COURT FILE NO.: CR-21-15
DATE: 20221116
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
R.M.
Mr. Godinho, for the Crown
R.M., Self-Represented
Mr. Darrel Hotz, Section 486.3 Counsel
Mr. Brendan Neil, Amicus Curiae
HEARD: November 16, 2022
REASONS FOR DECISION ON SENTENCING
Conlan J.
I. The Findings of Guilt and the Facts
[1] On June 16, 2022, R.M. was found guilty by a jury of four criminal offences: that he assaulted T.A. contrary to section 266 of the Criminal Code; that he assaulted K.D. contrary to section 266 of the Criminal Code; that he, without lawful authority, forcibly seized K.D. contrary to subsection 279(2) of the Criminal Code; and that he attempted to abduct K.D. contrary to subsection 280(1) of the Criminal Code.
[2] None of the four convictions carries with it a mandatory minimum penalty.
[3] All of the offences occurred on December 12, 2018 near a school in Oakville, Ontario.
[4] T.A. is a child unrelated to the offender. K.D. is the offender’s child. At the time of the offences, both victims were minors and were students at the nearby school. At the time of the offences, the mother of K.D. was the child’s custodial parent, by a final court order. At the time of the offences, there had been no communication between the offender and K.D.’s mother for more than one year, and there had been no contact between the offender and K.D. for a long time, and there was no arrangement in place (whether by court order or otherwise) for contact between the offender and K.D.
[5] The offender attended in the vicinity of the school on the date in question. It is likely that the offender was looking for his son and approached T.A. mistakenly. The evidence of T.A. at trial, which evidence must have been accepted by the jury, was that the offender approached him and grabbed his arm and held it for several seconds. The offender was smiling and said something in a foreign language. The offender then loosened his grip, T.A. pulled his arm away and ran off. The offender did not chase him. T.A. described the incident as being a very minor one.
[6] On that same date, the offender approached his son, K.D. The evidence of K.D., which evidence must have been accepted by the jury, was that the offender reached out and grabbed his forearm. It felt to K.D. like the offender was trying to pull him towards a nearby car. The interaction between the offender and K.D. was witnessed by others in the area. Those others testified at trial that the offender was grabbing K.D.’s jacket around the shoulder area and pulling him; that K.D. looked scared and was screaming and crying; that the offender was holding K.D.’s wrist; and that the offender was at one point holding onto K.D.’s arms with his two hands. Those civilians had to intervene in order to physically separate the offender and the child, K.D. It was clear to those civilians, all adults, that the child was very frightened and did not seem to know who the offender was, even though the offender was stating that he was the child’s father.
[7] The offender represented himself at the jury trial, which trial lasted nine days. Court-appointed counsel, Mr. Hotz, cross-examined the two child witnesses but was kind enough to remain throughout the entire trial. In addition, court-appointed amicus curiae, Mr. Neil, was present throughout the trial. Both Mr. Hotz and Mr. Neil were of great assistance to this Court and, I might add, to R.M. on many occasions.
II. Victim Input
[8] The author of the presentence report spoke to the mother of K.D. She indicated that what happened was “extremely traumatic” for the child. She stated that it took “a lot of time” for the child to “recover” from the incident.
[9] No formal victim impact statements were provided by anyone.
III. The Circumstances of the Offender
[10] It became abundantly clear throughout the trial that R.M. is a man who is mentally unwell. He made wild accusations about the Crown, totally unfounded, of the most grotesque nature, such as a charge that the Crown is a paedophile. He often referred to Her Majesty the Queen as “Her Evilness Elizabeth II”. He ignored, to his detriment, much of the Court’s intended assistance to him. Even at the conclusion of the trial, after the jury rendered its verdicts, the Court had to confront the offender about video recording and/or taking photographs of the jurors in the courtroom, something that he vehemently denied but which I am quite certain that he did.
[11] This Court gave repeated and comprehensive instructions to the jury about implicit or unconscious bias and attempted to tailor those instructions to the unique circumstances of this accused and his beliefs.
[12] In August 2019, a formal psychiatric assessment of R.M. found that the offender had feelings of persecution and delusional symptoms.
[13] Those feelings of persecution are also evidenced by what the offender told the author of the presentence report, fueling the author’s comment that “a psychiatric assessment and counselling may warrant investigation”. R.M. labelled Canada as a “criminal organization” in his discussions with the author of the report – an entity that effectively stole his son from him.
[14] R.M. is currently 51 years old. He has one prior criminal conviction, totally unrelated, from May 2010. Essentially, he comes to this sentencing as a first offender.
[15] R.M. was born and raised in Estonia. He had a positive upbringing. He came to Canada in 1997.
[16] The presentence report indicates that R.M. is the caregiver for his elderly mother and for his sister, who requires a guardian. He described to the author of the report a great deal of stress and anxiety because of the “non-existent” relationship with his son.
[17] R.M. is an intelligent man. He speaks very well in the courtroom. He has a mechanical engineering degree from Estonia, and he has worked in software engineering, though he has not been employed full-time since 2007.
[18] The offender pays child support every month, at the appropriate rate.
[19] R.M. has no problems with alcohol or drugs. He takes medication for stress. He sees a psychiatrist, however, that doctor confessed to the author of the presentence report that he was “unsure of what else he could do with [R.M.]”.
[20] When on probation many years ago, the offender had mixed results. He complied with reporting and restitution payment terms, but he was very resistant to abide by counselling.
[21] The offender was cooperative in answering questions posed by the author of the presentence report. He adamantly maintained his innocence and accepted no responsibility for any of the offences that he was found guilty of, which he was entitled to do. This Court has not treated that as an aggravating factor on sentencing.
IV. The Positions of the Crown and the Defence
[22] This Court is so very grateful for the presence of both Mr. Hotz and Mr. Neil here today. Both counsel gave submissions on sentence.
[23] The position of the Crown is that the findings of guilt on both the assault against K.D. and the unlawful confinement of K.D. should be conditionally stayed under the Kienapple principle. Unopposed by anyone else, and that position appearing reasonable to this Court, that request is granted.
[24] Convictions are therefore registered on the two remaining findings of guilt – the assault against T.A. and the attempted abduction of K.D.
[25] The Crown recommends a global sentence of 16 to 18 months in custody, less credit for the 19 actual days in presentence custody that the offender has served, and less credit for the 28 months that the offender spent on house arrest judicial interim release. That would result in a net sentence from today of 8-10 months in custody (19 days grossed-up to 30 days and 7 months’ credit for the restrictive bail conditions).
[26] The Crown also suggests that the period of imprisonment be followed by three years of probation.
[27] The Crown seeks some ancillary orders – DNA, a firearms and weapons prohibition order, and a non-communication order with three persons while the offender is in custody.
[28] R.M. opposes all of the ancillary orders being sought and suggests either an absolute or a conditional discharge.
[29] Mr. Hotz asks that the Court consider that the offender’s actions, while inexcusable, were the result of parental alienation rather than malice and an intention to harm the victims.
[30] Mr. Neil submits that the Court should consider the paramount sentencing principles in this case, general deterrence and denunciation, but also the Court must be cognizant of specific deterrence and rehabilitation.
[31] Whatever sentence is imposed, it ought to include probation, Mr. Neil submitted. While a conditional sentence is available, it was clear to this Court that Mr. Neil was not of the view that it would be appropriate. It would be difficult for the Court to justify a discharge for R.M., and it would also be difficult for the Court to impose a straight probation order, unless the Court was of the view that the equivalent of about 8 months in custody already served was a fit sentence, Mr. Neil submitted.
V. The Sentence of the Court
[32] At the invitation of the Crown, the Court will waive the victim fine surcharges.
[33] On the attempted abduction conviction, the Court imposes a section 109 Criminal Code firearms and weapons prohibition order. The duration of that order shall be for life, both under subsection 109(2)(a) and under subsection 109(2)(b) of the Criminal Code.
[34] With his history of mental illness, his complete rejection of the rule of law, and his intransigent resistance to counselling or treatment, this offender is one of the last persons around who should be anywhere near a firearm or a weapon of any kind.
[35] On both convictions, a secondary DNA order is imposed. There is a real risk of recidivism for this offender, including another instance of apparent mistaken identity of his son, such that the utility of the said order substantially outweighs any minimal prejudice to the offender’s privacy rights.
[36] There will be more time in jail for R.M. While serving his custodial sentence, he shall not have any contact or communication with any of these three persons: T.A., K.D., and K.D.’s mother. That order is made under subsection 743.21(1) of the Criminal Code. There are no exceptions to that order.
[37] The sentence of imprisonment will be followed by a probation order for a duration of three years. All of the statutory terms shall apply. Further, the following optional conditions shall apply:
-report to probation within 48 hours after release from custody and thereafter as directed;
-reside where approved;
-attend for such counselling or treatment as recommended and sign any necessary releases of information for the monitoring of compliance;
-no firearms or weapons;
-no contact with the same three persons mentioned above, with the sole exception of permissible contact with K.D. and K.D.’s mother in accordance with a valid court order made after today; and
-non-attendance within 500 metres of any of those three named persons or within 500 metres of any place of residence, education, or employment known to R.M. to be that of any of those three named persons, with the sole exception pertaining to K.D. and K.D.’s mother of permissible attendance within the said radius in accordance with a valid court order made after today.
[38] On credit for time served in custody to date, the Court accepts the Crown’s suggestion of the equivalent of 8 months. Frankly, the 7 months’ credit for the 28 months of house arrest is rather generous, in all of the circumstances.
[39] The offender’s suggestion of a discharge, whether absolute or conditional, has no merit. Such a disposition would be starkly contrary to the public interest, that his actions and his callous disregard for the rule of law were infected, in part, by his mental illness.
[40] But for the credit for presentence custody, I would have sentenced R.M. to a total of 12 months in jail.
[41] Thus, the net sentence of the Court from today is four (4) months in jail. That is broken-down as follows:
-attempted abduction of K.D. – 12 months in jail, less credit for the equivalent of 8 months in custody, leaving a net sentence of 4 months in jail from today; and
-assault against T.A. – 30 days in custody, concurrent.
[42] I will now ask all counsel and R.M. if there is anything else that they would like me to address.
Conlan J.
Released: November 16, 2022
COURT FILE NO.: CR-21-15
DATE: 20221116
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
R.M.
REASONS FOR decision on sentencing
Conlan J.
Released: November 16, 2022