS FOR DECISION Sheard J. Released: April 27, 2016