Court File No. CR-18-00010438
SUPERIOR COURT OF JUSTICE
5 HER MAJESTY THE QUEEN
v.
10
DUSTIN FOREMAN
O R A L R E A S O N S F O R J U D G M E N T
15
BEFORE REGIONAL SENIOR JUSTICE M. FUERST
On December 16, 2019 at NEWMARKET, Ontario
20
25 APPEARANCES:
V. Szirmak Provincial Crown Attorney
J. Rekai Counsel for Mr. Foreman
O R A L R E A S O N S F O R S E N T E N C E
FUERST, J. (Orally):
5
Dustin Foreman pleaded guilty to three counts of fail to comply with a probation order by communicating with a young woman who I will refer to as P.B., contrary to a
10 condition that he have no contact or
communication with her, three counts of fail to comply with a probation order requiring that he keep the peace and be of good behaviour, and one count of fail to
15 comply with a s. 743.21 order that he have
no contact or communication with Ms. P.B. while he was in custody.
The Circumstances of the Offences
20
Mr. Foreman had been in a romantic relationship with P.B. for three to four months, until the relationship disintegrated in 2017.
25
In December 2017 he pleaded guilty to assault on and criminal harassment of her, as well as multiple breaches of recognizance. He was put on three years'
30 probation on conditions, including that he
have no contact or communication with P.B. In August 2018, Mr. Foreman was again
convicted of criminal harassment and multiple breaches of probation in respect of P.B. He was sentenced to 6 months in jail after credit for 10 months of
5 pre-sentence custody, plus 3 years'
probation. The judge imposed a s. 743.21 non-communication order in respect of P.B. while Mr. Foreman was in custody.
10 While in jail, Mr. Foreman sent P.B. an 18 page letter that included a pornographic sketch and drawings of tombstones and a knife through a heart.
15 Mr. Foreman was paroled on October 9, 2018.
The terms of his parole included
non-contact and non-communication with P.B.
On P.B.'s birthday in November 2018, she
20 received a text message from Mr. Foreman.
She responded, asking that he not ruin things for himself. Subsequently in November and December 2018 she received numerous text messages from two phone
25 numbers associated to Mr. Foreman,
including a message that she almost killed him.
Mr. Foreman was arrested on December 17,
30 2018. He gave a statement in which he admitted to contacting P.B.
Victim Impact Statement were provided by P.B. and her parents. Her parents describe the fear for their personal safety that
Mr. Foreman has caused P.B. and them
5 because of his obsessive behaviour. P.B. states that she has done everything she can to keep herself safe from Mr. Foreman and
is in the process now of writing her will.
10 ## The Circumstances of the Offender
Mr. Foreman is 37 years old. He is an accomplished athlete who, at one time, was
a member of the Canadian National Freestyle
15 Ski Team. He coached the Ontario Provincial Mogul Team. Subsequently, he was involved in developing an Ontario Park and Pipe Provincial Team program, in anticipation of these free style ski
20 disciplines being recognized as Olympic
sports. He also coached the Provincial
Team.
Mr. Foreman is a licensed commercial pilot.
25 He graduated from an Administrative and Commercial Studies program at the University of Western Ontario, specializing in Commercial and Aviation Management. He flew small commercial planes in Ontario and
30 British Columbia. It appears that he was
well regarded by those with whom he worked. In 2016 he was hired as a pilot by a
Vietnamese airline. Unfortunately he was seriously injured in a scooter accident in
Vietnam, when he suffered a fractured hip.
5 Mr. Foreman has a criminal record dating back to 2013, when he was convicted of assault and causing a disturbance in Alberta. He was convicted for violating the probation order imposed for those
10 offences in 2014. The most significant
aspect of his record begins in December
2017, when he was convicted of assault on and criminal harassment of P.B., as well as multiple breaches of recognizance. After
15 credit for pre-sentencing custody, he was
put on probation for three years. In August 2018, he was again convicted of criminal harassment and multiple breaches of probation in respect of P.B. He was
20 sentenced to an additional 6 months in jail
after credit for 10 months of pre-sentence custody, with 3 years' probation to follow.
Mr. Foreman was arrested on the charges
25 before me on December 17, 2018. Except for a few days when he was held at another institution, he has been held at Central East Correctional Centre ("CECC"). His
unit at CECC was locked down for more than
30 6 hours and as many as 10 hours, on 68 occasions, and for less than 6 hours on 7 occasions. The majority of these
lock-downs were due to staffing shortages. When a unit is locked down, inmates are denied access to the common day room and to yard. There may be limited access to
5 visits, phones and showers. Mr. Foreman
provided an affidavit in which he indicated that because of the lock-downs, the psychiatrist retained by the defence was unable to meet with him on one occasion,
10 and on another his lawyer was unable to see
him. He also indicated that while in custody, he has been unable to have physiotherapy for the hip that was injured in Vietnam and on which he had further
15 surgery after it was re-injured in an
assault by another inmate during his previous incarceration. This physiotherapy was recommended by a physician.
20 Dr. Hy Bloom, a forensic psychiatrist, assessed Mr. Foreman as having a narcissistic personality disorder with histrionic, borderline, schizotypal and obsessive compulsive personality features.
25 There is a risk of recidivism. Mr. Foreman
needs close probation supervision and long-term psychiatric treatment.
Jane Curtis is a longstanding friend of
30 Mr. Foreman. She has visited him weekly or bi-weekly since August 2019. She testified that she has seen a huge improvement in
Mr. Foreman over that time, and that he is
ready to move on with his life.
Mr. Foreman's father testified that he has
5 daily phone contact with his son when the jail is not locked down. He has seen a huge positive change in his son. In the past, his son had no insight into his actions. Now his mental state is better.
10 On release from jail, his son is welcome to
live with his parents in Oro-Medonte. They are retired and prepared to supervise him. Their former family physician, who has some experience with mental health issues, is
15 prepared to meet with him every day.
Mr. Foreman's parents made an appointment for him with a local psychiatrist, but that appointment was lost when the sentencing proceedings were delayed. It is re-booked
20 for May 2020, with Mr. Foreman on the
waiting list for an earlier date.
Through his lawyer, Mr. Foreman expressed that he does not wish to have contact with P.B. and that he is willing to attend
25 counselling. He would like to return to
work as a pilot, once he is released from jail.
The Positions of the Parties
30
On behalf of the Crown, Mr. McCallion seeks a sentence of 2 years less a day in jail
plus 3 years' probation with a number of
conditions.
On behalf of the defence, Ms. Rekai seeks a
5 sentence of time served after pre-trial custody is credited. She does not oppose the request for probation.
The Principles of Sentencing
10
The objectives of sentencing long
recognized at common law have been codified in s. 718 of the Criminal Code. They are: the denunciation of unlawful conduct and
15 the harm done to victims or the community,
deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to victims or the community,
20 and promotion of a sense of responsibility
in offenders and acknowledgment of the harm done to victims or the community.
Section 718.1 provides that a sentence must
25 be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that
a sentence should be increased or decreased to account for any aggravating and
30 mitigating circumstances. It sets out
various aggravating factors. It also requires that a sentence be similar to
those imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be
5 deprived of liberty if less restrictive
sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances
and consistent with the harm done to
10 victims or the community be considered.
Analysis
I want to be clear that breaching a court
15 order is not some kind of administrative transgression, akin to getting a traffic ticket. It is a serious criminal offence against the administration of justice. This is especially so when, as in this case, the
20 breaches are of court orders designed to
protect the emotional and physical well-being of members of the public, particularly victims of domestic violence.
25 It is highly aggravating that Mr. Foreman breached court orders in the form of a probation order and a s. 743.21 non-contact order, on multiple occasions, including within just a few weeks of the probation
30 order taking effect. His breaches were
blatant. He has a prior criminal record that further indicates his lack of respect
for court orders.
The impact of the breaches on P.B. and her parents is another important aggravating
5 factor.
In mitigation, Mr. Foreman pleaded guilty, which is a sign of remorse and willingness to take responsibility for his actions. He
10 expressed in court that he understands that
he cannot have contact with P.B. or her family. He has the support of his father and mother, who are willing to have him
live with them and who have made efforts to
15 arrange mental health assistance for him.
The objectives of sentencing that are paramount in this case are denunciation and
20 deterrence, particularly specific
deterrence of Mr. Foreman. It must be brought home to Mr. Foreman that this kind of conduct will not be tolerated and cannot be repeated. I note that the Pre-Sentence
25 Report prepared in the summer of 2018
indicated that Mr. Foreman minimized his previous non-compliance with court orders. It is critical that he and those who will support him on his return to the community
30 understand that his compliance with a court
order, most particularly the one that I
make today, is not optional. It is a
binding legal requirement.
Mr. Foreman's offences attract significant jail terms in the upper reformatory range.
5 I credit him with 18 months of pre-sentence
custody that has been calculated at one and a half to one. I credit him with an additional 4 months because of the combined effect of lack of proper rehabilitative
10 care for his hip and the impact of
lock-downs.
Mr. Foreman please stand.
15 On Count 2, I sentence you to 22 months and one day in jail, less credit for 22 months of pre-sentence custody, leaving a sentence to be served of one day.
20 I impose a sentence of one day in jail concurrent on each counts 3, 5, 6, 8, 9 and
To be clear, the total time to be served is
25 one day.
The jail term will be followed by a period of 3 years of probation. The conditions of probation are the statutory conditions plus
30 the following conditions which are designed
to secure Mr. Foreman's reintegration into the community, management of his mental
health issues, and pro-social behaviour, which in turn will protect P.B. and her
family:
5 1. Report to a probation officer within 24 hours of your release and thereafter as required.
- Live with your father Don Foreman
10 at 1754 10th Line North in Oro Medonte, and follow his supervision and direction.
- Not change your address without
15 the permission of your probation officer obtained in writing in advance.
- Have no contact direct or
20 indirect by any means with P.B. or any member of her immediate family.
- Not be within 500 metres of the known place of residence, work or
25 education of P.B. or any member of
her immediate family or anywhere you know any of them to be.
- Attend for any assessment and
30 counselling including for mental health issues as recommended by your probation officer and sign releases
of information so that your progress can be monitored by your probation
officer.
5 7. Not purchase, possess or consume alcohol or drugs not prescribed for you by a valid prescription.
- Not possess any cell phone unless
10 you have provided its phone number to your probation officer in writing in advance.
- Not use TextMe or any other
15 messaging application that permits anonymous messaging or phone cells.
- Not possess any weapons as defined by the Criminal Code
20 including any firearms.
Mr. Foreman, I want to be very clear with you that going forward, the concern of the criminal justice system will be the
25 security of P.B. and her family. If you
commit any further offences, including breaches of probation conditions, most particularly the non-contact conditions,
and you are found guilty, you can expect to
30 receive a penitentiary sentence. Indeed, if you continue to break the law, you may well be found a long-term offender or even
a dangerous offender in the future, with some very serious consequences, do you understand?
THE ACCUSED: I understand.
5 THE COURT: Thank you. You may be seated.
10
15 FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2) Evidence Act
I, Dianne Letts, certify that this document is a true and
20 accurate transcript of R v. Dustin Foreman, in the
Superior Court of Justice held at 50 Eagle Street West, Newmarket, Ontario, on December 16, 2019, taken from Recording of 4911_403_20191216_085935_10_FUERSTM.DCR
25
(Date) Dianne Letts, C.S.R.
Certified Court Reporter
30