R. v. Curtis, 2022 NLSC 154

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Curtis , 2022 NLSC 154 Date : October 26, 2022 Docket : 202101G3211 HIS Majesty The KING v. Trevor Rodney Curtis Restriction on Publication: By court order made under subsection 539(1) of the Criminal Code , the evidence taken at the preliminary inquiry shall not be published in any document or broadcast or transmitted in any way until the accused is discharged after the preliminary hearing, or, if the accused is committed to stand trial, until the end of the trial. Before: Justice Katherine O'Brien Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: October 26, 2022

Summary:

This is a sentencing decision for the offence of extortion ( Criminal Code , s. 346(1) ). The Court suspended the passing of sentence and released the offender on a probation order of 24 months duration. The probation conditions include a requirement that the offender participate in programs and counselling recommended by his probation officer. The Court found a nexus between the extortion and the offender’s mental illness, which diminished the offender’s moral culpability. There was no violence associated with the offence.

If the offender fails to comply with the conditions of his release, he may be returned to the Court for passing of sentence. The Court also made a DNA order. Appearances: Jeffrey A. Summers Appearing on behalf of the Crown Jeffrey K. Brace Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Curtis , 2022 NLSC 66 ; R. v. Friesen , 2020 SCC 9 ; R. v. Parranto , 2021 SCC 46 ; R. v. Butler , 2019 NLCA 21 ; R. v. Bourgeois , 2018 NLCA 13 ; R. v. Widdifield , 2018 BCCA 62 ; R. v. Fattore , 2017 ONSC 2410 ; R. v. Burdon , 2008 CarswellAlta 2327, [2010] A.W.L.D. 4684 ; R. v.

Hunt , 2017 NLPC 1317 A00158 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46 ; Access to Information and Protection of Privacy Act, 2015 , S.N.L. 2015, c. A-1.2 TEXTS CONSIDERED: Clayton Ruby, Sentencing , 10th ed. (Toronto: LexisNexis, 2020) REASONS FOR JUDGMENT O'Brien, J : OVERVIEW [ 1 ] I found Mr. Curtis guilty of extortion under s. 346(1) of the Criminal Code, R.S.C. 1985, c. C-46 ( R. v. Curtis , 2022 NLSC 66 ). I now have to decide the appropriate sentence for Mr. Curtis. [ 2 ] Mr. Curtis found a USB device containing private health information of Eastern Health patients in a parking lot.

He posted screenshots of some of this information on Facebook. He then threatened to post more of the patient information online. He made the threat with the intention of inducing Eastern Health administration to meet with him to address compensation for wrongs that Mr. Curtis believes Eastern Health has done to him. [ 3 ] Mr. Curtis believes that Eastern Health has repeatedly violated his rights in the course of his treatment for mental health issues. Mr. Curtis believed that if he published the patient information it would create an embarrassing and difficult situation for Eastern Health administration.

He hoped that their desire to avoid this situation would induce the administration to act in the way he wanted. [ 4 ] I have decided that a suspended sentence of 24 months duration is a fit and proportionate sanction for Mr. Curtis. I will explain why. SENTENCING OBJECTIVES [ 5 ] Determining an appropriate sentence starts with the principles of s. 718 of the Criminal Code . The sentence must contribute to respect for the law and the maintenance of a just, peaceful, and safe society.

It should meet one or more of the following objectives: denunciation, deterrence, separation of offenders from society (where necessary), rehabilitation, reparation, and general promotion of a sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community. [ 6 ] The goal in every case is a fair, fit and principled sanction. Proportionality is the organizing principle in reaching this goal. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender ( R. v. Friesen , 2020 SCC 9 , at para. 30 ; R. v.

Parranto , 2021 SCC 46 , at para. 10 ).

[ 7 ] It is important to consider the offender’s personal circumstances including family and social background, alternatives to incarceration (where they are available and appropriate), and any factors that mitigate or aggravate the offences. The sentencing sections of the Criminal Code have as their primary focus the protection of the public, which is best achieved by crafting a sentence that fits both the offence and the offender. [ 8 ] While each case and each offender is unique, a fit sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

This is known as the principle of parity. To arrive at a sentence that is in parity with other sentences , courts look at comparable sentencing decisions. The principle of parity is secondary to the principle of proportionality, but the two are not at odds with each other. This is because parity assists courts in fixing a proportionate sentence ( Friesen , at para. 31 ; Parranto , at para. 11 ). CROWN POSITION [ 9 ] Crown counsel submitted that an appropriate sentence is six months in prison.

Crown counsel focused on denunciation and deterrence, stating that anything less than a prison sentence would send a message that Mr. Curtis’ behaviour is acceptable. Noting the importance of privacy rights to our society, Crown counsel suggested that I take guidance from the Access to Information and Protection of Privacy Act, 2015 , S.N.L. 2015, c.

A-1.2 , which creates an offence for the disclosure of personal information that is subject to a maximum punishment of six months imprisonment. [ 10 ] Crown counsel referred to decisions from the Newfoundland and Labrador Court of Appeal that address the impact of mental illness on sentencing: R. v. Butler , 2019 NLCA 21 and R. v. Bourgeois , 2018 NLCA 13 . These cases state that there must be a nexus between the commission of the offence and the offender’s mental health condition for that condition to reduce the offender’s moral culpability and have a mitigating effect on sentence.

Crown counsel also noted that Mr. Curtis denies having any mental illness and has shown little to no empathy toward the Eastern Health patients affected by his actions. [ 11 ] Crown counsel acknowledged that Mr. Curtis’ lack of relevant criminal record is a mitigating factor. DEFENCE POSITION [ 12 ] Defence counsel submitted that a suspended sentence for a period of six months to one year is appropriate. He submitted that the nexus between Mr. Curtis’ mental illness and the offence committed is clear. Mr.

Curtis extorted Eastern Health because he wanted redress for what he believes were wrongful diagnoses and treatments of mental illness. Defence counsel submitted that this case is really about Mr. Curtis’ mental illness and it would be illogical not to consider that in sentencing simply because one aspect of Mr. Curtis’ complex presentation is that he denies being ill. [ 13 ] Defence counsel focused on rehabilitation. He submitted that a prison environment would be disproportionally severe punishment for Mr. Curtis because of his mental illness. Instead, defence counsel submitted that Mr.

Curtis should be supervised in the community by a probation officer with conditions requiring him to participate in recommended counselling and programming. Comparable Sentencing Decisions [ 14 ] Extortion without the involvement of a firearm carries no minimum sentence and a maximum sentence of life. The published cases do not approach this maximum level but indicate sentences as high as six years of imprisonment (Clayton Ruby, Sentencing , 10th ed. (Toronto: LexisNexis, 2020) at §23.374). Where neither violence nor organized crime is involved, the upper range has been identified as three years ( R. v.

Widdifield , 2018 BCCA 62 , at para. 57 ). The range of sentences within these upper limits is broad because the circumstances of the offence of extortion can vary greatly. [ 15 ] Counsel provided me three sentencing decisions to consider: a. R. v. Fattore , 2017 ONSC 2410 : This case was filed by both Crown and defence. Mr. Fattore committed extortion by threatening to make a complaint to the Law Society of Ontario if the owner of a paralegal firm did not pay him money. Mr. Fattore pleaded guilty and was remorseful. He had no prior criminal record.

He was a young man who had recently graduated from law school and was about to embark on his career. The sentencing judge found that he posed a low risk for reoffending and had excellent chances of rehabilitation. Mr. Fattore was given a suspended sentence and placed on probation for 18 months. b. R. v. Burdon , 2008 CarswellAlta 2327, [2010] A.W.L.D. 4684 : This case was filed by the Crown. Mr. Burdon committed extortion by threatening his probation officer. He did not like the pre-sentence report she had prepared and wanted her to change it.

He threatened her by showing her a photograph of himself, or someone who looked identical to him, holding a gun and posed before a wall hung with more guns. Mr. Burdon was a young adult with a youth criminal record. He professed to have matured and changed his life around since the offence and was seeking professional help. The judge remained concerned and felt that Mr. Burdon did not have good insight into the wrongness of the actions. The judge imposed a suspended sentence and placed Mr. Burdon on probation for three years. c. R. v. Hunt , 2017 NLPC 1317 A00158: This case was filed by the defence.

Part way through his trial, after the complainant testified, Mr. Hunt pleaded guilty to extortion. He had threatened his former girlfriend that, if she did not tell her friends that they were not separated and were trying to work things out, he would post intimate photographs of her on Facebook. He also threatened to kill himself. Mr. Hunt did not have a criminal record. Mr. Hunt was sentenced to nine months of prison followed by two years of probation. The sentencing judge emphasized the sentencing principles of deterrence and denunciation.

He noted that the present day threat to release intimate photographs through social media is much different and more serious that older forms of extortion as the technology allows for sharing and dissemination of such photos globally. What is a suspended sentence? [ 16 ] For crimes without mandatory minimum sentences, the court may suspend the passing of sentence and release the offender on probation with conditions ( Criminal Code , s. 731(1) (a)). If the offender completes the probation period without breaching any of the

conditions, he does not need to return to court to have his sentence passed. However, if he breaches a condition of probation, he returns to court and his suspended sentence may be revoked and he may be sentenced for the original offence. [ 17 ] Suspended sentences focus on the rehabilitation of the offender. They give that person the opportunity to establish themselves as a law abiding citizen. However, they still have a deterrent effect because the offender has the possibility of being sentenced for his crime for the probationary period. Mr.

Curtis’ circumstances [ 18 ] A Pre-Sentence Report was filed to inform me of Mr. Curtis’ circumstances. Mr. Curtis cooperated with its preparation. [ 19 ] Mr. Curtis did not have an easy childhood. His father separated from the family when Mr. Curtis was five years old and was not involved in his life after that. His mother physically and mentally abused him. When he was about 10 years old, Mr. Curtis’ grandmother took him from his mother’s care. Mr. Curtis was bullied by his peers because he has a congenital deformity of his eye. These aspects of Mr.

Curtis’ childhood were corroborated by his sister, who lives in Alberta and has limited current contact with Mr. Curtis. [ 20 ] Mr. Curtis has had difficulty with personal relationships. He had a thirteen-year relationship with a woman with whom he has two daughters. He has practically no communication with those daughters today. He had a three-year relationship with another woman with whom he had twins in 2019. Those children were placed in the continuous custody of Children, Seniors and Social Development when they were infants. Mr.

Curtis has limited contact with his siblings. [ 21 ] Although he has dyslexia and quit school after grade nine, Mr. Curtis has pursued further education at various times. He has also worked at various jobs in different industries in this province and elsewhere in Canada. He owned his own cleaning company for a period and he blames the loss of this business on his treatment by Eastern Health. He reports that he is an inventor and he is currently developing a bike delivery service. [ 22 ] There is no indication that Mr. Curtis has problems with drug or alcohol use.

He has one prior criminal conviction for an unrelated offence that is very dated – almost 30 years old. He did not serve time in prison and completed two years of probation without incident. Mr. Curtis’ mental health [ 23 ] Mr. Curtis acknowledges he has anxiety and depression and takes medications for same. Although he says doctors have attempted to diagnose him with schizophrenia, bipolar disorder and anti-social personality disorder, he denies having these conditions or any other mental illness. [ 24 ] His medical records tell a different story. Mr.

Curtis has received mental health treatment since the early 1990s. He had a mental health admission in Winnipeg in 1992. He has been diagnosed at various times with paranoid personality disorder, depression, PTSD, and cluster B personality disorder. [ 25 ] In late 2007 and early 2008, Mr. Curtis had two admissions to the Waterford Hospital where he was diagnosed with bipolar disorder with psychosis and bipolar affective disorder with delusions. This appears to be when his relationship with the mother of his two older daughters broke down.

It also appears that this was around the time he lost his cleaning business. [ 26 ] Since those admissions, which are the focus of Mr. Curtis’ ongoing dissatisfaction with Eastern Health, he has had on and off involvement with mental health services. His distrust of Eastern Health, and his view that the institution has repeatedly violated his rights, has made treatment difficult. His disagreement with some of the diagnoses he has received also complicates his treatment. [ 27 ] When the Pre-Sentence Report was initially prepared, Mr. Curtis was attending counselling with a counsellor at Eastern Health.

She was interviewed by the report’s author. Her opinion was that Mr. Curtis needed psychiatric treatment but that he would not accept it. She noted he saw Eastern Health as an enemy. She was willing to continue to meet with Mr. Curtis as long as he still wished and remained respectful. [ 28 ] This changed when Mr. Curtis sent the counsellor an email in June 2022. An addendum to the Pre-Sentence Report was filed with updated information from the counsellor. Mr. Curtis cancelled his appointment in the email, which the counsellor found to be threatening in nature and evidencing a change in Mr.

Curtis’ attitude toward her. She felt that Mr. Curtis was now grouping her with the rest of Eastern Health staff whom he believes betrayed him. [ 29 ] I was provided with a copy of the email. It is difficult to follow because it contains typographical errors and is disorganized. It contains swear words and is angry in tone. In it Mr. Curtis threatens to send material to a reporter and to take court action against Eastern Health. He accuses the police and Eastern Health of corruption. He says he will be asking the judge (me, presumably) to give him the maximum sentence.

ANALYSIS [ 30 ] I find that there is a nexus between Mr. Curtis’ crime and his mental illness. Simply stated, but for his diagnosis and treatment for bipolar disorders at the Waterford Hospital, he would not have extorted Eastern Health. I am satisfied that Mr. Curtis’ mental health conditions impair his judgment, affect his assessment of the treatment he received and cause him to be fixated on seeking redress for injustice he perceives has been done to him by Eastern Health. Mr. Curtis’ patient records, as reviewed in the Pre-Sentence Report, indicate that this has been a common theme for Mr.

Curtis for many years. I find that Mr. Curtis’ mental illness diminishes his moral culpability and is a relevant factor for me to consider on sentencing. [ 31 ] According to Clayton Ruby’s text Sentencing , it is now widely accepted that general deterrence should be given very little, if any, weight in a case where an offender is suffering from a mental disorder because such an offender is not an appropriate medium for

making an example to others (Ruby, §5.316). [ 32 ] Although specific deterrence and punishment are also frequently given a reduced weight in sentencing people with mental illness (Ruby, § 5.317), these sentencing objectives may still be relevant. As Mr. Curtis maintains his animus towards Eastern Health, I find that specific deterrence is a pertinent objective here. Yet, I believe the public’s protection will best be achieved by a sentence that focuses primarily on Mr. Curtis’ rehabilitation. [ 33 ] The Pre-Sentence Report author deemed Mr. Curtis a suitable candidate for community supervision.

He also wrote: The John Howard Society offers programs such as Criminal Behavior Awareness, Anger Management as well as employment and educational counselling. Through community supervision, Mr. Curtis can be mandated to attend such programs. The Defendant could benefit from a referral for an assessment to determine his level of suitability for participation in the aforementioned programs. Such a referral can be completed by a Probation Officer. Should Mr.

Curtis receive a term of community supervision, on-going assessments will occur to address any issues that may arise which may require program referrals and/or intervention. [ 34 ] Importantly, the report’s author did not amend or resile from his opinion as to Mr. Curtis’ suitability for community supervision in the addendum to the Pre-Sentence Report he issued following Mr. Curtis’ June 2022 email. Although the email was intemperate and had an aggressive tone, in my understanding of it, Mr. Curtis did not threaten to harm any person or property nor did he otherwise break the law.

Crown counsel seems to have understood the email similarly as he advised me that, to his knowledge, Mr. Curtis had not committed any further criminal offences since the present offence occurred. [ 35 ] Regarding the gravity of the offence, I note that Mr. Curtis’ crime did not have features frequently associated with more serious occurrences of extortion. For example, this was an isolated event, not an on-going pattern of criminal behavior. Mr. Curtis is not associated with organized crime nor did he violate a position of trust. Mr. Curtis did not use or threaten violence.

The administrative assistant who received the threat testified that, although Mr. Curtis was emotional and upset during their interaction, he was not violent and she did not feel threatened. [ 36 ] I do not want to understate the significance of the privacy interest of the patients affected by Mr. Curtis’ actions. Mr. Curtis had no business having their private health information and it was wrong of him to seek to take advantage of it as he did.

However, I distinguish this case from those such as Hunt , in which people use deeply private sexual images to coerce people with whom they have been in an intimate or domestic relationship. Mr. Curtis’ offence is of a different nature. Although his actions were wrong and he has shown little insight into the effect his actions may have had on the Eastern Health patients, Mr. Curtis was not motivated to harm or manipulate them. He was focused on Eastern Health and exposing what he viewed as its failings. [ 37 ] Mr. Curtis is 49 years old and has lived most of his life crime-free.

His one Criminal Code infraction was almost 30 years ago and he successfully completed two years of probation. [ 38 ] Although Crown counsel suggested that Mr. Curtis may have threatened to publish patient information again in his June 2022 email, I find no evidence of this. Mr. Curtis has stated that he deleted the patient information. I found Mr. Curtis to be credible at trial and no information has come to my attention that would lead me to doubt what he has said. From his email and what he said at his sentencing hearing, I understand that Mr.

Curtis still wants to address the wrongs he perceives against him but his stated methods of doing so are not unlawful. Although he wrote of sending material he has to a reporter, there is no evidence that he was referring to material that he should not have or use. [ 39 ] I am satisfied that a fair, fit and principled sanction for Mr. Curtis is a suspended sentence of two years. Such a sanction is proportionate to the gravity of the offence and the degree of Mr. Curtis’ responsibility. I find that a prison sentence would be disproportionately harsh on Mr.

Curtis, who is 49 years old with mental illness and no prior experience in prison. He has indicated that he is willing to comply with any conditions imposed by the Court. If he complies with the conditions of his probation, imprisonment is not required to deter or punish Mr. Curtis. If Mr. Curtis does not comply with the conditions, then he may be returned to this Court to have his sentence passed and, at that point, prison may be the result. [ 40 ] Mr. Curtis’ probation will be subject to the compulsory conditions of s. 732.1(2) of Criminal Code : a. Keep the peace and be of good behaviour. b.

Appear before the court when required to do so by the court. c. Notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. [ 41 ] He will also be required to: a. Report to a probation officer within 2 working days and thereafter when required and in the manner directed by the probation officer. b. Attend and actively participate in any awareness, educational or assessment programs or counselling that he may be referred to by his probation officer. c.

Abstain from communication, directly or indirectly, with Laura Percey or Neil Young or from going to their residences. Communication authorized by either of these individuals in the course of their professional duties is excepted.

[ 42 ] I will hear from counsel before finalizing the terms of probation and, after hearing from them, I may make modifications or add further conditions. [ 43 ] Extortion is a primary designated offence under s. 487.04 (

a) of the Criminal Code and thus a DNA order is mandatory under s. 487.051(1). Given that Mr. Curtis is not currently working, the victim fine surcharge is waived. DISPOSITION [ 44 ] I order that the passing of Mr. Curtis’ sentence be suspended for 24 months and Mr. Curtis be released on the conditions prescribed in a probation order. [ 45 ] Additionally, I impose a DNA order in Form 5.03, under s. 487.051(1) of the Criminal Code . _____________________________ Katherine O'Brien Justice