Court File and Parties

COURT FILE NO.: CR-18-30000037-00AP DATE: 20181207 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – JABARI LAMBERT Appellant/Defendant

Counsel: Catherine Glaister, for the Respondent Richard Litkowski, for the Appellant

HEARD: October 18, 2019

MOLLOY j.:

REASONS FOR DECISION

A. THE APPEAL

[1] This is an appeal from the decision of Justice M. Speyer of the Ontario Court of Justice dated November 2, 2017, convicting Jabari Lambert of uttering threats, criminal harassment and breach of probation. On April 19, 2018, Mr. Lambert was sentenced to a suspended sentence and two years’ probation. He also appeals from the sentence imposed. For the reasons set out below, both appeals are dismissed.

B. THE EVIDENCE AT TRIAL

[2] This was a one day, one witness trial. The Crown’s sole witness was the complainant, N.B. The defence called no evidence.

[3] N.B. testified that she had been in a relationship with Mr. Lambert between January and May 2016, although it was a tumultuous one with several break-ups. She said that she ultimately ended the relationship at the end of April 2016. Following that break-up, Mr. Lambert pressed N.B. for repayment of money he had given her. She said that many of those requests were made by text message and that they were often accompanied by threats. She described seeing Mr. Lambert outside her workplace on May 9, 2016. She at first testified that this was the occasion when she called the police to report she was being threatened and harassed. However, she later retracted that, stating that she contacted the police three days later on May 12, 2016 after receiving three threatening voice messages from Mr. Lambert on May 11, and a number of threatening texts from him on May 12.

[4] In fact, it was May 12, 2016 when N.B. contacted the police. She provided a sworn statement on that occasion and showed the police text messages on her phone which she said were from Mr. Lambert. The police took photographs of the phone and also photographed many text messages, running from April 22 to May 12, 2016. The photographs show numerous text messages sent by N.B. from her phone to a person identified on the phone as a contact with the short form “Barrii” and the phone number 647-550-7359. N.B. testified that Mr. Lambert had given her that phone number as a contact for him when they first met in January 2016 and that her nickname for him was “Barrii” (a short form of his given name “Jabari”).

[5] Based on N.B.’s statement to police, Mr. Lambert was charged as follows:

Count 1 – threatening bodily harm to N.B. by text message on May 1, 2016;

Count 2 – threatening to cause death to N.B. by text message between May 1 and May 12, 2016;

Count 3 – criminal harassment of N.B. between May 1 and May 12, 2016;

Count 4 – threatening bodily harm to N.B. by voice message on May 9, 2016;

Count 5 – criminal harassment by watching and besetting N.B.’s workplace on May 9, 2016; and,

Count 6 – breach of a probation order dated April 18, 2016 by failing to keep the peace and be of good behavior between May 1 and May 12, 2016.

[6] The text messages were exhibits at trial. The messages sent by “Barrii” contained repeated and persistent demands for money allegedly given to N.B. and numerous threats against her. The threats escalated in violence and frequency from May 1 through to May 12, 2016, and included threats to attend at the workplace of N.B.’s daughter, threats to harm N.B., and threats to kill N.B. One such message could reasonably be construed as a threatened murder/suicide. On May 12, in addition to threatening to kill N.B., the sender of these messages said he had a gun. N.B. testified that she decided to go to the police when she received that message.

[7] Throughout this time, in response to messages received from “Barrii,” N.B. sent numerous text messages in which she berated him, called him demeaning names, and told him (among other things) that she no longer had the money.

[8] In her text messages, her statement to the police, and her testimony at trial, N.B. gave conflicting evidence about the money given to her by Mr. Lambert. She denied the defence suggestion to her in cross-examination that he had given her $5000, but gave contradictory evidence about what the amount was. In her evidence, she estimated the amount at $2500. At one point, she admitted she had not paid any of the money back; at another point, she claimed to have repaid $1000. At times she said the money was a gift; at other times she said Mr. Lambert gave it to her to hold for him. Sometimes she said she was planning to repay it; other times she said she was not going to give it back. She acknowledged that she had spent at least some of the money, but said he had given her permission to do that.

[9] Everything turned on the credibility of the complainant. If the accused sent the text messages, those messages provide substantial corroboration of the alleged threats and harassment and would be sufficient to support the charges against Mr. Lambert. However, there is nothing linking Mr. Lambert to the phone number that sent those messages to N.B.’s phone, other than the complainant’s testimony that it was his. There was no independent evidence connecting Mr. Lambert to that number. There was no expert forensic examination of N.B.’s phone. N.B. testified that by the time she called the police on May 12, 2016, she had already deleted the three threatening voice messages she had received from Mr. Lambert. The police did not seize her phone, and by the time of trial, she no longer had the same phone. Apart from the text messages, the police did not retrieve any data from N.B.’s phone and, in particular, did not investigate or preserve her contact list or any entries under the name “Barrii.” No banking records were provided to confirm receipt and/or repayment of any of the money supposedly given to N.B. by Mr. Lambert.

[10] It was suggested to N.B. on cross-examination that she had fabricated the text messages sent to her. Specifically, it was suggested that she: (1) obtained a second phone, which had the number 647-550-7359; (2) put that number in the contacts in her usual phone as “Barrii;” and, (3) fabricated the exchange of messages by sending messages to herself, purportedly from “Barrii,” and then sending replies from her regular phone. N.B. denied that suggestion, maintaining that all of the messages from “Barrii” were, in fact, sent by Mr. Lambert.

C. THE DECISION OF THE TRIAL JUDGE

[11] The trial took place on July 21, 2017. Counsel made closing submissions on October 4, 2017. The trial judge reserved her decision and delivered oral reasons for decision on November 2, 2017. The reasons are brief, comprising 8 ½ pages of transcript, double-spaced. [1]

[12] There was no evidence of a threatening text message on May 1, 2016, as alleged in Count 1, and the Crown agreed the accused should be acquitted on that charge. The parties also agreed that Mr. Lambert was subject to a probation order at the relevant time and that if convicted on any of the other charges, he would be guilty of breaching the probation order in Count 6. The defence conceded that the text messages filed as exhibits were threatening and that the frequency with which they were sent would constitute harassment.

[13] The trial judge identified the central issue before her – whether it was Mr. Lambert who sent those messages. She also recognized that the Crown’s case depended entirely on the testimony of N.B., and specifically on her evidence that the number from which the messages had been sent belonged to Mr. Lambert and that she had stored the number in her phone under the name “Barrii.” The trial judge agreed with the submissions of defence counsel that N.B. was inconsistent about why the accused had given her money and whether she intended to return it, but held that “otherwise, on the whole, [she] found her evidence to be reliable and credible.” [2] The trial judge gave the following reasons for that finding:

(i) The tone of the text messages sounded “natural, not fake or stilted” and the language and tone of the messages sent by N.B. was consistent with her tone and language during her testimony at trial;

(ii) The messages reflected the relationship for a period of 21 days, including references to people and life events;

(iii) The messages did not paint N.B. in a good light;

(iv) “It would take an extraordinary effort on [N.B.’s] part to fabricate these text messages” including proceeding “over 21 days to fabricate close to 2,000 lines of texts between her phone and the other phone”; and,

(v) If N.B. was going to go to such lengths to fabricate these messages, she would have painted herself in a better light and portrayed herself as being frightened, rather than defiant as she appeared in many of her responses. [3]

[14] The trial judge therefore held that she did not accept that N.B. fabricated the messages and that in the circumstances of that case, the absence of independent evidence tying the phone number to Mr. Lambert did not raise a reasonable doubt in her mind.

[15] The trial judge then rejected the defence argument that the Crown’s case was lacking because no expert was called to explain how text messaging works, stating:

In this day and age, text messaging is ubiquitous and is a method of communication widely used and understood by everyone who uses a cell phone. I can take judicial notice of how text messaging works, and I do not need an expert to tell me that text messages are sent from one cell phone to another, that the date and the time the message is sent is captured on the receiver’s cell phone as is the sender’s phone number, as is shown in Exhibit 2. It is not unlike telling the time. You do not need to tell how a clock works to tell what time it is. [4]

[16] Finally, the trial judge accepted N.B.’s evidence that she was frightened by the messages but did not report the matter to the police because she was trying to defuse the situation. The trial judge also accepted N.B.’s evidence that she believed she had no choice but to go to the police once Mr. Lambert told her he had a gun. Likewise, the trial judge accepted N.B.’s testimony that Mr. Lambert came to her house and to her place of employment and left threatening voice messages. She stated, “I base this conclusion on [N.B.]’s evidence as corroborated by the text messages, which I am satisfied were sent by Mr. Lambert.” [5]

C. ISSUES RAISED BY THE APPELLANT

[17] On the appeal from conviction, the appellant raised the following issues:

(i) the trial judge erred by taking judicial notice of how text messaging works;

(ii) the trial judge failed to address gaps in the Crown’s case in assessing whether the Crown had proven its case beyond a reasonable doubt; and,

(iii) the trial judge erred in her credibility assessment of the complainant by failing to give sufficient weight to inconsistencies and inherent improbabilities in her evidence.

D. STANDARD OF REVIEW

[18] The factual findings made by the trial judge are entitled to deference on appeal and this court must not interfere in the absence of “palpable and overriding error.” It is not the task of the reviewing court to second guess the weight ascribed to the evidence by the trial judge, nor to substitute its assessment of the evidence for that of the trial judge. [6]

[19] This is particularly the case where the trial judge has made findings of credibility. The trial judge, having seen and heard the witnesses testify, has a unique advantage in determining issues of credibility. Provided the trial judge gives a rational explanation for findings of credibility and applies the correct legal principles, the appellate court will not intervene. A verdict based on credibility findings will only be unreasonable if the trial judge’s assessments of credibility “cannot be supported on any reasonable view of the evidence.” [7]

[20] A different standard applies to questions of law. On pure questions of law, the trial judge is required to be correct. The reviewing court is free to substitute its opinion on a point of law for that of the trial judge. The reason for this is to ensure that legal principles are applied consistently and uniformly. As noted by the Supreme Court of Canada in Housen v. Nikolaisen:

Thus, while the primary role of trial courts is to resolve individual disputes based on the facts before them and settled law, the primary role of appellate courts is to delineate and refine legal rules and ensure their universal application. In order to fulfill the above functions, appellate courts require a broad scope of review with respect to matters of law. [8]

[21] The more difficult issue is the standard to be applied for questions of mixed fact and law. Those issues are on a continuum. To the extent questions of law can be extracted from the reasoning, those issues attract a standard of correctness. When the issues veer more to particularity and the facts are inextricably bound up with the legal principles, the more deferential standard will apply. As stated by the Supreme Court in Housen v. Nikolaisen:

Matters of mixed fact and law lie along a spectrum. Where, for instance, an error with respect to a finding of negligence can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle, such an error can be characterized as an error of law, subject to a standard of correctness. Appellate courts must be cautious, however, in finding that a trial judge erred in law in his or her determination of negligence, as it is often difficult to extricate the legal questions from the factual. It is for this reason that these matters are referred to as questions of “mixed law and fact”. Where the legal principle is not readily extricable, then the matter is one of “mixed law and fact” and is subject to a more stringent standard. The general rule, as stated in Jaegli Enterprises, supra, is that, where the issue on appeal involves the trial judge’s interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error. [9]

[22] Reasons will be considered adequate if they provide a sufficient basis for the reviewing court to understand what has been decided and why that decision was made. [10] In particular, it is well-recognized that the process of articulating reasons for findings of credibility can be difficult and, provided a rational basis for the findings is set out, deference will be accorded. [11]

E. ANALYSIS – APPEAL AGAINST CONVICTION

(i) Judicial Notice

[23] In R. v. Find, the Supreme Court of Canada defined the two possible situations in which a court can take judicial notice of facts, as follows:

In this case, the appellant relies heavily on proof by judicial notice. Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross-examination. Therefore, the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy: R. v. Potts (1982), 66 C.C.C. (2d) 219 (Ont. C.A.); J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 1055. [12]

[24] In R. v. Spence, Binnie J. referred with approval to the criteria for judicial notice set out in Find, noting that this formulation had been originally put forward by Professor E.M. Morgan in “Judicial Notice” (1943-1944) Harv. L. Rev. 296, [13] referring to it thereafter as the “Morgan criteria.” The Court in Spence was dealing with whether judicial notice could be taken of the possibility of racial prejudice in jurors based on the accused being black and the complainant being East Indian, and also the fact that jurors of East Indian decent could be more partial or sympathetic to the East Indian complainant. The Court considered whether the Morgan criteria should be relaxed in this type of situation to allow the trial judge to take judicial notice of “social facts.” Binnie J., writing for the entire Court, accepted there was a distinction between “social facts” and “legislative facts”, which have relevance to the reasoning process and involve broad policy considerations. However, he rejected the suggestion that a court does not need to scrutinize the trustworthiness of facts sought to be judicially noted. The Court in Spence accepted that the “permissible scope for judicial notice should vary according to the nature of the issue under consideration.” [14] However, the Court was very clear that this relaxation of the Morgan criteria did not apply to adjudicative facts. Binnie J. wrote:

… I believe a review of our jurisprudence suggests that the Court will start with the Morgan criteria, whatever may be the type of “fact” that is sought to be judicially noticed. The Morgan criteria represent the gold standard and, if satisfied, the “fact” will be judicially noticed, and that is the end of the matter.

If the Morgan criteria are not satisfied, and the fact is “adjudicative” in nature, the fact will not be judicially recognized, and that too is the end of the matter. [15]

[25] I assume that the trial judge in this case was relying on the first basis for taking judicial notice; i.e. a fact so notorious or generally accepted as not to be the subject of debate among reasonable people. I take this from her statement that “text messaging is ubiquitous and is a method of communication widely used and understood by everyone who uses a cell phone.” Although not a precise recitation of the test, this statement captures its essence.

[26] The central issue before the trial judge was whether the text messages that were the subject of the charges had been sent by the accused, as opposed to having been fabricated by the complainant. How such messages might have been fabricated is an adjudicative fact and subject to the highest level of scrutiny as to whether the Morgan criteria was met. In my view, the trial judge was required to be correct as to whether the facts she accepted as proven, without requiring formal proof, were capable of meeting that test, particularly in light of the importance of this fact to the guilt or innocence of the accused.

[27] It is important to define with precision the facts judicially noticed by the trial judge. She stated that she was taking judicial notice of “how text messaging works.” She then said she did not need an expert to determine that “text messages are sent from one cell phone to another, that the date and time the message is sent is captured on the receiver’s cell phone as is the sender’s number.” It might well be fair to say that in the normal course a properly functioning cell phone when receiving a text message will record the date and time the message is sent and the sender’s phone number or contact name. I am not sure, however, if the time recorded is the time the message is sent or the time it is received. I also do not know what happens if the receiving cell phone is out of power or turned off at the time a text is sent to it. Does the receiving phone call record receipt of all pending messages when the phone is next turned on? Or does the receiving phone record the time the message would have been received if the phone was operational? I do not know if the nature of the information recorded is different from cell phone to cell phone or between different service providers. I doubt that I am alone in not knowing a lot of these details. Nevertheless, nothing really turned on the precise timing of the text messages the complainant alleged had been sent to her by the accused. Approximate times would have been adequate. I therefore do not take serious issue with the trial judge having judicially noticed the usual meaning of the time and date and sender information that comes up on a cell phone whenever a text is received.

[28] The problem that arises here, however, is that the trial judge appears to have taken this one step further. In her analysis with respect to the credibility of N.B., the trial judge accepted that the complainant was inconsistent in her evidence about the financial issues between her and the accused, but held that otherwise she found N.B.’s evidence to be credible and reliable. The trial judge made this finding in relation to the critical issue of whether to accept the complainant’s evidence that these messages came from the accused and her denial that she had fabricated them. The trial judge gave four reasons for this finding:

(1) the language and tone of the texts shown as sent by the complainant were consistent with her tone and language while testifying at trial;

(2) the messages reflect an ongoing relationship over the course of 21 days;

(3) the messages do not paint the complainant in a good light and if she was going to fabricate messages she would have made herself look better and also portrayed herself in the messages as being frightened rather than defiant; and,

(4) it would have taken an extraordinary effort on the complainant’s part to fabricate the messages.

[29] The first three of these points involve logical reasoning by the trial judge and raise no problems. The fourth, however, brings with it an assumption by the trial judge as to the manner in which the text messages would have to be fabricated. The trial judge held:

In my view, it would take an extraordinary effort on [N.B.]’s part to fabricate these text messages. She would need to obtain a second phone with the number 647-550-7359 assigned to it, create a contact with the name Barrii, and with that phone number in her contact list, and then proceed over 21 days to fabricate close to 2,000 lines of texts between her phone and the other phone. [Emphasis added.] [16]

[30] Implicit in this finding is the assumption that the only way to fabricate a text message is by this method. There was no evidence at trial as to how text messages might be fabricated and made to appear to have come from another phone. There was no evidence that it would be impossible to fabricate date and time stamps of messages received and sent on one’s own phone. The trial judge concluded, however, that to have fabricated these messages the complainant would have had to send them at the dates and times reflected on her phone. Based on the normal way cell phones work, I accept that the trial judge could have taken judicial notice of the fact that this was one way to fabricate such messages. However, a determination that there was no other possible way to do so is a finding of fact that goes beyond what is notorious and indisputable. Such a determination could only be based on evidence from somebody with expertise in how this technology works. It cannot be the subject of judicial notice. The trial judge erred in law by making this finding in the absence of any evidence.

[31] In fairness to the trial judge, I note that this method of fabrication was the only method specifically put to the complainant in cross-examination. It was not suggested to her that she had the technical savvy to accomplish this fabrication in any other way, nor that she hired somebody to do this for her. That said, there is no obligation on the defence to present evidence on how such a fraud could have been accomplished. It was put to the complainant that she fabricated the messages. She denied it, maintaining that all of the subject messages were real and authored by the accused.

[32] The next question is whether this legal error by the trial judge affected the result. In my view, it did not.

[33] As was argued by defence counsel at the end of the trial, the central issue for the trial judge to decide in this case was identity. The text messages, if they were sent by Mr. Lambert, were conceded to be sufficient to support the charges against him. It can be inferred from the trial judge’s reasons as a whole that she had narrowed this issue down to two possibilities: either Mr. Lambert sent the messages showing as from Barrii on N.B.’s phone, or N.B. fabricated the whole thing. That is the natural inference from the overall reasoning of the trial judge and her specific findings that: (1) the text messages from the complainant sounded like they were from her in language and tone, based on the way she testified at trial; and (2) that there were numerous details of this couple’s personal interactions over 21 days, including “references to people in their lives, their breakup, their getting back together again, and their final breakup.” [17]

[34] Having ruled out any other possibilities, the trial judge then grappled with whether N.B. fabricated the messages. Her reasoning about the language flowing naturally without sounding stilted or fake still applies, without any impact from the judicial notice issue. Likewise, judicial notice does not affect the finding that the messages sent by the complainant to Barrii portray the complainant in a negative way, both in tone and content. The reasoning of the trial judge that the complainant would not write her own messages that way if she was deliberately fabricating material with which to frame the accused remains sound.

[35] Finally, the trial judge reasoned that it would have taken an incredible effort to fabricate these messages. Again, that holds true regardless of whether the trial judge erred as to the extent of the facts of which she took judicial notice. There were 2000 lines of texts between these two phones. No matter how the dates and times and contact information were set up, writing those 2000 lines of text required an incredible effort. The one area in which the judicial notice issue infected the reasoning was in the finding that N.B. would have had to do this at the specific times shown on the phone over the course of 21 days, rather than all at once. Given the enormity of the fabrication task and all of the other reasons given by the trial judge for believing the texts to be real, I cannot imagine that the result would have been different if the trial judge had taken into account that it might have been possible to doctor the phone in some way to make the texts appear to have been sent on different days, rather than on the day they were actually created. Given the overall analysis, the detail of having to input data every day for 21 days is inconsequential.

[36] Accordingly, the error with respect to the extent of the judicial notice taken does not provide a basis for interfering with the trial judge’s decision.

(ii) Gaps in the Crown’s Case

[37] In addition to the absence of an expert on cell phone technology, the appellant points to the following gaps in the Crown’s evidence, which he submits were not properly considered by the trial judge:

(i) no evidence from any cell phone provider that the phone number from which the messages were sent was connected to Mr. Lambert;

(ii) no billing or other records from the service provider for N.B.’s cell phone;

(iii) the absence of any text messages between the parties before late April 2016;

(iv) the fact that N.B. deleted the allegedly threatening voice messages she said she received from Mr. Lambert; and,

(v) the absence of any bank records to confirm N.B.’s evidence about the money she received from Mr. Lambert and what she did with it.

[38] To these obvious gaps, I would add the failure to record the contact information in N.B.’s phone for “Barrii” and the absence of the phone itself, N.B. having said at one point that she “got rid of it” and about a page later in the transcript that she “lost it.” [18]

[39] I attach no significance to the failure to file the banking records. The trial judge already noted that the complainant was inconsistent in her evidence about the money. This aspect of her testimony was not found to be reliable. However, the trial judge found other aspects of her testimony to be credible and reliable, which was open to the trial judge to do.

[40] The other gaps all relate to evidence that, if it were available, could either corroborate or undermine the complainant’s testimony that the subject text messages were sent by Mr. Lambert. The trial judge was aware of these gaps and noted in her reasons that the defence was relying on the absence of such evidence as giving rise to a reasonable doubt.

[41] The trial judge correctly instructed herself on the legal principles to be applied, including that a reasonable doubt can arise based on the lack of evidence. [19] She specifically referred to the defence argument and rejected it. Notwithstanding the absence of such evidence, she was satisfied beyond a reasonable doubt that the complainant did not fabricate the messages and that they were in fact sent by Mr. Lambert. It was open to the trial judge to come to such a determination based entirely on the uncorroborated testimony of the complainant, and she made no error of fact or law in doing so.

[42] This ground of appeal does not persuade me that there is any basis for me to intervene.

(iii) Credibility of the Complainant

[43] The trial judge was fully aware of the inconsistencies in N.B.’s evidence. However, she followed a logical path to reach the conclusion that N.B. had not fabricated the text messages, but rather that they had been sent by Mr. Lambert. Having reached that conclusion, the trial judge found the text messages to be corroborative of other key aspects of N.B.’s testimony, including that Mr. Lambert came to her house and to her workplace, that Mr. Lambert left threatening voice messages, and that she was frightened of him. While recognizing that N.B.’s evidence about the money was problematic, the trial judge nevertheless found her testimony about the threats from Mr. Lambert to be reliable and truthful. She provided reasons for doing so, which are brief but sufficient to explain the basis for her conclusion. The areas of inconsistency were primarily about the money, which, while not completely unrelated, was not a central issue.

[44] The trial judge was in a unique position to assess credibility and her conclusions in that regard are entitled to deference. Her reasons are adequate. There is no palpable or overriding error. Accordingly, this ground of appeal is also dismissed.

(iv) Conclusion

[45] For these reasons, the appeal against conviction is dismissed.

F. APPEAL AGAINST SENTENCE

[46] Although represented by counsel at trial, Mr. Lambert was self-represented at the sentencing hearing. The Crown sought a global sentence of four months’ custody to be followed by an 18-month period of probation and various ancillary orders that are not in issue. After hearing detailed submissions from Mr. Lambert, the trial judge ruled that although the charges were serious and involved threats against a domestic partner, the principles of deterrence and denunciation did not require a custodial sentence. She suspended sentence and imposed a period of two years’ probation, along with some ancillary orders. After the sentence was imposed, Mr. Lambert protested that if he received a conviction, he would lose his job. The trial judge declined to change the sentence imposed and advised Mr. Lambert as to where he could get legal advice about the implications of the sentence and his eligibility for a pardon.

[47] Mr. Lambert now appeals from that sentence and submits that a conditional discharge should be substituted for the sentence imposed. The appellant does not identify any error in principle by the trial judge. He merely lists a number of mitigating factors and submits that it would not be contrary to the public interest to vary the sentence, given that Mr. Lambert was self-represented at trial.

[48] Mr. Lambert did not request a conditional discharge in his initial submissions. However, he was familiar with the concept as he had been given a conditional discharge for a domestic assault on a previous girlfriend in 2016. Further, when the sentence was imposed, he urged the trial judge to change it so that he would not obtain a criminal record. The trial judge refused. Thus, the issue was squarely raised before her, she considered it, and she declined to accede to Mr. Lambert’s request.

[49] I see no error of principle here. The trial judge took into account all of the mitigating factors cited by the appellant. She imposed a sentence which was, if anything, lenient in all of the circumstances, particularly in light of the nature of the threats and the fact that there had been a prior assault on a domestic partner for which Mr. Lambert had received a conditional discharge. A repeat offence of the same general nature required a more severe sentence than had been given on that previous occasion. The trial judge’s decision is entitled to deference. [20]

[50] The appeal against sentence is dismissed.

MOLLOY J. Released: December 7, 2018

[1] Record of Proceedings, Reasons for Judgment, November 2, 2017, at pp. 155-163 [Reasons for Judgment]. [2] Ibid, at p. 160. [3] Ibid, at pp.160-161. [4] Ibid, at p.161. [5] Ibid, at pp.161-162. [6] Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. [7] R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, at paras. 9-10. [8] Housen v. Nikolaisen, supra note 6, at para. 9. [9] Ibid, at para. 36. [10] R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 15-18, 37, 48-53; R. v. D., J.J.R. (2006), 215 C.C.C. (3d) 252 (Ont. C.A.); and Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 99 O.R. (3d) 1, at paras. 60-63. [11] R. v. D., J.J.R., ibid. [12] R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 48. [13] R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at para. 54. [14] Ibid, at paras. 58-60. [15] Ibid, at paras. 61-62. [16] Reasons for Judgment, supra note 1, at pp. 160-161. [17] Ibid. [18] Proceedings at Trial, Transcript of cross-examination of N.B. on July 21, 2017, at p. 98, l.18 and p. 99, l.22. [19] Reasons for Judgment, supra note 1, at p. 157. [20] R. v. M. (C.A.), [1996] 1 S.C.R. 500.