R. v. Nolan, 2019 ONCJ 338

CITATION: R. v. Nolan , 2019 ONCJ 338 DATE: 2019·05·16 Toronto Region ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — WILLIAM NOLAN Before Justice L. Feldman Heard on May 1, 2019 Reasons for Judgment released on May 7, 2019 Addendum released on May 16, 2019 L. Eplett .................................................................................................................... for the Crown D.

Gosbie .......................................................................................... for the accused William Nolan FELDMAN J.: Introduction [ 1 ] Following trial, I found William Nolan guilty on charges of Threaten Death, Intimidation, Obstruct Justice and Criminal Harassment. [1] The facts are troubling. Mr. Nolan used threats of violence against his estranged wife, Lorna Kim, and her family to coerce her into providing unfettered access to his two children, indifferent to the debilitating effect on his victims’ sense of personal safety.

In the course of a Family Court proceeding over custody, the defendant intimidated Ms. Kim by threats and hijacked the process with aggressive and contemptuous behaviour. Subsequently, in

an act of wilful cruelty designed to humiliate her, he spread sexually explicit pictures of her in the school yard where she taught young children. The following are my reasons for sentence. The Evidence [ 2 ] Mr. Nolan and Ms. Kim began a common law relationship in 2004. They have two boys, ages 11 and 12. Mr. Nolan supported his family by gambling and drug trafficking, for which he was arrested when his first son was 7 months old.

In 2009, he was convicted and sentenced to 4 years on a number of charges, including conspiracy to commit an indictable offence, trafficking in weapons and possession of a firearm contrary to a prohibition order. While he was in custody, Ms. Kim lived with her parents and obtained a teaching degree. She began teaching at Cornell Public School in 2012. [ 3 ] Following the defendant’s release in Sept. 2012, the couple decided that the relationship was over. As I noted in the trial judgment, Ms. Kim felt it important that her children have a relationship with their father. She was open to Mr.

Nolan seeing them whenever he asked. However, she described conflict over access. She believed the defendant held her responsible for limiting his relationship with the boys. She says he expressed this anger in the presence of their children on a number of occasions and made threats to her family, leading to criminal charges. [ 4 ] In this regard, on Jan. 7, 2013, in a family court proceeding at which Ms. Kim sought full custody of her children during what she believed would be an uncontested application, Mr.

Nolan appeared and used threats outside the courtroom to intimidate her into silence in the face of his demand in court that he be granted joint custody. He pressured her, as well, at the time, to drop any outstanding criminal charges and withdraw a restraining order she had obtained against him. [ 5 ] During the hearing, Mr. Nolan was disrespectful and aggressive in attempting to dictate to the court what the result would be. Justice Paulseth, the case management judge, had no option but to close the court given the defendant’s rising anger. In fact, when a security officer entered the courtroom, Mr.

Nolan erupted, took him outside and attacked him, breaking his arm. [ 6 ] Access remained contentious. Ms. Kim was later punished for her failure to comply. On Jan. 7, 2015, Ms. Kim attended the public school where she worked as a teacher to find bags full of pictures of herself nude and performing oral sex that were scattered around the school yard and placed on the windshields of her colleagues’ cars. The defendant had previously threatened to photoshop her face getting ‘gangbanged’. That was no idle threat. [ 7 ] Rather, it was a contemptible act, all the more egregious because it wasn’t the first time.

In the course of a continuing dispute over custody in 2012, Mr. Nolan threatened to destroy Ms. Kim’s life by distributing nude photos of her at work. He was able to

do so because in 2009, while the defendant was incarcerated, she had sent him a nude photo of herself. [ 8 ] Mr. Nolan followed through on his threat. In that case, the defendant wrote the complainant’s name and the school’s phone number on each photo. He would understand that in his effort to punish a woman he was unable to dominate he was putting her job and career in jeopardy.

It was a choice. [ 9 ] Criminal harassment has been described as a “tool of intimidation which is designed to instill a sense of fear in the recipient”. [2] As I concluded in the trial judgment, there was, on the evidence, a real basis for Ms. Kim to be worried about what was coming next. Mr. Nolan has succeeded in ‘badgering’ and ‘tormenting’ [3] his victim over the years of their separation. Twice. [ 10 ] The persistence of this behaviour has diminished the lives of Ms. Kim and her family. The harm caused is set out in the victim impact statement, a lament by Ms.

Kim, less for the “mental, physical and financial hurt” she has endured, but rather more for the loss to her sons of their sense of family and self-worth. Poignantly, she wrote, “you have caused irreparable damage to two little hearts and you should be ashamed”. The statement is appended to this judgment. [ 11 ] It is a mark of her character that during the currency of the subject charges, Ms.

Kim sought the delicate balance of encouraging contact between the defendant and her sons that she viewed as in their best interests and managing the trauma to herself of threats, intimidation and harassment, in relation to which there has been irreparable harm. She is courageous and demonstrates wisdom in encouraging the defendant to be a father to their sons who need him. [ 12 ] Mr. Nolan’s criminal antecedents are troubling. The content of his criminal record includes the following: 1991-08-20

(1) B E & THEFT

(2) POSS OF PROPERTY OBTAINED BY CRIME OVER $1000 (METRO TORONTO PF) (1-2) PROBATION 15 MOS ON EACH CHG CONC 1992-09-18 TORONTO ONT (YOUTH COURT)

(1) POSS OF UNREGISTERED RESTRICTED WEAPON

(2) DELIVERY OF RESTRICTED WEAPON TO PERSON WITHOUT A PERMIT (METRO TORONTO PF) (1) 14 DAYS OPEN CUSTODY & PROBATION 2 YRS (2) 3 MOS OPEN CUSTODY & PROBATION 2 YRS CONC FIREARMS PROH 5 YRS 1993-02-22 TORONTO ONT (YOUTH COURT) POSS OF PROPERTY OBTAINED BY CRIME UNDER $1000 (METRO TORONTO PF) 30 DAYS OPEN CUSTODY 1993-09-20 TORONTO ONT (YOUTH COURT)

(1) BE & THEFT

(2) BE & THEFT

(3) BE & THEFT

(4) FAIL TO ATTEND COURT (METRO TORONTO PF) (1) 2 MOS SECURE CUSTODY (2) 1 MO SECURE CUSTODY & 1 MO OPEN CUSTODY CONSEC (3-4) 1 MO OPEN CUSTODY ON EACH CHG CONSEC & CONSEC 1993-10-29 TORONTO ONT (YOUTH COURT) ROBBERY (METRO TORONTO PF) 4 MOS SECURE CUSTODY & 2 MOS OPEN CUSTODY & PROBATION 18 MOS & FIREARMS PROH 10 YRS 1996-02-23 TORONTO ONT (YOUTH COURT)

(1) POSS OF PROPERTY OBTAINED BY CRIME OVER $5000

(2) FAIL TO APPEAR (METRO TORONTO PF) (1-2) 30 DAYS SECURE CUSTODY ON EACH CHG CONC 1997-02-27 TORONTO ONT BE & THEFT (2 CHGS) (METRO TORONTO PF) 6 MOS ON EACH CHG CONC 1997-04-28 PAROLED 1998-12-16 TORONTO ONT POSS OF PROHIBITED WEAPON SEC 90 CC (TORONTO PS) $100 & (TIME SERVED 60 DAYS) & PROHIBITED FIREARMS, AMMUNITION OR EXPLOSIVE SUBSTANCES FOR 10 YEARS

2002-05-28 UTTERING THREATS SEC 264.1(1)(

A) CC (TORONTO PS) $1000 & (2 DAYS PRE- SENTENCE CUSTODY) PROBATION 18 MOS & DISCRETIONARY PROHIBITION ORDER SEC 110 CC FOR 2 YRS 2002-11-04 TORONTO ONT ASSAULT WITH A WEAPON SEC 267(

A) CC (TORONTO PS) 9 MOS & PROBATION 2 YRS -APPEALED SENTENCE VARIED ON APPEAL TO TIME SERVED & PROBATION 2 YRS 2004-06-17 TORONTO ONT

(1) POSS OF FIREARM OR AMMUNITION CONTRARY TO PROHIBITION ORDER (2 CHGS)

(2) FAIL TO COMPLY WITH PROBATION ORDER SEC 733.3 CC

(3) POSS OF A

SCHEDULE II SUBSTANCE SEC 4(1) CDS ACT (TORONTO PS) (1-3) SUSP SENT & PROBATION 3 YRS ON EACH CHG CONC & MANDATORY PROHIBITION ORDER SEC 109 CC 2008-01-08 LINDSAY ONT

(1) FLIGHT WHILE PURSUED BY PEACE OFFICER SEC 249.1(1) CC

(2) POSS OF A

SCHEDULE II SUBSTANCE FOR THE PURPOSE OF TRAFFICKING SEC 5(2) CDS ACT (HALIBURTON HIGHLANDS OPP) (1) 90 DAYS INTERMITTENT & (67 DAYS PRE-SENTENCE CUSTODY) (2) 2 YRS LESS 1 DAY CONDITIONAL SENTENCE ORDER & MANDATORY PROHIBITION ORDER SEC 109 CC 2008-06-17 LINDSAY ONT FAIL TO COMPLY WITH RECOGNIZANCE SEC 145(3) CC (2 CHGS) (KAWARTHA LAKES OPP) 30 DAYS ON EACH CHG CONSEC 2009-09-11 PETERBOROUGH ONT

(1) CONSPIRACY TO COMMIT AN INDICTABLE OFFENCE SEC 465 (1) (

C) CC

(2) CONSPIRACY TO COMMIT AN INDICTABLE OFFENCE SEC 465(1)(

C) CC

(3) POSS OF FIREARM OR AMMUNITION CONTRARY TO PROHIBITION ORDER SEC 117.01(1) CC (2 CHGS)

(4) WEAPONS TRAFFICKING SEC 99 CC

(5) FAIL TO COMPLY WITH RECOGNIZANCE SEC 145(3) CC (3 CHGS) (KAWARTHA LAKES OPP) (1) 2 MOS & (16 DAYS PRE- SENTENCE CUSTODY) & MANDATORY PROHIBITION ORDER SEC 109 CC (2) 15 MOS CONSEC (3) 12 MOS ON EACH CHG CONC & CONC (4) 13 MOS CONSEC (5) 4 MOS ON EACH CHG CONC BUT CONSEC

2012-11-15 TORONTO ON

(1) INTIMIDATION SEC 423(1) CC

(2) CRIMINAL HARASSMENT SEC 264(1)(2)(

A) CC (TORONTO PS) (1) 90 DAYS INTERMITTENT & PROBATION 2 YRS (6 DAYS PRE-SENTENCE CUSTODY) & DISCRETIONARY WEAPONS PROHIBITION SEC 110 CC FOR 10 YRS (2) 90 DAYS INTERMITTENT CONC 2013-04-09 TORONTO ON

(1) ASSAULT A PEACE OFFICER SEC 270(2) CC

(2) ASSAULT WITH INTENT TO RESIST ARREST SEC 270(1)(

B) CC (1) 165 DAYS (64 DAYS PRE- SENTENCE CUSTODY) & MANDATORY WEAPONS PROHIBITION SEC 109 CC (2) 165 DAYS CONC [ 13 ] Mr. Nolan is a full-service offender. He made his living by crime, playing his

part in racking up victims and rendering his community less safe. His crimes were broad-based and included property offences, drug and weapons trafficking, unlawful possession of firearms, breach of court and weapon prohibition orders, acts of violence and criminal harassment. I infer this man is dangerous to those who get in his way. [ 14 ] Except, I take note that since 2015, the defendant has left Ms. Kim alone and not committed further criminal offences. He has been in a relationship with Luisa Jaana Yu, at least since the birth of their sons, now ages 4 and 2. Ms. Yu writes that Mr.

Nolan is a good father and responsible partner. She says the defendant has otherwise good qualities and has changed for the better. [ 15 ] Mr. Nolan’s mother depends on him for help with her partner, who has Alzheimer’s disease, and says he is a devoted son. As well, Mr. Nolan has been a prep and paint apprentice for 8 months at Royal Auto Collision. The manager indicates that he has a good work ethic, but that a prolonged term of incarceration would lead to his dismissal. [ 16 ] Much of this defence evidence is self-serving and lacks objectivity.

I know very little otherwise about this man and the risk he may pose going forward. Nonetheless, given the more recent hiatus and the limited information presented, I am prepared to infer that Mr. Nolan has made effort to step back from his criminal life style and that he is not without rehabilitative prospects. Positions of the Parties [ 17 ] Ms. Eplett, for the prosecution, submits that a penitentiary term is necessary to denounce and deter the defendant’s criminal behaviour, particularly given the repeat nature of the criminal harassment and in light of his lengthy criminal antecedents. [ 18 ] Mr.

Gosbie, for the accused, submits that an intermittent sentence permitting his client to maintain his apprenticeship and look after his family is warranted. He suggests 5 months for the obstruct justice charge, less 3 months credit on 9 month of restrictive bail terms, including a curfew, credit for the equivalent pretrial custody of 10 days and 45 days for the criminal harassment, although further adjustment in the calculation is required to keep the sentence within the intermittent range. [ 19 ] Mr.

Gosbie submits, in addition, that the convictions for threaten death, intimidation and obstruct justice are part of the same transaction, such that the first two findings of guilt should be subsumed in the latter and more serious count and stayed pursuant to R. v. Kienapple. [4] The Kienapple Rule [ 20 ] In R. v.

Kinnear , [5] Doherty J.A., at para. 28, described the principle in Kienapple , as providing that, “where the same transaction gives rise to two or more offences with substantially the same elements and an accused is found guilty of more than one of those offences, that accused should be convicted of only the most serious of the offences”. The other charge(

s) should be stayed. [ 21 ] The death threats uttered by the defendant to coerce Ms. Kim into compliance regarding access and custody were intended, as well, to intimidate her and bend her to his will in court. There is a factual nexus between the two offences focused on compelling the complainant to relent out of fear.

The intimidation charge has an added factual element and carries a heavier sentence. [ 22 ] There is a factual nexus, as well, with the obstruct justice charge, in the sense that the defendant relied on his intimidating presence to impose his will in the proceedings, negatively affecting the course of justice. There is, however, no legal nexus. [ 23 ] In Kinnear , Justice Doherty, at para. 34, said the legal nexus inquiry was directed at “determining whether there are different elements in the offences which sufficiently distinguish them so as to foreclose the application of the Kienapple rule”.

There is an absence of legal nexus where the offences “target different societal interests, different victims, or proscribe different consequences” (para. 39). [ 24 ] In this offence, unlike in the first two counts, the victim is the administration of justice and the sanction more severe. On sentence, the obstruct justice charge stands alone. [ 25 ] I take a different view of the threatening and intimidation charges. The victim and the criminal wrong are the same and are part of a continuing transaction. In my view, on this evidence, the former offence is subsumed in the latter and will be stayed.

The Appropriate Sentence for Criminal Harassment [ 26 ] Section 264(1) contemplates harassment that causes the victim to fear for their safety or the safety of anyone known to them. This case is particularized in subsection 2(

d) as “engaging in threatening conduct directed at the other person or any member of their family”. The Crown has proceeded by indictment. The maximum sentence is 10 years. [ 27 ] The degree of malice with which the defendant acted on his threat to take Ms. Kim down by spreading the photos in the schoolyard was high. He had to know he was jeopardizing her livelihood. Given their history, he demonstrated indifference to the inevitable fear she would carry, the vulnerability she would inevitably feel that he could at any moment act on his threats. It is behaviour that must be firmly sanctioned. [ 28 ] In R. v.

Bates , [6] at paras. 30-31 , the court expressed concern about the ‘escalation’ in ‘predatory’ criminal harassment. It noted the ‘perpetual fear’ of the offender, often because of his or her unpredictability, that marked this offence. It can take over the target’s life rendering them profoundly insecure. [ 29 ] The court indicated, at para. 36, that it was important in these cases to denounce this behaviour in clear terms, that a heavy sentence was required and that general and specific deterrence were overriding considerations.

It was necessary to signal to the offender and public that this conduct was not to be tolerated. [ 30 ] What Mr. Nolan subjected his victim to was heartless. His motivation was loathsome. The irreparable harm perpetrated on his own boys was shameful. It is also significant that it wasn’t the first time. The Crown’s position is not without merit. [ 31 ] Nonetheless, I will not impose a penitentiary term. It is somewhat encouraging that since his last conviction, the defendant has left Ms. Kim alone and not been convicted of any criminal offences.

It appears on the limited information I have that he has been a responsible partner and devoted father to his two very young children. His family stands behind him. He is working steadily and developing a trade. All of that stands in contrast to his previous criminal behaviour and permits the inference that he has taken steps to live a more pro-social life. [ 32 ] Giving as much weight as I can to his more recent effort to reform, but mindful of the gravity of his offences and their repeat nature, on the criminal harassment count, Mr.

Nolan will be sentenced to 12 months. [ 33 ] The Intimidation and Obstruct Justice Sentences [ 34 ] These offences are serious and require sanction. Mr. Nolan was not beneath using threats to terrify his victim in order to get his way, indifferent to the human toll. That wasn’t his only victim. By his conduct, he attempted to affect the course of justice in his favour, undermining the integrity of a fragile process that requires the respect of its participants in order that it properly function in a free and democratic society.

This behaviour must be rejected. [ 35 ] Mindful of the defendant’s progress to this point and the stable environment to which he will return, I will impose an 18 month sentence to be served conditionally, the terms of which will be discussed with counsel. These two offences will be served concurrently, but consecutive to the criminal harassment count. Mr. Nolan will, in addition, be placed on probation for 12 months on terms to be reviewed with counsel.

He will also be prohibited under Code s. 109 from possessing any weapons for life. [ 36 ] ADDENDUM: On May 16, 2019, I imposed the following material terms in the Conditional Sentence Order: house arrest for the first 6 months, except for medical emergencies involving the defendant or any member of his immediate family and except for going directly to and from lawful employment; for the next 6 months, he is to abide by a curfew of 9 p.m. to 5 a.m.; not to contact or communicate directly or indirectly with Lornah Kim or their two children, except pursuant to a Family Court Order made after today’s date; not to possess any weapons as defined by the Criminal Code ; attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the supervisor and complete them to the satisfaction of the supervisor including, but not limited to: anger management and domestic violence, which may include the Partner Assault Response (PAR) Program [ 37 ] The Probation Order contains the same terms, but includes a requirement that the defendant sign any releases that would permit his probation officer to monitor his attendance and completion of any assessments, counselling or rehabilitative programs.

Released: May 7, 2019 Addendum: May 16, 2019 Signed: “Justice L. Feldman”