R. v. M.R., 2017 ONCJ 943

CITATION: R. v. M.R. , 2017 ONCJ 943 DATE: July 7, 2017 Information No. 15-22135 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. M.R. REASONS FOR SENTENCE BEFORE THE HONOURABLE JUSTICE M. FELIX on July 7, 2017, at Oshawa, Ontario INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PERSUANT TO THE ORDER OF JUSTICE M. FELIX, ONTARIO COURT OF JUSTICE s. 486.31(1) APPEARANCES : Ms. K. Kennedy Counsel for the Crown Mr. D. Barrision Counsel for Mr. M.R. ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S

WITNESSES Exam. Cr- Re- WITNESS : in-Ch. exam. exam. E X H I B I T S EXHIBIT NUMBER ENTERED ON PAGE Transcript Ordered: ....................... July 7, 2017 Transcript Completed: ..................... August 14, 2017 Ordering Party Notified: .................. August 14, 2017 FRIDAY JULY 7, 2017 FELIX, J. (Orally): Thank you. I’m going to address sentence at this time. As I indicated before the recess, this case has been outstanding for several years, and it’s important to give finality to the gentleman before the court, and to the complainant and her family in this case.

So, I’m going to do my best to provide a decision today, having just completed submissions about, maybe, 30 minutes ago. The defendant was found guilty after trial of two

summary conviction criminal offences. Criminal harassment, contrary to s. 264 of the Criminal Code of Canada , and distribution of intimate images, contrary to s. 162.1(1) of the Criminal Code of Canada . Pre-sentence report was prepared, I’ve heard submissions today, and I’ll provide this oral judgment. In the event of a request for a transcript, I reserve the right to address minor edits that do not impact the content of my decision.

Position of the Crown The Crown seeks a custodial sentence of six months on the distribution, and three months on the criminal harassment, and, the maximumlength of probation, with terms, and several ancillary orders. Defence counsel seeks the imposition of an intermittent sentence, recognizing that a jail sentence is the appropriate sentence to recognizethe sentencing principles in this case.

In his usual efficient, and responsible way, defence counsel advocated for a intermittent sentence,and pointed out ways in which I might distinguish the case of my brother justice, the case name is the Queen and AC, 2017, OJ No.2867, 2017, ONCJ 317. That’s a decision of Justice Moiz Rahman, R-A-H-M-A-N, M-O-I-Z. Notwithstanding the position of the defence, I can assure the gentleman before the court, that I have considered whether a conditionalsentence could address the relevant sentencing principles in this case. There are, as we know, five pre-conditions for the imposition of aconditional sentence.

The offender must be convicted of an offence that is not specifically excluded. The offender must be convicted ofan offence not punishable by a minimal term of imprisonment. I must determine that a sentence of less than two years’ imprisonment isappropriate. I must conclude that the safety of the community would not be endangered by the offender serving the sentence in thecommunity. And, last of all, I must be satisfied that a conditional sentence would be consistent with the fundamental purpose andprinciples of sentencing set out in s. 718 of the Criminal Code of Canada.

In this particular case, for reasons that I will outline, aconditional sentence would not be consistent with the fundamental purpose and principles of sentencing set out in the Criminal Code. While the gentleman before the court, in the circumstances he can meet the first four conditions. The last condition I cannot find. Circumstances of the Offence The circumstances of these offences are detailed comprehensively in my judgment at trial, and I will not repeat them here, except in asummary way to recognize that this defendant embarked upon a pattern of conduct designed to criminally harass the complainant.

During this time frame the defendant and the complainant were engaged to be married, with the involvement and approval of both sets ofextended families. The engagement, unfortunately, ended. The defendant criminally harassed the complainant using electroniccommunications. I’m satisfied that the criminal harassment was designed to cause fear in the mind of the complainant.

For the mostpart, the electronic communications were nonsensical ramblings or observations, but at times there was a more ominous tone, such asmessages, or status updates documenting what the complainant was wearing on a particular day at school. As I outlined in detail in myjudgment, the defendant also committed a separate criminal offence. He received intimate photos of the complainant, with her consent,during their courting and engagement. He distributed those photos without her consent to a wide variety of family and friends of thecomplainant, both within Canada, and overseas.

The actions of this defendant disclose a persistent, calculated, frankly intelligent, andskilled approach to the offence of criminal harassment. His actions in this regard are objectively speaking, disturbing. Any personreviewing the record in this trial, documenting the numerous electronic communications, would be concerned about the intention of thedefendant, or his mental state. The second criminal offence, distribution of intimate images, discloses premeditation, and steps taken toavoid detection.

He used an anonymising email service to distribute the intimate photos on two separate occasions, more than a monthapart. But for, his inability to comment on – to refrain from commenting on the distribution in electronic communications, there wouldbe little evidence of his conduct. Criminal Harassment Experienced counsel submitted to this court about the offence of criminal harassment, and the approach of courts. It is clear that courtshave persistently outlined the contours of the offence of criminal harassment, and why it is such a serious offence, deserving ofdenunciation and deterrence.

In the Queen and Bates, B-A-T-E-S, (ON CA), 2000, OJ No. 2558, the Ontario Courtof Appeal described why criminal harassment is so concerning, at paragraphs 30 to 31. “The courts have been made increasingly aware of the escalation of domestic violence and predatory criminal harassment in our society. Crimes involving abuse in domestic relationships are particularly heinous, because they are not isolated events in the life of the victim. Rather the victim is often subjected not only to continuing abuse, both physical and emotional, but also to experiences perpetual fear ofthe offender. In his very comprehensive

article on the history of stalking in the criminal law, Bruce McFarlane, vividly describes theprofile of a stalker at page 43.” “Many stalkers are not violent, but all are unpredictable. The irrational mania that drives them to pursue their victims is beyondcomprehension within the normal framework of social behaviour. It is this unpredictability that generates the most fear, coupled with theknowledge that in some cases, the stalkers behaviour may, without warning or apparent reason, rapidly turn violent.

Escalation of thelevel of threat forms one of the most common features of stalking.” The court went on in paragraphs 35, 36, and 37 in that case to outline passages that criminal lawyers know very, very well in this area oflaw. The focus is on the court providing a very clear message to individuals who will engage in this sort of contact. I quote in partparagraph 36, a quote from a previous case called Denkers, D-E-N-K-E-R-S. “This victim, and others like her, are entitled to break off romantic relationships, when they do so they are entitled to live their lives

normally, and safely. They’re entitled to live their lives free of harassment by, and fear of their former lovers. The law must do what it can to protect persons in those circumstances.” As I indicated, the Court of Appeal in Bates , paragraphs 30 through 31, 35, 36, 37 are often cited in criminal harassment cases for those propositions. In that case of Bates , the court also went on to cite what approval a decision on point, from the Prince Edward Island Court of Appeal, in paragraph 38.

And, once again the Ontario Court of Appeal acknowledge the unsettling aspect of these cases, the very serious physical and, or emotional harm caused to victims, and interestingly, cautions the court to be wary of positive pre-sentence reports depicting the offender as someone who’s actions are entirely out of character. The fact that an offender shows any propensity towards this kind of conduct, regardless of his unblemished past, is cause for great concern, and for a very careful and judicious approach to sentencing.

Factors such as the absence of a criminal record, and expressions of remorse, which must necessarily be considered on sentencing, should not be given undue weight in the sentencing of this offence. “The focus of sentences must be to send a message to the offender, and the public, that harassing conduct against innocent, and vulnerable victims is not tolerated by society, and most importantly, the court must ensure as best it can that the conduct of the offender never happens again.” That’s a quote in part.

The Court of Appeal has continually endorsed this approach to criminal harassment, most recently in the case of Doherty , D-O-H-E-R-T-Y, 2012, OJ No. 5770 , as just one example. Distribution of Intimate Images S. 162.1(1) of the Criminal Code of Canada is a new offence. There are but a handful of cited cases across Canada, so it was an unusual event that I was able to read all of the reported cases in this area. I have read the published parliamentary legislative

summary for bill C- 13. The bill that gave life to this section. I have read the parliamentary cyber crime working group report for bill C-13. And, finally, I have accessed the parliamentary statements enhancer, concerning the rational for this section, see 41st Parliament, 2nd Session, edited handcerpt number 025, Wednesday November 23rd, 2013 House of Commons, Volume 147, Number 025 2nd Session.

These sources, I’ll spare everyone from citing them, these sources however disclose that Parliament’s intent was to address a gap in the Criminal Code regarding the distribution of intimate images, without consent, address the social phenomena of cyber bullying, and address the fact that often the distribution of intimate images is

an act of revenge by a former partner, with the attended[sic] impact on the privacy of the depicted person. I’ve already referred to my collogue, Mr. Justice Moiz Rahman. He recently relied upon these sources in a case provided by counsel, thank you. The case I’ve already cited of AC , at paragraphs 17 through 20. I agree with his assessment that the provision is designed to address the problem of what is colloquially described as “Revenge Porn”.

As he explained in paragraph 18 of his decision in AC ; “The provision is designed to capture exactly the type of conduct in this case, what is colloquially knowns as revenge porn. The minister, meaning the Justice Minister, described the typical means of committing an offence under 162.1 as follows:” “It may be useful to better understand how this behaviour typically comes about. It usually begins, in some sense, with a non-criminal context of perfectly lawful, consensual recording of intimate images, in a private setting. I specifically set aside any images depicting an underage youth.

These images may be subsequently transmitted electronically to a partner, a practice commonly known as “sexting”. Upon the breakdown of the relationship, however, one of the known partners may distribute these images to third parties, without the consent of the person depicted in the image. It is now commonly known as “revenge porn”. That was Canada’s Minister of Justice. As I will detail in a moment, because of particular cultural and religious beliefs, the impact of this conduct on the complainant, in this case, is simply not ascertainable. The complainant has suffered an unquantifiable result.

As I will also detail further in a moment, the defendant can only be described as defiant. The absence of remorse in this case, the absence of empathy, is palpable and real. These are the circumstances of the offences before the court that inform the primary sentencing principles of denunciation and deterrence in this case. Background of the Defendant I was able to access the pre-sentence report two days ago, and read it carefully. The pre-sentence report outlines the background and circumstances of the defendant. He comes from a close, loving, and supportive family.

They are successful migrants from a country consumed by civil war. His parents are hard working, decent individuals, employed, and I am certain that they have done everything possible to assist the defendant with a successful life in this country. I respect, deeply, the views of his mother, and father, and their unconditional support of the defendant. He is fortunate to have that support. The defendant himself is finding his way in life, based on varied and impressive educational pursuits, including in the past, architecture, police foundations, finance, and now he seems settled on information technology.

To be frank, the defendant presents to me as an impressive man. Educated, articulate, erudite, deserving of the love and support of his friends and family. He has no prior criminal record. He will continue to further his education and gainful employment. There are no substance abuse issues, or mental health considerations in this case. Impact on the Victim

The main complainant in this case is the former partner of the defendant. While they did not cohabitate, their culture, custom, andreligion presented a unifying bond for an eventual union. The complainant’s victim impact statement outlines in detail the impact onher. I’ve read that victim impact statement. I’ve heard it here in court, and I am simply not going to be able to do justice to it by readingit or citing it. The complainant in an eloquent fashion, in a balance fashion frankly, has indicated the impact on her life. Her father hasalso presented a victim impact statement.

He is a dignified, honourable gentleman who merely objectively observed the impact on hisfamily. Once again, I’m not going to repeat the contents of the victim impact statement. I listened carefully, I read the statement, and Iappreciate the efforts of the victim and her father to convey they impact on them. To say that the impact is immeasurable, is merely onedescriptive word, I cannot really characterize the impact on the family. As the trial judge, I had the opportunity to witness the painfulrecount by the complainant of the circumstance of the offences before the court. The impact was devastating.

The offence has touchedher extended family, and friends. It even touched individuals associated with her far away overseas. This is reprehensible conduct onthe part of this defendant, and it had a real, and immeasurable impact on the complainant and her family. Applicable Sentencing Principles The Criminal Code of Canada sets out several important objectives and considerations with respect to sentence that are well known tocriminal lawyer and to judges. In brief, s. 718.1 of the Criminal Code mandates that a sentence be proportionate to the gravity of theoffence, and the degree of responsibility of the offender.

This offender, in this case, is totally responsible for his conduct. And, hisdegree of criminal blameworthiness is very, very high. The court should stride to impose less restrictive sanctions if appropriate. Allother reasonable and available sanctions, other than prison, that are consistent with the harm done to the victim, should be considered. Asentence should be similar to sentences imposed on similar offenders for similar offences. Counsel have grappled, as have I, with thatfeature of sentencing, given the limited case law in this area.

I haven’t forgotten that when consecutive sentences are imposed thecombined sentence should be subject to the concept of totality, so that it is not excessively long or harsh. Proportionality: Sentencing Cases: Distribution of Images Having reviewed all of the cases in this area, probably one of the few times I’ll be able to say this as a trial judge, really there’s no pointto citing this case, or that case.

All of the cases were filed electronically in advance by both counsel, to be totally frank, I had all of thecases ahead of time, except for the DaSliva(PH) case, relied on by the Crown, because it was a voyeurism case. Really, at the end of theday, proportionality requires that I strive to balance the criminal blameworthiness of the defendant, the impact on the complainant, andthe sentencing principles to obtain a just result. There’s no formula, there’s no tariff, each case is unique and different.

In a case calledCAM (SCC), 1996 SCJ No. 28, a Supreme Court of Canada decision that is well known, the Supreme Court, atparagraph 98 provided guidance on how difficult it is for sentencing judges to give effect to the proper sentence, and why it’s importantfor appellate courts to exercise deference before intervening, and tinkering, frankly, with the sentence. As I indicated, all the sentencesthat I’ve read are distinguishable on their facts, but they provide some guidance as to what other judges have grappled with concerningthe new sentence. I will comment on really only two of them.

In Calpito, C-A-L-P-I-T-O, 2017 OJ No. 1171, Justice Harris, mycollogue, relied heavily on the expression of real remorse from the defendant, and his demonstrated insight into the impact on thecomplainant. It was notable that that defendant expressed remorse early, and often. He entered a guilty plea, such that Justice Harris, onthat construction, on those facts, found that he was able to fashion a non-custodial sentence, and still drive towards the sentencingprinciples of deterrence and denunciation. That is not this case.

In another case, called AC, that I have already referred to, there arereally ways that that case is distinguishable, frankly, I accept many of the points outlined by defence counsel in that regard. In anothercase filed with the court called PSD, that court found it significant that the defendant plead guilty, and the crime was associated withlimited planning and forethought. The defendant’s crime was rash. The court made a specific finding, interestingly, in that case, thatthere was a low level of harm to the complainant, and there were positive rehabilitative prospects associated with his remorse.

I realizethat at the end of the day it is my responsibility to fix a proportionate sentence, based on all of the relevant factors in this case, and thefundamental purposes of sentencing. Parliament has set out the purposes and principles of sentencing in 718 of the Criminal Code ofCanada. In this case, denunciation, clearly, has to be a focus of this sentence. Denunciation means, convey to the gentleman before thecourt, and to anyone else that would have a similar mindset, that it is absolutely unacceptable to engage in this sort of behaviour. Specific deterrence is a factor in this case.

Interestingly, often specific deterrence may not be the focus, because by the time of asentencing an individual has gained insight into their behaviour. That is absent in this case. This gentleman displays not one drop ofremorse, or leaving aside remorse, empathy or sympathy for the harm that he caused to a woman that he claimed to care for, and hopedto marry. Specific deterrence is a clear consideration in this case.

General deterrence is also a factor in this case, and notwithstandingthe conduct of this gentleman, given the impressive features of his background, his education, and his family, I do recognize thatrehabilitation, although a lessor consideration frankly, is a consideration. The purpose of this sentence is to denounce his unlawfulconduct, and the harm he’s done to the victim and her family and friends. To deter him and others from committing these offences. Toseparate him from society. To rehabilitate him.

And, to ensure to the degree I can that the offender acknowledges responsibility for theharm he has done to the victim and her community, including her family. Mitigating Factors There is a single mitigating factor in this case. This gentleman has no prior criminal record. He’s previously of good background. There’s nothing remarkable there. That is the mitigating factor in this case. I note as well, there are no mental health issues. Nosubstance abuse factors that might help to serve to explain, if not defend, his actions. In terms of his bail, I’m required as sentencingjudge to consider his circumstances.

Given what has occurred in this case, the bail conditions were apt and proper.

Aggravating Factors The aggravating factors in this case are abundant, and clear, and plentiful. S. 718.2 of the Criminal Code requires this court to increase,or reduce the sentence to address relevant aggravating or mitigating circumstances. And, that the court factor in a list of enumeratedfactors that are deemed to be aggravating. The following aggravating factor does apply to this case iii.1, evidence that the offence had asignificant impact on the victim, considering their age and other personal circumstances. That is crystal clear in this case. The victimimpact in this case makes this starkly clear.

I do not necessarily need to find that 718.2 iii is also in play, whether it’s in play by virtue ofthe statute or the circumstances, I find factually that this gentleman grossly abused the trust of a person who he claimed to care for. Aperson to whom he was engaged to be married, at one point. The distribution of intimate images is addressed by a single count, but theconduct occurred twice. Once in October and once in November, after arrest and release on conditions. I cannot quantify howaggravating that factor is.

This gentleman thumbed his nose at the police and the court conditions, and focused, singularly, on causingharm to the complainant, and in particular, her father. On September 11th, the final meeting between this gentleman, and thecomplainant, he actually threatened to release the photos during a conversation with the complainant. As I’ve indicated, his textcommunications, and status updates directed at the complainant were utter nonsense. Designed, calculated, to harass her at all times ofthe day. The core of the defendant’s criminal blameworthiness is his wish to humiliate and harm the complainant.

What is concerning isthat this was not impulsive. This was not a momentary, angry, or bad decision for which he felt bad for later. He sent reams of messageson many different days, and status updates directed at the complainant. And, he deliberated and sent those intimate photos not once, buttwice, more than a month apart from each other. So, each and every time he thought before he did that. The complainant’s privacy wasmanifestly compromised by this conduct. Private photos she meant only for her husband to be, were sent to a wide variety of friends andfamily around the world.

As emphasized, in the victim impact statement, of both the complainant and her father, both the defendant’sfamily, and the complainant’s family practice a very ancient faith. I note that the practioners of that faith were living in organizedadvanced societies, focused on education, and prosperity, when Europe was still in the dark ages. It’s a deeply cultural, and religiouscommitment between the families. The highly aggravating aspect of the defendant’s behaviour is that he has harmed his family first.

His mother and father, as I indicated, are hard working, humble, decent individuals who have shown him every opportunity. Just likemany of us who are first generation Canadians. The parents simply want the child to prosper. I am sure that the defendant’s parents aremystified by the conduct, but they love their son, they will support him, they will be there for him. The defendant has also doneirreparable harm to the complainant’s family, as I have already set out, and as is evidenced in the victim impact statement. Factors Neither Mitigating or Aggravating.

There are a few factors in this case that are not easily characterized as mitigating or aggravating, and I have a responsibility to make surethat any reviewing court knows that I’ve clearly understood those factors. The defendant may not, and will not be punished forexercising his right to a trial. The absence of a guilty plea in this case means there is no finding that the defendant is remorseful byvirtue of a guilty plea. That is it.

There are perhaps many cases where defendants maintain their innocence in the face of conviction, thisis not meant as a personal affront to the court, this is why there are reviewing courts in a democracy. The defendant may take hisconcerns to that court, and litigate any perceived or real deficiencies in the approach of this trial court. The pre-sentence report in thiscase makes it clear that the defendant is defiant, and unremorseful, and I do find that he casts the blame for his predicament elsewhere.

The defendant has done nothing to display any empathy towards the victim, to give her security of mind, for example by conveying insome way that there will no longer be any images disseminated. Some of the cases provided by counsel document efforts by defendantsin those cases to mitigate the damage of what they’ve done. There is nothing here. There is no medical information in this case, there isnot a hint as to the true motive emanating from the defendant himself. Consequently, a court can only infer that the defendant intendedthe actions he committed.

Apparently, his mind was not clouded by the abuse of drugs, alcohol, or mental illness. The objective recordmakes it concerning that there is no medical evidence. Rehabilitation must be a focus of this sentencing, but I have no information toexplain his bizarre behaviour. An explanation would not excuse the conduct, but it would guide the court on rehabilitative aspects of thesentence. So, as part of a probationary term in this case, I must merely grasp at the possibilities available to address the rehabilitation ofthe defendant. I have a responsibility to address consecutive or concurrent sentences in this case.

The Ontario Court of Appeal providedguidance on this issue in a case called Jewell, J-E-W-E-L-L, (ON CA), 1995, OJ No. 2213, at paragraph 27; “In my view the appropriate approach in cases such at the two under appeal is to first identify the gravamen of the conduct giving rise toall of the criminal offences. The trial judge should next determine the total sentence to be imposed, having determined the appropriatetotal sentence, the trial judge should impose sentences with respect to each offence, which result in that total sentence, and whichappropriately reflect the gravamen of the overall criminal conduct.

In performing this function, the trial judge will have to consider notonly the appropriate sentence for each offence, but whether a light of totality concerns, a particular sentence, should be consectutive, orconcurrent to the other sentences imposed.” In a similar case, to this case, involving consecutive sentences for criminal harassment and sexual offences called the Queen and QW, theOntario Court of Appeal provided further guidance at paragraphs 9 through 11. And, cited the sentencing reference book authored byClayton Ruby, Sentencing, 6th edition, published in 2004.

In paragraphs 9, 10 and 11 of that decision.

I won’t refer to the entire cite, butI’ve read those paragraphs, they are of assistance, and the conclusion that the Court of Appeal adopts is in paragraph 11, and I quote; “The authors conclude after reviewing several examples at paragraph 14.13: Ultimately the tests are very flexible, and it becomes a factspecific inquiry whether the connection between the two offences is sufficiently or insufficiently close to merit either consecutive orconcurrent sentences.” In my respectful view, applying the test outlined by the Court of Appeal in Jewell, and in QW, the distribution of intimate images on twooccasions was an aggravating escalation in conduct, separate and apart from the general mode of operation concerning the criminalharassment.

The gravamen of the criminal harassment was electronic communications conveying nonsensical, but sometimes ominous

electronic information. The gravamen of the distribution of intimate images was the conveyance of highly personal intimate photos to a broad cross-section of the complainant’s friends and family around the world. This occurred at the very end of these circumstances, where the complainant was not responding to any of the electronic communications directed at her. The distribution of her intimate images was done to a devastating and incalculable effect on the complainant. For these reasons, I will now impose the following sentence. With respect to the criminal harassment, would you stand please sir.

I sentence you to four months in custody on the criminal harassment, approximating four months is 132 days. I sentence you to a consecutive sentence, on the intimate images, of approximately five months, totalling 152 days. You can have a seat. Because of the principle of totality, I have reduced the sentence that I though was proper for the criminal harassment to the four-month sentence, and I will observe that the gentleman, were he facing the expanded range of sentence available, on an indictable prosecution, in my firm view, the intimate images should receive an even greater sentence.

But, I am limited by the mode of prosecution, and in my view, reducing the sentence in the manner that I have, achieves the aims of totality. So, I’ll reemphasise for the purposes of Madam Clerk, the sentence having regard to totality is 132 days on the criminal harassment, there will be a consecutive 152-day sentence on the intimate images, the approximate sentence is nine months. Pursuant to s. 743.21(1), you’re prohibited from communicating with the complainant, any member of her family, and a list of individuals that will be specified on the order.

Has the Crown provided the list of individuals to Madam Clerk? COURTROOM CLERK: Yes, Your Honour. THE COURT: Thank you. With respect to the DNA application, I’m granting the DNA application on the criminal harassment, it’s a secondary designated offence. I am not granting the DNA application on the second count, because the Crown did not proceed by way of indictment, and I believe that I’m not permitted to. With respect to the imposition of a prohibition under 162.2(1), I have considered the defendant’s educational history, and his field of study.

A blanket prohibition would disproportionally impact his education and his employment prospects. As such, I will order the following prohibition term, and I recognize counsel, Mr. Barrison, that there are opportunities in the Code to apply to vary the prohibition if there is some circumstance that I have not contemplated, which is entirely possible. And, at any time that can be arranged through the trial coordinator before me. The term is, the gentleman before the court will be subject to the following term.

You are not to access the internet, or any public network for five years, unless subject to one of the following exemptions and conditions. One, while on the premises of an educational institution that you are registered to attend, you may use a computer system provided by the educational institution for purposes related to your education. Two, while at a place of employment you may use a computer system provided by the place of employment for the purposes of your employment. Three, you will not use WhatsApp, or any other similar social media application for two years.

Four, you may use the internet, and internet connected device, at any time, to pay bills, obtain services from the government, or correspond for the purposes of your employment, or education. Madam Clerk, do you have that wording? COURTROOM CLERK: Yes, Your Honour. Thank you. THE COURT: Thank you. In addition, I know the Crown has submitted a three-year probation order, is appropriate, I’ve considered the submissions. I’m going to impose probation for 30 months. The conditions of probation will be as follows. To keep the peace and be of good behaviour. Appear before the court when required to do so.

Notify the court or probation officer in advance of any change of name or address. And, promptly notify the court or probation officer of any change in employment or occupation. Term two, reporting. You will report in person to a probation officer within three working days of your release from custody, and after that at all times and places as directed by the probation officer, or any person authorized by a probation officer to assist in your supervision. Term three, residence.

You will live at a place approved of by the probation officer, and not change that address without obtaining the consent of the probation officer in advance. Term six. Do not contact or communicate in any way, directly or indirectly, by any physical, electronic, or other means with the complainant, any member of her family, and an additional list of individuals, witnesses, and other friends and family of the complainant that are listed on your probation order. Stand up please, Sir. Do you understand that term? M.R.: Yeah.

THE COURT: Under no circumstances are you to communicate electronically, or otherwise, with any member of that family and the list of individuals. You may be seated. You will not attend within 200 meters of the residence of the complainant, or her family home, the address of the family home is known to this gentleman currently, and so it will be provided by Madam Crown to the Clerk of the Court to include in the order. If the family has moved since then, then I will not include the address. Term nine.

Do not possess any weapons as defined by the Criminal Code , for example, BB gun, pellet gun, firearm, imitation firearm, cross-bow, prohibited, or restricted weapon, or device, ammunition or explosive substance, or anything designed to be used, or intended for the use to cause death or injury, or to threaten or intimidate any person. If you now possess any of the items referred to you must surrender them to the police within two hours of your release from custody. All licenses and registration certificates pertaining to these things referred to above shall be surrendered forthwith.

Do not apply for any such licenses, or registration certificates. This gentleman has every opportunity to, his parents have worked hard to give him prospects in this country. So, notwithstanding in his approach today, I do see the prospect of rehabilitation. Term eleven. Attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the probation officer, and complete them to the satisfaction of the probation officer for domestic violence, which may include the Partner Assault Response Program.

You shall sign any release of information forms, this will enable your probation officer to monitor your attendance and completion of any assessments, counselling, or rehabilitative programs as directed. You shall provide proof of your attendance and completion of any assessments, counselling, or rehabilitative programs as directed. Would you stand please sir? Do you understand the terms of probation? M.R.: Yes. THE COURT: If you do not follow the terms of probation it is a brand new criminal charge, and you’ll be brought back to the court on prosecution for those matters. You have to follow your probation order.

If there are problems with it, conflicts with work, or anything like that, ask your probation officer to communicate with me so I can adjust your conditions. Don’t be in breach. You have to make sure

this is the first and the last time you are ever in a court. I am so disappointed to have to sentence you today, and do my duty. It is not something that I am feeling happy about. And, I really feel for your family, and everything they have done for you. So, when you finish serving your sentence, you go back out and repair that relationship with your family. You have a lot going for you. You are an intelligent person. You could be an entrepreneur, you could be doing anything. Why you sought to get involved in this, you couldn’t let this go, I will not understand, and you’re not required to explain.

I sincerely hope that you will take this opportunity to turn your life around, and honour your parents and your family with what they’ve done for you in this country. Please be seated. The victim fine surcharge of $100 will apply on each count, one day in default concurrent, and I’ll give the gentleman two years to pay the victim fine surcharge. Madam Crown Attorney, have I failed address any aspect of this sentence? MS. KENNEDY: No. You’ve covered everything, Your Honour. THE COURT: Counsel, Mr. Barrison? MR. BARRISON: No, Your Honour. THE COURT: Madam Clerk. Yes, I thank you.

I gave a draft to Madam Clerk, and she’s reminded me on my draft there is also a term, you are not to possess any images of the complainant in this case. Full stop, intimate or otherwise. No images. MS. KENNEDY: And, Your Honour, I just want to ensure that it’s clear on the record that there’s also an order under 743.21 with respect to non-communication while in custody? THE COURT: I made that order under 743.21 explicitly, the fifth bullet point of my sentence... MS. KENNEDY: Thank you. THE COURT: ...and the only deference was to the list of names provided by the Crown.

It’s not necessary for me to say all of the names on the record. MS. KENNEDY: Thank you. THE COURT: It will be on the order, given the order of publication that I have made. That is the sentence of this court. Thank you to counsel, remove the prisoner please, thank you officers. MR. BARRISON: Thank you, Your Honour. MATTER CONCLUDED FORM 2 Certificate of Transcript Evidence Act , Subsection 5(2) I, Sheila Douglas, certify that this document is a true and accurate transcription of the recording of R. v. M.R. in the Ontario Court of Justice held at 150 Bond Street East, Ontario taken from Recording(

s) No. 2811_107_20170707_090749__10_FELIXMA which has been certified in Form 1. ________________________________________

August 13, 2017 Sheila Douglas - Certified Court Reporter