COURT FILE NO.: CR-17-40000731-0000

DATE: 20190719

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ROBERT FREEDLAND

P. Leishman, for the Crown

C. Rudnicki, for Mr. Freedland

HEARD: 21 June 2019

s.a.Q. akhtar j.

Background Facts

[1] Robert Freedland counselled Garvin James to kidnap and extort lawyers he had previously retained and to whom he felt aggrieved.

[2] Mr. James was a security guard who worked at JMC Legal Services and was assigned to the Courtyard Marriott hotel to conduct patrols and make sure no one impermissibly entered the hotel premises. At some time in late 2016, Mr. James met Mr. Freedland in the hotel kitchen area whilst on patrol. Gradually they got to know each other and Mr. James told Mr. Freedland of his background in the British military and prior firearms training. In November 2016, Mr. Freedland called Mr. James to arrange a meeting at the mall located at Jane and Finch. When they met up, Mr. Freedland told Mr. James that he had experienced some problems with lawyers in the past and wanted them to pay for what they had done to him.

[3] Mr. Freedland told Mr. James that he had lost significant amount of money in the purchase of a condominium. The lawyers involved had taken his money and mocked him. Mr. Freedland named the lawyers and told Mr. James that he believed the justice system was corrupt. He added that he had written letters voicing his concerns to then Prime Minister, Stephen Harper, the Attorney General of Ontario, Yasir Naqvi, the Law Society, and the Chief of Police, Mark Saunders. He also told Mr. James that when he tried to obtain transcripts of his court matters, he found that the trial transcripts had been doctored.

[4] In a subsequent meeting with Mr. James, Mr. Freedland suggested that they "get a team together" to kidnap the lawyers and get them to confess their wrongdoing. The two would then be able to extort money from the lawyers threatening to disclose their confessions if they did not pay. Mr. Freedland envisaged a payment in the region of $200,000 per head for his silence.

[5] Mr. Freedland provided Mr. James with numerous details, including the names of the lawyers and their addresses, asking him to put a kidnap team together.

[6] Shortly afterwards both went to the Bass Pro store in Vaughan Mills where Mr. Freedland purchased a shotgun. When they left the store, Mr. Freedland gave Mr. James the shotgun who stored it under his bed.

[7] The pair met again, the next day, this time to buy ammunition. They went to Sail in Vaughan and Mr. Freedland bought 2 boxes of Super X Rifled Slugs. Once again, Mr. James took possession of the ammunition. On 28 December 2016, they returned to Sail and Mr. Freedland purchased 3 boxes of Slugs and 1 box of 9mm bullets.

[8] Mr. Freedland continued to ask Mr. James when the kidnapping was going to take place, but Mr. James asked Mr. Freedland to be patient as he needed time to organise things.

[9] In late December 2016/early January 2017, Mr. James called Mr. Freedland and told him he was in Detroit getting the team together but needed $350 to be paid by e-transfer. This was a lie: Mr. James was still in Canada. At trial, Mr. James claimed that he had no intention of carrying out the plan and was simply trying to get information incriminating Mr. Freedland so that he could curry favour with the police when starting up his own security company.

[10] After Mr. Freedland transferred the money, Mr. James had everything: a list of names, the shotgun, ammunition, and now a money payment.

[11] However, things went wrong for both Mr. James and Mr. Freedland.

[12] Mr. James was in a relationship with a South Korean woman and found out that she was seeing another man. Enraged, he threatened to post intimate pictures of her on the Internet. The woman reported him to the police who attended Mr. James's apartment and arrested him. During the search of Mr. James' home, the police discovered the shotgun under his bed.

[13] As a result, Mr. James revealed Mr. Freedland's plan to kidnap and extort the lawyers and was arrested.

Positions of the Parties

[14] Mr. Leishman, on behalf of the Crown, seeks a sentence of four years on account of the aggravating factors of the shotgun purchase, Mr. Freedland's choice of accomplice, and the reflective, deliberate, and thought out nature of the plan to extort his former lawyers.

[15] Mr. Rudnicki, on behalf of Mr. Freedland, places two alternative positions before the court. He argues that if this court finds that the purchase of the shotgun was related to the plan and the offence of counselling, the sentence should be two years. However, if this court finds that the shotgun was not part of the offence, Mr. Rudnicki submits that the appropriate sentence is one year accompanied by a period of probation.

Personal Circumstances

[16] Mr. Freedland is 54 years of age, unmarried, with no children. He was brought up in a middle class household and a stable family background. His parents separated and divorced in 1982 when he was 17 years of age.

[17] Mr. Freedland successfully completed his secondary school level of education and joined the Canadian military where he served for approximately 9 months before returning to complete his Grade 13 education.

[18] In the summer of 1989, Mr. Freedland worked in the hospitality industry in Bermuda, but ultimately returned to Toronto. In 1993 he owned and operated a café selling coffee and lunches. This venture lasted 2 years after which he served as a bartender and owner of another bakery/café.

[19] In 1999, he began work in the real estate industry for a year before completing a social services diploma course in 2003. From 2004-10, he worked in the area of addictions with an intent to open and operate a residential recovery home in Toronto. At the time of these events, he was employed as a bartender and hospitality server in the Toronto area.

[20] Mr. Freedland has strong familial support from his mother and brother who described him as hardworking and law abiding. He currently resides with his mother who is 88 years old. He also provided letters of support from his accountant and friend who commented positively about his character.

The Precedents

[21] Both counsel acknowledge that this case does not fit easily into the legal precedents for sentencing purposes.

[22] The Crown relies upon a number of cases where the range of sentence varies up to 6 years.

[23] In R. v. Lock (2006), 2006 CanLII 25611 (ON CA), 213 O.A.C. 398, the accused was convicted of one count of extortion following a message to his defence counsel, who had refused to act on his behalf, which demanded payment of $1000 on threat of death to the lawyer and his family. The court imposed a sentence of four years although the accused in this case had a criminal record for similar offences.

[24] The Crown has also provided a trio of Hell's Angels cases.

[25] In R. v Coates (2003), 2003 CanLII 48226 (ON CA), 169 O.A.C. 305, the court upheld a sentence of four years where the accused, a member of the Hell's Angels, sought to extort $70,000 from the victim and received $7000. The accused had two prior convictions for conspiracy, break and enter, and theft related offences. In R. v. Widdifield, 2015 BCSC 643, affirmed, 2018 BCCA 62, the victim was extorted and physically assaulted, the court imposed a five year sentence. Finally, in R. v. Lindsay, 2009 ONCA 532, a sentence of six years was upheld on appeal.

[26] These cases, however, bear little resemblance to Mr. Freedland's case: they involve threats made by a group recognised as a criminal organisation within the definition of the Criminal Code. Moreover, in Lindsay, a victim impact statement disclosed the devastating effects on the victim's family including the children.

[27] As noted, the defence acknowledges the lack of prior precedents that fit this case. However, Mr. Rudnicki relies upon the case of R. v. Grossman, [1997] O.J. No, 605 (Ont. C.A.), as being the most similar appellate precedent.

[28] There, the accused was convicted of two counts of counselling to commit kidnapping and two counts of counselling to commit extortion. The accused believed two individuals owed himself and a friend money. He arranged for an accomplice, who was connected with organised crime, to have enforcers from Detroit collect these debts by kidnapping the son of one of the individuals and demanding a ransom; as well as threatening and assaulting the other.

[29] The accomplice, however, was a police informer who told the police of the accused's plot. Posing undercover as the enforcers, two officers met with the accused who gave them instructions to carry out his plan. The judge sentenced him to two years and the Court of Appeal affirmed the sentence.

Aggravating and Mitigating Features

[30] There is no doubt that this is a serious offence which has several aggravating features.

[31] First, the victims in this case were civil lawyers. I view it as a matter of public policy that lawyers who represent members of the public be protected against threats of violence by disgruntled former clients or parties against whom they were acting. Mr. Freedland's actions struck at the heart of the legal system.

[32] Mr. Freedland's choice of accomplice is also very troubling. Mr. James was a former member of the UK military and Mr. Freedland believed him to be a marksman skilled in the use of guns. At trial, Mr. Freedland testified that he believed Mr. James to be mentally unstable.

[33] Mr. Rudnicki concedes that if the court finds that the shotgun was part of the plan to kidnap Mr. Freedland's list of victims, it must be treated as an aggravating factor. The evidence clearly demonstrated that Mr. Freedland bought the shotgun with a view to using it as part of the kidnapping and threatening of his victims. He bought additional shotgun shells and gave both the firearm and ammunition to Mr. James for safekeeping. There is no doubt in my mind that Mr. Freedland intended the shotgun to be used in carrying out his plan.

[34] The lawyers as victims, the purchase and potential use of a shotgun, and the enlisting of Mr. James distinguishes this case somewhat from that of Grossman.

[35] Finally, though I accept that Mr. Freedland only met Mr. James on three occasions, this was not a spontaneous scheme but a product of reflection and detailed planning. I have no doubt that Mr. Freedland had every intention of executing the plan.

[36] In mitigation, Mr. Freedland has no previous record. Family members and the reference letters submitted at the sentencing hearing indicate that the offence was something that was wildly out of character. He has also sought to maintain a steady employment record and attempted to contribute to society through his social worker training.

[37] His employment record and training is a factor when assessing his prospects for rehabilitation.

Sentence

[38] What, then is the appropriate sentence?

[39] I note that Mr. Freedland continues to deny the offence. Although this is not an aggravating factor, it means that the sentencing discount normally enjoyed by offenders who show remorse is not available. It also speaks unfavourably to Mr. Freedland's prospects for rehabilitation.

[40] Despite Mr. Freedland's denials, I am satisfied that the evidence at trial demonstrated that he had a long standing resentment against his former lawyers and a contempt for the legal system that believed had let him down. As I have already said, I am satisfied that Mr. Freedland had every intention of executing his plan to kidnap and extort the lawyers that he had identified.

[41] Taking into account Mr. Freedland's personal circumstances, the aggravating and mitigating features of the sentence, and Mr. Freedland's prospects for rehabilitation, I conclude that the appropriate sentence in this case is 3 years.

[42] From that total, I deduct his pre-trial custody of 64 days, which, pursuant to s. 719(3.1) of the Criminal Code and R. v. Summers, 2014 SCC 26, amounts to 96 days on a 1.5:1 basis. To that total, I would add 24 days credit to account for the 5 months house arrest that Mr. Freedland was subject to as part of his bail conditions. The remnant of the sentence to served is 2 years 8 months. In addition, there will be a lifetime prohibition on the possession of weapons pursuant to s. 109 of the Criminal Code and Mr. Freedland will provide a sample of his DNA.

S.A.Q. Akhtar J.

Released: 19 July 2019

COURT FILE NO.: CR-17-40000731-0000

DATE: 20190719

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ROBERT FREEDLAND

REASONS FOR SENTENCE

S.A.Q. Akhtar J.