COURT FILE NO.: CR/19/40000359/0000
DATE: 20211029
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
Aleck Themeliopoulos
O. Braithwaite and L. Guzzo, for the Crown
C. Cawkell, for Mr. Themeliopoulos
HEARD: March 8, 9, 10, April 21; May 11; July 21; and October 5, 2021[^1]
Publication of Any Information Tending to reveal the identity of the Complainant Herein is Prohibited under s. 486.4(1) of the Criminal Code of Canada
kelly j.
reasons for sentence
[1] Mr. Aleck Themeliopoulos has been convicted of the following offences committed contrary to the Criminal Code, R.S.C., 1985, c. C-46:
Count
Offence
Section
1
Aggravated sexual assault.
273(1)
2
Aggravated assault.
268(2)
4
Forcible confinement.
279(2)
5
Overcome resistance to commit an indictable offence (sexual assault) by strangling.
246(a)
7
Unlawfully in a dwelling to commit an indictable offence.
349(1)
[2] Mr. Themeliopoulos appears before me now for sentencing.
Positions of the Parties
[3] Crown counsel submits that Mr. Themeliopoulos should receive a global sentence of seven to nine years in custody. Additionally, Crown counsel asks the Court to declare Mr. Themeliopoulos a long-term offender (“LTO”) and order that Mr. Themeliopoulos be subject to a long-term supervision order (“LTSO”) for a period of 10 years.
[4] Counsel for Mr. Themeliopoulos[^2] submits that an appropriate sentence for Mr. Themeliopoulos is in the range of four to seven years in custody. (Mr. Themeliopoulos, submitted that a sentence of five to six years’ incarceration was appropriate.)[^3] Mr. Themeliopoulos submits that the designation of a long-term offender is not warranted, nor should the Court impose an LTSO for any period of time.
Result
[5] After having considered the circumstances giving rise to the convictions, Mr. Themeliopoulos’ background, and the various legal principles, I conclude as follows:
a. That Mr. Themeliopoulos be imprisoned for eight years (96 months), less four years, 5 months (53 months) of presentence custody for a further sentence of three years, 7 months (43 months) to be served.
b. That Mr. Themeliopoulos be designated a long-term offender.
c. That Mr. Themeliopoulos be subject to an LTSO for a period of 10 years.
d. That Mr. Themeliopoulos be required to provide a sample of his DNA. He will be subject to a weapons prohibition and a SOIRA order for life.
[6] I will deal with the range of sentence first, followed by the analysis giving rise to Mr. Themeliopoulos’ designation as a long-term offender and the imposition of an LTSO for 10 years.
The Appropriate Sentence
The Facts
[7] Mr. Themeliopoulos has been found guilty of very serious offences following a judge alone trial.[^4] The facts giving rise to the convictions may be summarized as follows:
a. The offences arise out of a meeting between the complainant and Mr. Themeliopoulos during the late hours of November 27, 2018 and the early morning hours of November 28, 2018. The complainant had advertised her personal services on LeoList. Mr. Themeliopoulos responded to the complainant’s advertisement and a text message exchange commenced between them.
b. An agreement was made for Mr. Themeliopoulos to meet the complainant for sexual services on the evening of November 27, 2018. When he arrived at her condominium unit, he was let inside. Immediately thereafter, Mr. Themeliopoulos punched the complainant in the face several times, choked her a number of times, tied her wrists, wrapped duct tape around her head (covering her mouth), attempted vaginal intercourse, digitally penetrated her, forced her to take two tablets, and eventually bound her hands to her feet before leaving the unit. The complainant managed to free herself. Police were called.
c. Mr. Themeliopoulos testified at trial. He conceded that he did much of what the complainant says he did but claims that the sexual acts were consensual. He testified that he committed these acts because he was fueled by cocaine and in a paranoid state. Further, he believed that the complainant had stolen the bulk of his cocaine supply. When he discovered his cocaine was missing and the complainant attempted to flee, he became enraged. He punched her a few times, grabbed her by the neck, dragged her to the bedroom, wrapped duct tape around her head (covering her mouth), bound her wrists together, and then tied her hands to her feet. After doing this, he left the unit wishing he had never attended. In effect, Mr. Themeliopoulos’ evidence is that he was guilty of all of the offences other than the sexual offences alleged.
d. I rejected the evidence of Mr. Themeliopoulos and found that Crown counsel had proven the abovementioned offences against him beyond a reasonable doubt.[^5]
[8] These are the facts upon which Mr. Themeliopoulos is being sentenced. I will now turn to a consideration of the impact of his conduct on his victim.
Victim Impact
[9] A Victim Impact Statement was provided. In it, the victim stated the following:
a. She was unable to work for approximately one month. During that time, she relied on her savings. Repairs had to be made to her home and she had to pay for the installation of security cameras.
b. She described that she does not feel safe, nor is she sure that she will ever feel safe. She feels that way even during the day and when she is outside. She tries to avoid places where there are few people around. She does not wish to have any contact with Mr. Themeliopoulos.
[10] I will now turn to a consideration of Mr. Themeliopoulos’ background.
Circumstances of the Offender: Mr. Themeliopoulos
[11] Mr. Themeliopoulos’ background was set out by Dr. Mark Pearce[^6] in a report dated December 6, 2020. Dr. Pearce was retained to provide a psychiatric assessment of Mr. Themeliopoulos pursuant to s. 752.1 of the Criminal Code. Although Dr. Pearce attended at the Toronto East Detention Centre (“TEDC”) on September 24, 2020, Mr. Themeliopoulos met with him only briefly to advise that he would not participate in the assessment.
[12] As a result of Mr. Themeliopoulos failing to meet with Dr. Pearce, he relied on a number of items provided to him, including the reasons for judgment in this case; a copy of Mr. Themeliopoulos’ criminal record; court transcripts and various synopses in relation to prior criminal charges; medical records; provincial correctional records; and so forth. I have reviewed the same records and have provided a summary of their contents in chronological order, attached hereto as Appendix “A”.
a. Personal History
[13] The documents provided to Dr. Pearce and to the Court outline Mr. Themeliopoulos’ background, which may be summarized as follows:
a. Mr. Themeliopoulos was born in Toronto. He is currently 53 years of age.
b. Mr. Themeliopoulos has two siblings. His brother works as a banker and his sister works as a teacher. He is not close to either.
c. Mr. Themeliopoulos’ father worked for a mortgage company. His mother worked for a bank. The records show that as an adult, Mr. Themeliopoulos has had intermittent contact with both parents.
d. Mr. Themeliopoulos reports that his father was physically abusive to his mother and to him as a child. As a result, Mr. Themeliopoulos left the family home at around age 13. His parents eventually separated.
e. Mr. Themeliopoulos reports that he has a grade 10 education. He attended Wexford Collegiate. He was an average student.
f. Mr. Themeliopoulos has worked at various jobs including the following: Canada Post, landscaping, construction, and music management (participating in several music festivals).
g. Mr. Themeliopoulos was employed by Rizzo Construction and was thought to be a valuable employee by the owner.
h. Mr. Themeliopoulos has also worked as a superintendent of an apartment complex.
i. Mr. Themeliopoulos is supported financially by income from the Workplace Safety and Insurance Board (“WSIB”), the Ontario Disability Program (“ODSP”), and a pension.
j. Mr. Themeliopoulos has not worked consistently since 1990 when he injured his back while employed at Canada Post. He slipped some discs and is in a lot of pain that requires medication. His mobility is limited. As such, he is unable to maintain stable employment.
k. Mr. Themeliopoulos was married, some time ago, to Caroline. Together they had a son. They separated and formally divorced.
l. Mr. Themeliopoulos has been involved in several other relationships, many of whom became victims of his criminal offences. In particular, he has been involved with Ms. Jeanette Peterson, Ms. Martha Goodyear, Ms. Jacqueline Moore, and Ms. Catherine Oake-Cormack.
m. Mr. Themeliopoulos has two grandchildren and has contact with them and his son, Aleck Jr.
n. Mr. Themeliopoulos acknowledges his involvement with “Asian hookers”.
[14] Additionally, Mr. Themeliopoulos provided information about his background in a letter submitted to the Court. Amongst other things, he advised the Court of the following:
i. He has lived in several apartments and was never of no fixed address.
ii. He would babysit his two grandchildren when asked to do so.
iii. He runs a music promotion company and has done so since 2010. In that capacity he manages bands, books venues, tours, and shoots music videos.
iv. He has also worked with Green Events and 232 Productions.
v. He was a manager at the Music Festival at Fort York in 2018 and a breast cancer benefit in 2015.
vi. He has volunteered with Indie Week, judging bands at competitions. He has been a big supporter of the arts in Toronto and has been recognized for his contributions.
[15] Mr. Themeliopoulos advises that he has an employment opportunity if released. He would book bands for a music festival taking place from July 2-4, 2022. Ms. Regina Feller testified at the sentencing hearing. She advised that she is organizing the festival and would benefit from Mr. Themeliopoulos’ connections in the music industry and his assistance for the festival.
[16] A letter was provided by Mr. Themeliopoulos to the court from his Aunt, Ms. Irene Themeliopoulos. She advises of the following, amongst other things:
a. That she is worried about him being incarcerated because of his health issues. She believes that if he is released from custody, he can receive proper medical attention.
b. She loves Mr. Themeliopoulos very much and describes herself as a “mother” to him. She describes him as “kind hearted” and someone who “would do anything to help anyone”. He has assisted in cutting their lawn and taking care of their home if they go to Greece.
c. She feels that Mr. Themeliopoulos has “learned his lesson” as he has said “how bad he feels about the whole situation”. She is willing to have Mr. Themeliopoulos live with herself and her husband (they are in their eighties) until they feel that he will be “ok on his own”. She will ensure that he does “whatever he is supposed to do and will not be out getting himself in trouble”. She feels that she can help him. She feels that he has been punished enough.
[17] I will now turn to other issues.
b. Medical Issues
[18] Mr. Themeliopoulos has a significant medical history arising from his back issues and other health issues. The medical ailments faced by Mr. Themeliopoulos may be summarized as follows:
a. Mr. Themeliopoulos advises that he suffers from anxiety.
b. During his most recent period of incarceration, Mr. Themeliopoulos advises that he suffers from depression and “PTSD.”
c. He advises that he is under a great deal of stress given the most recent charges and the Crown’s position on sentencing (initially they were seeking a dangerous offender designation).
d. On multiple occasions, Mr. Themeliopoulos was placed on suicide watch. Self-harm was observed and documented.
e. It is obvious that Mr. Themeliopoulos developed a reliance on various drugs due to his back injury, for which he was prescribed opioids.
f. In custody, Mr. Themeliopoulos’ legs were edematous, and he gained weight. There is compression of the L5 nerve root by the L4-5 disc. He suffers from degenerative disc disease. An ultrasound revealed hepatomegaly.
g. He has suffered from ulcers and gastroesophageal reflux disease.
h. He has self-medicated with marijuana.
i. He appears to have an addiction to alcohol.
j. He has experimented with many drugs.
k. Mr. Themeliopoulos has been known to exceed the recommended dosage of prescription medication.
l. He was admitted for treatment to the Addiction Research Foundation as well as the Youth Recovery Awareness Program.
m. Mr. Themeliopoulos reports that he had a 28-day stay at a residential treatment program, Renascent House. This was due to an addiction to heroin and other opioids.
n. Mr. Themeliopoulos has admitted to abusing crack cocaine, in the past, for eight to ten years.
c. Family
[19] Dr. Pearce spoke with various collateral sources. Some of their comments are as follows:
Mr. Bill Themeliopoulos: Bill is Mr. Themeliopoulos’ father. He described Mr. Themeliopoulos’ siblings as very successful. His daughter is a vice-principal at a school. His son works in the mortgage industry. He, himself, had worked for Canada Post and in a dry-cleaning business. He has had rare contact with his son who is now before the Court. He says that Mr. Themeliopoulos had been “duplicitous and manipulative” with his family for years. He had stolen from them (“thousands and thousands of dollars”) when he was in his twenties.
Bill advised that he separated from Mr. Themeliopoulos’ mother when Mr. Themeliopoulos was in his teens. He described her as a caring mother, reluctant to impose rules. There was no violence in their relationship. He described Mr. Themeliopoulos as having a lot of potential because he was bright. However, he “never figured out how to have a life.” He confirmed that Mr. Themeliopoulos was employed at Canada Post until he injured his back. He believes that Mr. Themeliopoulos used drugs to control the pain. Bill described that Mr. Themeliopoulos blames others for his difficulties.
Bill was aware that Mr. Themeliopoulos had been violent in his relationships and that he had harassed his partners. When asked why he thought Mr. Themeliopoulos did that, Bill explained that Mr. Themeliopoulos “thought he was always right, smarter than everyone. He never cooperated with anybody. He did whatever he wanted to do when he wanted to do it. He never listened to anybody.” Bill was uncertain as to what support he could provide to Mr. Themeliopoulos in the future. He advised that “others had tried to help him repeatedly over decades and thus were fed up with his behaviour”.
Mr. San Themeliopoulos: San is Mr. Themeliopoulos’ paternal uncle. He said that he tried to assist Mr. Themeliopoulos over the years but that Mr. Themeliopoulos refused to listen. He was reluctant to comment any further.
Criminal History
[20] Mr. Themeliopoulos has a criminal record with 37 entries (commencing in 1992 and including his current convictions). Those entries may be summarized as follows:
No.
Date
Offence
Sentence
1
November 17, 1992
Fail to comply with recognizance.
Two months in custody. (On appeal, the sentence was varied to 21 days.)
2
January 12, 1993
Assault.
7 days in custody and 12 months of probation.
3
October 7, 1996
Forcible entry.
Suspended sentence and probation for 12 months in addition to 12 days of presentence custody.
4
Possession of a narcotic.
As above, concurrent.
5
March 5, 1997
Theft under $5,000.
4-month conditional sentence order and 12 months of probation.
6
Theft under $5,000.
As above, consecutive.
7
Possession of break in instruments.
As above, concurrent.
8
Break, enter and theft.
As above, concurrent.
9
July 6, 2000
Criminal harassment.
11 days of presentence custody, probation for 18 months and a mandatory prohibition order pursuant to s. 109 of the Criminal Code.
10
November 10, 2000
Fail to comply with probation order.
15 days in custody in addition to 78 days of presentence custody, together with probation for 3 years and a discretionary prohibition order pursuant to ss. 109-110 of the Criminal Code.
11
Criminal harassment.
As above, concurrent.
12
Public mischief.
As above, concurrent.
13
July 19, 2005
Theft over $5,000.
90 days intermittent in addition to 13 days of presentence custody, together with probation for 3 years.
14
Criminal harassment.
As above, concurrent.
15
Fail to comply with a probation order.
As above, concurrent.
16
Fail to attend court.
As above, concurrent.
17
Assault.
As above, concurrent.
18
November 20, 2006
Assault.
30 days intermittent in addition to 12 days of presentence custody, together with probation for 12 months.
19
Fail to comply with probation.
As above, concurrent.
20
March 4, 2011
Mischief.
Suspended sentence, together with 12 months of probation in addition to 2 days of presentence custody.
21
March 25, 2011
Criminal harassment.
5 months conditional sentence in addition to 20 days of presentence custody, together with probation for 2 years and a mandatory order pursuant to s. 109 of the Criminal Code.
22
Mischief under $5,000
Five months conditional sentence, concurrent to the abovementioned sentence.
23
Uttering threats.
As above, concurrent.
24
Uttering threats.
As above, concurrent.
25
Uttering threats.
As above, concurrent.
26
June 30, 2011
Public mischief.
90-day conditional sentence in addition to 44 days of presentence custody.
27
March 16, 2012
Fail to attend court.
Suspended sentence and probation for 9 months in addition to 16 days of presentence custody.
28
Fail to comply with recognizance.
Suspended sentence and probation for nine months.
29
Traffic in a Schedule I substance.
18 months conditional sentence.
30
March 21, 2014
Fail to comply with probation.
30 days in custody.
31
Fail to comply with probation.
30 days consecutive.
32
Criminal harassment.
100 days in custody together with probation for 2 years in addition to presentence custody of 24 days and a s. 109 order, consecutive.
33
March 12, 2020
Aggravated sexual assault.
To be determined.
34
Aggravated assault.
As above.
35
Forcible confinement.
As above.
36
Overcome resistance to commit an indictable offence (sexual assault) by strangling.
As above.
37
Unlawfully in a dwelling to commit an indictable offence.
As above.
[21] Descriptions of all offences on Mr. Themeliopoulos’ criminal record are set out in more detail in Appendix “A”, but I will give a general overview of the more relevant entries dealing with female victims. At the outset, however, I will address an issue raised by Counsel for Mr. Themeliopoulos regarding the reliability of the record in support of this application.
a. Issue Re: The Record
[22] Counsel for Mr. Themeliopoulos, quite properly, observes that Crown counsel seeks to rely upon police synopses to establish the basis of prior convictions in support of their LTSO application. Several of the transcripts of prior court appearances were not provided. I agree and accept, as did our Court of Appeal that “it is difficult to conclude that a Crown synopsis, standing alone, is an accurate reflection of events”.[^7] However, Crown counsel does not rely on the synopses, standing alone, to provide support for their application.
[23] Included in the application record is a copy of Mr. Themeliopoulos’ criminal record, together with some transcripts, various probation orders, and so forth. Mr. Themeliopoulos’ convictions deal mainly with domestic partners and involve assaults and numerous convictions for harassment.[^8] The probation orders following his findings of guilt list the offences for which Mr. Themeliopoulos was found guilty and include a no-contact order with the victims referred to in the police synopses. As such, the synopses simply provide some facts that lead to the convictions included on Mr. Themeliopoulos’ record. The probation orders support the conclusion that he was assaulting and/or harassing the partners identified in the probation orders (and on some occasions, the recognizances).
[24] The synopses are not being viewed in isolation. In R. v. Williams, 2018 ONCA 437, the Ontario Court of Appeal stated that “[t]he incidents set out in the synopses must be considered in light of all of the evidence led at the hearing. Certain parts of a synopsis may find support and confirmation, either directly or by reasonable inference, in other parts of the record.”[^9]
[25] Basic facts set out in the police synopses can be used to establish details such as dates and ages.[^10] Other facts in the synopses can be relied upon where there is support in other parts of the record.[^11]
[26] It is the combination of records filed that provides evidence of the facts underlying the convictions. I have not concluded that all of the facts set out in the synopses have been proven beyond a reasonable doubt.[^12] Nor have I relied on the synopses standing alone.
b. Pattern of Abusive Behaviour
[27] What is important for this analysis are not the facts giving rise to the convictions, but the pattern of assault and harassment inflicted by Mr. Themeliopoulos upon his domestic partners, which may be summarized as follows:
Entry 1:[^13] On November 17, 1992, Mr. Themeliopoulos was convicted of failing to comply with his recognizance. He had contacted his wife, Ms. Caroline Themeliopoulos, in violation of his recognizance.
Entry 2: On January 12, 1993, Mr. Themeliopoulos was convicted of assaulting his wife, Ms. Caroline Themeliopoulos.
Entry 9: On July 6, 2000, Mr. Themeliopoulos was convicted of criminal harassment. A record of arrest from June 26, 2000 indicates that Mr. Themeliopoulos was charged with criminal harassment and that the complainant was “Martha Goodyear.”[^14] The synopsis indicated that Mr. Themeliopoulos and Ms. Goodyear were “former” boyfriend and girlfriend.
Entries 10-12: Mr. Themeliopoulos was found guilty of failing to comply with his probation order, criminal harassment, and public mischief. An information from July 6, 2000 indicates that Mr. Themeliopoulos, within hours of his release, went to the area of Ms. Goodyear’s apartment. He saw her and then engaged her in a verbal altercation.
Over one month later, on August 23, 2000, police became aware of the location of Mr. Themeliopoulos. They knocked on the door of his apartment but there was no answer. They obtained a warrant while several officers kept watch on the apartment for approximately four hours. Eventually, the police executed the warrant. When they entered the apartment, Mr. Themeliopoulos was sitting on the couch watching the building security camera on television.[^15]
On November 10, 2000, Mr. Themeliopoulos was found guilty of failing to comply with his probation, criminal harassment, and public mischief. The sentence is recorded as 15 days in jail concurrent, in addition to 78 days of presentence custody. There was a period of probation imposed for three years as well as a s. 109 order for 10 years. The probation order required that Mr. Themeliopoulos engage in anger management counselling and that he not associate or communicate directly or indirectly with Ms. Goodyear. Additionally, he was not to be within 250 metres of any place where “Martha Goodyear and her son may reside, their place of employment or school.”
Entries 13-17: On July 19, 2005, Mr. Themeliopoulos was found guilty of theft over $5,000, criminal harassment, failure to comply with a probation order, failure to attend court, and assault. Some of the offences involve Ms. Jacqueline Moore.
The victim of the assault charge was Ms. Oake-Cormack, with whom Mr. Themeliopoulos had lived for 18 months.
On July 7, 2005, Mr. Themeliopoulos was arrested for the offences against Ms. Moore and Ms. Oake-Cormack.
On July 19, 2005, Mr. Themeliopoulos was found guilty of assault and forcible confinement. He received a sentence of 90 days intermittent and three years of probation. The probation order provided, amongst other things, that he not associate with Ms. Jacqueline Moore and Ms. Catherine Oake-Cormack, and that he attend the Partner Assault Response (“PARS”) program.[^16]
Entries 18-19: On November 20, 2006, Mr. Themeliopoulos was found guilty of assault and fail to comply with probation. On July 16, 2006, an information alleges that Mr. Themeliopoulos committed an assault on Ms. Oake-Cormack as well as forcibly confining her. Lastly, he was charged with failing to comply with his probation order that required him to have no contact with Ms. Oake-Cormack.[^17]
On July 26, 2006, the probation notes indicate that Mr. Themeliopoulos was going on vacation until the first or second week of August 2006. He was aware of the recent charges and said that he wanted nothing to do with Ms. Oake-Cormack.[^18] On September 21, 2006, Mr. Themeliopoulos contacted his probation officer. He was instructed to turn himself in as there were outstanding warrants. He advised that he was “not ready at this time” and did not disclose his location.[^19] On November 9, 2006, Mr. Themeliopoulos was arrested in Niagara Falls.[^20]
As stated above, on November 20, 2006, Mr. Themeliopoulos was found guilty of assault and fail to comply. He was sentenced to 30 days of jail (intermittent) in addition to 12 days of presentence custody. A period of 12 months of probation was imposed. He was required to attend the PARS program. He was also ordered not to associate with Ms. Oake-Cormack.[^21]
Entries 30-32: On March 21, 2014, Mr. Themeliopoulos was convicted of two counts of failing to comply with his probation and criminal harassment. The offences arose from occurrences that had happened in 2012. From October 24, 2012 to November 22, 2012, it was alleged that Mr. Themeliopoulos committed the offences of criminal harassment and failure to comply with probation. The victim was Ms. Oake-Cormack.[^22] She alleged that Mr. Themeliopoulos had sent her letters (one a week for three weeks) asking for her phone number. He was attempting to renew his relationship with Ms. Oake-Cormack. The letters were seized by police and have been described as “sinister and manipulative.”[^23]
There is a transcript of the sentencing proceeding that I have referred to at length in Appendix “A”. In summary, for the offence of criminal harassment, Bloomenfeld J., imposed a sentence of 100 days in addition to 24 days of presentence custody and a further 30 days for the breach of probation. In addition, she imposed probation with a no contact order for Ms. Oake-Cormack.[^24]
Entries 33-37: On March 12, 2020, Mr. Themeliopoulos was convicted of the offences before this Court, which include: aggravated sexual assault, aggravated assault, forcible confinement, overcome resistance to commit an indictable offence by strangling, and unlawfully in a dwelling to commit an indictable offence. The victim was a sex trade worker.
Correctional Records
[28] A review of the correctional records, mainly containing the probation officer’s notes (again, referred to at length in Appendix “A”), indicates the following:
a. That Mr. Themeliopoulos had difficulty complying with his reporting obligations.
b. That Mr. Themeliopoulos had attended for counselling. On other occasions, he was referred to a psychiatrist or psychologist.
c. That Mr. Themeliopoulos was initially reluctant to attend the PARS program but that he eventually did so. The instructor indicated that Mr. Themeliopoulos had an “awareness of the material”, although it was unclear as to whether he would incorporate what he had learned into his daily life.
d. That Mr. Themeliopoulos, on occasion, demanded variances to his court orders for such things as resuming contact with Ms. Oake-Cormack.
e. That Mr. Themeliopoulos had been employed sporadically. He obtained a positive review from his employer at Rizzo Homes where he worked for one year.
f. That Mr. Themeliopoulos moved residences and did so quite often within Toronto and in Niagara Falls.
g. That Mr. Themeliopoulos attended numerous doctor’s appointments, often making it difficult to report to probation.
h. That Mr. Themeliopoulos had an intermittent relationship with his family.
i. A Level of Service Inventory – Ontario Revision (“LSI-OR”), which predicts general recidivism, was completed on three occasions: December 15, 2006; May 11, 2011; and March 2, 2016. The results were all the same. Mr. Themeliopoulos was considered a high risk for re-offence.
Medical Records
[29] A review of various medical records demonstrates the following:
a. In January and February 1992, Mr. Themeliopoulos was assessed at the Addiction Research Foundation (“ARF”) at the Centre for Addiction and Mental Health (“CAMH”). He seemed to be abusing cannabis and alcohol.
b. In early 1995, Mr. Themeliopoulos was assessed by psychiatrists as a result of issues regarding access to his son. The clinic at the Clarke Institute of Psychiatry (the “Clarke”) (now CAMH) concluded, “We believe that his persistent blaming of others, his inflexibility and his pattern of hostility towards agencies make it unlikely that we can be of assistance in this matter.”[^25]
c. On May 26, 1995, a second letter from the Clarke concluded, amongst other things, as follows: “It is clear that in the past, there existed a caring relationship between Mr. Themeliopoulos and his son. However, Mr. Themeliopoulos’ behaviours as documented above, his lack of insight into the same, his tendency to blame others, his verbal abuse of others and his need to have things his way all raise concerns about the kind of role model he would be for Aleck Jr. if access were reinstated”.[^26]
d. On August 5, 1995, in a third letter from the Clarke regarding access visits (which were recommended to be terminated), the author had the following to say: “Mr. Themeliopoulos’ efforts to renew contact with Aleck Jr. are laudable. However, he has also been verbally abusive, threatening and flagrantly oppositional to others in the past. With me, he has been uncooperative in relating his personal history, as he deemed it ‘irrelevant’. He has been accusatory, devaluing of myself and the clinical process, insulting and very provocative”.[^27]
e. On April 29, 1997, a letter was sent from T.A. Patterson & Associates Inc., alcohol and drug consultants. The assessment concluded that Mr. Themeliopoulos was abusing alcohol and possibly cannabis. The consultants noted that Mr. Themeliopoulos has a history of abusing prescription medication.[^28]
f. On December 9, 1997, a letter from the Youth Recovery Awareness Program indicated that Mr. Themeliopoulos had a substance dependence on cannabis, has misused alcohol, and had exceeded his doctor’s recommendations regarding prescription medication. They recommended a more intensive program for Mr. Themeliopoulos such as that offered by the Donwood Institute.[^29]
g. On July 14, 2001, a letter from Dr. Dan Paitich (Consulting Psychologist) indicated that he believed that Mr. Themeliopoulos was deliberately vague during their session. Dr. Paitich stated “[g]eneral dilapidation of personality is a problem, not anger, and it is not easily alleviated.” He concluded that there is “no way of preventing erratic behaviour.”[^30]
h. In November 2013 and while in custody, Mr. Themeliopoulos advised that he had suffered from depression for approximately three years. He was seen by a psychiatrist. He admitted to abusing substances but denied having used drugs for the previous five years. He was diagnosed with adjustment disorder and dysthymia. Post-traumatic stress disorder (“PTSD”) and pain-induced anxiety/stress were considered. Later that month, Mr. Themeliopoulos advised that he was not a “drug addict.” He had slipped discs in his back and was suffering from stress. He was diagnosed as having an adjustment disorder with depressed mood. It was not felt that he suffered from PTSD. He began to request opioids.
i. Prior to his current period of incarceration, Mr. Themeliopoulos had been prescribed hydromorphone, oxycodone, morphine, lorazepam, and mirtazapine.
j. In mid-December 2018 (after he was incarcerated for these offences), Mr. Themeliopoulos threatened a hunger strike until he was given proper pain medication. He was focused on the pain he was experiencing. He declined to take an antidepressant.
k. On December 11, 2018, Mr. Themeliopoulos was assessed by CAMH’s Forensic Early Intervention Service. He was not felt to be a suitable candidate for follow-up.
l. In January 2019, Mr. Themeliopoulos requested a brace for his foot, but this was not deemed medically necessary. In February, he was caught hoarding morphine. He, again, refused to eat until the doctor increased his narcotic dose.
m. On March 18, 2019, Mr. Themeliopoulos was seen at the Humber River Regional Hospital after he said he had a seizure and claimed that he was blacking out due to his opioid therapy being discontinued. A CT scan of his head produced a result of normal.
n. In March 2019, a psychiatric consultant deemed that Mr. Themeliopoulos’ suicidal ideation was “instrumental.” He was diagnosed with a substance abuse disorder and personality disorder traits. Thereafter, several psychiatrists diagnosed Mr. Themeliopoulos with the same issues. He claimed that nothing would help him but narcotics.
o. In January 2020, Mr. Themeliopoulos demanded morphine. He threatened to file a report to the College of Physicians and Surgeons against the assessing physician if his demands were not met.
p. In January 2020, Mr. Themeliopoulos was transferred to the TEDC from the Toronto South Detention Centre (“TSDC”). Shortly thereafter (February 5, 2020), he was seen by a psychologist. The psychologist found that Mr. Themeliopoulos was neither depressed nor psychotic. Mr. Themeliopoulos expressed suicidal ideation as he felt that he was not receiving the medications he required. He was in a lot of pain and annoyed that he was transferred from another institution.
q. In February 2020, Mr. Themeliopoulos was taking suboxone. This was in addition to other medications prescribed while in custody.
r. In June 2020, Mr. Themeliopoulos saw a cardiologist. He had been suffering from edema for years, but it had gotten worse.
[30] A report from Dr. Behzad Goodarzi (psychologist), dated April 20, 2021, provides as follows:
a. That he followed up with Mr. Themeliopoulos on February 5, 2020 for the purpose of carrying out a suicide risk assessment.
b. That Mr. Themeliopoulos had been on persistent suicide watch since 2019. He had banged his head, slashed his wrist (although not deeply), and made suicidal comments.
c. Mr. Themeliopoulos submitted that the reason for his suicide attempts was that he was “not receiving the medication he needed (opioid-based painkiller for his chronic severe pain) leading to him being in ‘lots of pain, every day,’ as well as the issue of being transferred to the TEDC where he did not like to be.”
d. Following discussion with Mr. Themeliopoulos about such things as his ongoing condition, his legal case, his family-related connections, his medical condition, and prospects, as well as his therapeutic needs and goals, Dr. Goodarzi concluded that Mr. Themeliopoulos “displayed an overall forward-looking tendency” when discussing those topics.
e. Dr. Goodarzi concluded that Mr. Themeliopoulos may be suffering from Opioid Use Disorder in a controlled environment. He recommended a “Maintenance Therapy” using a medication such as suboxone.
f. Dr. Goodarzi had follow-up meetings with Mr. Themeliopoulos on several occasions in 2020 and 2021. Dr. Goodarzi observed that since being placed in the medical unit, Mr. Themeliopoulos had not reported any more suicidal ideation. Dr. Goodarzi identified certain stressors for Mr. Themeliopoulos and recommended a therapeutic approach involving such things as “solution-oriented therapy techniques.”
g. Dr. Goodarzi observed that Mr. Themeliopoulos has “a more foreseeable prospect of the probable scenarios in relation to his legal case conclusion (in terms of a likely sentence and a probable institutional placement as well as its probable timing), the client’s concerns/worries/stress have been more related to these issues”. They discussed the treatment options, should Mr. Themeliopoulos be released into the community, or sentenced to custody in the reformatory or the penitentiary.
Diagnosis by Dr. Pearce
[31] After having considered Mr. Themeliopoulos’ history as set out in the record (summarized above and in Appendix “A”), Dr. Pearce diagnosed Mr. Themeliopoulos as follows:
a. Mr. Themeliopoulos has abused one or more substances, including alcohol. As such, Dr. Pearce diagnosed a polysubstance use disorder that has been moderate to severe at times.
b. Dr. Pearce was unable to diagnose a paraphilia[^31] as no sexological history was provided and Mr. Themeliopoulos did not agree to participate in the assessment, which would have included phallometric testing. However, Dr. Pearce also stated that he could not exclude such a condition. That said, this was Mr. Themeliopoulos’ first sexual offence and was committed at the age of 50. Dr. Pearce concluded that “[m]ost likely, the offence was not driven by an ingrained deviant sexual preference.”
c. Mr. Themeliopoulos has been depressed at times. Dr. Pearce finds that those experiences were likely situational, related to his chronic pain and/or his substance abuse.
d. Dr. Pearce described Mr. Themeliopoulos as follows:
Interpersonally this gentleman can present as angry, manipulative, duplicitous and irresponsible. He has minimized his prior offences, has had trouble taking responsibility for his actions and has lacked empathy for others. He has self-harmed, threatened suicide and gone on hunger strikes when his demands have not been met. He has been self-involved and grandiose.
Given the aforenoted considerations and the chronicity of his difficulties, Mr. Themeliopoulos likely meets criteria for a mixed personality disorder (technically an unspecified personality disorder) with “cluster B” traits,[^32] namely antisocial,[^33] borderline and narcissistic traits.[^34]
e. Dr. Pearce took into account Mr. Themeliopoulos’ back condition when formulating his opinion regarding Mr. Themeliopoulos’ diagnosis. He concluded that Mr. Themeliopoulos does not appear to suffer from a major mental illness, although he could not exclude the presence of a depressive disorder, adjustment disorder, or pain disorder. He appears to meet longitudinal criteria for an unspecified personality disorder.
[32] Dr. Pearce concluded the following regarding Mr. Themeliopoulos’ risk, observing of course, that Mr. Themeliopoulos did not participate in the assessment. He observed (as does the Court) that Mr. Themeliopoulos had not committed a domestic violence offence since 2006 and last harassed his partner in 2012. He concluded that “[o]verall, it is difficult to predict his risk of future domestic violence at this stage.”
[33] Dr. Pearce did not score Mr. Themeliopoulos on the PCL-R, the SORAG, the VRAG, or the DVRAG tests because he did not have enough information to accurately score Mr. Themeliopoulos on these instruments. However, Dr. Pearce was able to predict the likelihood of Mr. Themeliopoulos committing a future sexual offence using the Static-99R, an actuarial instrument. He concluded as follows, at page 35:
On the Static-99R, he scored +4. This is a moderate to high score (also known as an above average risk score) and places him at the 80th percentile. The score suggests a moderate to high risk of future sexual offence. Similarly scoring individuals committed a new sexual offence at a rate between 18% and 30% over 10 years of opportunity.
[34] When Dr. Pearce was cross-examined during this proceeding, he testified that there was a margin of error of +1 or -1 in relation to the Static-99R. As a result, if the score for Mr. Themeliopoulos was +3, he fits with similar offenders who showed a 15% to 24% risk to reoffend. A score of +5 suggests that he would fit in with similar offenders who showed a 23% to 36% risk to reoffend.
[35] After reviewing Mr. Themeliopoulos’ offence history, Dr. Pearce concluded as follows at pp. 35 and 36 of his report:
This was Mr. Themeliopoulos’ first sexual offence, at age 50. The offences were very serious and included significant aggression. Thus, he may commit a severe sexual offence in the future though it is not clear that he will re-offend imminently or frequently. This gentleman has most often (albeit not exclusively) been aggressive, threatening and harassing towards former partners. However, this has not been the case in some years thus perhaps his future risk of same has decreased as he has aged. While his history of domestic violence is of concern, they are not the most serious offences I have encountered.
[36] Overall, Dr. Pearce concluded that it is difficult to predict Mr. Themeliopoulos’ risk of future domestic violence. His risk for sexual re-offending is moderate to high, as per the Static-99R.
Other Information
[37] Prior to the conclusion of the hearing and at the repeated request of Mr. Themeliopoulos, records from the WSIB were provided to him for review. I am advised that he had the opportunity to review the entirety of the file. He asked Sgt. John Lawson (at the TEDC) to forward certain documentation from the file directly to the Court. This, amongst other things, generated an application for counsel to remove himself from the record. I permitted the application.
[38] I agreed to review the documentation as Mr. Themeliopoulos submits that it is relevant for consideration on this application. I have read the entirety of the documentation provided but will summarize some of the content here:
December 15, 1993: Dr. I. Bernard Schacter, a neurosurgeon, indicated that Mr. Themeliopoulos has an increased limitation of function due to his back pain. He noted that Mr. Themeliopoulos “requires medication but finds that the medication he is on does not fully alleviate his symptoms.” Mr. Themeliopoulos “continues to be incapacitated” and is a candidate for surgical intervention for the herniated disc at the L3-4 level. It appears that a scheduled surgery was cancelled for “personal matters” and not because there was any improvement in his clinical state.
December 17, 1993: Dr. Oscar Kofman, a neurologist, provided a letter that states Mr. Themeliopoulos suffers from disc herniations at multiple levels. He has also been under considerable stress due to family matters. This resulted in a postponement of an operation to correct the disc herniation.
January 20, 1994: A letter from Dr. John Peacock indicated that Mr. Themeliopoulos was “pessimistic” that he would have a good result from surgery “in view of the discrepancy between the neurological examination (normal) and his MRI scan and symptoms of disabling pain.” He referred Mr. Themeliopoulos to Dr. Muller.
February 14, 1994: A letter from Dr. Amann confirmed that Mr. Themeliopoulos continues to suffer from “severe and disabling back pain and has not been able to work from the date of the injury to the present time.”
March 1, 1994: A letter from Dr. Muller at the Division of Neurosurgery, University of Toronto, St. Michael’s Hospital, confirms that Mr. Themeliopoulos suffers from degenerative disc disease that would not benefit from surgical intervention. Dr. Muller recommended that he “get his education updated.” Dr. Muller concluded that he thinks Mr. Themeliopoulos is “probably reasonably intelligent and would do well in a retraining program.”
April 19, 1994: This letter from Dr. Muller indicates that he had seen Mr. Themeliopoulos previously. He had encouraged Mr. Themeliopoulos in respect of his future and upgrading his skills to obtain employment. He observed, “It seems that all this has fallen through and he was in the office today complaining of low back and leg pain and making reference to the fact that he was sick and tired of people telling him what he did or did not feel.” Dr. Muller observed that Mr. Themeliopoulos did not appear to be physically distressed but found that “[i]t’s very distressing that he has not undergone a resolution of his symptoms.” Dr. Muller opined that he is concerned “that there may be no adequate structural basis for his symptomatology.” He stated, “All I can state at the present time is that there is no objective clinical finding that would be in keeping with his degree of disability.”
2006: An undated letter from Project S.H.A.R.E. states that Mr. Themeliopoulos had been volunteering there twice a week. He is described as “very dedicated, hardworking, and a pleasure to have on our team.” He participates despite the difficulties with his back and leg.
December 11, 2009: A letter from Dr. Philip Miller of Philip C. Miller Consultants (Rehabilitation Psychology) reported on a psychological assessment of Mr. Themeliopoulos. At the time of the assessment, Mr. Themeliopoulos was 41 years of age. He reported to Dr. Miller that he has constant pain in his right leg and foot, as well as low back pain. He has a marked loss of memory for recent events and concentration difficulties. He denied problems with cognitive efficiency. He described that he is “irritable, down, sad”, and so forth. He expressed frustration in dealing with WSIB and is bitter due to the Board’s refusal to help him. He was worried about his financial situation and had difficulty sleeping. Dr. Miller reviewed Mr. Themeliopoulos’ file including the following:
a. A psychological assessment conducted by Dr. Tony Toneatto, dated March 10, 2008. He diagnosed an “Axis 1 Major Depressive Disorder, Recurrent, severe without psychotic features and a Pain Disorder Associated with Both Psychological Factors and a General Medical Condition.” Certain treatments were recommended.[^35]
b. A report from Dr. Barry Malcolm, an orthopaedic surgeon. He opined that Mr. Themeliopoulos suffered a lumbar strain in 1990. Mr. Themeliopoulos has the presence of multi-level degenerative disc disease. Dr. Malcolm concluded that Mr. Themeliopoulos was not a candidate for surgical treatment. He concluded that Mr. Themeliopoulos “must cope with his symptoms and try to increase the quality of his life in the presence of his pain, with pain education, pacing, sparing techniques and exercises.”
Dr. Miller concluded that Mr. Themeliopoulos presented with a “Pain Disorder with a General Medical Condition or a Pain Disorder Associated with Psychological Factors and a General Medical Condition (mechanical pain and right sciatica syndrome).” He also presented with an Adjustment Disorder with Anxiety and Depressed Mood, Chronic, of at least moderate severity. He also opined that Mr. Themeliopoulos may be presenting with a “Major Depressive Disorder.” He concluded that Mr. Themeliopoulos requires counselling. However, Dr. Miller was “concerned that since he is still so bitter and has been symptomatic for so long, the prognosis is very poor.”
March 4, 2011: There is an emergency report from St. Michael’s Hospital. Amongst other things, the report states that “[e]arlier in the day attempted to kill himself by tying string around his neck for approx. 2 hours.” He was hitting his head against the wall and there were red marks on his neck.
July 22, 2011: Dr. Edward Kingstone indicated that he had been seeing Mr. Themeliopoulos to discuss his workplace injury and dealings with WSIB.
February 23 and April 3, 2012: A Comprehensive Assessment Report of the Substance Management Program was provided. It is an extensive report on functioning, past psychiatric history, and so forth. It describes that Mr. Themeliopoulos expressed significant anger with the WSIB as he found the healthcare professionals to be unhelpful. The author of the report described Mr. Themeliopoulos as cooperative and attentive. He showed good insight. As part of the assessment, Mr. Themeliopoulos was evaluated to determine if he was “exhibiting aberrant medication-related behaviours”. The assessment concluded that Mr. Themeliopoulos’ “medication taking behaviour could be described as somewhat self-directed”.
Presentence Custody
[39] While incarcerated at the TEDC, Mr. Themeliopoulos has completed the following programs: Looking for Work; Planning for Discharge; Substance Use; Anger Management; Thoughts to Action; Managing Stress; Use of Leisure Time; Problem Solving; Setting Up a Budget; Recognizing Healthy Relationships; and Understanding Feelings.
[40] Mr. Themeliopoulos was incarcerated during the pandemic. He also continued to suffer from medical ailments. A note from the Toronto East General Hospital indicates the following:
The patient was transferred to the Emergency Department from the correctional facility on June 10, 2020, with worsening edema of both legs up to his scrotum. He has had leg edema on and off for about 4 years, but worsening and progressive for the past year. The edema is pitting, and in the past month, has involved his testicles and penis. He has no difficulty voiding with no urinary retention. … He has been on Lasix without a definitive improvement. He has also been using compression stockings for the past few months with perhaps some improvement.
[41] At the sentencing hearing, Mr. Themeliopoulos advised that he has had a difficult time while incarcerated. He has put on a significant amount of weight due to water retention. A photograph provided to the Court shows that he has had significant swelling to his legs. Medication has not assisted.
[42] Mr. Themeliopoulos also suffers from COPD, making him extremely vulnerable to the COVID-19 virus. He has essentially been confined to the medical range, fearing negative repercussions should he leave it. Although the medical range has not been subject to lockdowns in the traditional sense, Mr. Themeliopoulos has stayed within it to avoid contacting the virus.
Remorse
[43] In a letter addressed to the Court, Mr. Themeliopoulos stated, amongst other things, that his past behaviour does not warrant a designation as a “dangerous person.” Mr. Themeliopoulos expressed that he is “remorseful for any past actions”. He says that he has tried to “better” himself and admits that he has made poor relationship choices. He did not try to “hurt or mame [sic] anyone.” He believes that he has paid his debt to society for the poor decisions that he has made. He helps his son when he can and volunteers. He states:
I deeply regret my actions that have brought me to your courtroom, but that is not how I am in day to day life. I wouldn’t harm anyone for any reason. … I am in no physical shape to harm anyone right now. I don’t intend on ever being in this situation again. … I regret any previous action. I’ve taken responsibility for it and it seems the Crown wants to punish me twice foe everything. … I need to get out of jail between Covid, my health getting worse, the lack of proper medical attention I feel I’ve more than been taught a lesson. I will never forget and I don’t want to come back to jail ever again. … I feel horrible for what happened. I wish I could change things but I can’t.
[44] Mr. Themeliopoulos was emotional when addressing the Court. Again, he expressed remorse for his actions giving rise to these convictions.
[45] Based on this information about Mr. Themeliopoulos, I will turn to a consideration of the legal principles applicable to the custodial sentence.
The Legal Framework for Sentences of this Nature
a. Criminal Code
[46] In determining an appropriate sentence, regard must be had to the sentencing objectives in s. 718 of the Criminal Code, which provides as follows:
The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[47] The sentencing judge must also have regard to the following: any aggravating and mitigating factors, including those listed in s. 718.2(a)(i) to (vi); the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b)); the principle that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s. 718.2(c)); and the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(d) and (e)).[^36]
[48] Pursuant to s. 718.1 of the Criminal Code, "[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
b. Range of Sentence
[49] I am satisfied that the sentences proposed by counsel are within the range of sentences imposed for offences of this nature. Counsel for Mr. Themeliopoulos provided cases in support of his position, some of which are summarized as follows:
R. v. Simas-Mamani, 2018 ONSC 4558:[^37] Mr. Simas-Mamani had previous convictions for arson and a crime of violence. He was sentenced to eight years’ imprisonment for the violent sexual assault of a sex worker. She was repeatedly choked to unconsciousness to facilitate the sexual assault. He caused visible injuries, including a bruised neck and bruises in the area of her eyes. She suffered abrasions to her face, neck, and back. The victim suffered from long lasting lingering pain as a result of the assault.
R. v. Dyck, 2014 SKCA 93:[^38] Mr. Dyck was convicted of aggravated sexual assault of a domestic partner that resulted in hospitalization for a week and two surgeries. Mr. Dyck and his girlfriend engaged in sexual intercourse that became non-consensual. She suffered serious vaginal injuries that resulted in hospitalization and several surgeries. The trial judge imposed a 10-year sentence. The Court of Appeal reduced it to seven years’ imprisonment as the previous sentence was demonstrably unfit and was disproportionate to the offence and the moral responsibility of Mr. Dyck.
R. v. Campbell-Ball, 2019 SKCA 41:[^39] The victim was an escort and had a relationship with Mr. Campbell-Ball. On the evening in question, he took her to a hotel room where the other co-accused were waiting. She (and another woman) engaged in several sex acts, which were consensual, but they did not consent to other sex acts. The trial judge considered that the acts committed had overtones of exploitation and degradation as well as humiliation and cruelty. The victim was subjected to prolonged confinement by three males in a gang sexual assault. An object was used to perform anal penetration. No physical injuries were documented but major psychological harm was foreseeable. Mr. Campbell-Ball had 51 prior convictions. The Court of Appeal upheld a five-year sentence.
[50] Crown counsel also provided cases in support of their position, some of which may be summarized as follows:
R. v. Brown, 2020 ONCA 657:[^40] Mr. Brown pled guilty to aggravated sexual assault at trial. He appealed his sentence of 12 years’ imprisonment (less six years and three months’ pre-sentence custody). Mr. Brown attacked and raped a woman at random. He bashed her head against rocks and choked her into unconsciousness. She required 100 stitches to her head, could not see or speak for days, and sustained several other injuries. She also suffered post-traumatic stress disorder. Mr. Brown was 29 years-old at the time of appeal and was of Inuit heritage. The Court of Appeal applied a Gladue analysis, which is not applicable in Mr. Themeliopoulos’ case. After applying the analysis, the Court did not interfere with the sentence.
R. v. Blake, 2020 ONSC 5658:[^41] Mr. Blake was convicted by a jury of sexual assault causing bodily harm, attempting to choke for the purpose of committing sexual assault causing bodily harm, forcible confinement, and uttering threats to cause death. Mr. Blake picked up the complainant, a sex worker, and drove her to a secluded area. He locked the car’s doors and windows, grabbed her by the throat and squeezed so that she could not breathe. He bit her all over her body, which caused a broken finger, among other things. He also brandished a knife and threatened to stab her in the stomach. He then had vaginal intercourse with her without her consent (at times without a condom). Mr. Blake was sentenced to six years’ imprisonment. The Court found that the case law did not support an eight-year sentence because he did not have a criminal record, he did not choke the complainant to the point of unconsciousness, and it was not a gang sexual assault or one with multiple complainants.
R. v. Smith, 2016 ONSC 5261:[^42] Mr. Smith was convicted of aggravated sexual assault. He had sexual intercourse with the complainant while choking her with a cloth ligature. The complainant suffered serious bruising to her throat, ruptured blood vessels in her face and neck, and severe hemorrhaging in her eyes. Mr. Smith was a 47 year-old Indigenous man with a criminal record, including 11 convictions. He was sentenced to 10 years’ imprisonment, despite mitigating factors such as significant Gladue factors. The Court reviewed the case law on the appropriate sentencing range at paras. 40-55, finding, “[P]rimary consideration should be given to the objectives of deterrence and denunciation in sentencing for the offence of overcoming resistance to commit an offence.”[^43]
R. v. Lemmon, 2012 ABCA 103:[^44] Mr. Lemmon was convicted of unlawful confinement, sexual assault, and choking with intent to commit an indictable offence. He was 43 years-old and had an extensive criminal record, which included some convictions for confinement and sexual assault. The complainant, a waitress at the restaurant Mr. Lemmon frequented, gave Mr. Lemmon a ride home. At his residence, he locked her inside, dragged her by the neck until she lost consciousness, and repeatedly raped her when she came to. She suffered bruising, minor vaginal tears, and petechial hemorrhaging on her face. The trial judge sentenced him to 13 years’ imprisonment and declared him a long-term offender. The Court of Appeal varied the sentence to eight-year concurrent sentences for the sexual assault and confinement convictions, along with a five-year sentence for choking, for a total of 13 years’ imprisonment. The Court emphasized, at para. 29, the seriousness of choking or strangling, finding that a “significant additional sentence” for an “act of applied force to a victim’s throat” will be appropriate when the victim is rendered unconscious or suffers bodily harm.
[51] Bearing these legal principles in mind, I will now turn to a consideration of the fit sentence.
The Fit Sentence
[52] The facts giving rise to the convictions demand a sentence that emphasizes denunciation and deterrence. In considering the fit sentence, I find the following to be the aggravating factors:
a. The offences committed were brutal and horrific. The pictures produced at the trial speak volumes. They show the physical trauma suffered by the victim and give some insight into the horror of these offences.
b. The impact on the victim is obvious from the pictures themselves and the Victim Impact Statement she provided. She will never be the same following the infliction of violence by Mr. Themeliopoulos. There are devastating physical and psychological repercussions for the victim.
c. The victim, in this case, was a vulnerable sex trade worker who was abused in her own home.
d. There are concerns about recidivism.
e. Mr. Themeliopoulos has a criminal record with numerous entries involving his domestic partners.
f. Although Mr. Themeliopoulos has participated in counselling for substance and domestic abuse, this did not deter him from committing these offences.
g. Mr. Themeliopoulos has been incarcerated in the past, yet a custodial sentence has not deterred Mr. Themeliopoulos.
[53] I consider the following to be the mitigating factors in sentencing Mr. Themeliopoulos:
a. Mr. Themeliopoulos appears to have been raised in an unstable home. He left it at the age of 13. He essentially raised himself.
b. After his parents’ divorce, Mr. Themeliopoulos was mainly raised by his mother who does not appear to have enforced any rules. He had little contact with his father. He does not appear to have contact with his brother and sister who are both employed and pro-social members of our community.
c. His family life did not improve with his marriage to Caroline and the birth of his own son, Aleck Jr. They divorced.
d. Mr. Themeliopoulos appears to have a sporadic relationship with his own son.
e. Mr. Themeliopoulos did not find support and comfort in the company of his various partners as the relationships did not last.
f. Mr. Themeliopoulos was employed by the postal service but sustained a significant injury to his back, resulting in his inability to work for significant periods of time. He appears to have been supported by WSIB and by ODSP as well as a pension.
g. Mr. Themeliopoulos has been incarcerated during the pandemic (although mainly in the infirmary).
h. Despite being incarcerated during difficult times, he was able to access certain programs at the TEDC.
i. Mr. Themeliopoulos took responsibility for his actions when testifying and through his letter directed to the Court.
j. It is clear that Mr. Themeliopoulos has had a substance abuse problem for some time.
k. Mr. Themeliopoulos may have employment opportunities available to him on his release from custody.
l. Mr. Themeliopoulos expressed remorse for his conduct.
[54] Crimes of sexual assault involve significant violence against the victim. There are elements of dominance and degradation involved. There is immediate physical trauma to the victim and a long-lasting psychological impact. It is a crime that is emotionally devastating for victims. The offences committed require “exemplary sentences that properly reflect the wrongfulness inherent in sexual violence, and the harm it causes to the victims and to our society at large”.[^45]
[55] In my view, a sentence of eight years holds Mr. Themeliopoulos accountable for his crimes. It properly reflects and condemns his role in the offences that he committed and the harm he caused.
[56] In coming to my conclusion about the fit sentence, I am mindful of the fact that this would be the first visit to the penitentiary for Mr. Themeliopoulos and of the direction of Rosenberg J.A. in R. v. Borde,[^46] that “a first penitentiary sentence should be as short as possible.” This is a first jail sentence of any significance for Mr. Themeliopoulos. That said, the jump principle is not applicable due to the severity of the offences.
[57] I have also considered the principle of restraint in imposing a sentence of eight years. In doing so, I have considered the reasons in R. v. Reesor, 2019 ONCA 901, at para. 8, which are equally applicable to Mr. Themeliopoulos’ violent sexual assault on a sex trade worker:
The principle of restraint, like all principles of sentencing, operates in conjunction with other principles that often pull in a different direction. For offences like this, particularly committed in the context of domestic violence, the restraint principle must, as the trial judge noted, yield, to a large degree, to concerns associated with deterrence, denunciation and protection of the victim. A significant penitentiary sentence was necessary in this case.
[58] For the abovementioned reasons, I sentence Mr. Themeliopoulos to eight years in custody (96 months).
[59] Mr. Themeliopoulos will receive credit for time served pursuant to the principles set out in R. v. Summers, 2013 ONCA 147.[^48] He was incarcerated from December 8, 2018 to October 29, 2021 (1,057 days or 34 months, 22 days). Enhanced at 1.5 days for each day spent in presentence custody, Mr. Themeliopoulos will be given credit of 1,586 days or 53 months.
[60] Mr. Themeliopoulos will be required to serve a further 43 months or 3 years, 7 months in custody. I will now turn to a consideration of the long-term offender provisions.
The Legal Framework for Long-Term Offenders
i. Designation
[61] Section 753.1 of the Criminal Code deals with applications for designating an offender a long-term offender. It provides as follows:
753.1 (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that
(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;
(b) there is a substantial risk that the offender will re-offend; and
(c) there is a reasonable possibility of eventual control in the community.
(Crown counsel made an application under this part and filed an assessment report of Dr. Pearce pursuant to s. 752.1(2)).
ii. Sentence
[62] Section 753.1(3) provides for the sentence of a long-term offender as follows:
753.1 (3) If the court finds an offender to be a long-term offender, it shall
(a) impose a sentence for the offence for which the offender has been convicted, which must be a minimum punishment of imprisonment for a term of two years; and
(b) order that the offender be subject to long-term supervision for a period that does not exceed 10 years.
a. The Sentence Imposed (pursuant to s. 753.1(1)(a))
[63] For the reasons set out above, I have concluded that it would be appropriate to impose a sentence of two years or more for the offences for which Mr. Themeliopoulos has been convicted. In fact, I have imposed a sentence of eight years, less time served, requiring Mr. Themeliopoulos to serve another 43 months in custody. As such, the first criteria set out in s. 753.1(1)(a) has been met.
b. A Substantial Risk that Mr. Themeliopoulos Will Re-Offend (pursuant to s. 753.1(1)(b))
[64] Section 753.1(2) of the Criminal Code addresses the issue of a substantial risk referred to in s. 753.1(1)(b). It provides that the court shall be satisfied that there is a substantial risk that the offender will reoffend if:
(a) the offender has been convicted of an offence under … section 271 (sexual assault), … 273 (aggravated sexual assault) … or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and
(b) the offender
(i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons, or
(ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences. [Emphasis added]
i. Nature of the Conviction (pursuant to s. 753.1(2)(a))
[65] Mr. Themeliopoulos has been convicted of two of the offences enumerated in s. 753.1(2)(a) of the Criminal Code: sexual assault and aggravated sexual assault committed contrary to ss. 271 and 273 respectively. As such, he has met the criteria required by s. 753.1(2)(a) of the Criminal Code.
ii. Pattern of Repetitive Behaviour (pursuant to s. 753.1(2)(b)(i))
[66] Pursuant to s. 753.1(2)(b)(i), the court will consider whether Mr. Themeliopoulos has shown a pattern of repetitive behaviour, of which the offence for which he has been convicted forms a part, that shows a likelihood of him causing death or injury to other persons or inflicting severe psychological damage on other persons.
[67] Guidance for the definition of the phrase “a pattern of repetitive behaviour” may be found in R. v. Hogg, 2011 ONCA 840.[^49] The Court of Appeal for Ontario stated, at paras. 40 and 43, as follows:
To summarize, the pattern of repetitive behaviour that includes the predicate offence has to contain enough of the same elements of unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future. This will ensure that the level of gravity of the behaviour is the same, so that the concern raised by Marshall J.A. – that the last straw could be a much more minor infraction – could not result in a dangerous offender designation. However, the offences need not be the same in every detail; that would unduly restrict the application of the section.
Although the pattern differed in the detail of how the offences were carried out, the predicate and past offences still represented a pattern of repetitive violent behaviour that made it likely that the appellant would continue to commit similar acts of violence in order to have sexual gratification in the future.
[68] After having considered Mr. Themeliopoulos’ history, I have concluded that he has shown a pattern of repetitive behaviour, of which the offences he has been convicted of form a part. His past behaviour shows a likelihood of him causing injury to other persons or inflicting severe psychological damage on other persons and in particular, women. In coming to this conclusion, I rely on the summary of his prior convictions involving violence exacted on vulnerable women outlined above, including the following:
a. October 1992: An assault inflicted on his wife, Ms. Caroline Themeliopoulos;
b. June 2000: The harassment of his partner, Ms. Martha Goodyear;
c. July 2000: The harassment (again) of his partner, Ms. Goodyear;
d. August 2003: The harassment of his partner, Ms. Jacqueline Moore;
e. June 2005: The assault of his partner, Ms. Catherine Oake-Cormack;
f. July 2006: The assault (again) of his partner, Ms. Oake-Cormack;
g. Fall 2012: The harassment of Ms. Oake-Cormack; and
h. November 2018: The aggravated sexual assault (in addition to the other offences) of the female victim before me.
[69] While I acknowledge that the offences committed by Mr. Themeliopoulos and for which he is being sentenced before me differ from past offences, there is a pattern of abuse demonstrated by Mr. Themeliopoulos’ aggressive conduct toward vulnerable, female victims. This pattern demonstrates that he has failed to restrain himself in the past and may not be able to do so in the future. As such, Mr. Themeliopoulos has shown a likelihood of causing injury to other persons or inflicting severe psychological damage on other persons in the future through similar offences. Mr. Themeliopoulos meets the criteria set out in ss. 753.1(1)(b), 753.1(2)(a), and 753.1(2)(b)(i) of the Criminal Code.
c. Reasonable Possibility of Eventual Control in the Community (pursuant to s. 753.1(1)(c))
[70] Before Mr. Themeliopoulos can be declared a long-term offender, the court must be satisfied that there is a reasonable possibility of eventual control of the risk in the community. This must be possible within the duration of the long-term offender sentence (including any period of supervision imposed).
[71] I find that there is the possibility of eventual control in the community. Our Court of Appeal has commented on the considerations for imposing an LTO designation in R. v. Solano, 2014 ONCA 185:[^50]
Resort to the long-term offender regime is appropriate only where there is evidence that an offender can be meaningfully treated, so that the offender's risk to the public can be controlled at an acceptable level, within a determinate period of time. A mere hope that treatment will be successful, or simple optimism that there is a reasonable possibility of eventual control of the offender's risk in the community, is insufficient to ground a determinate sentence: R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357. [Emphasis added]
[72] Dr. Pearce’s risk assessment suggests that Mr. Themeliopoulos presents a substantial risk of recidivism.[^51] In his opinion, Mr. Themeliopoulos is at a moderate to high risk of committing another sexual offence. He states that substance abuse disorders are “treatment resistant” and have a high relapse rate. Since Mr. Themeliopoulos is in his fifties and medically compromised, he may be less likely to abuse certain substances.
[73] Dr. Pearce opines that Mr. Themeliopoulos’ personality problems will require substantial intervention. Treatment is available through the Correctional Service of Canada (the “CSC”), which has the resources to provide such treatment. Ms. Angela Beecher-Beekhoo, of the CSC, gave evidence regarding the programming available. If sentenced to the penitentiary, Mr. Themeliopoulos could participate in a number of programs, including the High Intensity Sex Offender Program.
[74] Further, Dr. Pearce finds that because of Mr. Themeliopoulos’ age, his likelihood of committing offences such as aggravated assault is less likely. He pointedly stated, “[R]apists, for the most part, stop offending in their fifties.” Although advancing age may reduce the risk of recidivism of sexual offences, domestic violence offences may be less likely to burn out with age. That said, Mr. Themeliopoulos has not committed a domestic violence type offence in years. If Mr. Themeliopoulos is willing to participate in treatment, risk management strategies may assist.
[75] Dr. Pearce concluded that there are reasons for optimism concerning the treatment or management of Mr. Themeliopoulos’ diagnoses. Dr. Pearce observes that Mr. Themeliopoulos has not participated in sexual offender treatment. He has rarely participated in other therapy, so it is difficult to address his previous response to treatment or his current motivation for treatment.
[76] Dr. Pearce observes, and the Court agrees, that Mr. Themeliopoulos has responded poorly to supervision in the past. He has failed to report on numerous occasions. He has re-offended while subject to supervisory court orders. That said, he has never been managed by the CSC, which may be risk reducing.
[77] Dr. Pearce concluded as follows:
In summary and considering the aforenoted factors and as best as I can ascertain, there are some reasons for optimism that this gentleman will be manageable in the community while subjected to an LTSO and in particular, after the expiry of such an Order. In my opinion and from a purely psychiatric perspective, there is a reasonable expectation of eventual control of Mr. Themeliopoulos’ risk in the community.
[78] Dr. Pearce stated that a 10-year LTSO would give Mr. Themeliopoulos the best chance of being managed in the community. He made the following recommendations for intervention to try to manage the risk posed by Mr. Themeliopoulos in the community:
a. Mr. Themeliopoulos should complete domestic violence programming and intensive sexual offender treatment programming during a period of incarceration. He should be referred for longitudinally-based, “booster” programming once he returns to the community to bolster the effects of institutional programs. Programs to target antisocial attitudes are also indicated. He should be assessed further for a paraphilia.
b. A prolonged placement at a community correctional centre is likely to benefit Mr. Themeliopoulos as his self-reporting has been unreliable. There should be a strict curfew in place for many years. Parole officers should also make frequent visits to his residence.
c. Mr. Themeliopoulos should not be in possession of a weapon. He should not associate with those with a criminal record and he should not become involved with escorts.
d. Mr. Themeliopoulos should participate in vocational training, in order to structure his time. It would be beneficial if he could ultimately return to gainful employment.
e. Mr. Themeliopoulos should be obliged to disclose to his case management team any relationship he becomes involved in. His partner should be made fully aware of his history, and they should be instructed to contact the authorities if Mr. Themeliopoulos displays any concerning behaviour.
f. Mr. Themeliopoulos should avoid the use of alcohol and non-prescribed drugs, as any return to their use would be risk enhancing. He should submit urine samples randomly and frequently, to ensure he is abstaining. If he has trouble avoiding alcohol, antialcohol medication (disulfiram or another medication like naltrexone) may assist him. Caution should be exercised in prescribing medication with an abuse potential, however, Dr. Pearce supports Mr. Themeliopoulos’ participation in an opioid replacement program (suboxone or methadone maintenance therapy).
[79] Ms. Beecher-Beekhoo testified that the recommendations made by Dr. Pearce could be imposed as conditions of his LTSO.
[80] I agree with Dr. Pearce’s assessment and the options for treatment and control proposed by Ms. Beecher-Beekhoo. I do find that there is a reasonable expectation of Mr. Themeliopoulos’ eventual control of his risk in the community. I recommend that the structures and conditions set out in para. 72 above be implemented.
[81] For the abovementioned reasons, I declare Mr. Themeliopoulos a long-term offender. He shall be subject to an LTSO for ten years. I recommend that the terms set out by Dr. Pearce and attached hereto as Appendix “B” be considered as part of the LTSO.
Conclusion
[82] I sentence Mr. Themeliopoulos as follows:
a. Mr. Themeliopoulos will serve a global sentence of eight years (96 months) imprisonment, less 53 months of presentence custody for a further 43 months to serve; and
b. Mr. Themeliopoulos will be subject to a long-term supervision order for 10 years.
[83] Mr. Themeliopoulos’ criminal record will reflect the following sentences:
Count
Offence
Sentence
1
Aggravated sexual assault.
96 months (eight years) less 53 months (time served) for a further 43 months to serve.
2
Aggravated assault.
96 months less 53 months for a further 43 months to serve concurrent to Count 1.
4
Forcible confinement.
3 years concurrent to Count 1.
5
Overcome resistance to commit an indictable offence (sexual assault) by strangling.
2 years concurrent to Count 1.
7
Unlawfully in a dwelling to commit an indictable offence.
2 years concurrent to Count 1.
[84] Mr. Themeliopoulos will be required to provide a sample of his DNA. He will be subject to a weapons prohibition and a SOIRA order for life.
Kelly J.
Released: October 29, 2021
appendix “A”
R. v. Themeliopolous
Chronology of Events in the Crown Application Record
January, February, and March 1992: Mr. Themeliopoulos attended as an outpatient in the Youth and Family Clinic.[^52]
October 26, 1992: A probation order dated January 12, 1993 indicates that Mr. Themeliopoulos was charged with assault.[^53] The warrant of committal dated January 12, 1993 indicates a finding of guilt for this offence.[^54]
November 9, 1992: A “Conditions of Release Form” indicates that Mr. Themeliopoulos was charged with failing to comply.[^55]
November 11, 1992: A Ministry of Correctional Services Classification Record dated November 11, 1992 provides various personal information about Mr. Themeliopoulos. The information about the circumstances of the offences appears to come from the “subject” as he is listed as the “Information Source.” It states as follows:
Subject breached his conditions on November 9, 1992 by contacted [sic] his separated wife. She reported him and the subject was charged for failing to comply as well as assault on his wife. The subject was taken into custody and on November 17, 1992 plead guilty to the fail to comply charge.[^56]
At that time, Mr. Themeliopoulos reported that his health was good “except for a bad back.”[^57] It was recommended that he serve his 61-day sentence in the Mimico Correctional Centre.[^58]
November 17, 1992: Mr. Themeliopoulos was found guilty of failing to comply with his recognizance. He was sentenced to 2 months in custody, reduced to 21 days on appeal.
November 27, 1992: Mr. Themeliopoulos was released on bail pending appeal. One of the conditions of his release was that he was not to associate or communicate directly or indirectly with Ms. Caroline Themeliopoulos.[^59]
January 12, 1993: Mr. Themeliopoulos was found guilty of assault. A probation order sets out that Mr. Themeliopoulos was given a sentence of seven days for the offence of assault committed October 26, 1992. He was placed on probation for 12 months. During the period of probation, he was not to associate or have any communication with Ms. Caroline Themeliopoulos.[^60]
February 11, 1993: Mr. Themeliopoulos’ sentence appeal was allowed. His sentence of two months’ imprisonment was reduced to 21 days as per the warrant of committal.[^61]
March 6, 1995: Mr. Themeliopoulos was sent to the Clarke Institute of Psychiatry (the “Clarke”) for an assessment arising from his matrimonial dispute with Ms. Caroline Themeliopoulos. The purpose was to deal with issues regarding access issues to Aleck Jr. A letter was provided, and it concluded: “We believe that his persistent blaming of others, his inflexibility and his pattern of hostility towards agencies make it unlikely that we can be of assistance in this matter.”[^62]
May 26, 1995: A second letter from the Clarke concluded, amongst other things, as follows, “It is clear that in the past, there existed a caring relationship between Mr. Themeliopoulos and his son. However, Mr. Themeliopoulos’ behaviours as documented above, his lack of insight into the same, his tendency to blame others, his verbal abuse of others and his need to have things his way all raise concerns about the kind of role model he would be for Aleck Jr. if access were reinstated”.[^63]
August 5, 1995: In a third letter from the Clarke regarding access visits (which were recommended to be terminated), the author had the following to say: “Mr. Themeliopoulos’ efforts to renew contact with Aleck Jr. are laudable. However, he has also been verbally abusive, threatening and flagrantly oppositional to others in the past. With me, he has been uncooperative in relating his personal history, as he deemed it ‘irrelevant’. He has been accusatory, devaluing of myself and the clinical process, insulting and very provocative”.[^64]
May 10, 1996: Mr. Themeliopoulos appears to have been charged with the following offences: eight counts of break and enter, eight counts of possessing “burglars tools,” and possession under $5,000.[^65]
September 26, 1996: A Record of Arrest shows that Mr. Themeliopoulos was charged with break and enter with intent and assault.[^66] He also appears to have been arrested for possession of marijuana.[^67]
October 7, 1996: Mr. Themeliopoulos was convicted of forcible entry and possession of a narcotic. He received a suspended sentence and probation for 12 months in addition to 12 days of presentence custody.
March 5, 1997: Mr. Themeliopoulos was convicted of two counts of theft under $5,000; possession of break-in instruments; and break, enter, and theft. He received a four-month conditional sentence and 12 months of probation.
April 29, 1997: A letter was sent from T.A. Patterson & Associates Inc., alcohol and drug consultants. The assessment concluded that Mr. Themeliopoulos was abusing alcohol and possibly cannabis. The letter noted that he has a history of abusing prescription medication.[^68]
December 9, 1997: A letter from the Youth Recovery Awareness Program indicated that Mr. Themeliopoulos had a substance dependence on cannabis, has misused alcohol, and has exceeded his doctor’s recommendations regarding prescription medication. They recommended a more intensive program for Mr. Themeliopoulos, such as Donwoods.[^69]
June 26, 2000: A record of arrest indicates that Mr. Themeliopoulos was charged with criminal harassment. The complainant is listed as “Martha Goodyear.”[^70] The synopsis alleges that Mr. Themeliopoulos and Ms. Goodyear are “former” boyfriend and girlfriend. Ms. Goodyear had an eight-year-old son at the time. She advised police that Mr. Themeliopoulos became verbally abusive to both her and her son. On June 4, 2000, Ms. Goodyear called the police to have Mr. Themeliopoulos removed from her apartment. The following four days it is alleged that he attended at her apartment on numerous occasions and knocked on her door. When she did not answer, he pushed notes under her door. He began looking in her window and knocked on it. At one point, when the door to her apartment was ajar but the chain lock in use, Mr. Themeliopoulos allegedly put his arm through the door and tried to open it. When she took her son to school, Mr. Themeliopoulos is said to have approached her and tried to speak with her. On one occasion, a friend opened the door to Ms. Goodyear’s apartment, and Mr. Themeliopoulos entered. Mr. Themeliopoulos refused to leave. These incidents occurred between June 22 and June 26, 2000.[^71]
July 6, 2000: A case tracking form indicates that Mr. Themeliopoulos pleaded guilty to the offence of criminal harassment (communicate) contrary to s. 264(2)(b). He received a sentence of time served (11 days), 18 months of probation, and a section 109 order for five years.[^72]
July 6, 2000: An information indicates that Mr. Themeliopoulos was charged with failing to comply with probation (communicating directly or indirectly with Ms. Goodyear), criminal harassment of Ms. Goodyear between July 6 and 9, 2000, as well as public mischief by reporting that Ms. Goodyear had committed the offence of criminal harassment.[^73] The synopsis alleges that within hours of his release, Mr. Themeliopoulos went to the area of Ms. Goodyear’s apartment. He saw her and then engaged her in a verbal altercation. He told her that she should never have done “this” to him and gave her the finger.[^74] She called the police and he left. Mr. Themeliopoulos left messages for the police, suggesting his rights were being violated and that he was being harassed. He was asked to turn himself into the police, but he refused.
It is further alleged that on July 9, 2000, Mr. Themeliopoulos called the police and falsely identified himself as Mr. Scott Rogers. He told the police that Ms. Goodyear was harassing him by coming to his door frequently asking him about her “ex.” Police attended and spoke with Mr. Themeliopoulos. He denied that he made the calls and further denied that Ms. Goodyear was harassing him.[^75]
August 23, 2000: Police became aware of the location of Mr. Themeliopoulos. They knocked on the door but there was no answer. They obtained a warrant while several officers kept watch on the apartment for approximately four hours. Eventually, the police executed the warrant. When they entered the apartment, Mr. Themeliopoulos was sitting on the couch watching the building security camera on television.[^76]
November 10, 2000: The probation order indicates that Mr. Themeliopoulos was found guilty of failing to comply with his probation, criminal harassment, and public mischief. The sentence is recorded as 15 days in “jail” concurrent, in addition to 78 days of presentence custody. There was a period of probation imposed for 3 years as well as a s. 109 order for 10 years. The probation order required that Mr. Themeliopoulos engage in anger management counselling and that he not associate or communicate directly or indirectly with Ms. Goodyear. Additionally, he was not to be within 250 metres of any place where “Martha Goodyear and her son may reside, their place of employment or school.”
July 14, 2001: A letter from Dr. Dan Paitich (Consulting Psychologist) indicated that he believed that Mr. Themeliopoulos was deliberately vague during their session. Dr. Paitich indicated, “General dilapidation of personality is a problem, not anger, and it is not easily alleviated.” He concluded that there is “no way of preventing erratic behaviour.”[^77]
November 22, 2001: Mr. Themeliopoulos advised his probation officer that he was reluctant to get his driver’s license because he “likes to party sometimes” and he fears that he may drink and drive. It was recommended that he attend the PARS program.[^78]
December 19, 2001: Mr. Themeliopoulos advised his probation officer that he was committed to working on obtaining his driver’s license and they talked about reducing his marijuana use. The probation officer suggested programs, but Mr. Themeliopoulos advised that he had been at ARF and Renascent House. He felt that he must simply “decide” to quit. The out-patient program at Scarborough General Hospital was recommended.[^79]
January 24, 2002: Mr. Themeliopoulos advised his probation officer that he was having problems with his drug use since his release from jail and was spending a significant amount of money on them. The probation officer described, “The vicious circle is that he can’t meet goals and then feels the need for some drugs to calm himself and bury the pain-conflict. Thus, he goes out and uses and this is getting out of hand as he is using more serious types of drugs – cocaine (both kinds) and more frequently.” Mr. Themeliopoulos advised that he has “no clue” what would make him happy. Mr. Themeliopoulos appeared emotional during this session. However, when it was suggested that he needed to attend the PARS sessions, “he became confrontative” and suggested to the probation officer, “charge me then but I’m not going.”[^80]
February 14, 2002: Mr. Themeliopoulos advised his probation officer that he was going to try to break his drug habit himself despite the recommendation that he seek professional help.[^81]
February 18, 2002: Mr. Themeliopoulos agreed to contact Counterpoint to deal with his issues.[^82]
March 6, 2002: Mr. Themeliopoulos advised that he was controlling his drug use by speaking with his mother and brother. He was “not taking programs.”[^83]
February 10, 2003: An information shows that Mr. Themeliopoulos was charged with various offences against Ms. Jacqueline Moore, including threatening bodily harm, assault, theft over $5,000, and criminal harassment.[^84]
The synopsis suggests that Mr. Themeliopoulos and Ms. Moore were in a boyfriend/girlfriend relationship. Ms. Moore alleges that Mr. Themeliopoulos stole jewelry from her, and she kicked him out of her apartment. After pleading with Ms. Moore to take him back, she did. She alleges that Mr. Themeliopoulos stole from her again, and she kicked him out. Subsequently, Ms. Moore injured her shoulder. Mr. Themeliopoulos ended up staying with her because she needed full-time care. During a fight, Ms. Moore alleges that he slapped her on the face. She asked him to leave but he refused. She tried to call the police, but it is alleged that Mr. Themeliopoulos pulled the phone out of the jack. Ms. Moore was eventually hospitalized and filed a report with the police.[^85]
October 16, 2003: An information alleges that Mr. Themeliopoulos failed to attend court.[^86]
July 7, 2005: Mr. Themeliopoulos was arrested for the offences against Ms. Moore and failure to attend court. Another information and record of arrest alleges that Mr. Themeliopoulos committed the offences of assault and forcible confinement.[^87] The victim was Ms. Catherine Oake-Cormack. It is alleged that on June 30, 2005, Mr. Themeliopoulos was arguing with Ms. Oake-Cormack when he struck her wrist with a closed fist (she had previously had surgery on that wrist). She tried to leave the apartment, but Mr. Themeliopoulos prevented her from doing so. It is alleged that he grabbed her by the wrist, twisted it and tore the clothes off her body to prevent her from leaving. She eventually freed herself and fled.
July 19, 2005: There are convictions and a probation order with respect to the offences of theft over $5,000, criminal harassment, fail to comply with probation, assault, and fail to attend court. An intermittent sentence of 90 days was imposed in addition to 13 days of presentence custody.[^88] The probation order provided, amongst other things, that he not associate, and so forth, with Ms. Jacqueline
August 2, 2005: Mr. Themeliopoulos advised his probation officer that he had not been using drugs for two months.[^89]
August 8, 2005: The probation officer reported that he had spoken with Mr. Themeliopoulos’ employer. The employer advised the probation officer that Mr. Themeliopoulos had been working for him for over one year (Rizzo Homes). He advised that Mr. Themeliopoulos ensures that the workers do their jobs. He advised that Mr. Themeliopoulos is one of the best workers and he gives him more responsibility. On the job site, Mr. Themeliopoulos is a hard worker.[^90]
November 9, 2005: By this time, Mr. Themeliopoulos had signed up to participate in the PARS program. On this date, he advised that he missed his first session because he was “tired from work.”[^91] Marijuana of the PARS program confirmed the missed appointment and “pointed out a similar pattern in client’s resistance to program in the past.”[^92]
November 15, 2005: The probation notes indicate that Mr. Themeliopoulos missed his second scheduled appointment for the PARS program.[^93]
December 2005: There are several references in the notes of the probation officer that Mr. Themeliopoulos had failed to attend his appointments.[^94]
March 22, 2006: Mr. Themeliopoulos reported to his probation officer that he had been attending the PARS program. He advised that the material is similar to that of his past program but that he has “a better understanding of avoiding abusive situations”.[^95] He advised that he would contact the John Howard Society (“JHS”) for counselling but advised that he was “drug free.”
May 1, 2006: The probation notes indicate that Mr. Themeliopoulos finished the PARS program.[^96]
May 9, 2006: The probation notes indicate that the officer received a closing report from the JHS-PARS program. The report indicated that Mr. Themeliopoulos appeared to have an awareness of the material however, “it is unknown how much he will integrate this into his personal life.”[^97]
May 15, 2006: There was a misconduct report filed on Mr. Themeliopoulos when he was incarcerated. Mr. Themeliopoulos had brought money into the institution on his return from court. He admitted to the misconduct, claiming that he gets “ripped off” on the street. As such, he keeps money in his shoes.[^98]
June 6, 2006: Mr. Themeliopoulos advised the probation officer that he smokes marijuana occasionally but that he is not using “hard drugs.”[^99]
July 16, 2006: An information alleges that Mr. Themeliopoulos committed an assault on Ms. Oake-Cormack as well as forcibly confining her. Additionally, he was charged with failing to comply with his probation order that required him to have no contact with Ms. Oake-Cormack.[^100]
The synopsis alleges that Mr. Themeliopoulos and Ms. Oake-Cormack argued about going to a concert. It is alleged that he grabbed Ms. Oake-Cormack by the hair and threw her around the bedroom. She attempted to leave the bedroom, but Mr. Themeliopoulos refused to let her do so. She again tried to leave but Mr. Themeliopoulos would not let her do so. He blocked the doorway and spat in her face. She tried to use the phone, but he prevented her from doing so.
July 17, 2006: The probation notes indicate that Mr. Themeliopoulos had attended a drug counselling session with Mr. Perry Sabourin. He advised Mr. Sabourin that he had not used drugs since November.[^101]
July 25, 2006: The probation notes indicate that Mr. Themeliopoulos was going on vacation until the first or second week of August 2006. He was aware of the recent charges and said that he wanted nothing to do with Ms. Oake-Cormack.[^102]
September 21, 2006: Mr. Themeliopoulos contacted his probation officer. He was instructed to turn himself in as there were outstanding warrants. He advised that he was “not ready at this time” and did not disclose his location.[^103]
November 9, 2006: Mr. Themeliopoulos was arrested in Niagara Falls.[^104]
November 20, 2006: Mr. Themeliopoulos was found guilty of assault and fail to comply. He was sentenced to 30 days in jail intermittent in addition to 12 days of presentence custody. A period of 12 months of probation was imposed. He was required to attend PARS. He was also ordered not to associate with Mr. Oake-Cormack.[^105]
November 22, 2006: The probation notes indicate that Ms. Oake-Cormack had advised that she wished to be with Mr. Themeliopoulos again and that she was ill.[^106]
November 23, 2006: Mr. Themeliopoulos advised that he had learned that “victim services tried to get her to lie about what happened.” He wanted to attend counselling with Ms. Oake-Cormack and to attend before the judge. He advised that he did not wish to attend the PARS program and that he wanted his probation order changed.[^107]
December 15, 2006: Mr. Themeliopoulos reported that he was living in Niagara Falls. He had a lengthy discussion with his probation officer about community supervision and “areas that put client at a high risk to re-offend”. He reported that he was abstaining from drugs and was taking drug tests regularly. He also reported he was taking lorazepam to calm his nerves as well as “oxycontent” [sic].[^108]
An LSI-OR indicated that Mr. Themeliopoulos continued to display “negative/abusive behaviour, despite completing a PAR program.” It was recommended that he participate in psychotherapy and substance abuse programs.[^109] His LSI-OR score was 22 and he was at a high risk of reoffending.
March 6, 2007: Ms. Oake-McCormack spoke with Mr. Themeliopoulos’ probation officer. She wanted a variation to Mr. Themeliopoulos’ probation so that they could have contact. She had no concerns for her safety and her health was deteriorating.[^110] (The variation was ultimately granted by Wilkie J. in May 2007.)
March 29, 2007: Mr. Themeliopoulos advised, amongst other things, that he was volunteering at Project Share when he was physically “feeling up to it.”[^111]
July 16, 2007: Mr. Themeliopoulos advised that he could not report to probation on certain dates because he “has more important things to attend to than probation.”[^112]
October 22, 2007: Mr. Themeliopoulos expressed frustration about attending probation. He advised that attending at probation is the “least of his priorities” as he is fighting “illnesses” and worker’s compensation. He made remarks about his previous probation officer (referring to her as “that chick”) and questioned her competence. He expressed displeasure with his current probation officer’s performance.[^113]
November 27, 2007: Mr. Themeliopoulos wanted to discontinue his probation. He advised that he has “changed his life and is no longer involved in the criminal culture.”[^114]
January 27, 2009: A transcript of a plea before Moore J. indicates that on this date, Mr. Themeliopoulos had been charged with trafficking a controlled substance, trafficking cocaine (x2), and possession of property obtained by crime (x3). He entered into a recognizance that required he not possess a cellular telephone, and so forth.[^115]
January 2011: An information alleges a number of offences, including mischief under $5,000, and two counts of criminal harassment, threatening death and bodily harm.[^116] The synopsis alleges that Mr. Themeliopoulos was harassing his landlord, spat on the front of the landlord’s restaurant, and so forth.[^117]
March 4, 2011: Mr. Themeliopoulos was found guilty of mischief. He was given a suspended sentence, together with 12 months of probation in addition to the two days of presentence custody served. The complainant was Mr. Themeliopoulos’ landlord.
March 25, 2011: Mr. Themeliopoulos was found guilty of criminal harassment, mischief under $5,000, and three counts of uttering threats. He had been harassing his landlord and his landlord’s family. He had threatened to kill the landlord and damage the door of his landlord’s restaurant.
May 11, 2011: The LSI-OR report indicated a score of 25. Mr. Themeliopoulos was determined to be at a high risk to reoffend.[^118]
May 18, 2011: Probation services was advised that Mr. Themeliopoulos was arrested.[^119]
June 29, 2011: The probation notes indicate that Mr. Themeliopoulos pleaded guilty to public mischief.[^120] Mr. Themeliopoulos advised probation that he entered the plea to “get the charges over with.”
June 30, 2011: Mr. Themeliopoulos was found guilty of public mischief. He received a conditional sentence of 90 days. Amongst other conditions, Mr. Themeliopoulos was to have no contact directly or indirectly with Mr. Amgelopoulos and Mr. Zhopa.[^121] He was also placed on house arrest with certain exceptions.[^122]
July 20, 2011: The probation notes indicate that Mr. Themeliopoulos was attending anger management meetings as part of his treatment.[^123]
August 23, 2011: The probation notes indicate that Mr. Themeliopoulos had been charged with failing to comply with his conditional sentence order.[^124]
March 14, 2012: There is a transcript from a plea before Moore J. Mr. Themeliopoulos pleaded guilty to breaching his conditional sentence and failing to attend court. He used a cellular phone to report an incident and was located at a convenience store in breach of his house arrest condition. During the plea, the court was advised that Mr. Themeliopoulos used the cell phone because he believed his safety was in jeopardy and that he failed to attend court because he was attending medical appointments. During the plea, Mr. Themeliopoulos’ record was admitted.
During this court appearance, Mr. Themeliopoulos advised the court, amongst other things:
a. That he had been employed or offered a job as an assistant manager at the Horseshoe Tavern. (Crown Counsel called the Horseshoe Tavern and was advised that the tavern has not hired an assistant manager in over a year, nor have they considered doing so. The Horseshoe Tavern had never heard of Mr. Themeliopoulos.)[^125]
b. Mr. Themeliopoulos advised that there was a Facebook page. Mr. Themeliopoulos’ name was under a “Jeff Bartolo.” The general manager advised that he had never heard of a “Jeff Bartolo.”[^126] Mr. Themeliopoulos explained that he was not working for the Horseshoe Tavern, but that he was working for Canadian Music Week, who were putting on shows at the Horseshoe Tavern.[^127]
March 16, 2012: There is a transcript from an appearance before Moore J. The Court is referred to a plea entered earlier that morning. Mr. Themeliopoulos pleaded guilty to trafficking in cocaine and trafficking in oxycontin. He received a conditional sentence of 18 months. Moore J. imposed a suspended sentence for breach of the conditional sentence order and failing to comply in recognition of 16 days of presentence custody, probation for six months, and a $500 donation.
On March 16, 2012: As well, Mr. Themeliopoulos was found guilty of failing to attend court and failing to comply with his recognizance. He received a suspended sentence and probation in addition to 16 days of presentence custody.
March 19, 2012: Mr. Themeliopoulos reported to the probation officer that he has no issues with drugs or alcohol at the present time. He has permission to smoke marijuana for medical reasons.[^128]
March 22, 2012: Dr. Amann spoke with the probation officer confirming the requirement that Mr. Themeliopoulos attend medical appointments. Additionally, Dr. Amann described Mr. Themeliopoulos as a “difficult man” and that “I don’t believe everything he tells me.” He described Mr. Themeliopoulos as “manipulative” at times. He confirmed that Mr. Themeliopoulos will be attending substance use management at CAMH.[^129]
July 30, 2012: Mr. Themeliopoulos reported that he had completed his first phase of substance use management at CAMH. Dr. Amann recommended the methadone program, but Mr. Themeliopoulos would not agree to participate. That said, he was willing to attend at a psychologist.[^130]
October 25, 2012: The probation notes indicate that Mr. Themeliopoulos agreed that he had had a verbal altercation with a postal worker. He denied making any threats as reported by the worker.[^131]
October 24, 2012 to November 22, 2012: It is alleged that Mr. Themeliopoulos committed the offences of criminal harassment and failure to comply with probation. The victim is Ms. Oake-Cormack.[^132] She alleged that Mr. Themeliopoulos had sent her letters (one a week for three weeks) asking for her phone number. He was attempting to renew his relationship with Ms. Oake-Cormack. The letters were seized by police.[^133]
November 27, 2012: It is alleged that Mr. Themeliopoulos breached his conditional sentence order. At the time of these allegations, Mr. Themeliopoulos was charged with offences arising in October 2012 including criminal harassment and fail to comply with probation (x3).[^134] As of that date, he had not been arrested.[^135]
March 21, 2014: There is a transcript of the proceedings before Bloomenfeld J. It is a sentencing matter in relation to a finding of guilt, following a trial, with respect to criminal harassment and two counts of failing to comply with probation (re: Ms. Oake-Cormack). In submitting the appropriate sentence, Crown counsel refers to the facts giving rise to the findings of guilt as follows:
Mr. Themeliopoulos came to the end of his relationship with Ms. Oake-Cormack. The end of the relationship, as your Honour found, contained a threat of violence that he was going to smash her head into the floor. When she then took steps to distance herself from the relationship by calling the police, having a warrant taken out and telling him that she no longer wanted to have anything to do with him, the – the letters came. And your Honour found in your reasons for judgment the – the tone of the letters, the sometimes aggressive, sometimes passive aggressive nature of the language, the referring to the fact that he had been crushed, that he was going to OD on pills, that he was going to hold her responsible, things of that nature. So clearly, we have a situation that the Court was referring to where Ms. Oake-Cormack was unable to continue on after terminating the relationship. Seemingly, Mr. Themeliopoulos did not wish the relationship to end at that point, but his letters insisting that they try to reconcile caused a great deal of pain and anguish to Ms. Oake-Cormack.[^136]
During submissions, Crown counsel also referred to some of the evidence provided by Ms. Oake-Cormack—–that she had a variety of medical and emotional concerns that were affected by Mr. Themeliopoulos’ conduct and that she had to barricade her door using two by four-inch wooden planks.[^137]
During submissions, counsel for Mr. Themeliopoulos advised, amongst other things, that:
a. He was collecting WSIB because he suffered a back injury in 1990.
b. He suffers from traumatic stress disorder that has developed over the years.
c. He is dealing with depression because of his health, pain issues, and “lack of employment” over the years.
d. That he is earning an income from participating in the music business, particularly “Music Week.”
e. He does not have a lot of support in the community. He did not have a place to live and was drifting from place to place, which was causing him to become depressed.
Mr. Themeliopoulos addressed the Court prior to being sentenced. He said as follows:
a. “I’d first like to start off just saying I wish I could have testified, maybe Your Honour, you would have got maybe a clearer picture of everything that had happened, but I was unable to. Thank you. I’m not trying to minimize my crime or anything that I’ve done in any way”.[^138]
He said, “First of all, I would like to apology [sic] to Cathy if she was here, but apparently she’s not. I do not intend, nor did I mean to frighten her or scare her. I really do care for her a lot.”
b. Mr. Themeliopoulos said that he had known Ms. Oake-Cormack for 30 years. He met up with her in 2002/2003. While they have had their problems, they have had good times together. He is “distressed” at how their relationship has “ended up.” He said that “[i]f I had known Cathy really wanted to end the relationship, I wouldn’t have contacted her in any way. She was my best friend for the better part of 10 years and was very supportive.”
c. Mr. Themeliopoulos expressed that he is “ashamed” that he might have made her feel “upset” by his actions and he did not intend to frighten her. He apologized to the Court and said he wished that he could take back his actions but that he could not. He asked the Court to “forgive” him.
d. Mr. Themeliopoulos explained that he is active in the music business, that he has a sick mother that he cares about, a son, and two beautiful grandchildren.
e. Mr. Themeliopoulos advised that he has been trying to change his life since being arrested for trafficking. He has been “narcotic free,” unless otherwise prescribed, for over five years.
f. He explained that he feels very sorry for what he has done. He said that he had been incarcerated for 120 days and he “really had a lot of time to think about it and I’m very sorry for everything I’ve done.”[^139]
g. Mr. Themeliopoulos explained that he has not seen a chiropractor, psychiatrist, or physiotherapist and had not received proper medical attention while incarcerated.
Bloomenfeld J. found that Mr. Themelipoulos uttered a threat to Ms. Oake-Cormack and that she considered that fact in finding him guilty of harassment.[^140] The threat formed part of the circumstances leading Ms. Oake-Cormack to have been fearful of Mr. Themeliopoulos.[^141] She also said the following:
a. That because the matter proceeded to trial, she observed that the “complainant did have to endure the ordeal of testifying, which was clearly extremely difficult and challenging and traumatic for her”.
b. She accepted Mr. Themeliopoulos’ apology as a sign of remorse for his actions as well as “the effect that it had on the complainant”.
c. She observed that “[s]ome of the comments that you made still, in my view, do not reflect full appreciation of the gravity of the offence and you’re still backtracking from some of the factual findings that I made.”
d. She recognized that Mr. Themeliopoulos had made “sincere” effort towards his rehabilitation and that he did “want to turn a corner and pursue a different path and that you’re trying hard to remain drug free.”
e. She stated that it was also “pertinent” for her to consider the nature of the harassment. She said, “[T]his was not at the most extreme end of the spectrum of gravity for these kinds of offences, nor was it at the most trivial end, to put it that way, right, or the most innocuous end. It was a serious offence. But absolutely, it could have been worse.”
f. In imposing the sentence, Bloomenfeld J. observed that “when I take a look at your record, not only do you have a documented history of prior offences of criminal harassment, but you essentially breached one court order after another and there is very little here reflected in your record that suggests a resolve to take advantage of ameliorative programming or full advantage of further time in the community as a result of [indiscernible].”
g. In considering the facts giving rise to the convictions, Bloomenfeld J. observed, “I also take into account, as Mr. Besant [Mr. Themeliopoulos’ counsel) asked me to, the actual content of the letters. As I indicated in my findings of fact, while aspects of the letters were sinister and manipulative and as Crown counsel put it, aggressive and passive aggressive, I accept that in addition to that, you wanted to get your things back and that that was extremely important to you, so I want you to know that I am considering that as well.”
h. Bloomenfeld J. then held, “Having said all of that, there are several very concerning aggravating factors that motivate me to impose the sentence that I’m going to give you. First of all, the effect on the complainant, even if it was tempered somewhat by the subsequent conduct as shown by the fact that you were in her home in 2013, was profound and you can see that just in the way she gave her evidence. She’s also a vulnerable victim. She’s clearly fragile in many respects, physically, emotionally and psychologically. And having known her for 30 years you, of course, understood that fragility. In addition to that, this was not one letter, this was not two letters, this was three or four letters and they were all sent after she ceased having contact with you. And she also changed her phone number, sending a clear signal that following the threatening conduct that you exhibited, she wanted nothing more to do with you.”
i. Bloomenfeld J. further held that the Court of Appeal (in R. v. Bates)[^142] urged courts to emphasize the problem of criminal harassment and “to send a message of denunciation and general deterrence to the community as well as specific deterrence for individual offenders. And when it comes to specific deterrence for individual offenders, your record demands that this sentence also send a strong message to you that no matter how deep your resolve is to change and to be rehabilitated, there will be consequences. And there must be substantial consequences when you continue to commit these kinds of offences despite having been sentenced for exactly this criminal conduct over and over again.”
j. Bloomenfeld J. continued, “As Crown counsel pointed out, your record displays several criminal harassment convictions since the year 2000 predating this particular offence and you’ve been given one jail sentence after another of various lengths, as well as probation orders in an effort to give you access to resources that the court system may have to offer to assist you in rehabilitating yourself and to persuade you that under no circumstances can you continue to harm and threaten complainants in the way that you have. I note as well, that your record reflects not only criminal harassment convictions but various kinds of criminal offences that display aggression, force, violence and intimidation, assault, forcible entry, threatening, threatening of all kinds, death, bodily harm and death. Not only that, your record shows very clearly that no matter what kind of court ordered restraint is put on you, be it a bail order or a probation order, time and time again you have ignored those orders: you failed to come to court, you’ve breached your probation, you’ve committed public mischief, you’ve failed to appear. Essentially, you are, as far as your record goes, a [indiscernible] offender and you have recidivated over and over again. So, while you do not yet meet the definition of the worst offender, when I look at that spectrum of gravity that I was talking about, you’re certainly more than halfway there. So this is a serious offence committed by an individual who has displayed over and over again, flagrant disregard for the sentences that other – for the sentences that other Courts have imposed upon him for exactly this kind of conduct as well as the justice system generally.”
k. Although Bloomenfeld J. believed that the sentence she imposed was lenient, it took into account the mitigating factors submitted. For the offence of criminal harassment, Bloomenfeld J. imposed a sentence of 100 days in addition to 24 days of presentence custody and a further 30 days for the breach of probation. In addition, she imposed probation with a no contact order with the complainant.[^143]
April 15, 2014: The probation notes indicate that Mr. Themeliopoulos was under suicide watch.[^144]
May 23, 2014: Ms. Oake-Cormack reported that Mr. Themeliopoulos was calling her and that she feared for her safety. He advised her friends and neighbours that he would be moving in with her.[^145]
June 15, 2014: Mr. Themeliopoulos was released from custody.[^146]
March 20, 2015: Mr. Themeliopoulos advised that he was involved booking bands for the Canadian Music Festival. He was too busy to complete the PARS program.[^147]
July 14, 2015: The probation notes refer to, amongst other things, the domestic violence he is observing between his son and his wife. He denied his own involvement in domestic violence.[^148]
March 2, 2016: The LSI-OR score was 25. He was determined to be a high risk to re-offend.[^149]
May 18, 2016: Mr. Themeliopoulos appears to be working in the music business as is his girlfriend, Kim.[^150]
May 23, 2017: There were allegations that Mr. Themeliopoulos was trespassing on the property at 130 Cosburn Avenue. The superintendent was the complainant. He was advised.[^151]
November 27-28, 2018: Mr. Themeliopoulos committed the following offences giving rise to the convictions before this Court: aggravated sexual assault, aggravated assault, forcible confinement, overcome resistance to commit an indictable offence by strangling, and unlawfully in a dwelling to commit an indictable offence.
December 4, 2018: Mr. Themeliopoulos was arrested for the abovementioned offences.
December 10, 2018: Mr. Themeliopoulos advised that he wished to be placed in protective custody.[^152]
May 3, 2019: Mr. Themeliopoulos asked to be placed in general population.[^153]
July 9, 2019: Mr. Themeliopoulos asked to be in “Seg B” and remain there for health and safety reasons.[^154]
November 20, 2019: Mr. Themeliopoulos starts to complain about his medical treatment and the fact that he is under stress because of the dangerous offender application.[^155]
January 30, 2020: Mr. Themeliopoulos advised that he felt suicidal because he wished to remain at the TSDC (as opposed to going to the TEDC). He was seen by Dr. McMaster.[^156]
There are numerous notes regarding Mr. Themeliopoulos’ medical treatment while incarcerated. Most of them are in handwriting and difficult to decipher. That said, many of them are referred to in the report of Dr. Pearce and set out in my reasons.
APPENDIX B
R. v. Themelipoulos
Recommendations of Dr. Pearce
Dr. Pearce set out his recommendations for an LTSO as follows commencing at page 40 of his report:
Mr. Themeliopoulos should complete domestic violence programming and intensive sexual offender treatment programming during a period of incarceration. He should be referred for longitudinally-based, “booster” programming once he returns to the community, to bolster the effects of institutional programs. Programs to target antisocial attitudes are also indicated. He should be assessed further for a paraphilia.
A prolonged placement at a community correctional centre (CCC) is likely to benefit this gentleman. If living outside a correctional facility, his whereabouts should be monitored electronically as his self-report has been unreliable. There should be a strict curfew in place for many years. Parole officers should also make frequent visits to his residence.
Mr. Themeliopoulos should not be in possession of a weapon. He shouldn’t associate with those with a criminal record and he should not become involved with escorts.
Mr. Themeliopoulos should participate in vocational training, in order to structure his time. It would be beneficial if he could ultimately return to gainful employment.
Mr. Themeliopoulos should be obliged to disclose to his case management team (CMT) any relationship he becomes involved in. His partner should be made fully aware of his history and she should be instructed to contact the authorities, if Mr. Themeliopoulos displays any concerning behaviour.
Mr. Themeliopoulos should avoid use of alcohol and non-prescribed drugs, as any return to use would be risk enhancing. He should submit urine samples randomly and frequently, to ensure he is abstaining. If he has trouble avoiding alcohol, anti- alcohol medication (disulfiram or another medication like naltrexone) may assist him. Caution should be exercised in prescribing medication with an abuse potential albeit I support his participation in an opioid replacement program (Suboxone or methadone maintenance therapy).
[^1]: This hearing occurred over a prolonged period due to requests of Mr. Themeliopoulos.
[^2]: Close to the end of the sentencing hearing, Mr. Themeliopoulos wished to discharge counsel. Initially, I did not permit it. On the last occasion I agreed but permitted counsel to continue as Amicus because the sole remaining was presentence credit. Thereafter, I accepted further materials from Mr. Themeliopoulos, and he was permitted to make any submissions he thought were appropriate. He did both.
[^3]: In closing submissions, Mr. Themeliopoulos suggested that five to six years of incarceration for these offences was reasonable, “not on top of my time served”. He proposed that any further sentence be one of house arrest and asked that he not be sent to the penitentiary due to his health, age and employment prospects.
[^4]: The facts giving rise to the convictions are set out in my reasons for judgment.
[^5]: At the conclusion of the Crown’s case, I directed a verdict of acquittal on Count 6 of the indictment: overcome resistance to commit an indictable offence (sexual assault) by administering a stupefying or overpowering stupefying substance. The complainant testified that Mr. Themeliopoulos did not attempt any sexual act after having given her the two tablets. At the conclusion of the evidentiary portion of the trial, Crown Counsel withdrew Count 3 on the indictment — simple assault.
[^6]: MD, FRCPC, forensic psychiatrist, Centre for Addiction and Mental Health and assistant Professor, University of Toronto.
[^7]: R. v. Williams, 2018 ONCA 437, at para. 44 [“Williams”]. See also R v. J.K.L., 2012 ONCA 245, 290 O.A.C. 207, at para. 92 [“J.K.L.”].
[^8]: The actus reus of the offence of harassment is that the defendant engaged in at least one of the prohibited forms of conduct set out in s. 264(2) of the Criminal Code; that the complainant was harassed; that the conduct caused the complainant to fear for their safety or the safety of anyone known to them; and that fear was reasonable. The mens rea is knowledge, recklessness, or willful blindness that the complainant was harassed as defined in that section. See R. v. Province, 2019 ONCA 638, at paras. 119-120.
[^9]: Williams, supra note 6, at para. 55
[^10]: Ibid, at para. 54; R. v. Gibson, 2013 ONSC 589, at para. 34 [“Gibson”]
[^11]: Williams, supra, note 6, at para. 54; Gibson, supra, note 9, at para. 34
[^12]: Williams, supra, note 6, at paras. 54-55; J.K.L., supra, note 6, at paras. 88-89
[^13]: The reference to the Entry number refers to that included in my summary of the criminal record of Mr. Themeliopoulos set out above at para. 16.
[^14]: Page 215 of the Crown’s Application Record.
[^15]: Pages 230-231 of the Crown’s Application Record.
[^16]: Pages 277-279 of the Crown’s Application Record.
[^17]: Page 487 of the Crown’s Application Record.
[^18]: Page 494 of the Crown’s Application Record.
[^19]: Page 496 of the Crown’s Application Record.
[^20]: Pages 307-308 of the Crown’s Application Record.
[^21]: Pages 315-316 and 676 (the probation order itself) of the Crown’s Application Record.
[^22]: Page 392 of the Crown’s Application Record.
[^23]: Page 402 of the Crown’s Application Record.
[^24]: Pages 436-445 of the Crown’s Application Record.
[^25]: Page 1337 of the Crown’s Application Record.
[^26]: Page 1340 of the Crown’s Application Record.
[^27]: Page 726 of the Crown’s Application Record.
[^28]: Page 635 of the Crown’s Application Record.
[^29]: Pages 640-641 of the Crown’s Application Record.
[^30]: Page 646 of the Crown’s Application Record.
[^31]: Dr. Pearce gives a thorough definition of a paraphilia at page 31 of his report. Generally, paraphilias describe a sexual preference for an inappropriate sexual object or activity.
[^32]: The “cluster B” personality disorders include antisocial, borderline, narcissistic, and histrionic personality disorders. Certain individuals do not fall “neatly” into one particular diagnostic entity, rather they possess traits from several of these disorders. Thus, these individuals are said to exhibit “cluster B” personality traits.
[^33]: Individuals with antisocial personality traits present with a pattern of self-centredness and the willingness to contravene the rights of others, a failure to conform to social norms with respect to lawful behaviour, deceitfulness, impulsivity and a failure to plan ahead, irritability and aggressiveness, irresponsibility and a lack of remorse.
[^34]: Individuals with narcissistic personality traits present with a grandiose sense of self-importance, a sense of entitlement, as somewhat interpersonally exploitive, and as lacking empathy.
[^35]: A copy of Dr. Toneatto’s report was also included in the package and reviewed by me in preparation of these reasons.
[^36]: See R. v. Nur, 2011 ONSC 4874, 275 C.C.C. (3d) 330, aff’d. 2013 ONCA 677, 117 O.R. (3d) 401, aff’d 2015 SCC 15, [2015] 1 S.C.R. 773
[^37]: 2018 ONSC 4558
[^38]: 2014 SKCA 93, 442 Sask. R. 209
[^39]: 2019 SKCA 41
[^40]: 2020 ONCA 657, 152 O.R. (3d) 650
[^41]: 2020 ONSC 5658
[^42]: 2016 ONSC 5261.
[^43]: Ibid, at para. 54, citing R. v. Cook, 2014 MBCA 29, 303 Man R (2d) 235, at para. 47
[^44]: 2012 ABCA 103, 524 A.R. 164
[^45]: See R. v. Brown, supra, note 39, at para. 71
[^46]: (2003), 63 O.R. (3d) 417(C.A.), at para. 3
[^47]: 2019 ONCA 901
[^48]: 2013 ONCA 147, 114 O.R. (3d) 641, aff’d 2014 SCC 26, [2014] 1 S.C.R. 575
[^49]: 2011 ONCA 840, 287 O.A.C. 82
[^50]: 2014 ONCA 185, 309 C.C.C. (3d) 386, at para. 15.
[^51]: In considering the determination of the likelihood of risk of recidivism and the possibility of controlling the risk in the community, expert evidence of psychiatrists is relevant. (R. v. Lyons, [1987] 2 S.C.R. 309 at pp. 366-368).
[^52]: Page 1366 of the Crown’s Application Record.
[^53]: Page 202 of the Crown’s Application Record.
[^54]: Page 204 of the Crown’s Application Record.
[^55]: Page 194 of the Crown’s Application Record.
[^56]: Page 191 of the Crown’s Application Record.
[^57]: Page 192 of the Crown’s Application Record.
[^58]: Page 193 of the Crown’s Application Record.
[^59]: Page 196 of the Crown’s Application Record.
[^60]: Page 203 of the Crown’s Application Record.
[^61]: Page 200 of the Crown’s Application Record.
[^62]: Page 1337 of the Crown’s Application Record.
[^63]: Page 1340 of the Crown’s Application Record.
[^64]: Page 726 of the Crown’s Application Record.
[^65]: Page 1343 of the Crown’s Application Record.
[^66]: Page 206 of the Crown’s Application Record.
[^67]: Page 207 of the Crown’s Application Record.
[^68]: Page 635 of the Crown’s Application Record.
[^69]: Pages 640-641 of the Crown’s Application Record.
[^70]: Page 215 of the Crown’s Application Record.
[^71]: Page 218-219 of the Crown’s Application Record.
[^72]: Page 220 of the Crown’s Application Record.
[^73]: Page 223 of the Crown’s Application Record.
[^74]: Page 213 of the Crown’s Application Record.
[^75]: Pages 238-239 of the Crown’s Application Record.
[^76]: Pages 230-231 of the Crown’s Application Record.
[^77]: Page 646 of the Crown’s Application Record.
[^78]: Page 465 of the Crown’s Application Record.
[^79]: Page 466 of the Crown’s Application Record.
[^80]: Page 467 of the Crown’s Application Record.
[^81]: Page 467 of the Crown’s Application Record.
[^82]: Page 468 of the Crown’s Application Record.
[^83]: Page 469 of the Crown’s Application Record.
[^84]: Pages 244-245 of the Crown’s Application Record.
[^85]: Pages 254-256 of the Crown’s Application Record.
[^86]: Page 284 of the Crown’s Application Record.
[^87]: Pages 261-267 of the Crown’s Application Record.
[^88]: Page 662 of the Crown’s Application Record.
[^89]: Page 472 of the Crown’s Application Record.
[^90]: Page 472 of the Crown’s Application Record.
[^91]: Page 479 of the Crown’s Application Record.
[^92]: Page 480 of the Crown’s Application Record.
[^93]: Page 481 of the Crown’s Application Record.
[^94]: Page 483 of the Crown’s Application Record.
[^95]: Page 485 of the Crown’s Application Record.
[^96]: Page 487 of the Crown’s Application Record.
[^97]: Page 422 of the Crown’s Application Record.
[^98]: Page 717 of the Crown’s Application Record.
[^99]: Page 4489 of the Crown’s Application Record.
[^100]: Page 487 of the Crown’s Application Record.
[^101]: Page 491 of the Crown’s Application Record.
[^102]: Page 494 of the Crown’s Application Record.
[^103]: Page 496 of the Crown’s Application Record.
[^104]: Pages 307-308 of the Crown’s Application Record.
[^105]: Pages 315-316 and 676 (the probation order itself) of the Crown’s Application Record.
[^106]: Page 497 of the Crown’s Application Record.
[^107]: Page 498 of the Crown’s Application Record.
[^108]: Page 500 of the Crown’s Application Record.
[^109]: Page 690 of the Crown’s Application Record.
[^110]: Page 512 of the Crown’s Application Record.
[^111]: Page 514 of the Crown’s Application Record.
[^112]: Page 523 of the Crown’s Application Record.
[^113]: Page 527 of the Crown’s Application Record.
[^114]: Page 529 of the Crown’s Application Record.
[^115]: Page 357 of the Crown’s Application Record.
[^116]: Page 320 of the Crown’s Application Record.
[^117]: Pages 327-335 of the Crown’s Application Record.
[^118]: Page 703 of the Crown’s Application Record.
[^119]: Page 555 of the Crown’s Application Record.
[^120]: Page 560 of the Crown’s Application Record.
[^121]: Pages 339-340 of the Crown’s Application Record.
[^122]: Page 357 of the Crown’s Application Record.
[^123]: Page 564 of the Crown’s Application Record.
[^124]: Page 567 of the Crown’s Application Record.
[^125]: Page 379 of the Crown’s Application Record.
[^126]: Page 380 of the Crown’s Application Record.
[^127]: Page 381 of the Crown’s Application Record.
[^128]: Page 578 of the Crown’s Application Record.
[^129]: Page 581 of the Crown’s Application Record.
[^130]: Page 587 of the Crown’s Application Record.
[^131]: Page 589 of the Crown’s Application Record.
[^132]: Page 392 of the Crown’s Application Record.
[^133]: Page 402 of the Crown’s Application Record.
[^134]: Page 348 of the Crown’s Application Record.
[^135]: Page 591 of the Crown’s Application Record.
[^136]: Pages 410-411 of the Crown’s Application Record.
[^137]: Page 412 of the Crown’s Application Record.
[^138]: Page 431 of the Crown’s Application Record.
[^139]: Other family members had their troubles. An uncle was murdered while in custody.
[^140]: Page 434 of the Crown’s Application Record.
[^141]: Page 422 of the Crown’s Application Record.
[^142]: (2000), 134 O.A.C. 156 (C.A.)
[^143]: Pages 436-445 of the Crown’s Application Record.
[^144]: Page 605 of the Crown’s Application Record.
[^145]: Page 606 of the Crown’s Application Record.
[^146]: Page 607 of the Crown’s Application Record.
[^147]: Page 617 of the Crown’s Application Record.
[^148]: Page 620 of the Crown’s Application Record.
[^149]: Page 713 of the Crown’s Application Record.
[^150]: Page 5632 of the Crown’s Application Record.
[^151]: Page 462 of the Crown’s Application Record.
[^152]: Page 735 of the Crown’s Application Record.
[^153]: Page 743 of the Crown’s Application Record.
[^154]: Page 748 of the Crown’s Application Record.
[^155]: Page 769 of the Crown’s Application Record.
[^156]: Page 775 of the Crown’s Application Record.