ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
His Majesty The King
– and –
Iain Aspenlieder
Accused
Moiz Karimjee & Taylor Straw, for the Crown
Michael Spratt, for the Defendant
HEARD: December 1, 2025
reasons for SENTENCE
Anne london-weinstein j.
1On July 25, 2025, Mr. Aspenlieder pleaded guilty to one count of mischief contrary to s. 430(4.11) of the Criminal Code, R.S.C. 1985, c. C-46.
2Upon pleading guilty, Mr. Aspenlieder was granted bail.
3There was an Agreed Statement of Facts filed in this matter. I relied on it, as did the parties. I have not replicated it entirely here.
Agreed Statement of Facts:
4The National Holocaust Monument (the “Monument”) was inaugurated by then Prime Minister Justin Trudeau to commemorate the six million Jewish men, women, and children that were murdered during the Holocaust, and the millions of other victims of Nazi Germany and its collaborators.
5It also stands as a tribute to the courage and resilience of the survivors who were able to make their way to Canada following one of the darkest chapters in human history. The Monument recognizes the immense contributions these survivors have made to Canada and serves as a reminder that we must be vigilant in standing guard against antisemitism, hatred and intolerance.
6In the early morning hours of Monday, June 9, 2025, Mr. Aspenlieder attended the Monument located at 1918 Chaudiere Crossing in the City of Ottawa and threw red paint on the front wall of the Monument, painted the words “FEED ME”, and threw more paint on the walls of the Monument at the easterly point.
7The front wall of the Monument faces Wellington Street, where Parliament, the Supreme Court, and other government buildings are located. In addition, the vandalism occurred on a Monday and Wellington Street would have been congested with traffic later that morning.
8Mr. Aspenlieder declined to speak with a lawyer and spoke to police, accepting responsibility for defacing the Monument. He told police that he left the paint cans behind, that he left a red handprint, that he did not wear gloves, and that he rode a bike to and from the Monument.
9A photograph of the handprint was taken by the Ottawa Police. The photo shows that Mr. Aspenlieder’s fingers and thumb left an imprint in red paint on a portion of the Monument which appears to be a curb on the ground. The palm of the hand is not clearly delineated. The imprint is not in a prominent portion of the Monument, unlike the words “FEED ME”, which were emblazoned across the Monument in blood red letters.
10Mr. Aspenlieder was on a hunger strike at the time of his bail hearing. He said his hunger strike would end when Prime Minister Mark Carney acknowledged that Benjamin Netanyahu is a war criminal.
11He found jail to be a significant deterrent to future acts of activism. He indicated that he appreciated the effect that his actions had had on his family, and on the Jewish community in Ottawa and “across Canada…”.
12He denied any mental health issues.
13I will deal with Mr. Aspenlieder’s mental health later on in these reasons. I note, however, that despite his assertions to the contrary, Mr. Aspenlieder’s mental health was very much in issue just prior to the incident for which he is being sentenced. He was hospitalized under a Form 2 under Ontario’s Mental Health Act, R.S.O. 1990, c. M.7, for a mental health assessment.
14In his police statement, the officer interviewing him referred to Mr. Aspenlieder’s mother reporting her concerns about his well being and his mental health in particular.
15The court is not prohibited from considering a relevant factor in sentencing which exists on the evidence simply because the offender does not wish the court to weigh that particular factor. I am not bound by Mr. Aspenlieder’s wishes. He is not controlling this process. In fact, I have a duty as a sentencing judge to assess Mr. Aspenlieder’s moral culpability, along with the gravity of the offence, based on the evidence before me: see R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433.
16I have surmised that Mr. Aspenlieder does not wish the court to consider his mental health at the time of the index offence, even though it is a potentially mitigating factor. I suspect that he does not wish to say anything which would undermine the integrity of his political message with regard to the plight of the Palestinian people, even if doing so might ultimately assist him with regard to the sentence he receives.
Purposes and Principles of Sentencing:
17The sentence I impose must be proportional to the gravity of the offence and the degree of responsibility of the offender. The concept of a proportional sentence encompasses a number of considerations.
Sentencing Objectives:
18Section 718 of the Criminal Code lists a number of sentencing objectives which the court must consider in deciding an appropriate sentence, including the following:
To denounce unlawful conduct and the harm done to victims or to the community that is caused by the unlawful conduct;
To deter the offender from recommitting offences;
To deter other persons from committing offences;
To provide assistance with rehabilitation;
To provide reparations for harm done to victims and to the community;
To separate offenders from society, where necessary;
To promote a sense of responsibility in offenders and an acknowledgment of the harm done to victims or to the community.
19The gravity of the offence refers to the harm caused by the offender to the victim, as well as to society and its values. The degree of responsibility of the offender invokes features which relate to the offender’s moral culpability: R v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 130.
20The greater the harm intended or the greater the degree of recklessness or wilful blindness, the greater the moral culpability. However, the reference in s. 718.1 of the Criminal Code to the degree of responsibility concerns more than just the mens rea of the offender at the time of the commission of the offence. The degree of responsibility of the offender includes other factors relating to culpability. These might relate, for example, to the offender’s personal circumstances, mental capacity or motive for committing the crime.
21In this case, given the gravity of the offence, the sentence must denounce Mr. Aspenlieder’s conduct and the harm done to the victims and to the community. Denunciation and general deterrence must be given priority in the balancing of the relevant sentencing factors.
22There are potent rationales requiring the denunciation of Mr. Aspenlieder’s conduct. The harm done to the victims in this case is significant. The Jewish community suffered pain, fear and hurt by the desecration of the Monument. The desecration occurred at a time in Canadian history when antisemitism is on the increase.
23The act of desecration caused many members of the Jewish community to feel alienated and vulnerable; that their right to life, liberty and security of the person is under siege. Further, this type of deliberate desecration of a national monument memorializing the worst mass murder in history could seed the idea for similar acts and fuel antisemitism.
24The Monument, entitled “Landscape of Loss, Memory and Survival”, is intended to ensure that the lessons of the Holocaust, as well as the remarkable contributions of Holocaust survivors to Canada, remain within the national consciousness. As such, the Monument holds significance to all Canadians. These factors increase the gravity of the offence.
25In terms of specific deterrence, I am satisfied that, despite Mr. Aspenlieder’s comment that he is proud of what he has done, there is little danger of him committing another criminal offence of any type.
26He is a person whose character has previously been unimpeachable. The letters of reference provided on his behalf describe a kind, law-abiding person who is motivated to help others. In addition, he has suffered severe collateral consequences as a result of his actions. He has damaged and perhaps permanently destroyed his career as a lawyer; at present he is suspended from the Law Society of Ontario and he was fired from his job as a lawyer with the City of Ottawa. He was separated from his children as a result of this offence, which was painful for him as he is a loving father to his two young children. He has experienced a significant period of imprisonment in the Ottawa Carleton Detention Centre (“OCDC”). He is at no risk of reoffence. He is also a first-time offender, which requires that the court exercise restraint in sentencing him.
27In terms of rehabilitation, Mr. Aspenlieder has made it clear that, at this point, he has absolutely no intention of changing his views about his choice of leaving his message on a national monument to the Holocaust.
28I had hoped that, during his probationary period, some type of healing could take place between the offender and the Jewish community he so injured. However, this proved intractable due to Mr. Aspenlieder’s expressions of pride regarding his actions.
29Reparations are meant to acknowledge and repair the causes and consequences of what occurred in this case. To some degree, Mr. Aspenlieder acknowledged the harm he has caused and has indicated that he regrets it. However, this expressed regret is equivocal. Despite spending an entire day listening to accounts of the pain he has caused, he indicated he was proud of what he had done and that he was aware that his actions would cause fear, upset and hurt to Jewish persons at the time that he committed this act.
30The sentence should foster a sense of responsibility in Mr. Aspenlieder and an acceptance of the impact of what he has done to victims and the community.
31It is not necessary that Mr. Aspenlieder be separated from society to protect society.
32As sentencing judge, I must take into consideration a number of other principles. All are either components of the proportionality principle or properly influence its interpretation and application. All are relevant to determining a just sanction that satisfies the proportionality principle: see s. 718.2 of the Criminal Code; and R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 42.
33According to s. 718.2, a sentence should be increased or reduced to account for any relevant aggravating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(i) Evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or any other similar factor,
(iii.1) Evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.
34I am satisfied that the offence had a significant impact on the victims in this case, which I will discuss shortly. I turn now to the question of whether this offence was motivated by hate.
Was this Offence Motivated by Hate?
35In this case, the Crown vigorously argued that Mr. Aspenlieder’s desecration of the Monument was motivated by hate. Mr. Spratt, for Mr. Aspenlieder, argued that Mr. Aspenlieder was not motivated by hate, but rather by a misguided but good-faith concern regarding an unfolding humanitarian crisis and allegations of genocide abroad.
36One of the victim impact statements asked, “How could the defilement of a national monument to the Holocaust not be interpreted as an act of hate?”
37This is a good question. To the members of the Jewish community who took the time to provide statements to the court, the answer is obvious. They regard Mr. Aspenlieder’s offence as antisemitic, as fostering antisemitism, and as motivated by hatred.
38However, the court is required to determine beyond a reasonable doubt that Mr. Aspenlieder was motivated by hate and not by something else. This is a very high standard. I must be certain.
39This is not a case, as in many of the cases provided by counsel, where hateful words, or symbols were used, such that the motivation of the offender was apparent.
40I considered all of the evidence before me to determine whether Mr. Aspenlieder himself was motivated by hatred in what he did, including the following:
Given everything I now know about him, being motivated by hatred is completely inconsistent with Mr. Aspenlieder’s character.
Mr. Aspenlieder said that his message was not intended to provoke or incite hatred of Jewish people, or anybody. He said his message was intended to shock and disturb and to disrupt Canadians because of his belief that silence is complicity. “I was and I am aware that Canadians, including and specifically Jewish Canadians, could or would be upset or frightened or traumatized by my desecration of the National Holocaust Monument.” Mr. Aspenlieder said he was proud for doing what he believed to have been right.
The Crown argues that the above comments further confirm that Mr. Aspenlieder, in addition to his political objectives, was also motivated by bias, prejudice, or hate as he intentionally targeted the Monument having the foresight and moral certainty that it would harm the Jewish community. The Crown relies on R. v. Buzzanga and Durocher (1979), 1979 1927 (ON CA), 25 O.R. (2d) 705 (C.A.), at pp. 720-21, where the Court of Appeal for Ontario noted, “[t]he actor’s foresight of the certainty or moral certainty of the consequence resulting from his conduct compels a conclusion that if he, nonetheless [sic], acted so as to produce it, then he decided to bring it about (albeit regretfully), in order to achieve his ultimate purpose. His intention encompasses the means as well [sic] to his ultimate objective.”
However, motivation is distinct from intention. Motivation is the reason why an offender commits an offence. It is not an element of the offence. Within a sentencing context, I must be satisfied beyond a reasonable doubt that the reason why Mr. Aspenlieder acted as he did was because he was motivated by hatred of Jewish persons. The fact that Mr. Aspenlieder knew that his actions may cause distress and fear to the Jewish community and acted anyway demonstrates that he had a disregard for their well being, which is morally reprehensible and worthy of significant sanction. However, I was not satisfied beyond a reasonable doubt that his motive was hatred for Jewish people, rather than concern for, and a desire to publicize the plight of the people of Gaza.
I also do not agree that, because Mr. Aspenlieder did not indicate in his statement to police what his motivation for the offence was, I cannot, without cross-examination, give any weight to his statement at his sentencing hearing and that I must conclude that he was motivated by hatred.
Mr. Aspenlieder’s right to remain silent includes the right to selectively choose what he does not wish to discuss. The fact that he chose to discuss certain things with the interviewing officer, such as the fact that he left paint cans at the scene, does not obviate his residual right to remain silent with regard to other aspects of the case. I do not agree that the court can draw a negative inference from the assertion of the right to silence with regard to certain topics in a police interview. To do so would be to violate his right to silence.
41I recognize that hate need not be the only motivating factor; it can be a secondary or partial factor and still trigger the application of s. 718.2(a)(i):
I considered that the selection of the Monument as a medium for his message, given that it is a nationally recognized symbol of the mass murder of Jewish persons, could be interpreted in a manner which suggests a hateful motivation if it was considered separately and not part of the whole of the evidence;
I was not satisfied that Mr. Aspenlieder deliberately left a red hand symbol, knowing its significance within the context of the Israeli and Palestinian conflict. I found that Mr. Aspenlieder likely left the print inadvertently on the curb at the memorial site. He was not wearing gloves and was handling red paint.
I do not agree that knowledge of the significance of the red hand is so universal that I can conclude that Mr. Aspenlieder knew about it at the time he left his handprint on the curb. The Crown points out that Mr. Aspenlieder is highly educated and must have known about the significance of the red hand. I must profess that I too am relatively highly educated and was ignorant of the 2000 Ramallah Lynching, where two Israeli reservists were murdered and the perpetrator waved his blood-soaked hands to a jeering crowd.
I ruled that cross-examining Mr. Aspenlieder on his omission of any reference to his motivation for the offence would offend the right to silence. The Crown’s position is that, without cross-examination, I can attach no weight to Mr. Aspenlieder’s statements. I do not agree with this as a proposition of law.
However, even if I were to discount the weight I attached to Mr. Aspenlieder’s statement in court that he was not motivated by hate and that he did not know the significance of the red hand, there was circumstantial evidence which suggested his actions were not motivated by hate which I did rely on.
I observed that Mr. Aspenlieder, who is a lawyer, had no hesitation whatsoever in inculpating himself or undermining his own case in this proceeding. He said he was proud of what he had done. He said this knowing that the court would find this remark to be inflammatory and insulting to the persons representing the victims and the community who had spent most of the day explaining the pain his actions had caused them. I am satisfied that he knew that this remark would increase the court’s need to denounce his behaviour and yet he proceeded to make this statement.
This remark demonstrated a lack of insight into the magnitude of the harm he has caused by generating fear and insecurity in the Jewish Canadian community. I am satisfied that Mr. Aspenlieder knew that the court would not interpret the timing or the content of that remark in his favour, yet he made it anyway.
Mr. Aspenlieder also voluntarily stepped into custody, despite there being no request for him to do so, thus ensuring he spent Christmas holiday in the notorious conditions of the OCDC. He instructed his lawyer not to object to aspects of the victim impact and community impact statements, some of which were clearly inadmissible. He instructed his lawyer not to rely on his mental health for mitigation despite the fact that he was the subject of a Form 2 under the Mental Health Act immediately prior to the index offence.
42In summary, if Mr. Aspenlieder had intended to leave a red handprint as part of his message, I am satisfied that he would have admitted that he did so, as he has never acted in such a way as to shield himself from liability. I also believe he would have displayed it more prominently if he had left it intentionally as part of his messaging. Given that he did not wear gloves and that he did not place what I would describe as a partial handprint in a prominent location, I am not satisfied that he left his handprint to underscore his message. I also did not find his reference to the handprint in his statement to be indicative of an intent to draw attention to the handprint, as was suggested in one of the community impact statements. This was an example of material which is not admissible as part of a community impact statement, but which Mr. Aspenlieder would not permit his counsel to take objection to. However, I independently reviewed Mr. Aspenlieder’s statement.
43What Mr. Aspenlieder said in his statement was, first of all, in response to a question asked by the officer interviewing him. He was asked if he remembered where he bought the paint. He said it did not matter, that it was not really important. He bought the paint and did not try and conceal his activities. He said, “I left three cans of paint there with my fingerprints on it. I left a handprint on the curb. Hopefully, you - I am sure you found it.”
44I do not read Mr. Aspenlieder’s comments as highlighting the presence of the handprint. Rather, the inference I take from this is that he was saying he was not trying to hide what he did, as he left paint cans there and his handprint on the curb. There was no attempt at concealment, although he admitted he did not wish to be caught.
45Further, the evidence of Mr. Aspenlieder’s family and friends and his history suggest someone who has never been motivated by hate in any of his actions.
46I concluded that I was not satisfied beyond a reasonable doubt that Mr. Aspenlieder acted because of a hateful motivation. However, I find that he acted despite knowing his actions would impact the Jewish community by potentially causing them fright, upset or trauma. This deliberate choice by Mr. Aspenlieder to act despite recognizing that the consequences of his action could cause harm, when considered along with his legal training, increases his moral culpability to a level which demands significant sanction.
Relevant Case Law:
47In addition, in arriving at a sentence, the court must be guided by the following principles:
a. a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
b. where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
c. an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. In this case, Mr. Aspenlieder is a first-time offender and the principle of restraint applies.
d. all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to the community should be considered for all offenders, with particular attention to the circumstances of Indigenous offenders.
48Any sentence imposed should be similar to other sentences for similar offences and similar offenders. Of course, each case turns to a certain degree on its own facts. No case is exactly like another. I considered all of the authorities submitted by both the defence and the Crown, but have not recited the facts and legal principles in every case submitted here out of an interest in maintaining conciseness.
49In R. v. Maarouf (21 February 2025), Ottawa, 23-11407499 (Ont. C.J.), decided by Justice Webber, the offender entered a plea of guilt and received a suspended sentence and probation with 15 months custody marked as time served on a joint submission. The act complained of in that case was mischief that caused actual danger to life contrary to s. 430(2) of the Criminal Code. The mitigating factors in that case were that the offender had significant mental health issues falling short of establishing that she was NCR at the time, reducing her moral culpability. She entered a plea of guilt. The aggravating factors included her prior criminal record for assault and uttering threats.
50Her prior record and the extreme danger of her actions distinguish the case from the one before me. Ms. Maarouf admitted to attending the Ottawa Hospital at night wearing a blue hospital scrub attire, a grey wig with a black hair net, a surgical mask and a black backpack. She went to the third floor and poured gasoline on the floor and on three double seats using a five-litre gas can. She placed intravenous-style fake blood bags with notes in the stairwell outside the second, third, and bottom floor. She wrote notes which said, “stop paying taxes to fund terrorism” with a drawing of the Israel flag in blue; “Medical crisis in Gaza”; “Israel bombs hospitals”; and “End Occupation.” The vapours from the poured gasoline posed a risk of an explosion in the hospital. Two other informations were withdrawn at the time of the plea relating to separate incidents.
51In R. v. Bahadur (10 October 2025), Toronto, 24-48112137 (Ont. C.J.), a decision of Justice Chapin, the offender was found guilty of public incitement of hatred against an identifiable group, namely members of the Jewish community, contrary to section 319(1)(b) of the Criminal Code, that was likely to lead to a breach of the peace. He was also found guilty of failing to comply with a probation order. The offender communicated certain inflammatory statements at a vigil in Nathan Phillips Square in Toronto, Ontario. The vigil was sponsored by various Jewish community groups and was hosted in support of the victims of the October 7, 2023, attack in Israel.
52The offender was speaking in a loud, aggressive manner with an electronic megaphone at the event and made a number of disturbing comments directed towards the attendees from the Jewish community and their supporters. The comments were vile, hateful lies which have been used to foster anti-Jewish sentiments.
53The offender in Bahadur had a substance abuse issue and a criminal record, including one conviction for sexual interference and breach of his probation. He minimized his behaviour. He had the support of his family. The sentencing judge found the act had been well planned out. He expressed remorse at the time of sentencing. The incident targeted a vulnerable group at a memorial event and involved planning and calculation. He directed his comments to children and caused significant community harm. Justice Chapin reviewed a number of cases and then imposed a sentence of 12 months of custody for the conviction of one count for public incitement of hatred and 30 days for the one count of breach of probation, to be served concurrently, along with three years of probation. The offender’s criminal record and the likelihood of actual physical violence which was present in that case distinguish it from Mr. Aspenlieder’s case.
54In R. v. Castonguay, 2021 BCPC 315, the offender plead guilty to committing mischief by causing damage to a Chinese cultural centre while being motivated by bias, prejudice or hate based on religion, race, colour, or national or ethnic origin. He defaced the Chinese Cultural Centre with a racist diatribe, and this conduct was motivated by bias, prejudice or hate towards persons of Chinese ethnic origin or descent.
55He had a lengthy criminal record with over 155 convictions.
56He was sentenced to eight months in custody. The sentencing judge found the moral gravity of the offending was high. The conduct was a grave affront to the dignity of all persons, particularly to those of the Chinese Canadian community. The lengthy criminal record of the offender in this case distinguished it from Mr. Aspenlieder’s case. Mr. Aspenlieder is a first-time offender.
57In R. v. Bryans, [2025] O.J. No. 4260 (C.J.), the offender pleaded guilty to mischief to religious property. On at least two occasions, he attended the Medina Masjid Mosque at night and drew a number of swastikas on the mosque and on the sidewalk near the mosque. The second time, he left a number of materials at the entrance to the mosque including a customizable card game entitled “Cards from Jihad”, some cardboard with “Burn Palestine burn”, and other materials. He acknowledged that his actions were motivated by bias, prejudice or hate. Denunciation and deterrence had to be emphasized. The offender took responsibility by pleading guilty, but did not provide any real explanation for why he did what he did. The court found that, based on a review of the case law, although longer sentences had been imposed in many cases, the particular character of the offence was such that a sentence of four months was adequate. The court concluded it was the shortest sentence capable of achieving the necessary objectives of denunciation and general deterrence.
58In R. v. Soles, [1998] O.J. No. 5061 (Gen. Div.), the offender went on a rampage in the B’nai Israel Cemetery, knocking over 43 monuments marking the human remains of deceased members of the region’s Jewish community. He also damaged the building in the cemetery. He pleaded guilty to 43 separate violations of s. 182(b) of the Criminal Code and to damaging the building.
59His crimes caused profound grief among members of the Jewish community, as the burial ground is a sacred place where next of kin can reflect on life with loved ones. Evidence led to show his crimes were motivated by hate included:
A photograph of Adolf Hitler, a swastika on a card trumpeting “White Power” and bearing a Lincoln, Nebraska address associated with a political group which espouses Nazi philosophy. The card bore the title “14 Hammerskins 88”, referring to the largest group of skinheads in North America, and carried the words “Mass Extermination is the Only Solution Fire up the Ovens”.
A moving company card bearing various symbols connected to Nazism and white supremacy organizations, as well as other Nazi paraphernalia.
60There was some mitigation in the fact that the offender had an abusive childhood. The court found the offence was motivated by hatred. He remained a threat to society and was not really remorseful. He was given the equivalent of an 18-month sentence.
61I was also provided with a case from France which involved sentencing of offenders who vandalized the Wall of the Righteous, which bears the names of persons who saved Jewish people during World War II. The court imposed significant periods of incarceration.
62However, in that case, intelligence reports indicated the events were part of a broader movement of destabilization of the state for hostile purposes. Further, while foreign decisions may be persuasive, they are not binding precedents to be followed: see Quebec (Attorney General) v. 9147-0732 Quebec Inc., 2020 SCC 32, [2020] 3 S.C.R. 426.
63In R. v. Gobin, 2025 ONCJ 266, the offender was found guilty after trial of two counts of assault and one count of breach of probation. He spat on two persons and made hateful antisemitic comments and gestures. He was on probation at the time. He had a significant criminal record, including a prior conviction for assault causing bodily harm for which he received a sentence of nine months in custody. His actions were found to be motivated by hate. He received a sentence of 12 months imprisonment.
64In R. v. Gillard, 2022 ONCJ 164, the offender pleaded guilty to assault and making hateful Islamophobic remarks in a racist and gender targeting attack. He pulled off the victim’s hijab and punched her in the side of the head. He was 25 years old with no criminal record and some mental health issues. He was sentenced to a suspended sentence and probation, with the equivalent of three days of pre-sentence custody he had served being noted.
65In R. v. Patron, 2022 SKKB 231, the offender was found guilty by a jury of promoting hatred against Jewish people. He posted antisemitic material on his website. He had a criminal record. The sentence imposed was a year less time served, for a sentence of 168 days.
66In R. v. Kroeplin, 2021 ONCJ 19, the offender and his co-accused were convicted of wilful promotion of hatred against Jewish and Black people. They received conditional sentences of six months.
67In R. v. Porco, 2017 ONCJ 676, the offender pled guilty to one count of mischief for scrawling “No More Muslims” on a bench in a manner that was visible to the entire community. He had a criminal record. He had a mental health diagnosis of delusional disorder, which he denied. He received a five-month sentence.
68In R. v. Topham, 2017 BCSC 551, the offender was convicted after a 14-day trial by a jury of one count of wilful promotion of hatred against an identifiable group, being Jewish people. He published antisemitic material on his website. He was 70. He had no criminal record. He received a six-month conditional sentence.
69In R. v. Mackenzie, 2016 ABPC 173, the offender pled guilty to sets of charges of mischief and communicating statements in a public place which were likely to lead to a breach of the peace, arising from incidents which involved spray painting public property and private vehicles with statements intended to incite hatred against Syrians. The messages called for the killing or causing of bodily harm against Syrians. He had a criminal record and had a long history of substance abuse and mental health issues. He received a global sentence of eight months for all five counts.
Victim and Community Impact Statements:
70The court is also required to consider the statements of the victims in determining the appropriate sentence, as set out in s. 722(1) of the Criminal Code. A victim impact statement prepared in accordance with s. 722(1) of the Criminal Court should set out a description of the physical or emotional harm, property damage, or economic loss suffered by the victim as a result of the commission of the offence, and the impact of the offence on the victim. This court also considered the statements made by individuals on the community’s behalf which were prepared in accordance with this section and filed with the court, pursuant to s. 722.2(1) of the Criminal Code.
71The court, in adhering to s. 722(8) of the Criminal Code, considered the victim impact statement while taking into account the portions of the statement that I considered relevant to the determination which I had to make and disregarding other portions. There were aspects of some of the statements which were not properly admissible. I disregarded those portions.
72The victim and community impact statements were presented in court and filed. I carefully read all of them. In the interests of maintaining brevity in an already lengthy decision, I have not referred to all of them at length in these reasons, but all were considered.
73In addition, I reviewed an interview which was submitted by the defence in which Lawrence Greenspon, the co-chair of the National Holocaust Memorial Committee, said that Mr. Aspenlieder’s message may not have been hateful but that its placement and the manner in which it was done caused the Jewish community concern. Mr. Greenspon, in my view, accurately summarized the issue. It was the placement of the message which was concerning in this case.
74The article also indicated that Mr. Greenspon, who is a high-profile defence lawyer in Ottawa, felt that a month of jail time was sufficient to deter others from committing similar offences. Of course, Mr. Greenspon is not participating in this hearing as counsel, and his comments were made without benefit of hearing Mr. Aspenlieder’s later comments in court. I did not treat his comments regarding sentence as formal submissions and did not afford them weight as a result.
75Janice Laforme addressed the court on behalf of the Alliance of Canadians Combatting Anti-Semitism, a national, non-partisan coalition of over 60 community organizations working to combat antisemitism and hate across Canada. Mark Sandler and Rochelle Direnfeld had prepared the statement presented by Ms. Laforme.
76The statement indicated that:
In May 2024, the Wall of the Righteous at the Shoah (Holocaust) Memorial in Paris was desecrated with painted blood-red handprints. In the Jewish community, the red handprint is well recognized as referring to the lynching and murder of two Israeli soldiers in the West Bank by a crowd in October 2000. The incident is memorialized in an infamous photo of one of the murderers raising his blood-soaked hands to the cheering crowd. The imprint of Mr. Aspenlieder’s hand in red paint, as Mr. Sandler and Ms. Direnfeld point out, reinforces the deep pain, fear and lack of security felt by the Jewish Community as one of its sacred sites was vandalized through what is regarded as murderous symbolism.
77I pause here to note that, while I was not satisfied that Mr. Aspenlieder was aware that the imprint of his hand in red paint on the memorial would be regarded as murderous symbolism by members of the Jewish community, I accept that this red handprint caused pain and fear and infringed the right of Jewish persons to feel secure in the community.
78As pointed out by Richard Robertson, the Canadian Director of Research and Advocacy for B’nai Brith Canada, the unprecedented rise in antisemitism has left a palpable dread hanging over the Jewish community. This atmosphere of despair, writes Mr. Robertson, was only amplified by the actions of Mr. Aspenlieder. “The constant fear of being targeted has left members of the community in perpetual fear for their well-being and has led members of the community to question their future as Canadians.”
79I also agree that the defacing of the Monument was not just a matter of concern to the local Jewish community, or even the Jewish community in Canada as a whole, but to the nation as a whole, as pointed out by Michael Osborne, the founder of Bring Love, a grassroots organization dedicated to deepening ties between Catholics and Jews during a time of increased antisemitism.
80Russ Molot, a local lawyer, read a victim impact statement on behalf of the Canadian Antisemitism Education Foundation. Many of its members are descendants of Holocaust survivors. I found a passage of that statement to be particularly moving and appropriate:
Mr. Aspenlieder is not a youth acting in ignorance, nor an outsider unaware of our history. He is an adult, a lawyer—a member of a profession entrusted with upholding justice, guarding the rule of law, and respecting human dignity. As a lawyer, he should have known better. To deface a Holocaust monument is not simply an act of vandalism. It is an attack on memory. It is an attack on the lessons we have learned to help prevent repeated mistakes and foster resilience against the illiberal ideologies sweeping the world. His actions, moreover, are a direct insult to the survivors of the Holocaust, to the survivor’s families, to the 45,000 Canadian soldiers killed and another 55,000 soldiers wounded. When a lawyer desecrates such a monument, it is more than a private failure. It is a public betrayal.
81Marion Silver, the secretary of the Centre for Holocaust Education and Scholarship, pointed out that the National Holocaust Monument was symbolically designed in the form of six triangles of a shattered Star of David, intended to ensure that we remember one of the darkest chapters in human history: the mass extermination of six million Jews and countless others. Ms. Silver said, “[t]o defile the Monument that is dedicated to the memory of millions of innocent men, women, and children, who were savagely murdered by the Nazis, is a travesty. Moreover, this vandalism is an affront to the survivors of the Holocaust who have made Canada their home and have contributed meaningfully to the fabric of Canadian society.”
82Richard Marceau, the Vice-President External Affairs and General Counsel for the Centre for Israel and Jewish Affairs, said that the Monument is the physical embodiment of memory, survival, and moral responsibility. It is a sacred space where grief, resilience and remembrance converge. It is the place where schoolchildren learn the lessons of history, where Canadians honour the millions of victims of the Holocaust and where we renew our promise of “Never Again”.
83When a national monument to atrocity and human loss is desecrated, it undermines the values of respect, inclusion and remembrance that Canada strives to uphold. For the Jewish community, it is not just symbolic damage but a direct assault on their history, dignity and sense of belonging. The words scrawled in red paint, “FEED ME”, carry a menacing and dehumanizing undertone that intensifies fear, sending a message of hate and denial at a time when antisemitism is surging. The act makes members of the Jewish community feel unsafe, marginalized, and unseen, while reminding them that antisemitism—which historically led to horrific violence against Jewish people—is still alive today.
84Jaime Kirzner-Roberts, the senior director of Policy and Advocacy at the Simon Wiesenthal Center, said the following regarding the desecration of the Monument:
It heightens fear within the community, particularly among children, parents and the elderly, that visible expressions of Jewish identity—such as attending synagogue, wearing religious symbols, or paying tribute to murdered ancestors at a public site—could expose them to harassment or attack. In this way, the vandalism of the Holocaust Monument is not only an assault on memory but also a direct assault on the safety, dignity and inclusion of Jews living in Canada today. This crime reverberates far beyond Ottawa. It undermines public trust in the security of sacred sites, erodes the communal assurance that places of mourning will be respected and heightens the sense of vulnerability experienced by Jewish Canadians at a time of rising antisemitism globally and nationally.
85The risk that someone else would engage in a similar act is also heightened.
86The Court also heard from the Honourable Harry S. LaForme, a lawyer, former judge of the Superior Court of Justice and the Ontario Court of Appeal, and a member of the Order of Canada, who spoke as an Anishnaabe and member of the Mississaugas of the Credit First Nation.
87Mr. Laforme pointed out that the impact of Mr. Aspenlieder’s actions extends beyond the Jewish community into broader Canadian society. He indicated he was shaken to his core when he learned of the desecration of the Monument.
88Joel Diener and Mr. Greenspon are the Co-Chairs of the National Holocaust Monument Committee. This group has been programming national events on International Holocaust Remembrance Day and Yom Hashoah at the Monument for over five years.
89Their community impact statement noted that the fact that someone chose to vandalize the Monument sent a jarring and painful message: “that the suffering of our people, the memory of the victims, and the very mandate to remember them can be mocked and dismissed. A monument to genocide was treated as something unimportant, even contemptible. This was not an attack on stone; it was an attack on the dignity and historical truth of an entire people.”
90Their statement went on to say that, while the words may well have been a humanitarian plea, it was the hallowed place where the message was scrawled that carried the hateful intent. Mr. Aspenlieder linked the plight of those in Gaza to the National Holocaust Monument. By doing so, he visited the same anti-Zionist hatred which continues to fuel the rise of antisemitism upon Jews who survived the Holocaust and the generations that followed.
Circumstances of the Offender:
91I turn now to consider the circumstances of the offender. Mr. Aspenlieder is 46 years old. He was, until he desecrated the Monument, a lawyer for the City of Ottawa.
92There were 11 letters of support submitted on behalf of Mr. Aspenlieder. I reviewed all of them. His parents described him as a kind, truthful, honest person who is caring and who was a defender of the weak and the helpless, of victims of oppression and abuse, and of those lacking power or support to defend themselves.
93His father pointed out that, as a child, Mr. Aspenlieder was bullied a lot and suffered near death experiences as a toddler because of his asthma. He did spend some time at the Hugh MacMillan Centre in Toronto when he was about seven years old. Eventually, he competed in Ironman competitions, the Boston marathon, numerous triathlons, duathlons, and a variety of races, all of which he completed. He was also a long-distance cyclist. He volunteered at the Ottawa Distress Centre while attending university and was involved in so many good and charitable events. At the time of this incident, his father made reference to his state of mind, coupled with recent custody struggles with his ex-partner. He is described by his father as a good young man, as well as a good dad who hiked and biked with his children and took them to enriching events. The upcoming custody and trial arrangements are proving to be very stressful. He is in a despondent and unhappy place. His mother, Jane, described her son as someone who has a deep love for his children and nuclear extended family. He is a loving son, a thoughtful sibling, and a devoted father
94During his time with his parents, his mother noted he had become subdued and reserved as he was processing the consequences and implications of his actions. He has never expressed, at any time, antisemitic beliefs, nor was he raised in a family that held those beliefs. He has never engaged in hateful activities with an intent to harm any person or group. Prejudice and racism have never been tolerated or praised. Acceptance, inclusion, non-judgment and empathy are and always have been his touchstones.
95His sister, Adrienne Miranda, described her brother as kind, artistic, genuine and honest. She wrote Iain’s truest character, his values, and morals are best exhibited in his actions toward those he loves and by his interactions with others, including strangers. She pointed out that he hosted a charity event last winter to raise funds for the Ottawa Mission. She described her brother as deeply and genuinely non-judgmental. He uses his knowledge, privilege, compassion and love to help and support others any way that he can. It is simply not in his nature to discriminate, harm or intentionally upset others.
96His sister, Erin Aspenlieder, PhD, described their family as a close one that spends regular time together. Erin pointed out that Iain has spent his adult life volunteering in the community—as in his years volunteering for the Ottawa Distress Centre, as well as in athletics and the arts. He is a kind man.
97Erin described how Iain shared his space and supplies with others while running an ultramarathon through the Alberta mountains. Recently, while incarcerated, he called to request that Erin help him in connecting one of his fellow inmates with his mother, whom the fellow inmate had not been able to reach.
98Erin was troubled by the dichotomy between the caring brother she knew and his failure to anticipate the harm his actions caused. She indicated she reconciled this incompatibility—a deeply kind human with a harmful act—by understanding the depth of Iain’s concern for the humanitarian crisis alongside a most human mistake, failing to think his actions through fully. I did not agree that Mr. Aspenlieder did not fully think things through based on what he said to me in court. I found that he thought things through and, while not motivated by hate, acted despite knowing his actions would jeopardize the security of the Jewish community.
99A long-time family friend, Carol Burke, noted that, in all the years she had known Iain, she had never heard him express, in any way, antisemitic sentiment or any kind of discrimination or bigotry towards anyone. In fact, she stated that she would be shocked if he ever would, as it would be anathema to who he is and how he was raised. Respect, compassion for all people, and a sense of social responsibility are values that have been instilled in him throughout his life. She was aware that, despite working a demanding job and raising two children, he has done volunteer work and makes regular contributions to charities.
100A friend and former work colleague, Elaine Hayles, has known Mr. Aspenlieder for about 18 years where she worked as a Claims Investigator for the City of Ottawa. Ms. Hayles wrote, “I am aware of the legal matter before the court, and understand that Iain has pled guilty in relation to the defacing of the National Holocaust Monument in Ottawa. I want to state clearly that I do not condone his actions. The way he expressed himself was entirely inappropriate and caused real hurt—especially to Holocaust survivors, the Jewish community, and those who value remembrance and dignity.” Ms. Hayles wanted to stress that she recognized and respected the seriousness of the harm caused.
101That said, based on her long-standing knowledge of Mr. Aspenlieder’s character, she said it was inconceivable to her that his actions were motivated by hate. Ms. Hayles is a black female. She indicated she has never seen any indication of prejudice or malice from him. She asked the court to consider his long history of respectful and compassionate conduct.
102Joanne Lewis, a friend of Jane’s, said she was always impressed by his deep commitment to social justice.
103Phyllis Burke has known him since his birth. She noted he was raised in a loving, nurturing, liberal-thinking home where inclusiveness and empathy for others was practiced and taught. She has never heard him make any anti semitic comments or racial slurs of any kind. In fact, just the opposite.
104There was a letter from Susan Palmar, from Glebe St. James United Church, where Mr. Aspenlieder formerly worshipped with his wife and two sons. He was described as outgoing and interested in the activities the church was undertaking in the community. He volunteered with the church’s outreach program providing food to Carleton University students while they wrote exams.
105In terms of the collateral consequences of this incident, Mr. Aspenlieder has been fired by the City of Ottawa. He has been suspended by the Law Society and is not permitted to practice law. He plead guilty to the offence.
106It is also helpful to review Mr. Aspenlieder’s statement about the incident.
107Mr. Aspenlieder, in his statement to the court, said that he did not wish to diminish the horror of the Jewish Holocaust, but to explain that his actions on June 9, 2025, were motivated by his belief in a parallel failure of the world’s conscience, a failure to stop genocide in 2024 and in 2025.
108He pointed out that, in 1938, Canada refused to consider Jewish refugee immigration in no small part to this country’s antisemitism. Mr. Aspenlieder’s view is that Israeli Prime Minister Benjamin Netanyahu has waged a genocidal war against Palestinians. He indicated that he picked out blood red paint from a hardware store in the Glebe and pained “FEED ME” and splashed red paint on the concrete walls of the Monument.
109Mr. Aspenlieder said that his message was not intended to provoke or incite hatred of Jewish people or anybody. He said that his message was intended to shock and disturb and to disrupt Canadians, because of his belief in our silence as complicity. He said,
I was and I am aware that Canadians, including and specifically Jewish Canadians could or would be upset or frightened or traumatised by my desecration of the National Holocaust Monument.
I believe that Canada should have named Prime Minister Benjamin Netanyahu as a war criminal, complicit in genocide, and I believe to this day, Canada is weak for not, as a nation, naming this truth, despite the Prime Minister Mark Carney’s apparent acknowledgement of this genocide in a personal capacity in April of this year. In April of 2025 he said I am aware of the genocide.
So I’m proud for doing what I believe to have been right.
Aggravating and Mitigating Circumstances:
110Among the mitigating factors in this case is Mr. Aspenlieder status as a first-time offender.
111As well, despite Mr. Aspenlieder’s protestations to the contrary, he had mental health issues which were significant enough that Det. Paquette, at the time of the interview, indicated that Mr. Aspenlieder’s mother called in earlier in the week out of concern for her son. He was in hospital under a Form 2 for an assessment under the Mental Health Act. His mother had called police the week prior to his arrest and indicated he had very strong views on Gaza. This was referenced in Mr. Aspenlieder’s statement. There is also evidence that police had been called to his home because of concerns over his children being left unattended. Given that he was otherwise a conscientious parent on the evidence I reviewed, I regard this as being out of character and consistent with emerging mental health issues. At his bail hearing, he conceded that, due to his current health situation, it would be in his children’s best interests to be in day camp and among their peers.
112In my view, Mr. Aspenlieder’s mental health was a mitigating factor in terms of the impairment of his judgment. While it does not excuse what he did, and as a lawyer he should have known better, it does temper to some degree his moral culpability and sheds light on his state of mind. His mental health issues were concerning enough that he was hospitalized for examination under s. 2 of the Mental Health Act just prior to desecrating the Monument.
113Mr. Aspenlieder also entered a plea of guilt, which is a significant mitigating factor in this case.
114Mr. Aspenlieder is a well-loved figure in his family. He is someone who helps others in the community. He has volunteered his time raising money for the Ottawa Mission and fed university students through the church he was attending at the time. He is a dedicated father. Prior to this incident, he had a successful career as a lawyer for the City of Ottawa. Aside from this incident, he has always been a good and decent person who tried to help others.
115The aggravating factors in this case include the nature of the crime itself, which involved the desecration of a national monument dedicated to the remembrance of a dark time in world history. The impact on the victims in this case was significant, which is an aggravating factor. The incident comes at a time when antisemitism is on the rise, making the victims in this case particularly vulnerable.
116I also found that Mr. Aspenlieder’s training as a lawyer was an aggravating factor in this case. When he became a lawyer he promised to uphold the rights of all.
117I also found that some of the comments he made in court demonstrated a lack of insight into the harm he has caused.
118Prior to my imposition of sentence, after listening to the victims in this case eloquently express the pain that his actions had caused them, Mr. Aspenlieder said he was nonetheless proud of what he had done. It was not necessary for Mr. Aspenlieder to make this remark. I found it to be tone deaf and also somewhat self-aggrandizing. Mr. Aspenlieder’s pride in his actions does nothing to assist the people in Gaza, but it does demonstrate a certain disregard to the feelings of his victims. Again, I am left with the impression that Mr. Aspenlieder still believes that the ends justify the means. Mr. Aspenlieder also indicated that he was aware that his actions would cause fear, upset and hurt to members of the Jewish community, yet he acted anyway. This was a highly aggravating factor on sentencing.
Conclusion:
119The Crown position is that a sentence of two years less a day plus, three years probation, a DNA order and a s.110 order prohibiting Mr. Aspenlieder from possessing a weapon is an appropriate sentence. The Defence position is that a period equivalent to 90 days of time served is an appropriate sentence. Mr. Aspenlieder stepped into custody of his own volition on the last appearance.
120A proper sentence in this case, as in every case, should encourage respect for the law, and the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Encouraging respect for the law is not a mere platitude in a democratic society.
121I must say that I agree with Mr. Karimjee that political protests which permit harm to come to others as a collateral consequence undermine the rule of law. Mr. Aspenlieder admitted in this courtroom that he knew that his actions in desecrating the Monument would or could cause upset, fear and trauma to all Canadians, but specifically to the Jewish people. He said he was proud of what he had done. In making this statement, he did not qualify it by saying he regretted his choice of the Monument.
122In other words, Mr. Aspenlieder made a calculated choice that the ends in this case justified the means. The idea that achieving political goals may require morally unacceptable conduct is a species of consequentialism which is not new.
123Mr. Aspenlieder felt that the magnitude of the crisis in Gaza justified whatever upset, fear and trauma may befall the Jewish community specifically as a result of his decision to use the medium of the Monument to project his message regarding the failure of the world to do more to stop the crisis in Gaza.
124One need not look very far to see the disastrous consequences of this type of ends justifies the means reasoning. On January 6, 2021, the United States Capitol in Washington D.C. was attacked by a mob of supporters of President Donald Trump in an attempted self-coup, two months after his defeat in the 2020 presidential election. Within 36 hours, five people died and one was shot by Capitol police. Many people were injured including 174 police officers. Damage caused by the attackers exceeded $2.7 million dollars.
125That January 6, 2021 attack of the Capitol exemplified the perils to democratic norms when respect for the rule of law is eschewed in favour of independent, illegal taking of the law into one’s own hands for a particular cause.
126I am sure that Mr. Aspenlieder does not regard himself in the same camp as the rioters in Washington. However, whenever disrespect for the rule of law is condoned, democracy is jeopardized. Democratic ideals, including the right of every person to live secure in the knowledge that their dignity and personhood is protected in Canada is jeopardized whenever the ends-justify-the-means reasoning takes precedence over respect for the rule of law.
127Mr. Aspenlieder is an educated and intelligent man who took an oath to champion the rule of law and to safeguard the rights and freedoms of all persons. I regard Mr. Aspenlieder’s calculated and knowing violation of that oath as a lawyer to be a seriously aggravating factor in this case. His education and training afforded him a place of privilege and responsibility in Canadian society and in basic terms, he should have known better.
128His choice of the Monument as a medium for his message to highlight his criticism of government and others for failing to do more to assist in Gaza constituted a repudiation of the values he swore to uphold.
129His actions also left us as Canadians vulnerable, as disrespect for the rule of law breeds contempt for democratic norms and the erosion of our collectively held values. We become, as citizens, vulnerable to the vagaries of a mob mentality which clamours that the rightness of a cause justifies whatever consequences may follow. This mentality jeopardizes the stability of our democracy, and it is therefore dangerous. It must be firmly stamped out. This is why Mr. Aspenlieder’s act must be firmly denounced despite the sincerity of his desire to draw attention to what has been described as a genocide in Gaza.
130I calculated Mr. Aspenlieder’s time in custody and his time on bail conditions to arrive at a sentence as follows:
Pre-Sentence Custody: June 27, 2025 to July 2025 is 29 days (44 days with credit for earned remission).
Pre-Sentence Custody: December 1, 2025 to January 7, 2026 is 38 days (57 days with credit for earned remission, for a total 101 days).
Downes Mitigation: There is no set formula as to the mitigation available in the formulation of the overall sentence. Time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance. The amount of credit to be granted depends upon a number of factors, including the length of time spent on bail under house arrest, the stringency of the conditions, the impact on the offender’s liberty and the ability of the offender to carry on normal relationships, employment and activity. The amount of credit and the manner in which it is taken into account is left to the discretion of the trial judge: R. v. Downes, 2006 3957 (ON CA), 79 O.R. (3d) 321, at para. 37.
131Mr. Aspenlieder was on extremely stringent conditions while on bail, which had significant impact on his liberty and ability to carry on normal relationships and activity. He had to leave the City of Ottawa and live with his parents in Alliston. He was separated from his two children and unable to see them, eventhough he had previously always been a very involved father. He was on conditions of house arrest which were so strict that, in the end, he surrendered into custody rather than have his parents subject to having to continue to supervise him. He wore a GPS tracker. He was not permitted to be outside of his home without a surety, and even then it was only for the purpose of medical emergencies, treatment, attending court or meeting with counsel. He was granted an exception to travel to the City of Ottawa for three days but had to be in the company of one of his sisters at all times and could not leave the home without one of them accompanying him.
132I also indicated at the time that Mr. Aspenlieder was placed on bail that I did not agree with the blanket prohibition of any discussion by Mr. Aspenlieder of the situation in Gaza. As I indicated, many Canadians are concerned about the plight of the people of Gaza. Mr. Aspenlieder is not being punished for his views on the subject, but for defacing the Monument. Counsel assured me there were valid reasons for this prohibition on Mr. Aspenlieder’s freedom of speech and I did not interfere with what counsel had agreed to. However, this prohibition on his freedom of expression, unless he was discussing it with a counsellor or medical professional, was added to what were already very onerous bail conditions. He was also prohibited from accessing social media. From July 25, 2025 to December 1, 2025, he had 130 actual days on bail. I allowed significant mitigation for Downes credit for this period of time in light of the punitive impact of these bail conditions. I afforded Downes credit of 51 days for this period of time on bail.
133I also considered the collateral consequences of this offence on Mr. Aspenlieder, as I am entitled to do as a sentencing judge. Mr. Aspenlieder has been suspended by the Law Society of Ontario. He may have permanently destroyed his career, or at least significantly damaged it. In either event, he has suffered a significant professional loss and humiliation.
134As Justice Moldaver wrote in R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, while collateral consequences may not be permitted to undermine the proportionality of a sentence, examining them enables a sentencing judge to craft a proportionate sentence in a given case by examining all of the relevant circumstances related to the offence and the offender: at para. 46. Justice Moldaver cited the text of Professor Allan Manson on The Law of Sentencing (Toronto: Irwin Law, 2001), at p. 136, as follows:
As a result of the commission of an offence, the offender may suffer physical, emotional, social or financial consequences. While not punishment in the true sense of pains or burdens imposed by the state after a finding of guilt, they are often considered in mitigation.
135The question is not whether collateral consequences diminish the offender’s moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances. Like offenders should be treated alike and collateral consequences may mean that an offender is no longer like the others, rendering a given sentence unfit: Suter, at para. 48.
136I regard the damage to his professional reputation, and perhaps the loss of his career, to be a significant collateral consequence of being convicted in this case, especially since Mr. Aspenlieder, prior to this incident, was a person of upstanding moral character, someone who went out of his way to help others.
137Mr. Aspenlieder is a first-time offender. As a first-time offender receiving a sentence of imprisonment, his sentence should be as short as possible and tailored to the individual circumstances of the accused, rather than used solely for the purpose of general deterrence: R. v. Priest (1996), 1996 1381 (ON CA), 30 O.R. (3d) 538 (C.A.); R. v. Barclay, 2018 ONCA 114, at para. 50.
138Having considered all of the relevant factors and weighed them, and recognizing that denunciation and deterrence must be given significant weight in this case, I suspend the passage of sentence and sentence Mr. Aspenlieder to 152 days time served, which is reflected as 5 months in custody. In terms of general deterrence, a sentence of 5 months for a first-time offender with Mr. Aspenlieder’s background is a fit sentence. A longer sentence would offend the principle of restraint for a first-time offender.
139He shall be on probation for 24 months and the terms shall be:
a. He shall not possess any weapons as defined by the Criminal Code; and,
b. He shall not attend at the National Holocaust Monument located at 1918 Chaudiere Crossing in the City of Ottawa, Ontario, at any Jewish place of worship, or at any Jewish or Israeli institution.
Ancillary Orders:
140I made an order that Mr. Aspenlieder’s DNA be taken, as there was no objection from the defence in this regard.
141I turn now to the discussion of whether a section 110(1) order can be made in this case. Section 110(1) of the Criminal Code permits the imposition of a discretionary weapons prohibition upon conviction for certain violence-related offences. As a condition precedent to the imposition of such an order, the offender must have been convicted of an offence other than an offence referred to in section 109, in the commission of which violence against a person was used, threatened or attempted, or an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance and, at the time of the offence, the person was not prohibited by any order made under this Act or any other Act of Parliament from possessing any such thing. I do not see this offence, where no weapon was used and no violence with a weapon against a person was used, would satisfy the condition precedent which would permit me to exercise my discretion to make such an order. In my view, it would be unlawful to do so in the circumstances of this case. For this reason, I added a weapons prohibition to Mr. Aspenlieder’s probation order, rather than issuing an order under s. 110(1) of the Criminal Code.
Conclusion:
142I was unable to be satisfied beyond a reasonable doubt that Mr. Aspenlieder’s crime in this case was motivated by hate. I concluded, however, that his moral culpability was high because he knew his actions would cause harm to the Jewish people and he acted anyway. This required an elevated sentence which would denounce what he did, despite the fact that no physical violence was part of this offence.
143A sentence of 5 months for a first-time offender with Mr. Aspenlieder’s background is a very significant sentence but it is a proportional one to the moral culpability of the offender and the gravity of the offence, having regard to all of the relevant factors in this case.
144If I am incorrect in my assessment that Mr. Aspenlieder’s actions were not motivated by hate, I would not have imposed a higher sentence in this case due to the need for restraint. Mr. Aspenlieder is a first-time offender and had an unimpeachable background prior to this incident. The sentence imposed is within the range, even if I had concluded his actions were motivated by hate.
Anne London-Weinstein J.
Released: January 14, 2026