Court File and Parties
Court File No.: CR-23-10000749-0000 Date: 2024-07-23 Ontario Superior Court of Justice
Between: His Majesty the King And: Roberto Gilaard
Counsel: Nathan Kruger, for the Crown Antar Agil, for Roberto Gilaard
Heard: March 15 and June 5, 2024.
Reasons for Sentence
Himel J.
[1] Roberto Gilaard entered a plea of guilty to the offence of criminal harassment, that he did without lawful authority and knowing that another person, S.S, was harassed or being reckless as to whether S.S. was harassed, engage in repeatedly communicating, either directly or indirectly with that person thereby causing S.S. to reasonably fear for her personal safety contrary to s. 264(2)(b) of the Criminal Code of Canada, R.S.C. 1985, Chap. C-46, as amended and the offence of uttering threats, that, he did knowingly convey a threat to cause bodily harm to S.S. contrary to s. 264.1(1)(a) of the Criminal Code. He elected to be tried by a judge sitting alone.
[2] Mr. Gilaard confirmed that he was entering this plea voluntarily, that he understood that the plea was an admission of the essential elements of the offences, that he was aware that he was giving up his right to have a trial, that he understood the nature and consequences of the plea and that he was aware that this court was not bound by any agreement made between counsel regarding the sentence.
[3] Following the plea of guilty, I ordered that a pre-sentence report be prepared. The report has now been received and is filed as an exhibit. Counsel made submissions to the court on sentencing. The following are my reasons for sentence.
Factual Background
[4] On January 24, 2023, Roberto Gilaard and the victim, S.S., connected online over Instagram. Between January 24 and 31, 2023, they exchanged numerous private messages. Mr. Gilaard was 18 years old and S.S. was 12 years old at the time.
[5] In these messages, S.S. asked Roberto Gilaard to get her a firearm. She told him that there were people who were acting in a threatening manner to her and that she needed the firearm for her own protection. She said she could not obtain a firearm herself because she was only 15. Mr. Gilaard agreed to provide her with a firearm. He was specific in his messages to S.S. that the firearm would be a Glock 17, which is a well-known firearm. A Glock 17 is a handgun and a restricted firearm as those terms are defined in the Criminal Code. The discussion between them involved Mr. Gilaard either offering to sell the firearm to S.S. or buying one and gifting it to her.
[6] As the discussion unfolded, S.S. became less responsive to Mr. Gilaard’s messages about the firearm. Despite this, Mr. Gilaard continued to offer S.S. the firearm. At one stage, S.S. explained she was still dealing with her conflict but would handle it without a firearm, and instead accept the risk of being injured or shot by the people threatening her. Mr. Gilaard did not accept this, responding to her that she would still want “shit” from him and encouraging her to purchase or accept a firearm from him.
[7] S.S. told Mr. Gilaard she would have $800 to purchase a firearm from him but would still choose not to. She accused him of being fake. Mr. Gilaard replied that his amount was low, but at least she was not asking for the firearm for free.
[8] The conversation began to take a turn and was argumentative and confrontational. Mr. Gilaard wrote to S.S.: “Bitch stfu (the slang for “shut the fuck up”) the gun was for free…Stfu before l am gonna fuck u”.
[9] S.S. replied to this: “In my vagina. Bro…I won’t u being mean to me always…I won’t let u do that to me…Ur dumb if…Bro its over…Ur dumb if I would literally call the cops on u”.
[10] In response to this message, particularly S.S.’s reference to speaking with police, Mr. Gilaard became overtly threatening towards S.S. Mr. Gilaard called S.S. a “Fuckin rat”. He told her she disgusted him. In response to this, she apologized and said: “It’s ok the fight is over”.
[11] Mr. Gilaard continued sending S.S. threatening messages. He demanded she provide her address to him, stating he would like to see how disrespectful she would be when he was pointing a firearm at her. S.S. asked Mr. Gilaard to leave her alone. He then asked her if she would call the police if he refused to leave her alone. Mr. Gilaard persisted with demanding S.S.’s address and told her he would come to where she lived. S.S. told Mr. Gilaard to “Stfu and leave me alone”. Mr. Gilaard replied: “No. Talk to me S.S.”. She told him she did not want the gun from him anymore. He replied, “That’s not happening”.
[12] Mr. Gilaard urged her to agree to meet with him and promised to take her shopping if she agreed. He reiterated that she was not to bring any friends. He said he would bring his Glock 17 and told her: “So if you bring a friend they’ll meet my 17s beam and I’ll take what they go.”
[13] S.S. implied that she would post some of the content of their conversation on a public forum or share it with others. Mr. Gilaard demanded she take down anything she had posted, and sent several threatening messages to S.S.: “Wanna meet my gun bitch”, “Do you WANT? Me to hurt u”. “Im gonna hurt you”, “I was gonna take u shoppin. And u wanna be sneak dissin me eh. And then u complain when I get mad and wanna hurt u”.
[14] S.S. replied to Mr. Gilaard that she was nervous. Mr. Gilaard replied: “U should be”. He asked her when she was done school and persisted in requesting her address. He said he would come check for her after school. Mr. Gilaard said: “Yo im either gonna rob you or imma take you out. Your choice lmk”.
[15] On January 31, 2023, S.S. told a teacher at her school that she was receiving threatening messages from a man online who was coming for her. The teacher called 911. Toronto police conducted an investigation and identified Mr. Gilaard through his Instagram account.
[16] On February 11, 2023, Mr. Gilaard was arrested and gave a voluntary statement to police. He asked specifically to speak with police officers. In his statement, he discussed his messaging exchange with S.S. in detail. He readily admitted it was he who exchanged the messages with her. He agreed he was “spamming” S.S. in the sense that he was sending her “constant messages.”
[17] He admitted telling S.S. he had a gun, and that he was intentionally representing to her that he had a firearm which was a Glock 17. He admitted he wanted her to think it was a real firearm but insisted he never actually possessed or had access to a real firearm. He said a Glock 17 was the most common gun he could think of. He explained to police he was interested in hooking up with S.S.. Part of his motivation in offering her the firearm was to pursue a casual romantic interest in her. He said he thought she was 15-16 years old and expressed surprise that she was 12. He said “15-16 is fine but 12 is not”. He said he had seen photographs of her on Instagram, but the photos did not cause him to believe she was younger than 15. He said he did not recall threatening S.S., but said he had become “kind of upset” at stages during his exchange with S.S. which caused him to become “harass”. He said he did not know that threatening or harassing people online is illegal.
[18] All of the above was captured through the Instagram messages between the victim and the accused.
Evidence Led at the Sentencing Hearing
[19] Crown counsel filed an Agreed Statement of Facts which was made an exhibit. No Victim Impact Statement was filed.
[20] As mentioned above, the pre-sentence report was made an exhibit, and the contents are referenced below. Mr. Gilaard spent one day in custody when he was arrested and he was released on February 12, 2023, on a recognizance in the amount of $1,000 with his mother, Doelarie Ramautar, named as his surety. He has been required to reside with her at 235 Armstrong Crescent, Bradford, Ontario. The terms of release include that he not have contact with the victim, not be within 100 metres of where she lives, works, goes to school, frequents or any place where she is known to be, not possess any weapons and not apply for a firearm acquisition certificate. I am not aware of any breaches of his judicial interim release provisions.
[21] Mr. Gilaard spoke at the sentencing hearing and said that he was sorry for his actions. He said, “there is no excuse”, and he knows that threats are not a little thing. He said, “I see how serious it can be and the repercussions.”
Positions of the Parties on Sentence
Position of the Crown
[22] Crown counsel, Mr. Kruger, submits that an appropriate sentence in this case is a sentence of 8 to 12 months of imprisonment served as a conditional sentence followed by 24 months of probation. Mr. Kruger submits that the conditional sentence should be comprised of the following: during the first half of the sentence, Mr. Gilaard should be placed under house arrest with exceptions for travelling directly to, from, and while at counselling and assessments as directed by his conditional sentence supervisor, to obtain necessities of life once each week and for medical emergencies. For the second half of the sentence, Mr. Kruger submits that Mr. Gilaard should be subject to a curfew from 7:00 p.m. to 7:00 a.m. except to attend counselling or for medical emergencies. As Mr. Gilaard is not currently employed, Crown counsel submits that employment should not be an exception during the period of house arrest.
[23] For the entire period of the conditional sentence, Mr. Kruger asks the court to impose a no contact and a no communication order with the complainant, S.S., and that he should not attend within 100 metres of anywhere that he knows her to work, attend school, reside, frequent or be. During the conditional sentence, Mr. Gilaard should attend counselling and be assessed as directed and required to sign necessary releases. He asks that Mr. Gilaard not be permitted to use or have social media accounts without the prior approval of his supervisor and that he have no contact with anyone under the age of 16 unless he is in the direct and continuous presence of their guardian, except for obtaining goods or services in a public setting. Finally, Crown counsel seeks an order prohibiting Mr. Gilaard from possessing any firearms or weapons.
[24] Mr. Kruger also asks the court to impose a period of subsequent probation of 24 months with terms that he have a curfew, that he have no contact direct or indirect with S.S., that Mr. Gilaard comply with terms of counselling or assessment as directed by his probation officer and sign any necessary releases, that he not use social media accounts without the approval of his probation officer, that he not have contact with persons under the age of 16 years unless he is with a responsible adult, that he not work or do volunteer work with persons under the age of 16 years and that he not possess any weapons. Crown counsel further requests an order for a DNA sample and a s. 110 order for 10 years.
[25] Crown counsel points out that the offences in this case involve online harassment of a child with threats to cause death and bodily harm. There is also a sexual component. Denunciation and deterrence are paramount objectives. He points out that under s. 718.01 of the Code, where the offence involved the abuse of a person under the age of 18 years, the court shall give primary consideration to the objectives of denunciation and deterrence of such conduct. Here, the victim was a 12-year-old child. Mr. Gilaard believed she was 15 or 16 years old but that does not excuse the behaviour. In R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, the Supreme Court emphasized that the courts must send a strong message in cases of sexual offences against children that such conduct will not be tolerated. Mr. Kruger submits that there is a sexual component in the case at bar. In addition, the victim was a vulnerable person in that she had reached out for help to protect herself and Mr. Gilaard knew this. Section 718.04 of the Code references that where a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances, the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. Furthermore, Parliament has enacted a new offence under s. 162.1 in recognition of the fact that online harassment has a profound effect on victims.
[26] In support of his position, he also cites the case of R. v. Walsh, 2021 ONCA 43, 154 O.R. (3d) 263, at para. 69 where the court wrote as follows:
Section 162.1 is a relatively new offence. It came into effect as part of Bill C-13, Protecting Canadians from Online Crime, S.C. 2014, c. 31, enacted in 2014 and proclaimed into force on March 9, 2015. The bill—part of the federal government’s initiative against cyber-bullying—was introduced when two young women tragically took their lives after intimate images of them had been shared online without their consent. These cases and others highlighted the growing trend to use technology as a tool of harassment and sexual exploitation, and the justice system’s inability to respond because no offence existed at that time which addressed that type of conduct.
[27] Although Mr. Gilaard is not charged with an offence under s. 162.1, Mr. Kruger submits that the case at bar is not just a case of a person on the internet harassing someone. It has a sexual component where Mr. Gilaard threatened the victim and later told police he was thinking of “hooking up” with her. He demanded that the victim give him her address and while doing so, he referenced having a firearm.
[28] Crown counsel also submits that case of R. v. V.T.H., 2022 ONSC 5668 for my consideration. In that case, the offender was convicted of five offences: incest, sexual exploitation, making child pornography, possessing child pornography and criminal harassment. Evidence filed on the sentencing hearing included a Gladue report, a sexual behaviours assessment and a psychiatric assessment, a pre-sentence report, testimony from the offender about the conditions of pre-trial detention and victim impact statements. The court outlined the events which were the basis for the conviction for criminal harassment at paras. 16-19. The offender and the victim had been in a relationship, and she was attempting to end it. The offender made threats about harming the victim’s aunt and he left multiple voice mails and threatened to post pictures and videos he had taken of her online. He also went to the aunt’s house where the victim resided and banged on the door while calling and texting the victim.
[29] In V.T.H., Gomery J. referenced the case of R. v. Wall, 136 Nfld & P.E.I.R. 200 (P.E.I. C.A.) where the court discussed the principles of sentencing and the range of sentence for the offence of criminal harassment. McQuaid J.A. in Wall emphasized that the absence of a prior criminal record and expressions of remorse, while relevant factors on sentencing, should not be given undue weight in the sentencing for this offence at para. 10:
The focus of sentences must be to send a message to the offender, and the public, that harassing conduct against innocent and vulnerable victims is not tolerated by society and most importantly, the Court must insure, as best it can, that the conduct of the offender never happens again recognizing that, if it does, a far more serious offence could be committed. The principles of sentencing must be applied with this focus squarely in mind.
[30] While the case of V.T.H. is not on all fours with the case at bar, Mr. Kruger submits that there are some similarities. In V.T.H., the parties were romantically interested, the offender came to her house, he was found guilty after trial and the court found he had mental health issues. Gomery J. noted that the sentencing range for the offence of criminal harassment was 6 to 12 months’ imprisonment. Gomery J. sentenced the offender to a global sentence of 12 years’ imprisonment with six months imposed for the criminal harassment conviction concurrently to the other sentences.
[31] In the case of R. v. Bates, 146 C.C.C. (3d) 321 (Ont. C.A.), the Ontario Court of Appeal considered a Crown appeal of a suspended sentence and three years of probation for eleven offences which included one count of criminal harassment. Other offences were uttering a death threat, three counts of assault and six counts of failing to comply with the terms of judicial interim release orders. The offences arose from the breakdown of a relationship with the offender’s former girlfriend. The offender came to the victim’s house and to her place of work in breach of conditions of a release order. He attended at her work with a silver-coloured pellet gun.
[32] In the decision, the court outlined the history of s. 264 which was enacted in 1993 to address a growing concern about people who stalk their victims with escalating intensity and “in many cases leading to violence against the victims and sometimes their murder.” The court wrote at para. 37, that “The purpose of the new section was to criminalize the threatening behaviour and to permit punishment of the offenders in an attempt to restrain their behaviour before it escalates to physical violence against the victims.” Section 264 was amended in 1997 to communicate that Parliament wished to strongly denounce criminal harassment by strengthening the law: S.C. 1997, s. 16, c. 4. In 2000, it introduced amendments in Bill C-36 which increased the maximum penalty under s. 264 to 10 years (passed as part of the Criminal Law Amendment Act, S.C. 2002, c. 13, s. 10). The court noted that cases dealing with criminal harassment in the domestic context have emphasized denunciation and deterrence. In some cases, the courts have imposed penitentiary sentences: see R. v. Elliott, [1999] O.J. No. 3625 (C.A.) and R. v. Prelosnjak, [2000] O.J. No. 234 (C.A.).
[33] In Bates, there were serious aggravating factors including an escalating pattern of harassment over three months and an assault, unauthorized entry of the complainant’s home while the family was out, telephone calls, physical approaches, lying in wait, threats, predatory following, harassing friends of the victim, threatening homicide and suicide with a realistic-looking weapon, the ineffectiveness of three judicial release orders, and trying to control when and where he would be taken into custody. The court wrote at para. 48:
Thus, although were some mitigating factors in the respondent’s favour, the principles of general deterrence, denunciation and specific deterrence must take precedence in determining a fit and appropriate sentence in this case, together with concern for the safety and security of the victims.
[34] The decision of the Ontario Court of Appeal in Bates was to set aside the suspended sentence and impose a sentence of 16 months’ imprisonment and three years of probation with conditions. This sentence was imposed on a global basis for all the offences.
[35] Applying the court’s comments in Bates, Mr. Kruger argues that denunciation and deterrence take precedence in determining an appropriate sentence for offences involving criminal harassment. He submits that Parliament has increased the sentence for this offence twice. He also pointed out that it is not only bodily harm that is relevant but also psychological harm that can flow from the offence of criminal harassment and that can be just as serious. He submits that even though Mr. Gilaard did not actually have a firearm, the offence involved a 12-year-old child. Crown counsel disputes the defence argument that Mr. Gilaard may not have thought it was wrong to do what he was doing online and that he has a limited recollection of what happened. He told police the details and readily admitted what he had done. He also described his intentions were that he was interested in “hooking up.” That he was drinking heavily and using marijuana at the time may have been disinhibiting but there is no evidence how it affected him. Crown counsel says that the online messages took place over a number of days between January 24 and 31, 2023 and it cannot be said that the messages were fleeting or spontaneous. Finally, Mr. Kruger takes issue with the fact that Mr. Gilaard has not attended school or done anything towards rehabilitation during the period of judicial interim release.
[36] As for mitigating factors, Crown counsel notes that Mr. Gilaard has pleaded guilty, and this was not on the eve of trial. He co-operated with police, and he admitted a great deal to them. He told police that “he had no idea that what he was doing was wrong”. He was 18 years old at the time of the offences and is a first offender. There were triable issues and there was difficulty supplying a Roman Slovak interpreter as the victim was from Romania. While the Crown made efforts to locate an interpreter, the only one who spoke the language was in Europe and it would have been necessary to fly the interpreter to Canada and have the interpreter qualified. Mr. Kruger says the Crown would have proceeded without the victim if necessary, however.
[37] In summary, Mr. Kruger asks the court to impose a period of imprisonment served as a conditional sentence. He submits that a conditional discharge would be an unfit sentence in light of the statutory factors. Crown counsel distinguishes the cases cited by the defence.
Position of the Defence
[38] Counsel for Mr. Gilaard, Mr. Agil, submits that an appropriate sentence is a conditional discharge followed by a period of probation for two years. Mr. Gilaard consents to a weapons prohibition order. He does not consent to a DNA order as, in his submission, it is not necessary.
[39] Mr. Agil provided the court with jurisprudence to support his position. In R. v. Rashwan, an unreported decision of H. Spiegel J. dated November 12, 2004, the court, on a summary conviction appeal, allowed an appeal of sentence where a 50-year-old man with no criminal record and not in good health was found guilty of criminal harassment and was given an absolute discharge. In R. v. M.H., 2014 ONSC 841, R.S.J. Hackland, following a 21-day trial, found the offender guilty of criminal harassment and assault which arose in a domestic context and sentenced him to a conditional discharge. There, he had already spent pre-trial custody of 2.5 years before he was finally released on bail during his trial. The court considered that he had lost his family, his employment, his reputation and most of his assets. He was sufficiently punished such that there was no further need for deterrence and denunciation. R.S.J. Hackland was of the view that it would be contrary to the interests of justice to also add a criminal record which would be “a major impediment that would create for the accused in attempting to re-establish his life.” The court granted a conditional discharge with probation subject to conditions.
[40] In the case of R. v. May, 2012 ONSC 6797, R.S.J. Heeney considered an appeal as to sentence for an appellant who had pleaded guilty to one count of criminal harassment contrary to s. 264(2)(b) of the Code. The sentencing judge had imposed a suspended sentence and probation. R.S.J. Heeney allowed the appeal and imposed a conditional discharge with probation of 12 months. The appellant was 46 years old and had no criminal record. The offence arose in a domestic context where the appellant had a substance abuse problem with alcohol and cocaine and was unpredictable in his behaviour. When the parties separated, he continued to contact his former girlfriend wanting to re-establish the relationship and made an indirect threat to the complainant’s new boyfriend. R.S.J. Heeney noted that the appellant never made any direct threats to the complainant, nor did he commit any acts of violence, that he has taken positive steps to deal with the substance abuse problem, he complied with all bail conditions, and he expressed to the court the negative impact of a criminal record on him in terms of employment. The court held that it was in the best interests of the accused and imposed a conditional discharge with 12 months of probation subject to conditions.
[41] Finally, in R. v. Singh, 2014 ONSC 2290, Ricchetti J. sentenced the offender who, following a jury trial, was found guilty of uttering a threat and committing an assault on his wife. He had been out drinking, came home late, found his wife on her laptop in their bedroom and she would not let him know with whom she was communicating. He became angry, they had an argument and during the course of it, he slapped her in the face and threatened to kill her. She called 911 and he left the bedroom and waited for the police to arrive. The offender was 40 years old, had a high school education, was employed full-time in construction, had no criminal record and had complied with a court order for child support although he was not permitted to see his son for the first year. Thereafter, he only had supervised access for another year before regular access was established. By the time of sentencing, Mr. Singh had completed an Anger Management and Substance Abuse program and a parenting program. He had served four days of pre-sentence custody. The court held that it was in the best interests of the accused and not contrary to the public interest and imposed a conditional discharge with two years of probation and conditions.
[42] Mr. Agil points out that Mr. Gilaard was 18 years old at the time of the offences. He says he was “partying and drinking and was mentally a wreck at the time.” His mother attended court to demonstrate her support for her son. While he was persistent, there was no evidence to support that these actions had a large influence on the victim. Mr. Agil says there were triable issues. At the preliminary hearing, the court could not obtain an interpreter and the complainant did not want to come to court. There may have been a voluntariness issue regarding the statement to police. Mr. Agil submits that the purchase of a gun was not initiated by his client, and he disagrees that there was sexual exploitation. He submits that the cases relied upon by the Crown may be distinguished from the case at bar.
[43] For example, in R. v. Walsh, the offender was transmitting intimate images online and had exposed the images in a Facetime call with people laughing at the victim. She had been sick and was naked as she buried her head in a toilet. The case was about online sexual exploitation and the damage to a person’s privacy and dignity. In the case of R. v. Bates, there was ongoing harassment following the breakdown of a relationship. The accused had been released from custody after arrest, there were multiple breaches resulting in a warrant being issued, he did not turn himself in to police, he waited at a parking lot for the victim, went to her work and bought a silver gun with bullets. The victim was extremely fearful and stayed at a women’s shelter. She provided a detailed Victim Impact Statement where she described that she took a drug overdose and changed her licence because of the harassment.
[44] Counsel argues that the facts in the case at bar are completely different. Here, the victim never came to court and there was no Victim Impact Statement filed.
[45] Similarly, in R. v. V.T.H., the offender was convicted of five counts of sexual exploitation and other counts following a one-week trial. The offences took place between April 2017 and September 2018. The victim was 16 years old; the accused was 32 years old. He began a sexual relationship with her while her father was asleep or out of the house. He decided to take the victim to live with him and she did from July 2017 to September 2017 during which time there was no parental control. He forced her to have sex daily and tied her up and used a whip. He also videotaped her wearing a diaper and forced her to watch child pornography. The victim was isolated, had no friends or family where she was living, did not feel safe and had no vehicle or transportation in order to leave. The offender called her daily professing his love and harassed her while she attempted to end the relationship. He said he would post videos online. Finally, she complained to the police. Police located 1,000 images of child pornography and pre-pubescent children. Counsel argues that this case is completely different from the case at bar.
[46] Counsel submits that Mr. Gilaard lost his employment as a result of being charged. While counsel concedes that the effects of criminal harassment may include psychological harm, there is no evidence of that here. Mr. Agil argues that there was no violence here, no breach of a position of trust and it would not be contrary to the public interest to impose a discharge. Finally, the defence points to the probation officer’s comments that Mr. Gilaard may be suitable for community supervision.
The Law
[47] The courts have held that the principles of denunciation and deterrence are paramount objectives for offences of criminal harassment and threatening: see R. v. Bates. The punishment section for the offence of criminal harassment is set out in s. 264(3) of the Code and states that the offence carries a maximum sentence of ten years and has no minimum sentence. The punishment section for the offence of threatening bodily harm is set out in s. 264.1(2)(a) of the Code and states that the offence carries a maximum sentence of five years and has no minimum sentence. Crown counsel has referenced that Parliament enacted s. 162.1 of the Code in 2015 which created offences committed by means of telecommunication including cyberbullying. As discussed in the case of R. v. Walsh, the new offence was to respond to the trend to use technology as a tool of harassment and sexual exploitation. While the case at bar involves the use of social media and the internet in a manner that constituted criminal harassment and threatening bodily harm, Mr. Gilaard is not charged with an offence under s. 162.1.
[48] I now turn to the applicable principles of sentencing. Crown counsel seeks a period of imprisonment served as a conditional sentence. Where a period of imprisonment may be indicated for an offence and there is a need for deterrence, even where there are aggravating factors present, a conditional sentence may be imposed. Each case must be considered individually: see R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61. Section 742.1 of the Code provides that if the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in s. 718 to 718.2 of the Code, a conditional sentence may be imposed provided it does not fall in one of the listed categories in (b) through (f).
[49] It is a principle of sentencing that, “an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances” (see s. 718.2(d)) and that “all available sanctions, other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders” (see s. 718.2(e)). Proulx highlights that a conditional sentence is available for all offences in which statutory pre-requisites are satisfied and that a conditional sentence can provide a significant amount of denunciation and deterrence particularly when onerous conditions are imposed. As was stated by the Supreme Court, when the objectives of rehabilitation, reparation and promotion of a sense of responsibility may realistically be achieved, a conditional sentence will likely be the appropriate sanction, subject to considerations of denunciation and deterrence.
[50] Defence counsel has submitted to the court that a conditional discharge is a suitable sentence for these offences. Under s. 730 of the Code, where an accused pleads guilty or is found guilty of an offence other than an offence for which a minimum punishment is prescribed or an offence punishable by imprisonment for fourteen years or for life, a court may direct that the accused be discharged absolutely or on conditions prescribed in a probation order if it considers it to be in the best interests of the accused and not contrary to the public interest. In R. v. Sanchez-Pino, 11 C.C.C. (2d) 53 (Ont. C.A.), the Court of Appeal outlined guidelines for when a discharge is appropriate at p. 59:
The granting of some form of discharge must be “in the best interests of the accused”. I take this to mean that deterrence of the offender himself is not a relevant consideration, in the circumstances, except to the extent required by conditions in a probation order. Nor is his rehabilitation through correctional or treatment centres, except to the same extent. Normally, he will be a person of good character, or at least of such character that the entry of a conviction against him may have significant repercussions. It must not be “contrary to the public interest” to grant some form of discharge. One element thereby brought in will be the necessity or otherwise of a sentence which will be a deterrent to others who may be minded to commit a like offence—a standard part of the criteria for sentencing.
[51] The second part of the test set out in s. 730(1) concerning whether a discharge should be granted is that the court must determine that it would not be “contrary to the public interest”. In Sanchez-Pino, the Ontario Court of Appeal wrote, at p. 59:
Obviously, the section is not confined to “simple cases of possession of marijuana”. It is not confined to any class of offences except to the extent I have noted. On the other hand, it is common sense that the more serious the offence, the less likely it will appear that an absolute discharge, or even a conditional one, is “not contrary to the public interest”. In some cases, the trivial nature of the offence will be an important consideration; in others, unusual circumstances peculiar to the offender in question may lead to an order that would not be made in the case of another offender.
[52] The decision of R. v. Fallofield, 13 C.C.C. (2d) 450 (B.C.C.A.) has also provided guidance on the use of the discharge provision. The court there noted that the section may be used in respect of any offence, other than an offence for which a minimum punishment is prescribed by law or one punishable by imprisonment for 14 years or for life or by death. Furthermore, there is nothing in the statute that limits its operation to a breach of a technical or trivial nature.
[53] There is much judicial discretion in deciding whether to grant a discharge. Provided that the statutory criteria are met, the court must consider all of the circumstances of the offender and the offence in deciding whether a discharge is in the best interests of the accused and whether it is not contrary to the public interest. The seriousness of the offence will be an important consideration, whether the offence involved an act of violence and whether a criminal conviction could have significant collateral consequences for future employment of the accused are relevant considerations.
Decision
[54] I turn to some of the general principles of sentencing set out in section 718 of the Criminal Code. The fundamental purpose of sentencing is to ensure respect for the law and to promote a just, peaceful, and safe society. The imposition of just sanctions requires that I consider the sentencing objectives referred to in this section. They are denunciation of unlawful conduct, deterrence of the offender and other persons from committing offences, separating offenders from society where necessary, rehabilitation of offenders, providing reparation for harm done to victims or to the community, promoting a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community.
[55] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. When imposing sentence, I am to take into account certain factors which may increase or reduce the sentence because of aggravating or mitigating circumstances. The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh; the offender should not be deprived of liberty if less restrictive sanctions are appropriate; and all available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered for all offenders, particularly Aboriginal offenders.
[56] I now consider the application of the law to the circumstances of this case. A proper sentence must take into account the circumstances of the offender and the circumstances of the offence. I first look at the circumstances of the offender and consider Mr. Gilaard’s background which is outlined in detail in the pre-sentence report.
[57] Mr. Gilaard is 20 years old and was born on April 15, 2004, in Suriname, South America where he lived with his parents until he was four years old. He came to Canada with his parents and lived with family in Bradford, Ontario. When his sister was born, the family moved into their own house in Bradford. He lived with them until he was in grade 10 and then moved out to live with a friend’s family because he was arguing with his father, mainly about his use of cannabis. His parents told the probation officer that they believed he was being negatively influenced by his friends. He stayed with his friend’s family until his arrest.
[58] Following his arrest on these charges, Mr. Gilaard moved back home with his parents and his sister. His relationship with his parents has improved and he is close to his sister. Mr. Gilaard is single and does not have children.
[59] Mr. Gilaard advised the probation officer that he stopped attending high school mid-way through grade 12 and was four credits short from graduating. He intends to complete his credits over the next year. He says he left school to work. He would like to get into a skilled trade after completing his credits. His parents encourage him to complete high school.
[60] Mr. Gilaard is currently unemployed and has not worked since his arrest in February 2023. Prior to his arrest he has worked at a fast-food restaurant and in a factory. He recently began to apply for jobs but without success. He is supported by his parents. Mr. Gillard has been a regular cannabis user since he was 12 years old. He has had difficulty regulating his use and cannabis use has contributed to conflict at home and led to him leaving the home. He began to use alcohol at the age of 15 years and began “binge-drinking” at parties at the age of 17. He denies use of any illicit drugs at the present time. He drinks occasionally and not to excess. He uses cannabis but he can regulate himself now. He would be open to attending counselling for substance use.
[61] The probation officer found Mr. Gilaard to be “respectful, pleasant and appeared to be forthcoming with information for the most part.” However, he had some difficulty remembering information pertaining to the offences. He says that he was partying and drinking a lot and that “mentally he was wreck”. He says he feels “terrible” about the offence, that he was not aware of the victim’s age, that he feels “bad” about it.
[62] He has cut off old friends and he has a few friends from his childhood.
[63] The probation officer was of the view that Mr. Gilaard may benefit from counselling to address his self-identified anger management deficits as well as past substance use issues. He would seem to be a suitable candidate for community supervision. He recommended terms of probation that Mr. Gilaard report to a probation officer, attend and participate in counselling related to substance abuse and anger management, make reasonable efforts to maintain suitable employment or education or training, not possess any weapons, not to contact the victim or be within 100 metres of any place where he knows her to live, work, go to school or frequent.
[64] I now turn to the circumstances of the offences. These offences involve serious allegations of behaviour that involved harassing the victim over the course of a week and engaging in conduct that caused the victim to fear for her safety. The conduct was repeated communications over Instagram which became threatening to the victim who was only 12 years old. Mr. Gilaard referenced that he had a gun and would come to the victim’s house. In fact, he did not have a gun and had no way of knowing where she lived. He also made references to committing sexual acts.
[65] In summary, I consider the sentencing principles and the circumstances of the offender and of the offences. I consider that deterrence and denunciation are important principles of sentencing for offences of this kind. I also recognize that a sentence must take into account Mr. Gilaard’s personal circumstances including his background and the need for rehabilitation.
[66] With respect to mitigating factors, Mr. Gilaard has entered guilty pleas to the charges for which he is being sentenced which demonstrates remorse. He has also expressed such remorse to the court and to the probation officer. He has saved valuable court time and assumed responsibility for his conduct. Mr. Gilaard is very youthful and has no criminal record. He has supportive family. He was drinking and using drugs at the time of the offences and his conduct was out of control. It seems that he has been able to reside with his parents and address his use of alcohol and drugs.
[67] The aggravating factors in this case are that Mr. Gilaard has committed offences which may have a lasting impact on the victim. However, there is no Victim Impact statement to provide some evidence of that.
[68] As outlined above, Crown counsel’s position is that he seeks a period of imprisonment of 8 to 12 months served as a conditional sentence followed by probation. I do not find the cases cited by Mr. Kruger in support of this position to be compelling. Mr. Gilaard’s offences, while serious, were not nearly as serious, as those in Walsh, V.T.H., or Bates. Nor were they as numerous. Mr. Walsh was convicted of sexual assault, paired with a charge under s. 162.1 of the Code (transmitting intimate images). In contrast, there was no actual sexual contact of any kind between Mr. Gilaard and the victim, nor were there intimate images taken. While criminal harassment and sexual assault both carry a maximum penalty of 10 years, forced oral sex is more severe than Mr. Gilaard’s threats in this case. Mr. V.T.H. was convicted of five offences, including incest, sexual exploitation, and making child pornography with his 16-year-old half-sister. These are evidently significantly more severe than the facts in this case. Mr. Gilaard is younger than the accused persons in both Walsh and V.T.H., and unlike them, he pleaded guilty. Finally, while Mr. Bates was facing a count of criminal harassment and uttering threats, he also had three counts of assault and six counts of failure to comply with judicial release orders. Moreover, Mr. Bates’ victim, “lived in fear of the respondent, had received counselling, and had at one point taken a drug overdose. She expressed ongoing fear for her future safety.”: Bates, at para. 23. Two of her friends had also been harassed. As mentioned above, there is no evidence of similar impacts on the victim or others in this case.
[69] Counsel for Mr. Gilaard has made a very compelling case for a conditional discharge to be imposed. I agree that a criminal record will result in stigma and could pose difficulty for Mr. Gilaard in pursuing employment. “The impact of a conviction on an offender is a relevant consideration in determining whether to grant a discharge: R. v. Sanchez-Pino, 11 C.C.C. (2d) 53 (Ont. C.A.); R. v. Fallofield, 13 C.C.C. (2d) 450 (B.C.C.A.)”.
[70] I do not have evidence of Mr. Gilaard applying for jobs or attempting to attend school and that he has had difficulty doing either because of his bail terms pending trial. He wishes to complete high school and re-enter the work force. I am satisfied that it is in the best interests of Mr. Gilaard that a conditional discharge should be granted. I recognize that there are repercussions for him should he have a criminal record. He has no employment now but undoubtedly, it may affect his future employability: see R. v. Myers, 37 C.C.C. (2d) 182 (Ont. C.A.), (sub nom R. v. T.P.M.). There, Martin J.A. held that the trial judge applied too narrow a test in deciding whether to impose a conditional discharge for an 18 year old who pleaded guilty to theft of two vehicles and had an excellent pre-sentence report and was employed on a part time basis in a supermarket. The trial judge had indicated that if the registration of a conviction would lead to the termination of the appellant’s employment, he would be inclined to grant a conditional discharge.
[71] The Court of Appeal was satisfied that the conditions for a conditional discharge were met and wrote, “[w]e do not think that the granting of a discharge to the appellant in the circumstances, including his age and good character, depreciates the seriousness of the offences or undermines the factor of general deterrence.” The court imposed a conditional discharge and probation for two years.
Result
[72] The sentencing process requires that I must balance the various objectives of sentencing outlined in s. 718 of the Code. Sentencing is an individualized process that requires that I consider the circumstances of the offence and of the offender. As outlined above, a conditional discharge is an available disposition in this case. I am satisfied that a conditional discharge is (1) in the best interests of Mr. Gilaard and (2) is not contrary to the public interest. A conditional discharge with two years of probation with the statutory conditions and reporting to the probation officer as often as required and subject to the conditions outlined below is an appropriate sentence in these circumstances. This will mean that the court has had supervision over Mr. Gilaard since February 2023 and will continue to have supervision for a further two years.
[73] In conclusion, I take into account the sentencing objectives set out in s. 718 of the Code and the circumstances of the offence and of the offender. I recognize that denunciation and deterrence are paramount sentencing principles for these offences, but that rehabilitation of the offender is also a key objective which ultimately protects society. I accept that Mr. Gilaard has rehabilitative potential especially given the support he has in the community with his parents and his desire to change his ways, complete his high school education and secure employment.
[74] Sentencing is a fact-driven process where the court must consider the unique circumstances of the case. I also consider that Mr. Gilaard has been on a residential surety bail since his arrest, and it has been without incident. While it is not the most restrictive bail, I do consider it as a mitigating factor in accordance with R. v. Downes, 79 O.R. (3d) 321 (Ont. C.A.).
[75] Accordingly, I impose the following disposition:
For each of the findings of guilt for the offences of criminal harassment and threatening bodily harm, I grant a conditional discharge and place Mr. Gilaard on probation for two years. These sentences are imposed concurrently.
The following are the conditions: (a) he shall keep the peace and be of good behavior; (b) he shall appear before the court when required to do so; (c) he shall report to a probation officer as directed and thereafter as required by the probation officer; (d) he shall remain within the jurisdiction of this court unless he obtains written permission of a judge of this court, or the probation officer assigned to him; (e) he shall notify his probation officer in advance of any change of address; (f) he shall reside at such place approved by his probation officer; (g) he shall attend and complete counselling or work training as recommended by his probation officer and sign all necessary releases; (h) he shall not possess any weapons as defined in the Criminal Code. (i) he shall not have contact or communication by any means directly or indirectly with S.S.; (j) he shall not attend within 100 m. of anywhere he knows S.S.to work, live, go to school, frequent, or otherwise knows her to be; (k) he shall not use or have any social media accounts without the prior permission of his probation officer; he shall provide all of his social media account usernames to his probation officer to allow monitoring of his social media use.
I am satisfied that it is in the best interests of the administration of justice in light of the nature of the offences and the circumstances of the commission of the offences as well as the impact of such an order on the privacy and security of Mr. Gilaard that there will be an order under s. 487.051(3) as these are secondary designated offences. I order that a sample be taken of Mr. Gilaard’s DNA, and he shall attend within five days of this decision for this purpose.
There will be a section 109 order for ten years such that Mr. Gilaard shall not possess any weapons as defined by the Criminal Code.
Himel J. Released: July 23, 2024