COURT FILE NO.: CR-22-119

DATE: 2024-02-15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

Q.T.D.

Accused

Arish Khoorshed, for the Crown

C. Rippel, for Q.T.D.

HEARD: January 24, 2024

REASONS FOR SENTENCE

PUBLICATION RESTRICTION NOTICE

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant or witness may not be published, broadcasted or transmitted in any manner.

Kurz J.

[1] Mr. T.D. was tried before a jury on two counts of sexual assault, one count of forcible confinement and one count of criminal harassment. He was convicted of criminal harassment but acquitted of the other charges. I subsequently convicted him of breach of recognizance.

[2] The count of the indictment under which Mr. T.D. was convicted of criminal harassment read:

AND FURTHER that Q.T.D. between the 15th day of December in the year 2021 and the 2nd day of January in the year 2022 (both dates inclusive) at the Town of MILTON in the said Region, knowing that I.A. is harassed or being reckless as to whether I.A. is harassed did without lawful authority repeatedly communicate directly or indirectly with I.A. thereby causing I.A. to reasonably, in all circumstances, fear for her safety, contrary to Section 264(2)(b) of the Criminal Code of Canada.

[3] Mr. T.D. appears before me today for sentencing. On January 24, 2024, I heard the submissions of both counsel regarding sentencing, I have reviewed those submissions as well as their written sentencing submissions and case law, as well as the letters and certificates filed on behalf of Mr. T.D.

[4] The Crown seeks a sentence of time served for the now approximately 22 months that Mr. T.D. has been in pretrial custody for this and another, unrelated charge of what I understand to be sexual assault. He is awaiting the completion of that trial. The Crown also seeks three years of probation.

[5] Mr. T.D. seeks a conditional discharge with a term of probation of, at the court’s discretion, two to three years. In the alternative, he seeks a suspended sentence followed by probation on the same terms.

[6] For the reasons that follow, I impose a suspended sentence on Mr. T.D., with a further twenty-four-month term of probation, upon terms described at the end of these reasons.

Findings

[7] Inasmuch as Mr. T.D. was convicted by a jury, s. 724(2) of the Criminal Code applies. It states that when a court is sentencing an offender after a jury trial, it “shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.”

[8] In this trial, much of the case before the jury came in the form of written records of the number and frequency of both Mr. T.D.’s phone calls and texts to Ms. A. The jury was presented with copies of the 131 text messages that Mr. T.D. sent to Ms. A. between December 15, 2021 and January 2, 2022, and her responses, which were far fewer than those she received.

[9] The telephone and text contacts between Mr. T.D. and Ms. A. did not commence on December 15, 2021, the first date mentioned in the indictment, but there were a large amount of texts on that day and on January 1 and 2, 2022.

[10] On December 15, 2021 Mr. T.D. made seventeen unanswered telephone calls to Ms. A. He made a further twenty-six unanswered calls to her on January 1, 2022, while she made one brief outgoing call to him that day.

[11] In texts prior to December 15, 2021, Ms. A. had expressed a desire not to speak to Mr. T.D. by telephone because those calls provoked her anxiety. They had a disagreement as to her consent to their two sexual encounters and whether she had promised her sexual availability to him. She disagreed with both propositions.

[12] The text messages of December 15, 2021 and January 1 and 2, 2022 were sent despite Ms. A.’s frequent text requests to be left alone and statements that she does not wish to meet with him, as he stated he wished her to do. Mr. T.D.’s messages became increasingly insistent and even belligerent.

[13] On December 15, 2021, the thrust of Mr. T.D.’s texts to Ms. A. was his desire to see her and go for a walk. Ms. A.’s initial responses were to the effect that she was in class and unavailable. Nonetheless, after numerous texts, she agreed to meet him in a park near her home. Exactly what occurred at that park was highly disputed at trial. But the jury did not find beyond a reasonable doubt that Mr. T.D. forcibly confined her.

[14] Nonetheless, the evidence before the jury was clear and it would have accepted that there was an altercation between the two of them on December 15, 2021 after they met in a park. That meeting ended with the intervention of a third party following which Ms. A. walked away from Mr. T.D. with that third party.

[15] Later that evening, Mr. T.D. telephoned Ms. A. four times, between 6:50 and 6:55 p.m. She did not pick up the calls. At 6:55 p.m., Mr. T.D. texted to Ms. A, writing: “take my call”.

[16] The January 1 and 2, 2022, texts from Mr. T.D. came after a two-week hiatus that followed the December 15, 2021 incident. The texts began with a New Year’s greeting and without any response, progressed to increasingly strident and threatening statements. Mr. T.D. sent Ms. A. 24 texts that day before she finally responded, writing “stop contacting me”.

[17] Among the texts that Mr. T.D. sent to Ms. A before she asked him to stop were the following messages:

• Call me;
• Dsaw (don’t say a word) – stated in three separate texts;
• U made a promise and I didn’t make you so fix up I wanna talk to you;
• Like I said if u don’t text me back or call me ima come don’t block me cause I will come. I’m not joking kid before I have someone for u. I’m telling I I wanna deal with me that someone I told u I’m gonna talk to u fix up;
• Before I was gonna let you text me now otp [apparently meaning on the phone] or in person.
• You better call me back
• Ya today ur coming to see me don’t make me show up at ur work and shit either like I said u could just call me.

[18] After receiving Ms. A.‘s January 1, 2022 text, telling him to “stop contacting me”, Mr. T.D. sent her twenty eight more texts that day and the next. His immediate response to Ms. A.’s text demand that he stop contacting her was “[n]o I will” and “I said call me”. He continued, writing, that he “was saying I’ve videos”. He then demanded that she choose whether to “link me otp [on the phone] or in person pick one”, before adding “[b]efore I choose for u”.

[19] About thirteen minutes later, he texted to her: “[m]ake sure ur doing what I asked u to do”. He added “I said now”, “[d]on’t say I didn’t give you a chance”, and “[d]eadass I won’t tell you another time”. He called her a “deadass” two other times in texts that day. He also instructed her “dsaw” three more times as well.

[20] The jury found that these texts distressed, tormented or badgered Ms. A. It heard Ms. A. speak of the fear that they engendered in her. It also heard Mr. T.D.’s admission that if she was afraid because of the texts, he could see how she took them as a threat.

[21] I accept that Ms. A. took the texts, in each of their timing, volume, and contents as not merely insistent but threatening and an attempt to control her. Mr. T.D. was not willing to take “no” for an answer.

Sentencing Arguments

Crown Arguments

[22] In arguing for a 22-month time-served sentence, the Crown stated that the evidence demonstrated that as time went on, Mr. T.D. became progressively more controlling, demanding and forceful. The texts were delivered despite many statements by Ms. A. that she wanted to be left alone. They contained statements that he would attend at her home, place of work and even that he would send someone for her, all to get her to do his bidding. Mr. T.D.’s explanation for the expression “dsaw”, that it means in effect the discussion is over, is not credible. That is because Mr. T.D.continued to insist that she communicate with him when she expressed a refusal to do so.

[23] The Crown, citing R. v. Edwards, [2009] O.J. No. 4764 (S.C.J.) at para. 27, asked the court to consider all of the events in Mr. T.D.’s relationship recounted at the trial, including those which occurred before December 15, 2021. It asserts that those events show Mr. T.D.’s attempt to control Ms. A. and her silence or refusal to speak to him in the face of his constant harassment.

[24] The Crown asks me to consider the following aggravating factors: Ms. A.’s age at the time of the offence, nineteen years old; the fact that Mr. T.D. was subject to a peace bond at the time of the offence, and his denials that he was trying to force her to see him in the face of the clear evidence that she was reluctant to do so. This shows a lack of insight, which belies the positive letters of Mr. T.D.’s mother and maternal aunt, described below.

[25] The Crown relies on R. v. Angelillo, 2006 SCC 55, 2006 SCJ No. 55 at paras. 27, 36 – 37, where the Supreme Court states that a sentencing court can consider offences for which an offender has never been charged or convicted. That evidence may be relevant and not necessarily excluded as it may relate to a sentencing principle or objective. In that case, Mr. Angelillo was charged with two fresh counts of fraud while waiting to be sentenced for the same crime.

[26] Here, the Crown asks me to rely as well on the fact that Mr. T.D. was charged with what the Crown describes as a “similar offence” at a time that he was facing this trial as well. That charge resulted in his loss of bail and the pre-trial incarceration that he has already experienced. This is not an aggravating factor but the Crown asserts that it is relevant to the claim that Mr. T.D. is not a threat and has taken remedial steps to ensure that he does not offend again.

Defence Arguments

[27] The Defence points out that the time-served request, when considered in the context of the ordinary 1.5/1 credit offered for pre-trial custody, would amount to the equivalent of penitentiary time. That would be a disproportionate and unfit sentence. The Defence describes the Crown’s submission as “gross sentence inflation”.

[28] Regarding the contents of the texts and whether they were threatening, the Defence describes any threat as ambiguous, at best. If so, they are at the lower end, akin to standing outside a house and besetting.

[29] The Defence stated that if the only charge Mr. T.D. were facing was criminal harassment, the case would never have made it to this court. It would have been resolved in the Ontario Court of Justice.

[30] The Defence points out that at the time of the offence, Mr. T.D. was 21 years of age and had no criminal record. It submits that I should give him lowest possible sentence that remains fundamental to sentencing principles.

Letters in Support of Mr. T.D.

[31] The Defence states that Mr. T.D. graduated from high school, following which he worked at various jobs. He has no post-secondary education. He has been offered a job by an old family friend, who has known him since childhood, as an appliance repair technician.

[32] The Defence has produced letters from Mr. T.D.’s mother, N.T., and his maternal aunt, both of whom support his request for a non-carceral sentence. Mr. T.D.’s mother, N.T., was present at court each day of the trial. Ms. T. writes that her son has dealt with learning disabilities throughout his life. Nonetheless, and despite other unspecified challenges, he has grown into “a kind, warm hearted, and caring young man.” He displays “remarkable resilience”. He is committed to become a successful and productive member of society. While in custody, Ms. T. states that her son “took proactive steps towards personal growth. He successfully completed goal setting, problem solving and anger management programs and earned numerous certifications. These accomplishments are a testament to his dedication to self­ improvement.”

[33] In support of the claim to pro-active steps towards personal growth while incarcerated, Mr. T.D. produced certificates showing that he attended four one-hour courses while in custody. The courses were in goal setting, managing stress, problem solving, and “Thoughts to Action”. Mr. T.D. also took a number of what appear to be short Bible-studies courses while incarcerated, earning generally excellent marks.

[34] Mr. T.D. also relies on a three-page letter from his aunt, A.G., an RCMP Victim’s Services Court Coordinator. Ms. G.’s letter is effusive in praise of her nephew and offers far more detail about his background and challenges than his mother. Unexplained is why she is the person supplying this information and not Mr. T.D. himself or even his mother. Further unexplained is why she possesses such in-depth knowledge about Mr. T.D. when she works in rural Alberta while Mr. T.D. and his mother reside in this jurisdiction.

[35] Perhaps of greater concern to the court is the fact that Ms. G. supplies what is clearly a personal letter of reference under RCMP letterhead and signs it in her official capacity. Those problems significantly diminish its impact. The court must question the partiality and even credibility of a letter writer who relies on her professional status with a police force to write a personal letter of support for a relative, with whom she has no professional association.

[36] The Defence points to three cases of criminal harassment in which the offender was not given a carceral sentence as sought by the Crown here. In R. v. Swierszcz, 2006 CarswellOnt 1694 (C.A.) the Ontario Court of Appeal substituted a conditional sentence for a conditional discharge after the offender was convicted of three counts of criminal harassment on facts far more egregious than those found here.

[37] In R. v. Zelman, 2018 ONSC 5838, O'Bonsawin J. of this court, as she then was, sentenced the offender to a conditional discharge with two years probation on a single count of criminal harassment. The Accused had no criminal record and obeyed all of the terms of his interim release.

[38] In R. v. B.(H.), 2016 ONSC 2145, Conlan J. convicted an offender of criminal harassment but acquitted him of sexual assault. The complainant stated that she feared the offender, who had threatened to come to her house and to “go Rambo” on her. Conlan J. rejected a defence request for a conditional discharge and imposed instead a conditional sentence followed by eighteen months of probation.

[39] The Defence also points to two other more serious cases and asks me to consider the sentence requested by the Crown against the sentences meted out in those cases, in order to demonstrate the disproportionate nature of the Crown’s position.

Victim Impact Statement

[40] In her victim impact statement, the complainant stated that her mental health was affected by the offences. She “became afraid of most things”” She preferred to stay “inside my house and only went outside sometimes with my parents”. Only when she became comfortable again did she start to see friends. Further, her anxiety increased. That included the sound of telephones. She went through counselling for about five months and had to pay more than allocated by Victim’s Services. She also saw a psychiatrist and had difficulty sleeping. She was prescribed medications to assist her. The complainant stated that before his arrest, she was afraid of running into Mr. T.D. or him coming to her place of work. Her employer had to stay around at times for her comfort. She was also afraid of her parents becoming involved with this matter.

Sentencing Principles

[41] The determination of the sentence that is just and appropriate in a given case is a highly individualized exercise that goes beyond a purely mathematical calculation. While general and specific deterrence are important principles in sentencing, they are not the only ones.

[42] Rather, I must determine a sentence that is proportionate to the gravity of the Mr. T.D.’s offence and his degree of responsibility. But I must also consider the particular facts of this case. Further I must consider the mitigating and aggravating factors at play here.

[43] I also remind myself that I am only sentencing Mr. T.D. for the offence which the jury found him guilty of, beyond a reasonable doubt, not the other charges he faced.

[44] In R. v. Bates, 2000 CanLII 5759 (ON CA), [2000] O.J. No. 2558 (OCA), Justice Moldaver, then of the Ontario Court of Appeal wrote for that court at paragraph 30 regarding the harm of criminal harassment within the context of domestic relationships as follows:

The courts have been made increasingly aware of the escalation of domestic violence and predatory criminal harassment in our society. Crimes involving abuse in domestic relationships are particularly heinous because they are not isolated events in the life of a victim. Rather, the victim is often subjected not only to continued abuse, both physical and emotional, but also experiences perpetual fear of the offender.

[45] Further, at paras. 35-36, Moldaver J.A. adopted the following comments by the Ontario Court of Appeal in R. v. Denkers (F.P.) (1994), 1994 CanLII 2660 (ON CA), 69 O.A.C. 391 at 394, where the accused was appealing his sentence for the attempted murder of his former girlfriend. Moldaver J.A. found that those comments were equally applicable to cases of criminal harassment, writing:

This victim, and others like her, are entitled to break off romantic relationships. When they do so they are entitled to live their lives normally and safely. They are entitled to live their lives free of harassment by and fear of their former lovers. The law must do what it can to protect persons in those circumstances. In this case its order that the appellant not have contact with the victim failed to provide that protection.

It follows that the principles of general and specific deterrence must be the overriding considerations in the determination of a fit sentence in this case.

[46] I must also consider section 718.2 of the Criminal Code, which requires a court in sentencing to consider the following principles:

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) 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.

[47] Thus, as the Supreme Court of Canada stated in in regard to s. 718.2(e) in Gladue v. The Queen, 1999 CanLII 679 (SCC), [1999] S.C.J. No. 19 (S.C.C.) at para. 36:

As a general principle, s. 718.2(e) applies to all offenders, and states that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.

Analysis

[48] Here the aggravating factors of this offence are:

a. The age of the complainant, who was 19 at the time of the offence;

b. The fact that Mr. T.D. was bound by the terms of a peace bond to keep the peace and be of good behaviour;

c. The threat that the complainant felt from Mr. T.D.’s conduct;

d. His attempt to control her behaviour through his texts;

e. The sheer volume of unwanted texts and calls; and

f. The fact that the parties had been involved in an intimate relationship for at least a short period of time.

[49] I do not take the fact of Mr. T.D.’s incarceration for another offence as an aggravating factor or even a response to a mitigating factor in that I know little about the context of that incarceration, other than the fact that the charge is sexual assault and that the trial is not yet complete. I remind myself that Mr. T.D. was acquitted of two counts of sexual assault in this trial.

[50] The mitigating factors that I accept are:

a. Mr. T.D.’s age at the time of the offence;

b. His apparent learning disabilities;

c. The family support that he has received, particularly from his mother (I place little weight on the letter of the maternal aunt);

d. The fact that he has a job waiting for him when his term in prison ends, increasing the chance of his rehabilitation and reintegration into society;

e. The fact that he has taken some courses in prison; recognizing that few such opportunities are available to him in his present institution; and

f. Mr. T.D.’s father has been absent for virtually all of his life and resides in Jamaica.

[51] At the request of the Defence, I ordered a Gladue report for Mr. T.D.. However, Aboriginal Legal Services (“ALS”) stated that it was unable to complete such a report because: a) he is unsure of the nature of his Indigenous ancestry; and b) even if his ancestry could be confirmed, ALS is unable to address how being an Indigenous person has affected his life circumstances. That is because Mr. T.D. was unable to speak to his experiences as an Indigenous person and had no further details regarding that background. Furthermore, Mr. T.D.’s mother, who identifies as Metis, was unable to offer ALS sufficient information to trace her Indigenous background.

[52] Mr. T.D. is bi-racial, as his father is African-Jamaican. But I have heard no evidence or received any submissions as to how that background has affected him.

Conclusion

[53] The offence for which Mr. T.D. was convicted was a serious one. It had a detrimental impact on the emotional state and well-being of the young victim of his offence.

[54] I have given serious thought to whether the sentence should include some element of incarceration. But in light of the mitigating factors set out above and other cases in which incarceration was not ordered, I impose a suspended sentence upon Mr. T.D. followed by twenty-four months of probation upon the following terms, which come into effect upon his release from prison:

1. The statutory terms set out in s. 732.1(2) of the Criminal Code;

2. No contact with I.A.;

3. Not to be within 50 m. of anywhere that I.A. lives, works, attends school, or is known to you to be;

4. Do not possess any weapon as defined in the Criminal Code of Canada, and do not apply for any permit to own or possess a weapon;

5. Do not use or access any cellular telephone that is not registered with the provider in a way that the telephone number is registered to you in your accurate legal name with your accurate home address;

6. Attend for and participate in counselling as recommended by your probation officer and sign waivers to enable your probation officer to monitor your attendance at and participation in said counselling.

Kurz J.

Released: February 15, 2024

COURT FILE NO.: CR-22-119

DATE: 2024-02-15

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

Q.T.D.

REASONS FOR JUDGMENT

Kurz J.

Released: February 15, 2024