R v Wowk, 2019 ABQB 959

Court of Queen’s Bench of Alberta Citation: R v Wowk, 2019 ABQB 959 Date: 20191216 Docket: 171179864Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Amanda Wowk Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.5 . By Court Order, information that may identify the victim and family must not be published, broadcast, or transmitted in any way. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application. NOTE: This judgment is intended to comply with the identification ban. _______________________________________________________ Sentencing Judgment of the Honourable Mr. Justice S.D. Hillier _______________________________________________________ [ 1 ] On June 3, 2019, the Court accepted a plea from Ms.

Amanda Wowk and found her guilty on two charges: a. Criminal harassment contrary to s. 264(1) of the Criminal Code (the Code ); b. Fraudulent personation contrary to s. 403 (1) (

c) of the Code . [ 2 ] As part of a 52 paragraph Agreed Statement of Facts, two binders of materials, with 172 Tabs, were submitted and marked

collectively as Exhibit S-1. The binders capture a detailed chronology of electronic documents from November 29, 2016 leading up to the police interview, arrest, and charges against Ms. Wowk on May 16, 2017. [ 3 ] The Complainant together with his wife, children and close friend prepared Victim Impact Statements that were reviewed by counsel for compliance with s. 722.2 of the Code . These statements were marked collectively as Exhibit S-2.

The Complainant’s Statement of Restitution was filed as Exhibit S-3 seeking recovery of a portion of counselling services and lost income from self- employment. [ 4 ] In addition, as undertaken by counsel for Defence, the court received a Psychological Assessment Report prepared by Dr. Liam Ennis. The 12-page report dated September 4, 2019 together with the author’s curriculum vitae were marked as Exhibit S-4. [ 5 ] The Crown applied for an Order restricting publication of the identity of the victim and family pursuant to s. 486.5 of the Code , which was properly served on the media.

The Affidavit of the Complainant in support disclosed a level of harm associated with prior media coverage. Although it is impossible to un-publish prior disclosure, no opposition was raised to the application. The one member of the media who did appear advised that further coverage would not include identifiers to the victim or his family, nor any reference to prior coverage. In those circumstances, an order was issued as sought, to prohibit reference to the Complainant and family and no cross-reference to prior media coverage without leave of the court.

Agreed Facts [ 6 ] The facts relevant to the two offences, as reflected in the Agreed Statement, disclose significant impact on the Complainant, his family, and colleagues in Edmonton, particularly in the period from December 2016 to May 2017 (the Harassment Period). [ 7 ] It is important to provide a fairly full review of the unusual circumstances which inform the Court’s responsibility for imposing a fair and fit sentence on the two charges. [ 8 ] Ms.

Wowk is 22 years old and lived with her mother and step-father until very recently. [ 9 ] The Complainant is now a 59 year-old insurance advisor who lives with his wife in Edmonton. They became acquainted with Ms. Wowk after she began attending fitness classes, cycle training, and developed a friendship with both of them. [ 10 ] Ms. Wowk obtained her fitness certification and began to work as a fitness instructor. This in turn led her to train with the Complainant privately for a triathlon. The Complainant and his spouse occasionally socialized with Ms.

Wowk, alone and with her parents, and came to consider her a close and trusted young friend. In January 2017, Ms. Wowk cared for their home and pet while they were away on vacation. [ 11 ] Until the day before her arrest, the Complainant, his spouse, and two adult children were unaware, and did not suspect, that Ms.

Wowk was the person responsible for the offences and devastation to their lives. [ 12 ] In the spring of 2016, the Complainant and his spouse began to receive phone calls to their cell phones from unpublished numbers showing as “No Caller ID”, as well as from “spoofed” numbers which appeared on the caller display as their own phone numbers or their friends’ phone numbers (the Harassing Phone Calls). [ 13 ] When the Complainant and his spouse answered the Harassing Phone Calls, an automated voice would make offensive and vulgar comments, accusing the Complainant of being unfaithful in his marriage and telling the spouse to divorce him.

If they did not answer, the caller sometimes left a voicemail message with an automated voice making the same type of comments about the Complainant’s infidelity. [ 14 ] The Harassing Phone Calls would come in clusters of three or four daily, over a few days, and then stop for a number of weeks before starting again.

The calls continued into and throughout the Harassment Period. [ 15 ] In late 2016, the Complainant reported the Harassing Phone Calls to the Edmonton Police Service (EPS) and a police file was opened. [ 16 ] Although the Complainant and his spouse changed their cell phone numbers in February 2017, the Harassing Phone Calls continued. The Complainant again changed his cell phone number in April 2017, but the Harassing Phone Calls still continued. [ 17 ] Between May 12, 2017 and May 15, 2017, the Complainant received 30 blocked phone calls to his cell phone showing as "No Caller ID”.

During three of these blocked calls the following voicemail messages were left, recordings of which were later provided to police: a. “…, you are a worthless piece of shit that deserves to live a sad, miserable and lonely life.” b. “Get a divorce.” c. “You are mentally sick and are a dark cloud over everyone.” [ 18 ] Beginning in late 2016 and continuing throughout the Harassment Period, the Complainant received at least 169 Harassing Emails from 15 different addresses. [ 19 ] The general theme of many of the Harassing Emails was that the Complainant had been unfaithful in his marriage and that he and his spouse should get a divorce.

The emails made offensive and vulgar comments about his character.

[ 20 ] The Complainant used two specific email addresses for personal and business use. Along with other members of a board of directors, the Complainant also accessed and used a third email address. The Harassing Emails were received at all three of these email addresses. A fourth email address using the Complainant’s name did not belong to him, but was used by Ms. Wowk to convey messages. [ 21 ] The majority of the Harassing Emails were sent to the Complainant and also to his personal and business email contact list which included friends, family, and clients.

Many of the Harassing Emails were received by up to 85 of the Complainant’s personal contacts, some of whom were City of Edmonton employees. Between January 15, 2017 and April 16, 2017, 443 emails were received by various employees within the City of Edmonton which contained his full name as the search term. [ 22 ] The email address of one friend of the Complainant and his spouse named in the Agreed Facts was on the Complainant’s email contact list.

During the Harassment Period, this one friend received approximately 155 Harassing Emails. [ 23 ] In February 2017, the police file was re-opened and Detective Jason Lapointe (Det. Lapointe) commenced an investigation into the phone and email harassment. [ 24 ] The Agreed Facts list 169 Harassing Emails received by the Complainant, his wife or the named friend; these are included in the Binder of Exhibits.

Additional emails purportedly authored by the Complainant, his spouse, his children or the named friend were falsely created in their names. [ 25 ] Since he was receiving the Harassing Emails to his three email accounts, the Complainant decided to create a new email address in January 2017. The Complainant and his spouse were on vacation in Hawaii, and Ms. Wowk was looking after their home in Edmonton. [ 26 ] The Complainant asked Ms. Wowk to help him create a new email address. Ms. Wowk had been one of the recipients of the Harassing Emails, and they had spoken to her about the ongoing harassment. [ 27 ] Ms.

Wowk created a new email account on behalf of the Complainant using her own personal email address as the "alternate" address. Alternate email addresses can be used to sign into a Gmail account and recover the password. [ 28 ] In addition to the Harassing Emails, the Complainant's social media accounts, such as Facebook, Instagram and Strava were accessed and interfered with. [ 29 ] During the Harassment Period, the Complainant reasonably feared for his safety and the safety of his family. [ 30 ] As to the 2nd Count, Personation of "Glen Mahura", Ms.

Wowk agrees that: On March 11, 2017, the Complainant received three emails from the email address glenmahura@outlook.com, purporting to be from Det. Glen Mahura. Det. Mahura was a detective with the EPS and was known to both the Complainant and Ms. Wowk through a common cycling club. [ 31 ] The first email on March 11, 2017, purporting to be from Det. Mahura, stated the following: [Complainant’s first name] I suggest that you get Jason off the investigation and cancel it. You and your petty issues are crazy for the police service to be working on.

Why don't you let them work on cases that matter and admit the person behind this is your mistress or (your wife). If not I will personally ensure that the finger points to someone you don't want it to. Glen [ 32 ] The name "Jason" was in reference to Det. Lapointe. Det. Lapointe had spoken to Ms. Wowk as she was one of the recipients of the Harassing Emails, and she was aware of his investigation. [ 33 ] The second and third emails on March 11, 2017, purporting to be from Det. Mahura, both stated the following: The truth will come out.

Contact Murray Armstrong and you will realize that (the Complainant) has been living a lie. He is not who anyone thinks he is. Glen [ 34 ] The name "Murray Armstrong" was in reference to an Edmonton therapist from whom the Complainant and his spouse had received confidential counselling. [ 35 ] Det. Lapointe confirmed with Det. Mahura that he had been personated. Det. Mahura did not register for the email address glenmahura@outlook.com and did not send any of the emails coming from that account. [ 36 ] On April 16, 2017, Ms. Wowk emailed Det.

Lapointe five screen shots of posts from an Instagram account with the username "maramur59", created in the Complainant's name. This account did not belong to the Complainant and the posts were not made by him. The posts included text messages purporting to have been exchanged between the Complainant and "Jennifer", and photos of the Complainant’s spouse with captions. [ 37 ] On May 13, 2017, Ms. Wowk contacted Det. Lapointe to advise him that the Complainant’s spouse had been making odd comments about the Complainant earlier that day at the dog park. Ms.

Wowk claimed that the Complainant’s spouse talked about him being mentally ill and suicidal, and that he should “get some help” or “just do it already”, referring to him killing himself. [ 38 ] According to Ms. Wowk, the Complainant’s spouse said that Glen Mahura was probably responsible for the harassment and that another detective should take over the investigation from Det. Lapointe. The Complainant’s spouse did not make any of these

comments to Ms. Wowk. [ 39 ] On May 16, 2017, at 3:15 p.m., Det. Lapointe received an email from the Complainant’s legitimate email address, purporting to be from him. Det. Lapointe had communicated with the Complainant via this Gmail address throughout the investigation. The email stated the following: Good Afternoon Jason, I am sorry to bother you. It pains me to admit that [spouse’s first name] has stepped forward as the one responsible for the calls, emails etc. Please cancel this investigation as we will deal with this matter between the two of us. Again, my apologies for wasting your time.

Cheers, [Complainant’s first name] [ 40 ] Det. Lapointe found the email odd as he had just spoken to the Complainant that morning and there had been no indication that he wanted the investigation to stop. [ 41 ] At 3:26 p.m., Det. Lapointe phoned the Complainant, who indicated that he did not send the email. The Complainant logged into his Gmail account and found the email in his “Sent” email folder, revealing that someone had personated him and sent the email from his account. [ 42 ] Ms. Wowk was solely responsible for harassing the Complainant during the Harassment Period; a.

She created fake email accounts to harass the Complainant; b. She wrote the Harassing Emails; c. She made the Harassing Phone Calls through a prank dialing website; d. She created a fake Twitter account in the Complainant's name; e. She accessed and interfered with the Complainant’s Strava account; f. She created a fake email account in Glen Mahura's name and sent the emails to the Complainant on March 11, 2017; and g. She accessed the Complainant’s Gmail account and sent the email to Det. Lapointe on May 16, 2017. [ 43 ] Ms.

Wowk told police that she harassed the Complainant because she felt that the couple were not in a happy marriage and she wanted to help them realize that they would be happier if they divorced. [ 44 ] Ms. Wowk was released on a Promise to Appear. [ 45 ] On May 17, 2017, Ms. Wowk contacted Det. Lapointe by phone and claimed that Ms. Wowk's mother was in fact responsible for the harassment, which is not true. The same day, Ms. Wowk's mother left a voicemail for the Complainant’s spouse claiming to be responsible for harassing the Complainant family, which is also not true. [ 46 ] Det.

Lapointe left a voicemail for Ms. Wowk’s mother advising her that lying for Ms. Wowk was not helping her and that if she continued he would consider investigating Ms. Wowk’s mother for obstruction. He then obtained records from Telus Communications showing that the 30 blocked calls to the Complainant’s cell phone between May 12, 2017 and May 15, 2017 came from a phone number registered to Amanda Wowk's stepfather, Dennis Modry, together with other links to that business address. [ 47 ] What is largely missing from this

summary is the vitriol of the messaging as well as the impact on the spouse and children of the Complainant. Background [ 48 ] The Report of Dr. Ennis and undisputed representations of counsel convey the following background for Ms. Wowk. [ 49 ] Ms. Wowk was born January 23, 1996. Since her parents, (Lana and Cam Wowk), had tried to conceive for many years, she was showered with attention, including the care of paternal grandparents in her early years. The marriage of her parents ended abruptly when, at the age of six, Ms.

Wowk apparently discovered and showed her father explicit email evidence that his wife was having an extra-marital affair. Ms. Wowk describes going from wonderful early childhood memories to the worst time of her childhood between age 7 and 12 or so. [ 50 ] Nonetheless, Ms. Wowk reported that she was a well-behaved, good student who made friends easily. She was involved in competitive dance from elementary school and was contracted as a dancer/performer on a cruise ship at age 12.

By high school she lost interest in dance, so she committed herself seriously to horse-back riding until her horse died and coach left the province when she was in Grade 12. [ 51 ] According to Dr. Ennis (p. 3) [1] : Ms. Wowk reports that, as an adult, she has good relationships with both of her biological parents and with her stepfather. She said she

can now appreciate the complexity and difficulty of her parents’ divorce and she no longer harbours anger towards her mother or stepfather. [ 52 ] Ms. Wowk lived with her mother and step-father in Edmonton throughout the period covered by the charges. Since June 2019, she has been living in a condominium owned by her stepfather, and sees each of them regularly. She is also in regular contact with her father, who was present in court to support her. [ 53 ] Ms.

Wowk is due to complete a business administration program at NAIT in April 2020 and remains active in fitness with plans to do a Masters in Business Administration at the U of A. She also participates in her church, and does not drink or take drugs. [ 54 ] In terms of health, Ms. Wowk reports no issues. She had ten sessions with a psychologist as part of a custody and access dispute when she was young, but she does not recall these sessions. Psychological Profile [ 55 ] Dr. Ennis conducted an interview and testing of Ms. Wowk over 3.5 hours on August 16, 2019.

In addition, he reviewed the Agreed Facts and binders, as well as completing a 1.5-hour telephone interview with Ms. Wowk’s father. [ 56 ] In reporting on the index offences, Dr. Ennis summarized the Agreed Facts, before providing insight from Ms. Wowk which is quite at odds with her explanation of behaviour to police at the time of arrest. He summarized her explanation that, at first, it was just a prank to publicly shame the Complainant. This would cause his wife to disconnect with him, and free him up to train with Ms. Wowk.

She felt compelled to continue the harassment after it exploded, even though the police became involved (p. 6). He went on to note: Ms. Wowk acknowledges the wrongfulness of her behavior and characterized it as “the greatest mistake of my life”. She asserted, “I never had any negative ill will that I wanted to destroy them (the Complainant and his spouse)”. She added, “I just wish at that point in my life I was as centered as I am now.

It’s like looking back at a different person.” [ 57 ] I will return to this topic of insight and any measure of contrition in assessing the factors which best inform the appropriate sentence to be imposed. I simply note that Ms. Wowk made no attempt to reconcile this more recent explanation of her thought processes against the explanation to police at the time of arrest that she wanted the couple to acknowledge their failed relationship and be happier once they divorced.

Nor does any of it explain the breaks in harassment, only to recommence; nor why she did not simply stop once police began investigating. [ 58 ] Dr.

Ennis reported: The combination of highly developed system of social supports with a reasonably low stress environment is a favorable prognostic sign for future adjustment. [ 59 ] On the other hand, he also noted … The responses suggest that she is satisfied with herself that she is ( sic ), that she is not experiencing marked distress, and that, as a result, she sees little need for changes in her behavior … she may be somewhat defensive and reluctant to discuss personal problems, and as such she may be at risk for early termination. (pp. 7 - 8) [ 60 ] The report also considered responsivity: Responsivity factors reflect differences in learning styles and/or personal interests and are not interpreted as risk, need or problematic characteristics but rather, as client specific factors which may impact the individual’s response to attempts at management or intervention.

Ms. Wowk presents one relevant responsivity factor Engages in denial/minimization. This factor is identified in Ms. Wowk’s case based on my impression that she does not fully appreciate the impact that her behaviour had, and was likely to have had on (the Complainant and his spouse), and also what I perceive to be lack of insight into her own personal motivations for engaging in the harassing behaviour. (p. 10) [ 61 ] As a very low risk offender, Ms. Wowk was reported by Dr.

Ennis as best served in low intensity supervision, although therapeutic treatment would likely enhance the quality of her relationships and life in general. He does not elaborate on the extent, if any, to which counselling might redress any lack of understanding as to the consequences of criminal harassment or police personation. Sentencing Principles [ 62 ] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. As summarized from the Code , it is also important to a. deter Ms.

Wowk from committing these crimes again, and b. denounce the unlawful conduct with a message to the public and in particular to the offender’s friends, associates and community that behavior as described in this case simply cannot be tolerated. [ 63 ] The Code speaks further of the importance of separating the offender where appropriate, to protect the public as well as seeking reparation to the victim or the community where the harm has been done. And it is important to factor what may assist Ms. Wowk in her rehabilitation in a way that promotes responsibility and encourages her to acknowledge the harm done.

[64] The challenge on these specific facts is to find the proper balance: a fair message of deterrence and denunciation that clearlyaddresses the seriousness of the behaviour, but which allows for rehabilitation of the offender in a context that promotes accountabilityfor her conduct on a go forward basis. Range [65] The decision of the Supreme Court in R v McDonnell, (SCC), [1997]1SCR 948 urges the court to examinerelevant sentences in this jurisdiction for those who have committed similar crimes and who are similarly situated.

The cases cited byCrown and Defence provide a very broad range of censure, from short conditional sentence orders (when that was available for criminalharassment) to lengthy terms of imprisonment. The differing outcomes derive from a number of factors including the seriousness of theharassing conduct, its duration, context and impact, along with the background of the offender. [66] I will address a number of decisions cited by counsel; however, both Crown and Defence referred to the leading decision of Rv Wenc, 2009 ABCA 328.

The court specifically refers to the wide range of conduct and blameworthiness in criminal harassment. Thecircumstances in Wenc involved 18 months of criminal harassment after the termination of a sexual relationship. The court stated (para37) that the range for harassment of this duration and sophistication is 9-24 months imprisonment, plus probation where appropriate. [67] The objective seriousness of the crimes is established by Parliament, which contemplates a maximum sentence for bothcriminal harassment and personation of ten years imprisonment.

While neither carries a minimum sentence, both indictments must befairly characterized as serious matters. Position of Crown [68] The Crown emphasizes a long list of aggravating features which the court must consider on the first count: a. The harassment unleashed a planned, persistent, and deliberate attack to harm the Complainant’s personal and business reputation; b. A number of communication modes were used, including manipulation of social media accounts and more than15 false e-mailaddresses; c.

The content was egregious, particularly the messages which purported to impersonate negative views from his spouse and his son,together with e-mails falsely attributed to the Complainant as admissions of having cheated and that they were divorcing; d. The deceptions also featured communications from a fictitious paramour and a manipulative attempt to deflect any suspicion thatthe emails came from Ms. Wowk by asking to be removed from the extensive email list because she wants nothing to do with theComplainant: “Cheating is disgusting.

I do not want that in my life and think the same as everyone that they should just end it.”; e. The distribution increased up to 85 personal, family and business contacts, despite various attempts to change email and phonecontacts; f. Although not a classic trust relationship, Ms. Wowk did befriend the Complainant and his wife to the extent that she was able tomanipulate his electronic accounts while sustaining the reasonable belief that Ms. Wowk was their friend; g.

The harassment had a devastating effect on the Complainant affecting his mental and physical health to the point of contemplatingsuicide. [69] For the second count, Crown points to: a. The personation of the police officer as an attempt to dissuade the Complainant from pursuing further police investigation of theon-going harassment; b. The efforts to remove Det. Lapointe and to diminish the importance of the investigation as unworthy of police resources; c. Posing as the Complainant to urge police to abruptly discontinue the investigation; d.

Attempts to retract the confession to police and to implicate her own mother as the perpetrator. [70] In addition to the neutral, but relevant, absence of a criminal record, Crown acknowledges the following mitigating factors: a. The guilty plea which, although not timely, did foreclose the need to empanel a jury and to call witnesses to prove its case; b. The low risk of re-offending as assessed by Dr. Ennis. [71] Crown relies upon the following cases: a.

R v Wenc, where after considering a variety of cases, the court concluded that 12 months would have been appropriate for thepersistent, unrelenting harassment (threatening and derogatory comments), the invitations for others to visit the Complainant, and theplanning, deliberation, and inventiveness; b. R v Leasak, 2007 ABCA 38 where a seven year sentence was imposed for obscene behaviour and several instances of stalking 32women over a period of 11 years; c. R v Stuart, 2006 ABCA 168 where the Court upheld three consecutive 12 month sentences for extensive telephone harassment

affecting three female victims, plus breaches of a peace bond and an undertaking for an additional total of 6 months; d. R v Wall, (PE SCAD), 136 Nfld & PEIR 200 (SCAD), cited by the Crown for the court’s caution that theabsence of a criminal record and expressions of remorse should not be given undue weight for this type of behaviour (paras. 9-10); e. R v Dewan, 2014 ONCA 755 where the Court refused to substitute a conditional discharge order for five month sentence as timeserved for e-mails sent to the Complainant’s employer on the break up of an intimate relationship; f.

R v Korbut, 2012 ONCJ 691 where the Court imposed a 90 days intermittent sentence as part of a six month term and three years ofprobation, again in the context of a broken domestic relationship; g. R v Fader, 2014 BCPC 327 where a repeat offender received a two year sentence plus probation in circumstances which are ofmarginal assistance here; h. R v Fox, 2017 BCSC 2361 where the offender targeted a former spouse to undermine her relationship with family, friends,employers and colleagues as well as financial hardship as part of a custody dispute where the offender intended that the Complainantcommit suicide.

The court imposed a 3 year prison term plus 3 years probation for the harassment; i. R v Ahmad, 2017 ONSC 6972; varied 2019 ONCA 60 (to set aside a restitution order) where the sentence after trial included 2years less a day and 3 years probation, again in the circumstances of marginal assistance here; j. R v Charchuk, 2002 ABPC 115 involved a variety of harassing communications in the aftermath of a romantic relationship, plusassault and breach of recognizance for no contact.

The conduct was systematic and relentless over a 16 month period with no remorse,although the offender did attend counselling. [72] The position of the Crown is that a fair and proportionate sentence for these crimes would require incarceration for a total of15 to 18 months. The personation which impeded the investigation merits a consecutive sentence of three to six months as part of theglobal period which the Crown seeks to have imposed.

The Crown asserts that the degree of moral blameworthiness here precludes aconditional sentence order, particularly given the degree of planning, calculated harm, and extended period of the harassing conduct. Inaddition, it urges a period of probation for three years upon terms of no contact with the Complainant’s family and counselling asrecommended by Dr. Ennis. Finally, the Crown seeks restitution for the Complainant under s. 738 to be payable during the period ofprobation.

Position of Defence [73] Defence acknowledges the serious circumstances and inexplicable behaviour, but emphasizes the need for a proportionatesentence individualized to this offender. Incarceration must be a last resort (s. 718.2(

d) and (e)). [74] It is important to consider that Ms. Wowk was 20 -21 at the time of the offences, and is able to learn and rehabilitate.Although it is not reflected in Dr. Ennis’ extensive report, counsel indicated that Ms. Wowk is insightful and has expressed her shameand responsibility for her actions to legal counsel. [75] Dr. Ennis assesses that Ms. Wowk carries a low risk to re-offend. She has the support of family and church, is pro-social, andis enrolled to complete a business programme at NAIT by April, 2020.

In addition to the guilty plea, the absence of a prior criminalrecord similarly supports the prospects of rehabilitation. The Defence argued that the scheme simply got out of control, and it was hardfor Ms. Wowk to stop the escalation. [76] Given that these criminal convictions as a matter of record impose a measure of denunciation and deterrence, Defence urgesthe Court to impose the three year period of probation, recommended by Crown without any period of imprisonment. The total probationshould be apportioned as two years for criminal harassment and one year consecutive for personation.

If imprisonment is required, then aConditional Sentence Order for the personation, with community service, would represent a fair and fit sentence. [77] The Defence summarizes its list of mitigating factors: a. Ms. Wowk was 21 at the time of the offences with no prior criminal record; b. She entered a guilty plea after pursuit of a viable Charter challenge, which precluded any need for witnesses to testify in proof ofthe case; c. She represents as a very low risk to re-offend and is prepared to take counselling if required; d.

She was wounded by an acrimonious divorce at the age of six, although she has strong support from both her parents. [78] The Defence also asked that I consider some additional points including: the effect of media coverage, the positive report ofDr. Ennis that Ms. Wowk is neither angry nor does she blame the Complainant; she has diligently pursued her education and her workwithin her church. Finally, she discontinued the harassment after arrest and release pending trial. [79] Defence cited 12 decisions as relevant to its position: a.

R v Suter, 2018 SCC 34 , [2018] 2 SCR 496 and R v Chowdhury, 2019 ABCA 205 both support that attenuatingcircumstances may warrant a sentence below the broad range, having regard to collateral consequences of conviction on an offender.

b. R v Wade, 2016 SKQB 177 involved a 61 year old who harassed her son about visitation with her grandchildren. On

summaryconviction, the appeal court upheld a suspended sentence and three year probation order including terms to address alcohol. c. R v AR, 2019 NUCJ 5 , [2019] NJ No 6 (PC) involved telephone harassment of a former partner contrary to family courtorders (s. 372(1)), where a suspended sentence and 12 month probation was imposed. The Crown was not seeking a prison term in thespecific circumstances. However, at para 72, the Court pointed out the difference between criminal harassment and harassing phone callsand that periods of imprisonment are quite common when a former intimate partner is harassed. d.

R v Regula, 2012 ABPC 62 involved a 17 day period of intense phone, email and text contact including threats of suicide where thecourt imposed a suspended sentence and two years of probation as urged by defence. e. R v BZ, 2016 ONCJ 547 involved a

summary conviction where the Court prescribed a suspended sentence and 1 year of probationfor a 19 year old offender who posted photos of the Complainant on a pornographic website. The Court credited the short term of pre-trial custody. Of note, the offender apologized and tried to make amends to the 17 year old victim. f. R v Biden, 2000 SKQB 199; (aff’d 2001 SKCA 7) involved more than 2 years of harassment in the aftermath of a failed intimaterelationship. The conduct included contact with the Complainant’s employer and character assassination.

Although the brief report of theappeal upholds a 6 month conditional sentence order and two years probation, I have no record of the sentencing submissions or thereasons that supported that disposition. g. R v Gill, 2019 BCSC 461 imposed a six month term for obstructing justice and three months consecutive for harassment of policein conjunction with motor vehicle offences. h. R v Charchuk: referenced and summarized earlier. i. R v Wenc: referenced and summarized earlier. j.

R v Verral, 2003 ABCA 184 involved the review of a 15 month sentence for harassment by an offender with a criminal recordfollowing a ten year gap. He had addiction issues and a personality disorder. His harassment of his former girlfriend included calling,repeatedly attending at her work and home, and threatening to publish nude photos. k. R v Barnes, 2006 ABCA 295 involved a 32 year old, well-educated, first offender who suffered from addiction issues. This was anearly case of using electronic media to harass an ex-girlfriend, seeking to systematically destroy her life.

At trial, the court imposed a 20month global sentence, less eight months pre-trial custody and 20 months probation. The Court of Appeal upheld the sentence, citing therisk for public safety and the need for deterrence. [80] Defence argues that the circumstances justify a sentence below and outside the range expressed in Wenc as an individualizedresponse which recognizes that jail must be a last resort. Probation or a conditional sentence order ought to be preferred for Ms. Wowk.

Factors [81] As with all sentencing decisions, the court must consider what is proportionate to the gravity of the offence and the degree ofresponsibility or blameworthiness of the offender. [82] I note firstly that Ms. Wowk carries significant privilege which include intellect, health fitness, education, considerablesupport and stability in pursuit of her aspirations. Despite the acrimony of divorce many years ago, she enjoys a good relationship withboth parents and is in good health with no substance abuse issues.

This stands in marked contrast to many persons convicted of offenceswhose personal circumstances have impaired their coping skills. However, there is no evidence of any threats of violence or residualanger as would be present in many other harassment cases. [83] In terms of mitigation, it is certainly to Ms. Wowk’s credit that she has no prior criminal record and committed the offence asa young adult. More significant is her plea of guilt after her police statement was ruled admissible. I will address separately the topic ofremorse and responsibility.

She has considerable support of family and her church community. No breaches of the terms of judicialinterim release have been reported and I am satisfied that the harassing behaviour has not been repeated since arrest. The Report of Dr.Ennis fairly emphasizes the low risk of re-offending. [84] From the submissions and consideration of the facts, the Court notes the following aggravating factors relating to thecircumstances and this offender include: a.

The sustained planning, nature and duration of the behaviour for more than a year, even as the Complainant took appropriate stepsto change phone numbers and e-mail/social media accounts; b. The relatively sophisticated abuse of social media to conceal her identity, distribute the vitriol and exploit the trust of theComplainant and his spouse as a concerned and supportive friend; c. The augmentation of messaging to family, associates and business contact including false voices of the son, a close friend, analleged paramour, and a police officer to convey a threat; d.

The authoring of emails to a large number of family, friends and colleagues attributing to the Complainant that he admittedinfidelity and that they were divorcing; e. Attestations to police that the Complainant’s spouse allegedly confided to Ms. Wowk that the Complainant suffers from mentalillness and should get help or just kill himself;

f. The contradictory motivations used to contextualize the inexplicable and irrational, but very deliberate, behaviour which exploited atrusting friendship; g. The deflecting of blame for the harassment to the Complainant’s spouse along with others; and h. The lack of real remorse, concern or insight for the profound impact on others as distinct from a big mistake, which got out ofcontrol and led to her identification and criminal convictions. [85] The additional aggravating features of the second conviction as listed by the Crown are also relevant to the assessment of a fitand proper global sentence.

These include a. The personation of the police officer as an attempt to dissuade the Complainant from pursuing further police investigation of theon-going harassment; b. The efforts to remove Det. Lapointe and to diminish the importance of the investigation as unworthy of police resources; c. Posing as the Complainant to urge police to abruptly discontinue the investigation; and d. Attempts to retract the confession and to implicate her own mother as the perpetrator. [86] In addition, Ms. Wowk imputes to the Complainant’s spouse that Det. Mahura may be responsible for the texts.

Accountability [87] As noted above, Dr. Ennis quotes from Ms. Wowk’s perceptions as to her mistake. I repeat that passage as a convenience: Ms. Wowk acknowledges the wrongfulness of her behavior and characterized it as “the greatest mistake of my life”. She asserted, “Inever had any negative ill will that I wanted to destroy them [the Complainant and his spouse]”. She added, “I just wish at that point inmy life I was as centered as I am now. It’s like looking back at a different person.” [88] Just over two years post-arrest, that is as close to any form of remorse as the report of Dr. Ennis discloses.

It provides nomessage of concern, much less apology, for the harm inflicted. [89] Defence counsel explains as an officer of the court that Ms. Wowk takes full responsibility, is insightful as to her behaviour,and carries considerable shame. Taken with the guilty plea, it represents some measure of regret. Given the opportunity to conveyconcerns of accountability to a specialist retained by her own counsel, I find the measure of Ms. Wowk’s accountability to be less thancompelling. [90] Defence counsel argued that Dr.

Ennis’ report was far more reliable than typical pre-sentence reports because of the timespend in interviewing her, testing her, and reviewing the Agreed Facts and the emails in question. I acknowledge that his assessmentgives me confidence that Ms. Wowk represents a low risk of recidivism. However, on the matters of remorse and insight, I amunconvinced that he was able to uncover anything profoundly superior to or more reliable than other reports which are presented to thecourt for review. [91] Dr. Ennis cited that Ms. Wowk carried a below-average interest and motivation for treatment.

As reported, the test responsessuggest Ms. Wowk was not experiencing marked distress and sees little need for changes in her behavior. The Report leaves openwhether treatment will be successful without a full commitment from Ms. Wowk. [92] Dr. Ennis reported that the risk of re-offending was measured as very low. In reaching his conclusion from testing, Dr. Ennisdoes express the impression quoted above (para 60) as to a lack of appreciation and insight including her own motives. [93] This is at odds with what defence counsel ascribes to Ms. Wowk as having insight and accepting responsibility.

Importantly, itcomes from a specialist who was asked to prepare a Report to assist the court in understanding the circumstances of the offender for thepurposes of sentencing. He does not attribute his perception to youth or immaturity and I am satisfied that, if such context wereapplicable, he would have provided that as part of his assessment. [94] A lack of remorse is not an aggravating factor specifically (R v Valentini, (ON CA), [1999] O.J. No. 251(Ont. C.A.) at para. 82); it is, however, a relevant consideration as to a fair and fit sentence.

The same is true of a limited or qualifiedexpression or understanding of remorse or contrition. Victim impact statement [95] The victim impact statements capture the agony of such cruel and manipulative communications. The Complainant speaks ofhis mental anguish, stress, depression and suicidal thoughts.

Two aspects of the corrupt and hurtful behaviour were emphasized: falselyattributing to his son that he hated his father for being a loser, a cheater and an asshole; and falsely attributing judgment from theComplainant’s step mother looking down on him from above that he did not deserve to be with his spouse and children. He also refers tothe need for counselling to deal with the toll of the emotional torture, including the sense of betrayal that he and his spouse felt afterhaving befriended, mentored, and trusted Ms.

Wowk. [96] The spouse describes how she became frightened and wondered what she may have done and that it became something on hermind 24 hours a day. She too referred to the cruelty of the postings about people she has lost in her life. The son notes the emotional and

psychological effect on him and the family and that what was happening became a constant thought on his mind. The family friend whowas implicated expressed the extreme magnitude of hurt and devastation, particularly not knowing who or what was behind theharassment, all of which compromised trust and safety. [97] The effects were harsh, extensive and it is hard for the court to fully appreciate the strength required to endure this pervasiveattack on personal relationships. The caution in Wall, about the absence of a criminal record and expressions of remorse, is ratherapposite, tempered in part by Ms. Wowk’s age.

Conditional Sentence Order [98] I have fully examined whether a conditional sentence may be appropriate as urged by Defence. The first point on this issue isthat s. 264 is a listed exclusion under s. 742.1(f).

Section 742.1 was amended in 2012 by the Safe Streets and Communities Act, SC 2012,c 1, proclaimed in force on November 20, 2012. At that time, Parliament added a lengthy list of offences for which the Court cannotimpose a conditional sentence, including indictment for criminal harassment. [99] As to the creative proposal of Defence to consider a conditional order for the second offence if imprisonment is warranted onthe first, I find such an approach would be manipulative of the clear intention of Parliament in listing s. 264 offences for exclusion.

Whileboth offences require censure, I agree with the Crown that the more serious of the two offences is clearly the criminal harassment. Thecircumstances of that offence lie at the heart of the need for imprisonment as part of the required denunciation and deterrence. [100] Our Court of Appeal in R v Nadolnick, 2003 ABCA 363, held (at para 20): A gaol sentence and a conditional sentence cannot co-exist when they are imposed for two related offences committed at the same timein identical circumstances. See R. v. Hill (1999), 1999 NSCA 118 , 140 C.C.C. (3d) 214 (N.S.C.A.); R. v.

Alfred (1998), (ON CA), 122 C.C.C. (3d) 213 (Ont. C.A.). When multiple counts are based on the same wrongdoing, it is "an unwise andimproper mechanical manipulation to attempt to fabricate some sort of a blended sentence based on the fact that there are two counts.":R. v. K.R., [2002] O.J. No. 605 at para. 3 (Ont. Sup. Ct. Just.) (QL). [101] While the personation was not committed at the same time nor in identical circumstances, there is a temporal continuity and anextended purpose to continue the concealment of identity, targeted at the EPS investigation.

Any attempt to superimpose a prison term tobe served in the community would constitute legal error because the personation charge carries a strong secondary connection to thecriminal harassment count. [102] Admittedly, the risk to the community has been neutralized to a large extent by the Report of Dr. Ennis. But that cannotoverwhelm the principles of denunciation and deterrence in all the circumstances. Rehabilitation can be fairly considered upon terms ofprobation.

Consecutive or Concurrent [103] When dealing with more than one count, it is important to sentence on each and then consider whether the sentences should beserved consecutively or concurrently. If the two offences are to be consecutive, it is important to examine whether in aggregate, thesentence violates the totality principle.

The global sentence must not be unduly harsh or disproportionate. (R v Li, 2009 BCCA 85 at para28; R v M(CA), (SCC), [1996] 1 SCR 500 at para 42). [104] Although Defence did not disagree with the Crown’s position that sentences should be consecutive, its proposal was thatprobation should be consecutive. From my review the temporal overlap where personation was brought into the concealment of identityand attempt to affect the investigation does not detract from the conclusion that these are two materially different offences: a. The harassment began in the spring of 2016. The personation of Det.

Mahura in 2017 is initiated many months into the on-goingharassment; b. Whatever the motive for the harassment and the personations of friends and family, the decision to personate a police officer byMarch 2017 represented much more than enhanced victimization. It purported to accuse the Complainant of wasting police resources on“petty issues”, suggested that he get the assigned officer off the investigation, and threatened the Complainant; the impersonated officeralso accused the Complainant of “living a lie”. c. Subsequently, Ms.

Wowk deliberately misled police during the investigation, as late as the purported resiling from her confession toblame her own mother. This did not arise as a spontaneous avoidance of responsibility but after release from custody and having statedthat she had consulted legal counsel. [105] Standing alone, the personation by Ms. Wowk prolonged and complicated the investigation. But logically it would alsomotivate police to continue to deploy resources to complete the case.

In all the circumstances, censure for the second offence iswarranted on a consecutive basis and the total period of 12 months is fair and appropriate. [106] As contemplated by s. 718.2(

c) and expressed in various cases including R v May, 2012 ABCA 213 (at para 13); R vMcDonald, 2015 ABCA 108, the impact of the sentence in sum must be fair and reasonable, not unduly long or harsh. The totality of thissentence addresses the public interest that the sentence imposed on Ms. Wowk reflects the personal responsibility for the offences whichshe committed. Victim Restitution

[ 107 ] Crown submits a claim for restitution comprised of counselling services for the Complainant along with lost revenue from the Complainant’s self-employment. The claim for counselling is $1,475 which represents one-half of the services actually provided. Ms. Wowk raises no objection but asserts that the lost income should not be imposed additionally.

The court is empowered to consider the claim for restitution under s. 738 of the Code , provided that the amount is readily ascertainable. [ 108 ] I find no difficulty in setting the claim for counselling based on the proportionate recovery from the counselling services. The loss of income is more problematic in a criminal sentencing context. Although the Complainant has provided a year over year

summary of the dramatic loss, it is difficult without more to characterize the amount as readily ascertainable, which is a necessary condition under s. 738 . [ 109 ] The loss of income is highly foreseeable from this type of criminal harassment and publication to business contacts, particularly for anyone who is self-employed.

It is a harsh consequence, because an employee who is able show that termination was caused by the false communication could use their Record of Employment as a basis for the court to readily ascertain the quantum lost. [ 110 ] The Court’s best efforts to set a minimum amount in lieu of proof of causation of a specific amount may meet something of the spirit of s. 738 ; however, it would simply be a guesstimate outside the language of the Code . [ 111 ] I am obliged to decline this additional remediation in the absence of agreement from Ms. Wowk.

Conclusion [ 112 ] While denunciation and deterrence are primary objectives related to criminal harassment, they must be considered in the whole context of the case as presented in arriving at a sentence which is proportional to the gravity of the offence and the degree of responsibility of Ms. Wowk. The information disclosed very, very little from which to derive any real appreciation of why the harassment was initiated, why it was so vitriolic and manipulative, why it extended to impact family and friends so harshly, why it continued even as police investigated, and why Ms.

Wowk has never expressed any concern about the impact of her actions on others, much less an apology. [ 113 ] None of these questions requires a full answer under the criminal law. But they are important considerations as to proportionality and responsibility. I accept that representations as to accepting responsibility were passed on by respected and experienced legal counsel. However, it is concerning that the report of Dr. Ennis, who was retained by Defence, only noted that Ms.

Wowk acknowledged the wrongfulness of what she did, saying it was a great mistake, made without any ill will , adding that she wished her younger self was as centered as she is now. Those statements were reported after an explanation of her behavior (that it started initially as a prank to assist her training) that was quite materially different from what she offered to police (that she felt compelled to intervene in a failing marriage). [ 114 ] Counsel argued that the Court should not look for what the Report does not say.

If that is meant to preclude a search for context to measure the gravity of the behavior and its consequences in assessing responsibility and contrition, then I reject the argument. Context is vital. The impression reported by Dr. Ennis regarding Ms. Wowk’s lack of insight as to personal motives and impact are fully supportable from my review of the case. [ 115 ] From my review, the impacts on the Complainant, family and friends were profound and entirely predictable consequences arising from the sustained, relentless behaviour of Ms. Wowk.

Criminal Harassment after a failed relationship is overtly intimidating and frightening. In this case the acknowledged fear of the Complainant and his family is complicated by the deliberate anonymity and wide- spread distribution, which precluded any police warning. [ 116 ] I have reflected at length on the submissions of defence counsel that imprisonment should be a last resort (s. 718.2(

d) and (e)). Parliament having removed the option of a conditional sentence order, I find a suspended sentence and probation to be wholly disproportionate to the degree of responsibility, blameworthiness and other aspects of this sophisticated form of harassment. The factual differences may justify an individualized response at the lower end of the range expressed in Wenc but cannot undermine the principle of relative parity.

The personation of a police officer similarly requires strong denunciation. [ 117 ] Having considered all of these factors, including the case law and submissions of counsel, I have concluded as follows: i. Firstly, that a fair and proportionate sentence in all the circumstances is that Ms. Wowk serve a total period of 12 months of incarceration in a provincial institution. This represents a global sentence comprised of nine months on the criminal harassment conviction and three months on the personation conviction to be served consecutively; ii. Secondly, upon release, that Ms.

Wowk must be subject to the terms and conditions of Probation. Probation [ 118 ] I have determined that probation is required for a further period of 2 years upon the terms set out in Appendix A or as may be amended by consent of both counsel for the Court’s review. Collateral Orders [ 119 ] Weapons Prohibition: Pursuant to s. 109 (1)(b), criminal harassment is a primary designated offence. As a first offender, Ms. Wowk shall be prohibited from possessing

a. any firearm, other than a prohibited firearm or restricted firearm, and any cross-bow, restricted weapon, prohibited device, ammunition, and explosive substance for a mandatory period of 10 years from the date of release and b. any prohibited firearm, restricted firearm, prohibited weapon prohibited device and prohibited ammunition for life. [ 120 ] Victim Restitution: Pursuant to s. 738, the Court further directs that Ms. Wowk shall pay restitution to the Complainant of $1,475. as claimed representing one half of his total counselling services arising out of the criminal harassment.

The full amount shall be paid not later than December 31, 2020. [ 121 ] Seized Items: Pursuant to s. 491.1, all items seized in the course of the investigation of this matter will be forfeited to the Crown. Heard on the 3rd day of June and the 11 th day of October, 2019. Dated at the City of Edmonton, Alberta this 16 th day of December, 2019. S.D. Hillier J.C.Q.B.A. Appearances: Stephanie Brown for the Crown Deborah Hatch for the Accused Appendix A CONDITIONS OF PROBATION ORDER 1.

You will keep the peace and be of good behaviour; appear before the Court when required to do so by the Court; and notify the Court or the Probation Officer in advance of any change of student status, employment or occupation. 2. You will report to a Probation Officer forthwith upon your release for the purposes of entering into the Order and further you shall remain under the supervision of your Probation Officer and report to your Probation Officer at such times, at such places and in such manner as directed. 3. You will not leave the Province of Alberta without prior written consent of your Probation Officer.

4. You will attend for assessment and complete such counselling and/or treatment as directed by your Probation Officer: Psychological Issues – Specifically, you will attend a registered Alberta Psychologist as recorded by Dr. Liam Ennis or otherwise as approved in writing by your Probation Officer, upon your release for the purpose of an updated psychological assessment and you will follow all directions regarding counselling and/or treatment, made by the medical or professional staff of these services. A copy of these Reasons for Sentence, and the Report of Dr.

Ennis’s (Ex S-4) shall accompany this Probation Order and shall be provided to the approved Psychologist. 5. You will sign such release or waiver of information as directed, providing access to information required by your Probation Officer or the medical or professional staff referred to above. 6. You will provide your Probation Officer with written proof of attendance and the successful completion of such counselling and/or treatment as directed. 7. You will abstain from owning, possessing or carrying a weapon, as defined in the Criminal Code . 8.

You must provide your Probation Officer with the carrier information and phone number of any mobile device or tablet that you possess. a. While owning, possessing or using any mobile device or tablet; you must not delete your browsing history; b. Having consented, you must sign any release of information forms as will enable your Probation Officer to monitor your compliance with this order. Any information obtained by the Probation Officer can be given to a peace officer; c.

Having consented, you must provide the device and any password used to lock the device to your probation officer, upon their request, in order for him or her to monitor compliance with this order. d. You must not download, use or possess any application or software on any device that is capable of disguising or changing your phone number or IP address. Without limiting the general nature of the foregoing, this includes any "Voice Over Internet Protocol" (or "VOIP") application, or Proxy. 9.

You will have absolutely no contact or communications whatsoever, either directly or indirectly, with the Complainant or his spouse or children. 10. You will not attend within a five block radius of the residence of the Complainant or his children in Edmonton, Alberta. You will not attend within a five block radius of the Complainant’s place of employment or any future place of employment. 11. You will reside only at such address for which you have received prior written approval by your Probation Officer.

Any change in address must be approved in writing in advance of any proposed move by your Probation Officer. 12. You will make diligent efforts to find and maintain employment approved by your Probation Officer. Alternatively, you may attend an educational programme approved in writing by your Probation officer. You will provide satisfactory written proof of such efforts to find and maintain employment or of your attendance at an educational programme as required by your Probation Officer.