R. v. Elliott, 2020 ONCJ 134

CITATION: R. v. Elliott , 2020 ONCJ 134 DATE: January 10, 2020 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v LAURA ELLIOTT R E A S O N S F O R S E N T E N C E THE HONOURABLE MR. JUSTICE H.J. BORENSTEIN on January 10, 2020, at TORONTO, Ontario APPEARANCES : C. Faria Counsel for the Crown M. Juskey Counsel for Laura Elliott R E A S O N S F O R S E N T E N C E BORENSTEIN J : (Orally) Laura Elliott who is 55 years old pled guilty to one count of mischief under $5,000. The facts were that Ms. Elliott wrote “Fuck Islam” on front door of a bakery run by people from Iran. She did this in April 2018.

In November 2018 police arrested her. She immediately confessed and told the police she would like to apologize. She was apparently told by the police not to contact them. She has been on bail for almost two years and there have been no breaches of bail. She pled guilty to this offence in September of 2019 and today is her sentencing. By way of background, she is 55 years old now. She finished high school. She had some college. She has no criminal record. She has never been arrested. She is single. Her parents are both deceased. She has no children.

She has no close friends and she has very little relationship with her family. She works and she suffers from a major depressive disorder and she has been on medication. In the PSR, she said she has not had a close relationship with anyone for about 35 years. The Crown says that the aggravating features in this case require jail; three month conditional jail sentence. The defence submits that Ms.

Elliott is a first offender who pled guilty, is remorseful with excellent prospects of rehabilitation and given the principles of restraint when dealing with first time offenders, should be sentenced to a suspended sentence, 18 months’ probation. The defence takes the position that, ordinarily for a mischief or a first offender, a conditional discharge would not be inappropriate but given the aggravating nature of this case, he is not seeking a discharge and says a suspended sentence strikes the right balance.

There are a few more points that I want to make factually. One is, in my view, reading the materials I do find that she is profoundly remorseful. She wrote an apology. She wanted to apologize right upon arrest but was told not to contact the complainants but she did write a letter of apology to the staff and the owners which is before the court where she writes: It is with my sincerest apologies that I write this letter to you. I deeply regret my actions that were perpetrated against you and I am truly sorry for any suffering that I have caused you, your staff and your community.

I understand that in the world today there is so much hate and violence against many faiths and ethnicities that are unwarranted and egregious. Every day I feel deep remorse and shame for what I did. It has affected my life in multiple ways. I truly hope you can forgive me. Please accept my sincerest wishes for the health and prosperity of you and your family. A pre-sentence report was prepared and throughout that report, in my view, her shame and remorse is evident. It also talks about her background and talks about certain medical conditions, some of which the Crown submits are irrelevant.

But I want to focus on her feelings about this and I will just quote a few excerpts about this. She talks about how she is ashamed. She talks about the fact that she has suffered depression. She is on medication. She is taking counselling. She writes “I wake up every day with feelings of shame and remorse. I have ruined my life.” She maintained that she wanted to apologize directly to the victims but that the authorities would not permit her to do so. She is intensely regretful for her offending conduct.

She thinks, and this is in the report as well, she said: My hormones and my mental state were erratic due to changing medication. It is not something I would have done had I not been in the mental state because of the state I was in at the time. I cannot emphasize enough this was not me. Was not the person I was before or that I am now. I did it. I was not in a normal state. I was filled with anger and I was imbalanced from my hormones and the medication. In her comments before the court, she also expressed apology in a genuine way. She said she is not Islamaphobic and that this was not her.

As I said, she has taken counselling and she has done some community service. So there are various principles of sentencing at play that try to achieve the right balance. First of all, as the defence points out, she is a first offender. She is 55. She has lived her whole life without conflict with the law and, ordinarily, rehabilitation and restraint are given great weight in those circumstances, but the nature of this mischief needs to be denounced and deterred. The hate behind the message that existed at the time requires denunciation. I do not think specific deterrence is in issue.

I am not concerned you are going to re-offend but others need to get the message. There are aggravating and mitigating factors in this case. The aggravating factors are the hate behind the mischief, at least, on that day. The hurt that it caused not only to the people there but multiple victims, really anyone in the Muslim community. But there is a lot that is positive in this case. First of all, you agreed to plead guilty and you did plead guilty before a trial was set. You have no record. You are remorseful. Your apology. The fact that you have taken counselling.

The fact that you have done volunteer work and the fact that this was isolated in a 55 year life and out of character. In short, you have done everything right since this but there is more that you can do both in terms of insight and to pay back the community. In my view, the aggravating factors and the need to denounce this case requires a period of incarceration, albeit, conditional sentence of house arrest of one month.

The terms of the conditional sentence will be that you will be confined to your home for a month unless you are going directly to or from work or any medical appointments or emergencies for yourself or any other reason the conditional sentence supervisor allows you out. That is for the first month. You will also be allowed out once a week to do personal reasons. One day of the week and for a five hour period. You want Saturdays from 12 to 5? Does that work? I will also let you out for religious services if you want? 12 to 5 Saturday? LAURA ELLIOTT: Yes. THE COURT: Okay.

That will be followed by 18 months’ probation and the terms of probation will be that you keep the peace and be of good behaviour. You take counselling as directed by probation and sign all releases and I am also going to order that you perform 30 hours of community service during your period of probation and I am going to recommend that you perform it in connection with the

Muslim community, if that can be arranged. Do you understand that sentence? LAURA ELLIOTT: Yes. THE COURT: Do you understand as well that if you breach either the probation or the conditional sentence, those are separate criminal offences you can be arrested and if you breach the conditional sentence in particular, you will go right into custody? LAURA ELLIOTT: Yes, Your Honour. THE COURT: Okay. Any other exceptions sought for the conditional sentence? MR. JUSKEY: May I have a brief indulgence please, sir? THE COURT: Yes. MR.

JUSKEY: Your Honour, there’s one further exception I would seek that you would add to the conditional sentence order and that be that she be allowed to be out of her home with the prior written approval of her conditional sentence supervisor? THE COURT: I did say that. MR. JUSKEY: Yes. THE COURT: Any other exceptions, yes. MR. JUSKEY: Pardon me. THE COURT: Okay. MR. JUSKEY: Thank you very much and that’s it from me. THE COURT: So, yes, you have done everything right Ms. Elliott. I believe you are profoundly remorseful for what you have done.

You recognize the hurt that you have caused but the reality these kind of comments, wherever they come from, do cause hurt and do lead – and can lead to further hate and further conduct and I’m sure you recognize that and I’m sure you are remorseful and you’ve admitted it and I’m sure you’ll be able to move forward as well. So for these brief reasons that will be the sentence. All right, thank you. MS. FARIA: Thank you, Your Honour. MR. JUSKEY: Thank you, sir. THE COURT: Thank you. ...WHEREUPON THIS MATTER WAS COMPLETED