Regina v. J.C.T.
[Indexed as: R. v. T. (J.C.)]
39 O.R. (3d) 26
 O.J. No. 1688
Docket No. C27852
Court of Appeal for Ontario
Labrosse, Rosenberg and Borins JJ.A.
April 24, 1998
Criminal law — Sentence — Conditional sentence — Accused pleaded guilty to charges arising out of sexual assault and harassment of his wife — Psychiatric evidence indicated that accused did not represent physical risk to complainant and that incarceration would be psychologically damaging to him — Trial judge imposed sentence of 18 months’ imprisonment to be served in community — Psychiatric report filed on Crown appeal indicated that accused was complying with course of treatment and had resolved his need to contact complainant — Decision to order conditional sentence should be treated with same appellate deference as decision concerning duration of custodial sentence — Conditional sentence not clearly inadequate or demonstrably unfit — Crown appeal dismissed.
Criminal law — Sentencing — Principles of sentencing
— Conditional sentence — Conditional sentence of 18 months imposed on accused’s guilty plea to charges of multiple offences against same complainant including stalking, assault, sexual assault and four breaches of court orders — Crown appeal from sentence — Expert evidence accepted by trial judge that accused no longer danger to complainant and unlikely to re-offend if in community — Deference to be accorded by appellate court to determination that conditional sentence appropriate absent error in principle — Even if it was error to impose conditional sentence at trial it was not appropriate to impose custodial sentence on appeal given accused’s compliance with terms of conditional sentence and continued progress in treatment — Crown appeal dismissed.
The accused pleaded guilty to charges of sexual assault, assault, criminal harassment, two counts of failing to comply with an undertaking and two counts of failing to comply with a recognizance. The complainant was the accused’s wife, and the offences were committed during the break-up of their marriage. His numerous attempts to communicate with her were all aimed at reconciliation, and he made no threats to harm her. The defence called a psychiatrist who had a special expertise in the area of harassment. He offered a concrete plan for treating the accused and stated that he was satisfied that the accused did not represent a physical risk to the complainant. The accused spent approximately one month in pre-sentence custody, and the psychiatrist testified that that custody had had an important and beneficial impact on the accused, who had come to appreciate the seriousness of his conduct and its impact on the complainant. According to the psychiatrist, further incarceration could exacerbate some of the accused’s problems, especially his low self-esteem and depression. The accused was a first offender, and the offences occurred at a time of very great stress for him. The trial judge, accepting the psychiatric evidence, imposed a sentence of 18 months’ imprisonment, to be served in the community, 18 months’ probation and a ten-year firearms prohibition. The Crown appealed. The only issue on the appeal was whether the trial judge erred in imposing a conditional sentence.
Held, the appeal should be dismissed.
A psychiatrist’s report filed on the hearing of the appeal indicating that the accused was complying with the course of treatment, had made significant progress, had resolved his need to contact the complainant and had no underlying hostility towards her, confirmed that the trial judge’s reliance upon the psychiatric evidence at trial was appropriate. The fact that the trial judge failed to specifically mention general deterrence or denunciation did not indicate that he failed to consider those objectives. The sexual assault was particularly serious and engaged two of the deemed aggravating factors in s. 718.2(a) of the Criminal Code, R.S.C. 1985, c. C-46: abuse of a spouse; and abuse of a position of trust. On the other hand, the trial judge could not ignore the particular circumstances of the accused and the circumstances in which the offences were committed. The decision to order a conditional sentence must be treated with the same deference owed by appellate courts to sentencing judges concerning the duration of a custodial sentence. The Crown failed to demonstrate any error in principle on the part of the trial judge or that a conditional sentence was clearly inadequate or demonstrably unfit.
Even if the sentence was unfit when it was imposed, it would not be appropriate to vary it to a custodial sentence at the time of the appeal. Fresh evidence received on the appeal demonstrated that the accused continued to progress in his treatment and had abided by all of the conditions imposed during the eight months between the time of sentencing and the appeal.
Cases referred to
R. v. M. (C.A.),  1 S.C.R. 500, 194 N.R. 321, 105 C.C.C. (3d) 327, 46 C.R. (4th) 269; R. v. McDonnell,  1 S.C.R. 948, 49 Alta. L.R. (3d) 111, 145 D.L.R. (4th) 577, 210 N.R. 241, 43 C.R.R. (2d) 189, 114 C.C.C. (3d) 436, 6 C.R. (5th) 231; R. v. Shropshire,  4 S.C.R. 227, 129 D.L.R. (4th) 657, 188 N.R. 284, 102 C.C.C. (3d) 193, 43 C.R. (4th) 269
Statutes referred to
Criminal Code, R.S.C. 1985, c. C-46, ss. 100, 264(4)(b), 718.2(a)
APPEAL by the Crown from a conditional sentence.
Jennifer Woollcombe, for the Crown, appellant.
Glen Jennings, for respondent.
BY THE COURT: — This is a Crown appeal from the sentence imposed by Vaillancourt Prov. Div. J. following the respondent’s plea of guilty to charges of sexual assault, assault, criminal harassment (two counts), fail to comply with an undertaking (two counts), and fail to comply with a recognizance (two counts). The trial judge imposed a total sentence of 18 months’ imprisonment to be served in the community in accordance with the terms of a conditional sentence order, 18 months’ probation, and an order under s. 100 of the Criminal Code, R.S.C. 1985, c. C-46, for a period of ten years.
The only issue on the appeal is whether the trial judge erred in imposing a conditional sentence. Counsel for the appellant does not quarrel with the length of the sentence and indeed suggests that if a term of immediate imprisonment should be substituted at this point the sentence should be considerably shortened.
The facts of the offences are serious. The complainant is the respondent’s wife. They were married in 1992. Over the next four years the relationship deteriorated to the point that in the spring of 1996 the complainant had resolved to leave the respondent. Although the complainant remained in the house and continued to share a bed with the respondent, she made it clear that she no longer wished to engage in sexual relations. The charge of sexual assault arises from an act of intercourse by the respondent with the complainant in April 1996. The respondent persisted in the assault notwithstanding that the complainant protested, told the respondent that she did not want to have sex and that he was hurting her. A charge of sexual assault resulted and the complainant eventually separated from the respondent.
The other charges against the respondent arise out of his attempts between November 1996 and June 1997 to contact the complainant. He did so in the face of several court orders prohibiting communication. On one occasion, the respondent confronted the complainant on the street when she was on the way to work. He grabbed her by the shoulders and pushed her. The complainant was able to leave the scene when a passing motorist assisted her. This led to the charge of assault. The many telephone calls and other attempts at communication were all part of an attempt by the respondent to reconcile with the complainant. There were no threats by the respondent to harm the complainant. However, the complainant was fearful and concerned for her safety. She changed her telephone number on several occasions, considered changing her place of employment and moving her residence. She also explored the possibility of entering a witness protection program.
An important concern in a case such as this, and the issue upon which the trial judge focused, was whether the respondent would represent a danger to his wife if he were permitted to serve the term of imprisonment in the community subject to the terms of a conditional sentence order. To address that concern, counsel for the respondent called Dr. Julian Gojer, a psychiatrist with the Clarke Institute and forensic psychiatrist at the Whitby Mental Health Centre. The trial judge had the particular advantage, which we do not have, of hearing and observing first-hand the testimony of Dr. Gojer. Dr. Gojer has a special expertise with respect to harassment cases. With a colleague, he is involved in a stalker therapy group. The trial judge was impressed with the evidence of Dr. Gojer and the support that he was prepared to offer the respondent. Dr. Gojer provided a concrete plan consisting of several different types of treatment including medication to address the respondent’s problems. While, of course, offering no guarantee, Dr. Gojer was satisfied that the respondent did not represent a physical risk to the complainant.
It was of considerable significance that these offences occurred at a time of very great stress for the respondent. Over a short period of time, five of the respondent’s close relatives died. These included the respondent’s maternal grandparents who had been primarily responsible for raising the respondent. In the result, at the very time the respondent’s marriage was breaking up, the respondent was unable to effectively turn for help to his family who, not unnaturally, were overwhelmed with the personal tragedies caused by these deaths. Aside from these offences, the respondent has no prior criminal record and is a person of otherwise very good character. These circumstances help to explain why a person of good character like the respondent would become involved in such serious criminal behaviour.
The respondent spent approximately one month in pre-sentence custody. According to Dr. Gojer, the pre-sentence custody had an important and beneficial impact upon the respondent. He had come to realize the seriousness of his conduct and its effect upon the complainant. On the other hand, further incarceration of the respondent could exacerbate some of the respondent’s problems, especially his low self-esteem and depression, which had previously impaired his ability to understand the impact of his behaviour on the complainant. He would also not get the quality of treatment that Dr. Gojer was offering. Finally, the respondent would also lose his employment, and even the complainant was concerned that this should not occur.
In our view, it was clearly open to the trial judge to accept the evidence of Dr. Gojer. That evidence provided a solid basis upon which the trial judge could conclude that the respondent would not re-offend while serving the conditional sentence.
On the hearing of the appeal, counsel for the respondent, with the consent of counsel for the appellant, filed a report from Dr. Gojer and a report from the respondent’s conditional sentence supervisor. Those reports confirm that the trial judge’s reliance upon the opinion of Dr. Gojer was appropriate. In summary, Dr. Gojer’s report indicates that the respondent is complying with the course of treatment and has made very significant progress. The respondent has resolved his need to contact the complainant, has no underlying hostility towards her and takes responsibility for the termination of the marriage. The respondent has been served with divorce papers and accepts that the marriage is now at an end. He has formed a new stable relationship with another woman. The respondent is doing very well at work and has received a promotion.
In the course of his reasons, the trial judge stated that if there were a “silver lining” for the complainant, it would be that, unlike many other victims, she seemed to have more viable options. The appellant argues that this statement represents an error in principle. We do not view this statement as indicating that the trial judge failed to appreciate the seriousness of the offences or the impact upon the complainant or that he regarded the existence of these options as a mitigating factor. To the contrary, the comments made by the trial judge in the course of Crown counsel’s submissions make it abundantly clear that he was aware of the serious nature of the offences and their impact upon the complainant. The statement about the silver lining merely reflected the trial judge’s appreciation and acknowledgement of the efforts previously made by the police and the complainant’s employer to assist the complainant.
Counsel for the appellant also submits that the trial judge erred in principle in failing to consider general deterrence and denunciation. The fact that the trial judge failed to specifically mention general deterrence or denunciation does not indicate that he failed to consider those objectives. Crown counsel directed submissions to those factors and we are not entitled to assume that the trial judge would disregard those objectives. There is also nothing in the proceedings to indicate that the trial judge did not view the sexual assault offence, in particular, as a serious offence. The trial judge’s reasons must be read in context. The case was primarily presented in terms of the danger to the complainant if the respondent were to be permitted to serve his sentence in the community. The focus of the sentencing proceedings, especially Crown counsel’s cross-examination of Dr. Gojer and his submissions, were directed to that issue. In fact, Crown counsel stated that the paramount consideration in the case was the safety of the complainant. It is only natural that the focus of the trial judge’s reasons was a response to the principal issues raised by the parties.
This case falls squarely within the comments of Lamer C.J.C. in R. v. M. (C.A.),  1 S.C.R. 500 at p. 566, 105 C.C.C. (3d) 327 at p. 374, as to the reason for deference to the trial judge:
A sentencing judge still enjoys a position of advantage over an appellate judge in being able to directly assess the sentencing submissions of both the Crown and the offender. A sentencing judge also possesses the unique qualifications of experience and judgment from having served on the front lines of our criminal justice system. Perhaps most importantly, the sentencing judge will normally preside near or within the community which has suffered the consequences of the offender’s crime. As such, the sentencing judge will have a strong sense of the particular blend of sentencing goals that will be “just and appropriate” for the protection of that community.
Counsel for the appellant quite rightly points out that these were serious offences. The sexual assault was particularly serious and engages two of the deemed aggravating factors in s. 718.2(a) of the Criminal Code, abuse of a spouse and abuse of a position of trust. It may be, as well, that the deemed aggravating factor in s. 264(4)(b) applied with respect to the second criminal harassment charge. On the other hand, the trial judge could not ignore the particular circumstances of the offender and the circumstances in which these offences were committed. While counsel for the appellant argues that a conditional sentence was inappropriate she does not resile from the position taken by Crown counsel at trial that a sentence of only 13 months’ imprisonment would have been appropriate. Indeed, counsel for the appellant submitted that if this court were of the view that a conditional sentence should not have been imposed, the court should impose a sentence of 90 days to be served intermittently, bearing in mind that the respondent has served eight months of the conditional sentence.
In our view, the appellant has failed to demonstrate any error in principle on the part of the trial judge or that a conditional sentence was clearly inadequate or demonstrably unfit so as to warrant our intervention: R. v. Shropshire,  4 S.C.R. 227, 102 C.C.C. (3d) 193. The decision to order a conditional sentence must be treated with the same deference owed by appellate courts to sentencing judges concerning the duration of a custodial sentence. As Sopinka J. held in R. v. McDonnell,  1 S.C.R. 948 at p. 982, 114 C.C.C. (3d) 436 at p. 459:
In both setting duration and the type of sentence, the sentencing judge exercises his or her discretion based on his or her first-hand knowledge of the case; it is not for an appellate court to intervene absent an error in principle, unless the sentencing judge ignored factors or imposed a sentence which, considered in its entirety, is demonstrably unfit.
Finally, even if we were to find that there was an error in principle, we would not intervene at this point. As indicated, Crown counsel at trial suggested that the appropriate sentence was 13 months’ imprisonment. The respondent has already served eight months of the conditional sentence that included a term that the respondent remain in his residence except for employment. He has complied with the conditions of the sentence originally imposed. The fresh evidence confirms the wisdom of the conditional sentence as imposed by the trial judge, not only from the point of view of the respondent, but from that of the complainant. The best protection for the complainant and the public is the successful treatment of the respondent. That has largely been accomplished. Dr. Gojer offers the opinion in his recent report that a period of incarceration at this point would disrupt the therapeutic progress made and gains made in therapy may be lost. It would not be in the public interest to return the respondent to custody now, when he has complied with the conditions of the sentence originally imposed. We fail to see how there would be greater vindication of the objectives of general deterrence and denunciation by a reduction of the sentence to 90 days’ imprisonment to be served intermittently, as suggested by Crown counsel. To the contrary, in our view, requiring the respondent to complete the remaining year of the conditional sentence in accordance with the strict terms imposed by the trial judge is a much better reflection of the principles and objectives of sentencing, including general deterrence and denunciation.
Accordingly, while leave to appeal sentence is granted, the appeal is dismissed.