R. v. Lynch Date:, 2017 BCPC 172

Citation: R. v. Lynch Date: 20170424 2017 BCPC 172 File No: 43069-3-b, 43069-4-b, 43069-5-b, 43365-2-C, 43365-3-A Registry: Penticton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KEVIN FREDERICK LYNCH REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G.W. KOTURBASH Counsel for the Crown: A. Vandersluys Counsel for the Defendant: M. Newcombe Place of Hearing: Penticton , B.C. Date of Hearing: April 24, 2017 Date of Judgment: April 24, 2017

Introduction [ 1 ] THE COURT: Mr.

Lynch pled guilty to criminally harassing his former girlfriend, her current partner, and her mother over a four-year period; breaching conditions of his bail by not obtaining the permission of his bail supervisor before changing his address and failing to abide by a 50-kilometre area restriction for Princeton; and breaching his probation order by failing to report to his probation officer. [ 2 ] The Crown submits that an appropriate sentence on the charge of criminal harassment would be two years; with respect to the charge of failing to report, they recommend a sentence of 60 days and a further 90 to 120 days for changing his address without permission.

Mr. Lynch's counsel argues that because his client had already served 538 days of presentence custody, a time-served disposition followed by a period of probation would be appropriate. The Crown agree that Mr. Lynch is entitled to enhanced credit for a total of 807 days. Both parties agree that a lengthy period of probation is appropriate. However, they disagree on whether Mr. Lynch ought to be prohibited from attending Princeton. Circumstances of the Offender [ 3 ] Mr. Lynch is 46 years old. His father committed suicide when he was only 19. For the past 18 years, he has lived in Princeton.

Following his release from custody, he would like to return to Princeton to live with and care for his mother. [ 4 ] Mr. Lynch was married when he was 21. The marriage lasted for a short period. He had other relationships, but nothing of a significant nature until he met the victim, Jeri McMullin. Their relationship was off and on from 2009 to 2013. [ 5 ] Mr. Lynch claims that he no longer has any interest in pursuing a relationship with Ms. McMullin, and will abide by a non- contact order. [ 6 ] Since 2010, Mr. Lynch has not had any long-term employment.

Before being incarcerated, he was collecting social assistance. His mother helped him with his cellphone, truck, and rent payments. When he is not in custody he occupies himself by lifting weights and playing videogames. [ 7 ] Mr. Lynch claims that he has been on the methadone program since 2011 and recently switched to sub Oxone to treat his heroin addiction. He told the pre-sentence report writer that he has not used drugs, aside from daily marihuana use, since being on methadone. However, this does not coincide with the finding of the psychiatrist. According to Dr. Lessing, Mr.

Lynch suffers from substance abuse problems and is in semi-forced remission only because of his incarceration. He states that Mr. Lynch endorses the use of heroin and marihuana. [ 8 ] The prison logs indicate general satisfactory behaviour, except for an overdose incident in September 2016 that required hospitalization. Mr. Lynch claims that he overdosed when he used another inmate's creamer that he did not know contained methadone. Fortunately, Corrections staff was able to revive him. [ 9 ] Despite previous probation orders, Mr. Lynch has not participated in any formal intervention to deal with his behaviour.

He claims not to have any anger management or addiction issues that require any future intervention, but he expresses a willingness to participate in any counselling or treatment if it is ordered. The Circumstances of the Offence [ 10 ] Mr. Lynch started a relationship with Jeri McMullin in 2009; the parties separated on August 2, 2011. [ 11 ] On August 4, 2011, Ms. McMullin and her mother told police that Mr.

Lynch had been standing outside their residence at 3:30 a.m. and left a note on their car which read, "Fuck off and die." On other occasions they witnessed him sitting in his vehicle honking his horn and playing loud music. He also attended Jeri McMullin's place of work and had to be asked to leave by the police. [ 12 ] On August the 8th, 2011 he returned to the McMullin’s residence and broke two windows. He was arrested and charged with mischief and uttering threats. He was released on an undertaking. [ 13 ] On August 15th, 2011 he was detained in custody and, on September 23rd, 2011 pled guilty to the charges.

He was sentenced to a sentence of time served or 75 days and placed on probation for a period of 12 months. A term of his probation order directed him not to have any contact with Ms. McMullin. Despite the no-contact condition, the parties reconciled, but broke up shortly thereafter. [ 14 ] On October the 11th, 2011 Jeri McMullin told police that Mr. Lynch had been calling her several times and threatened to kill her then boyfriend. She also suspected that he had slashed the tires on her boyfriend's vehicle. [ 15 ] On April 5, 2013, Jeri McMullin's mother, Doris McMullin, told police that Mr.

Lynch was calling her and leaving messages calling her names. She asked him not to contact her and he agreed. She also asked police to speak to him and they did. [ 16 ] On May 3, 2013, the McMullins reported that Mr. Lynch had made hundreds of calls and texts to them over a two-week period. The focus of the calls and the texts were threats to kill John Tompkins, Jeri McMullin's boyfriend. [ 17 ] Jeri McMullin told police that she and Mr. Tomkins went to a local fashion show. Mr. Lynch showed up and sat directly in front of them and, throughout the evening, texted her threatening to kill Mr.

Tomkins. [ 18 ] On January 20, 2014, Mr. Lynch broke into the residence of Jeri McMullin and Mr. Tomkins. He forced his way through two doors to get inside the residence. When he got inside, he said, "I will kill you, bitch," and fled. Jeri McMullin told police that they had also seen Mr. Lynch following them around town; that Lynch had called her saying, "I'm going to kill you, bitch," and he even went to

Mr. Tomkins' place of work. She said that they had not called police because they were afraid and that she had tried to talk with Mr. Lynch to diffuse the situation. [ 19 ] Mr. Lynch was arrested and charged with break and enter, uttering threats, and assault. He was detained in custody. The charges were ultimately stayed in July 2014 because neither Ms. McMullin nor Mr. Tomkins were willing to testify because of their fear of Mr. Lynch. Police learned that Mr. Lynch had threatened to have them harmed if they did testify. [ 20 ] On February 11, 2015, Mr. Tomkins told police that he had been assaulted by Mr.

Lynch. His mouth and lips were bleeding. Neither Tomkins nor McMullin wanted Mr. Lynch charged because they feared things would just get worse. Police did not lay charges. [ 21 ] In May 2015, Mr. Lynch was charged with mischief, possession of a weapon for a purpose dangerous to the public peace, and uttering threats. The charges related to an incident of where Mr. Lynch had slashed the tires of a person who owed him money. [ 22 ] On October 8, 2015, Mr. Lynch pled guilty and received a sentence of one day and 12 months' probation. [ 23 ] On October 9, 2015, following Mr.

Lynch's release from custody, Doris McMullin, Jeri McMullin’s mother, told police she was again receiving texts from Mr. Lynch. She described them as "worse than before." Both Jeri McMullin and Mr. Tomkins were living with her at the time. She said that when Mr. Lynch was in custody for the break and enter charge, he wrote to her indicating a desire to fight Mr. Tomkins and intimated things would not go well for Mr. Tomkins. The text message read: Why are you doing this? I need mercy and compassion. Help me let it all go. I beg you. I love you. It is a do or die type mission. You own the keys to the exit.

Another one read: I cannot deny I hate Tomkins more than anyone. The next time I see him alone I will engage him in combat. Jeri and I would have -- work things out with him. … Advise Tomkins to lay low until I'm gone. … As long as the two of us are in town, his luck will run out. [ 24 ] More texts followed between October 15th to the 20th, 2015. One of the texts read: I will reciprocate Tomkins' pain when I see him next. I have a piece under my seat, my nine. [ 25 ] Some of the texts included ominous photos of Mr. Lynch dressed in a balaclava. Ms. McMullin told police that Mr.

Lynch had also been parking and watching her residence at all hours of the day. According to Ms. McMullin, Mr. Lynch would sit in his vehicle, and watch the residence with the music blaring. She did not call police because he rarely stuck around long enough for police to arrive. She said that he would text her saying he was coming to her property. A neighbour also witnessed Mr. Lynch sitting in his vehicle across from Ms. McMullin's residence. [ 26 ] Following Ms. McMullin's complaint, they patrolled Princeton for Mr. Lynch's vehicle. They located him driving and engaged in a high-risk takedown. No gun was found.

The arrest occurred at 9:08 p.m. and Mr. Lynch was charged with breaching his curfew. He was held in custody and pled guilty the next day. [ 27 ] He was placed on probation. The order included a condition that he not have any contact with the McMullins or Mr. Tomkins. He was directed to report immediately to his probation officer. He did so and, while at the probation office, asked to borrow the officer's phone. Unbeknownst to the officer, he called both Jeri McMullin and Mr. Tomkins. [ 28 ] On October 23rd, 2015, Ms. McMullin received a further text and voice message of threats to Mr.

Tomkins and a stated intention to continue pursuing her daughter Jeri. In one text directed towards Mr. Tomkins, he said: I will not kill you, but make you such a burden that you will move. I mean a fucking wheelchair and colostomy bag. [ 29 ] In another text, he said he would sit across from the Subway and watch them all day. He also continued driving by Ms. McMullin's residence. Mr. Lynch was arrested by police and charged with a global charge of criminal harassment between August 6, 2011, and October 15, 2015. Mr. Lynch remained in custody until September the 8th, 2016.

On the first day of his trial for criminal harassment, Mr. Lynch pled guilty. The Crown consented to his release from custody. [ 30 ] A term of bail included a condition that he not go within 50 kilometres of Princeton. The sole exception to the no-go term was that he could attend on one occasion in the accompaniment of a police officer to get his personal belongings. [ 31 ] On Saturday, September 10th, 2016 Mr. Lynch contacted the Princeton RCMP and left a message saying that he was enroute to Princeton to get his belongings.

He did not make any arrangements to meet with police. [ 32 ] When he first reported on bail, Mr. Lynch told a supervisor he was residing at a particular residence. At 1:07 a.m., on September the 11th, 2016 police attended the residence to ensure he was abiding by his curfew. The resident said he did not know Mr. Lynch and he was not living there. [ 33 ] Police located Mr. Lynch driving in Princeton on September 14 th , 2016. Mr. Lynch was arrested and has been in custody by

consent since that time. According to Mr. Lynch, despite agreeing to the terms of his release, he needed to return to Princeton because he did not have anywhere to live in Penticton. The Psychiatric Assessment [ 34 ] In preparation for sentencing, Mr. Lynch consented to being assessed by Dr. Lessing, a psychiatrist working for Kamloops Forensic Psychiatric Commission. Dr. Lessing writes: Mr. Lynch has a lifelong pattern of disregard for norms.

He lives with his elderly mother and threatens in an inconsistent way that he will remain in Princeton because of her, in order to help her, and also because he has no other place to go. He states he will have no regard for court orders, and in the past these orders did not seem to influence Mr. Lynch's behaviour or his motivations or motivations to move or to leave victims alone. ... Mr. Lynch reported he was only pleading guilty to texting his girlfriend in October.

He explained his behaviour was warranted by this being his first long-term relationship and "for the first time she was not talking to me and I sent her desperate texts". Mr. Lynch is unrepentant, blaming his victims for their inconsistent messages, Jeri for not contacting him, and the system for unfairly persecuting him. Mr. Lynch believes that the RCMP is pursuing an agenda to get him to leave Princeton; he presumes it is because he is disrespectful to them. [ 35 ] Mr.

Lynch tried to relay his version of events: ...insisting on unfairness of the situation as well as explaining why his behavior should be understandable to most. ... Mr. Lynch did not deny the allegations, but downplayed his level of aggression and minimized his assaultive behaviour and harassing criminal past, including past incarcerations. Mr. Lynch is aware of the charges against him, he insinuates that he already has another girlfriend, and is adamant that he will not be driven out of Princeton, since he needs to take care of his mother. [ 36 ] According to Dr. Lessing, Mr.

Lynch does not suffer from any acute mental illness. He concludes his assessment by stating that, if no external controls are created, Mr. Lynch is likely a high risk to reoffend against the same victim in the same manner. [ 37 ] I reviewed the victim impact statement. There were some objectionable statements in the victim impact statement including allegations of other serious offences. I have not considered this other alleged offending behaviour. [ 38 ] It is clear that Mr. Lynch has instilled a great deal of fear in victims and they continue to be very fearful for their safety.

The Objective Seriousness of the Offences [ 39 ] The objective seriousness of criminal harassment is informed by the maximum sentence for the crime which is 10 years. Objectives of Sentencing [ 40 ] The statutory objectives of sentencing are set out in s. 718 of the Criminal Code . Although I have considered all, the following are paramount in the case at hand: 1. Denunciation: the sentence that I impose must reflect society's condemnation of Mr. Lynch's conduct that encroached on society's basic code of values. 2.

General deterrence: the sentence must discourage other like-minded people from engaging in similar conduct. 3. Specific deterrence: the sentence must discourage Mr. Lynch from engaging in similar conduct in the future. 4. Separation of the offender from society: it is clear that previous efforts at deterrence and rehabilitation have failed and his separation from the community is necessary. 5.

Rehabilitation: although always important where, as in this case, an offender has a longstanding history of harassing behaviour, little remorse, and minimizes his offending behaviour, rehabilitation is of secondary import. 6. Reparation: the victims in this case deserve the opportunity to live a peaceful life without fear that Mr. Lynch will exact revenge or follow through with his threats. Returning the victims to the position they were in before Mr. Lynch began engaging in his harassing behaviour is, although a difficult objective, an important one.

Principles of Sentencing [ 41 ] Some other important principles of sentencing in this case are: 1. Proportionality: any sentence I impose must be proportionate to the gravity of the offence and the degree of Mr. Lynch's responsibility. 2. Restraint: courts must always exercise restraint and seek out the least restrictive measure in determining a fair and just sentence. 3. Totality: the cumulative effect of sentences imposed must not be unduly long or harsh. 4. Parity: sentences should be similar for similar offences committed by similar offenders in similar circumstances. However,

uniformity in sentences is secondary to a fit sentence and a uniformed approach to sentencing. The Mitigating Factors 1. Guilty plea: by pleading guilty, Mr. Lynch spared his victims from testifying and the anxiety of an uncertain outcome. However, the mitigating effect of the plea must be weighed against the fact that Mr. Lynch entered his plea on the first day of trial, which in turn would not have spared the victims the anxiety of preparing for the trial, nor the system much of the expense of conducting a trial.

Furthermore, with most guilty pleas, an inference can be drawn that the offender is remorseful, not so with respect to Mr. Lynch. Aggravating Factors 1. Criminal record: Mr. Lynch has 15 prior convictions which include the following: 1991, harassing telephone calls; 2002, criminal harassment and breach of undertaking; 2002, robbery; 2011, uttering threats and mischief; 2015, breach of recognizance; 2015, mischief and possession of a weapon for a purpose dangerous to the public peace; 2015, breach of probation. The longest period he has spent in custody in 10 months for robbery.

The prior convictions for criminal harassment are aggravating. 2. Rapid rate of recidivism: within 10 days of being sentenced, Mr. Lynch resumed his harassing behaviour. Reoffending shortly after release from custody demonstrates that the offender did not learn anything from the previous sentence. The timing of the contravention of the orders in relation to the making of the orders is also an aggravating feature in this case. A breach that is sufficiently proximate to the making of the order is a further indication to me that the accused, Mr. Lynch, has little respect for this court and its orders. 3.

Escalating behaviour: Mr. Lynch's behaviour escalated from text messages to breaking into the residence, intimidating them from testifying, sending photographs of himself in a balaclava. Some of his offending behaviour occurred in the face of court orders and, in one instance, even incarceration. Given the escalating pattern of conduct, there is a high risk that Mr. Lynch will reoffend. 4. Offence committed while on probation and bail: Section 264(1) (

b) of the Criminal Code provides that it is a statutory aggravating factor when the offender contravenes a court order during the offending behaviour. Not only did Mr. Lynch contravene orders, he did so in a very flagrant and brazen manner. This indicates dim prospects for rehabilitation. The need to isolate Mr. Lynch from society each time he refuses to obey court orders that are designed to protect the public. Victims of crime need to be able to trust that the criminal justice system will protect them.

When the accused breaches a no-contact order, especially in a brazen and flagrant way, it makes the court appear impotent and robs the victim of any sense of security. 5. Prolonged, sustained, and systemic behaviour: Mr. Lynch's harassing conduct occurred over a period of four years. This demonstrates a sustained and deliberate course of conduct increasing Mr. Lynch’s culpability. 6. Disregard for previous warnings: Mr. Lynch disregarded warnings from his victims, the police, Community Corrections, and the courts. Not only did he persist, he continued to escalate matters. 7. The domestic nature of the offence:

Section 718.2 (a)(ii) of the Criminal Code deems it an aggravating factor when the crime involves abuse of a spouse or common law partner. This includes a former partner. Appellate courts have often commented that violence and spousal abuse are serious offences that require denunciatory sentences. 8. Vulnerable victims: the victims in this case are particularly vulnerable. They live in a remote rural area that limits the police to respond immediately to their complaints. 9. Intimidating victims and dissuading them from testifying. 10.

Entering the victims' residence: doing so exposed the victims to a higher degree of danger and dismantled any sense of security that they might have enjoyed while in the confines of their own home. I cannot underscore enough the importance society places on the sense of security we should all feel in our homes. Robbing someone of that is a very serious matter. 11. Multiple victims. 12. The impact on the victims: the victims lived in a perpetual state of fear and anxiety and it must be particularly distressing for them when even court orders and prison walls have been unable to provide adequate protection. 13.

Physical violence: on at least one occasion, Mr. Lynch engaged in assaultive behaviour by striking Mr. Tomkins causing his mouth and lips to bleed. 14. Motivated by revenge: Mr. Lynch's central motivation was to exact revenge of Ms. McMullin for leaving him and Mr. Tomkins for engaging in relationships with her. Even though, Mr. Lynch’s perception that he was the one wronged is completely misguided, it is aggravating that he acted upon that misguided belief that he was entitled to exact revenge. In R. v.

Samoilov , 2013 ABCA 261 , the Alberta Court of Appeal had this to say about the aggravating aspect of revengeful-type crimes: The idea of revenge, for wrongs to oneself or to those close to one, is a natural human thought, and so one deeply embedded in some cultures. Therefore, such a motive makes a crime more serious, but at the same time, more attractive in the eyes of many sections of the public, including those hot-headed or with angry personalities. Where a crime is attractive, general deterrence is very apt. 15. Lack of insight into offending behaviour: Mr.

Lynch seeks to minimize and justify his offending behaviour and maintains that although he is willing to go to counselling, he does not need it. His lack of insight demonstrates not only a complete lack of understanding of the harm he has caused, but that he remains a high risk to the public. Banishment [ 42 ] If a period of probation forms part of Mr. Lynch's sentence, the Crown seeks an order banishing Mr. Lynch from the

community of Princeton. The three victims continue to reside in Princeton on an acreage some distance from any immediate policeresponse. Mr. Lynch, on the other hand, argues that he has lived in Princeton for the past 18 years. His mother still lives in Princeton.She is aging and requires his assistance. [43] Banishment is a condition that removes an accused from his or her habitual place of residence or environs. A banishmentcondition is rare. In most cases, it is fundamentally wrong to foist one community's problem onto another.

Such a condition will be fit ifit is reasonable and desirable for protecting society and facilitating the reintegration of the offender into the community. The purpose ofsuch a term is to remove the offender from the place where he habitually gets into trouble or associates with or where he has threatenedor terrorized particular individuals. [44] Banishment orders cannot be penal such that their sole purpose is to promote deterrence or denunciation.

Where the accused hascommitted repeated violence against someone, particularly a spouse, banishment can be an effective tool to manage the risk for thevictim. [45] In R. v. White, 2015 BCSC 2283, a banishment order was upheld where the accused had been convicted 35 times for breachinghis probation order. [46] In R. v. Felix (2002) 2002 NWTSC 63 , 7 C.R. (6TH) 230 (N.W.T.C.), the appellate court upheld a banishment orderwhere the accused had a serious record for spousal violence and was on probation when he committed the most recent assault.

The courtrecognized that since both parties lived in a small northern community, it would have been impossible to prevent future encounters withthe victim unless the offender lived elsewhere. [47] When the court imposes a banishment term, it must also give careful consideration to its impact and weight on the overallsentence. In R. v. R.R.M., 2009 BCCA 578, the British Columbia Court of Appeal found that the trial judge erred in not reducing theoverall length of the jail sentence in exchange for imposing the banishment order.

The court said this: [15] In this Court, the appellant concedes that a custodial sentence for this offence was not an unfit sentence. He submits, however,that the sentencing judge erred in law by failing to consider his banishment from the First Nations communities in which he has lived, asa mitigating factor in determining the length of his custodial sentence. He contends that a period of six to nine months should have beendeducted from his custodial sentence based on the reasoning in R. v. Griffith (1998), (BC CA), 128 C.C.C. (3d) 178(B.C.C.A.).

In that case, the appellant was convicted of mischief and received a suspended sentence and a two-year probation order. Aterm of his probation order restricted him from attending at his residence for the duration of the probation order.

In concurring reasons,Madam Justice Huddart stated at para. 51: In practical terms, the removal of a person from his home and place of business for two years would be regarded by many reasonable,well-informed people, as punishment at least the equal of six months’ imprisonment, when regard is had to the availability of temporaryand early release programmes under the provincial corrections systems. In saying this, I recognize that protection of society may requirea condition of release an offender might regard as punishment.

However, such a condition should be imposed only after all relevantevidence is heard and considered. [16] The Crown agrees the sentencing judge erred in law in refusing to consider the appellant’s banishment as a mitigating factor.Counsel acknowledges that the concept of banishment carries with it a “strong element of deprivation with the attendant curtailment ofthe freedom of mobility” ... and that courts have recognized banishment as a harsh condition in a probation order ...

They have alsorecognized that banishment (or a “no go” term of an order) as a form of punishment by the court might be imposed in exchange forconventional imprisonment ... The Crown submits, however, that the real issue in the appeal is whether this error in law rendered thesentence imposed demonstrably unfit. The Crown contends that it did not. [48] A restriction that Mr. Lynch not be found within a 50-kilometre radius is necessary in this case in order to protect theMcMullins and Mr. Tomkins. It would be wrong, having regard to Mr.

Lynch's history, not to utilize every tool available to the court totry and prevent a continuation of the harassment. [49] Although it is my view that the monitoring of this condition with an electronic bracelet would add another blanket of protection,it has been brought to my attention by Community Corrections that without a residence, either a landline or a cellphone, they are not ableto provide such a service. At one point during the sentencing hearing, the matter was adjourned to inquire from Community Correctionswhether or not they could assist Mr.

Lynch upon release in finding suitable housing to enable the court to impose the use of an electronicbracelet. Unfortunately, Mr. Lynch chose to rebuff these efforts. [50] There is also the issue of Mr. Lynch requiring a cellphone in order to be approved for the bracelet. Without either a cellphone ora landline, Mr. Lynch cannot be monitored with a bracelet. Community Corrections shares the same concerns that the court hasregarding the safety of the victims, but are limited in what they can do. I am hopeful that if a cellphone is the only impediment toelectronic monitoring when Mr.

Lynch is released from custody that Community Corrections or the police are able to find the $30 to$45-per-month that would be required for a cell phone. [51] Since I intend to banish Mr. Lynch from Princeton, I will as instructed by our Court of Appeal take that into account whendetermining the appropriate length of any further jail time. Mr. Lynch's Presentence Custody Credit [52] Mr. Lynch has been in custody for 538 days. He is entitled to enhanced credit for a total of 807 days. Sentence Precedents [53] I was not provided with any sentencing precedents.

Given the serious nature of the matter, I chose to conduct my own research,provided the cases I found to both counsel, and gave them an opportunity to review and comment on them, to which they declined.

[54] A review of the cases reflects, as both counsel have pointed out, a very broad range of sentences from suspended sentences tolengthy periods of incarceration. In R. v. Campbell, 2012 BCSC 904, Mr. Justice Barrow explains at paragraph 12: It is necessary to characterize the gravity of this offence in order to find the appropriate sentence. There is no usual range of sentence foroffences of this kind because, perhaps more than most offences, they can be committed in an almost infinite variety of circumstances ...The cases to which the Crown has pointed demonstrate that clearly.

They also demonstrate that some of the factors that are significant toassessing the gravity of the offence are the length of time over which the harassment has occurred and the motive for it. [55] The Ontario Court of Appeal in R. v. Bates, (ON CA), [2000] O.J. No. 2558, provides some guidance forjudges tasked with sentencing someone for criminal harassment. In that case, Mr. Bates was given a suspended sentence and three years'probation after pleading guilty to three counts of assault, six counts of failing to comply, and one count of criminal harassment.

He wasalso found guilty after trial of uttering a death threat. The offences, which occurred over a 15-month period, arose from the breakdown ofthe respondent's relationship with his girlfriend. By the time of the sentencing, the respondent had served seven months in pretrialcustody. [56] In the course of an argument between the respondent and the complainant, the respondent called the complainant names. Heslapped her across the face knocking her to the floor, picked her up, and threw her against a cupboard. She made it clear to him that shewished to end the relationship.

He refused to respect her wishes and regularly telephoned her and attended at her home and workplace.The complainant requested protection from the respondent's persistent harassment. [57] The respondent continued to harass her, was arrested on several occasions, for failing to comply with the terms of a judicialinterim release order and for uttering threats and minor assaults. On one occasion, he showed the victim an imitation handgun and twobullets intimating one was for him and the other for her. The accused was assessed by a psychiatrist and was not deemed a significantrisk to his victim.

Despite that fact, that Mr. Bates' criminal record only included a conviction for dangerous driving and refusal, theCourt of Appeal allowed the appeal and said the trial judge should have imposed a sentence of 30 months.

At paragraphs 30 to 42, thecourt states: 30 The courts have been made increasingly aware of the escalation of domestic ... 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, [by] both physical and emotional, but also experiences perpetual fearof the offender. 31 In his very comprehensive

article on the history of stalking and the criminal law, Bruce MacFarlane vividly describes the profileof a stalker at p. 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 stalker's behaviour may, without warning or apparent reason, rapidly turn violent.

Escalation of thelevel of threat forms one of the most common features of stalking. ... 35 Domestic violence and harassment cases most often involve conduct directed by a male spouse or partner against a woman. Yetoffenders who feel empowered to harass a partner or former partner with impunity will not necessarily confine their behaviour to thatperson, but may also harass and terrorize [their] friends and family members.

As this case illustrates, the respondent somehow perceivedthat his love and need for the complainant allowed him to be an unwanted presence in her life and in the lives of her family andassociates, and to threaten and terrorize them to achieve his ends. His irrational actions made him a menace to Ms. Emmett and to thoseclose to her. 36 Consequently, when an offender like the respondent comes before the court for sentencing, it is important for the court todenounce his conduct in the clearest [of] terms by fashioning a heavy sentence. The statement of this court in R. v.

Denkers ... at 394,[when] the accused was appealing his sentence for the attempted murder of his former girlfriend, is equally applicable to cases ofcriminal harassment: ["(The) victim," and I quote] [The] victim, and others like her, are entitled to break off romantic relationships. When they do so they are entitled to live their livesnormally and safely. They are entitled to live their lives free of harassment by and fear of their former lovers.

The law must do what itcan to protect persons in those circumstances. [In this case its order --] In this case its order that the appellant [it is ordered that theappellant] not have contact with the victim failed to provide that protection. It [also] follows that the principles of general and specific deterrence must be the overriding considerations in the determination of a fitsentence in this case. Those principles demand a very heavy sentence to act as a general deterrent to other persons who cannot abide [by]their rejection by a person whom they love.

The sentence must act as a specific deterrent to this appellant who was not deterred by thevictim's requests that he leave her alone nor by a court order requiring him to do so. ... 38 In the case of R. v.

Wall (1995), (PE SCAD), 136 Nfld. & P.E.I.R. 200 at 203, the Prince Edward Island Courtof Appeal dealt specifically with the new criminal harassment section, and in particular, the proper approach of a sentencing court in suchcases [and I quote]: The very unsettling aspect of dealing with these offences in the criminal justice system is that, undoubtedly, many offenders will bepresenting themselves with no criminal record and with the reputation of being both a good family and community person.

The otherunsettling aspect of these cases is that if the pattern of harassing conduct continues and is not properly dealt with by the sentenceimposed, the result could be very serious physical and ... emotional harm to the victim. In passing [a] sentence trial judges must,therefore, be wary of positive pre-sentence reports depicting the offender as a person whose actions, in respect to the offence, are entirelyout of character.

The fact [that] an offender shows any propensity toward this kind of conduct, regardless of [any] unblemished past, iscause for great concern and for a very careful and judicious approach to sentencing. Factors such as the absence of a prior criminalrecord 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 insure, as best it can, that the conduct of the offender never happens again recognizing that, if it does, a far more serious offence could be committed.

The principles of sentencing must be applied with this focus squarely in mind. ... 42 The number of recent cases continuing to reach this court emphasizes the extent of the problem of criminal harassment and the need for sentencing courts to respond to this type of offence in the most forceful and effective terms, sending the message of denunciation and general deterrence to the community, and specific deterrence to individual offenders. [ 58 ] In R. v.

Taylor , 2014 BCCA 304 , our Court of Appeal upheld a sentence of four-and-a-half years for criminal harassment and one-year concurrent for a breach of a non-contact order. The appellant was 57 years old and came from a very dysfunctional family. He has 25 prior convictions including a number involving domestic violence. He and the victim had been involved in a six-year tumultuous relationship. He had been convicted of assaulting, confining, and threatening the victim in the past. [ 59 ] After their separation, the victim married another man who the appellant called when he found out.

He left a message saying he knew who her husband was. He was arrested and, shortly after finishing his custodial sentence, began an obsessive and calculated course of conduct designed to intimidate the victim and persuade her to leave her husband. He surreptitiously recorded the victim’s residence, accessed her email, and sent inflammatory letters to various people. [ 60 ] He was convicted of breaching a no-contact order and criminal harassment. The trial judge found that the accused had expressed some remorse.

The psychologist concluded that the offender suffered from a delusional disorder for which he was unwilling to be treated. For these reasons, he had an elevated risk for future stalking behaviour and violence towards the victim. At the time of sentencing, the accused was homeless and did not have any community support. [ 61 ] The Court of Appeal agreed with the trial judge that incarceration and intensive treatment were the only means of ensuring the public safety. Although the sentence was considered to be at the high end of the range, it was not unfit. [ 62 ] In R. v.

Doherty , 2012 ONCA 855 , the appellant was charged with criminal harassment, two counts of attempting to obstruct justice, and two counts of breaching a court order. He pled guilty to the latter two charges and was convicted of the first three. He was sentenced to four years for criminal harassment, one year each on the obstruction-of-justice charges consecutive to the four years, but concurrent to each other, and six months for each breach, again, consecutive to the other sentences, but concurrent to each other. The aggregate sentence was five-and-a-half years.

The Court of Appeal upheld the sentence as appropriate. [ 63 ] The circumstances in that case were that Mr. Doherty responded to an ad by the victim looking for a roommate. When the victim decided to live with someone else, the accused became verbally abusive, he repeatedly insulted her, dropped in on her and slipped notes under the door. He also made threats to her about what may happen to her when she is out walking. He said he knew a Hells Angel's member and she might be killed. [ 64 ] The victim told Mr. Doherty that she did not want any contact with him. Police also spoke with him.

However, he persisted in harassing the victim by calling and breathing heavily into the phone. He was arrested and subject to a non-communication order while he was in custody. Notwithstanding the order, he wrote a threatening letter to the victim telling her to change her statement. He also sent a letter to the victim's friend to give certain evidence. [ 65 ] The appellant in that case was older, 53 years old, and had a lengthy criminal record of 70 convictions. Twenty-seven of the convictions were for breaching a court order, 18 for uttering threats, and 10 for weapons and violent related offences.

He served three two-year sentences in the past. His record demonstrated, as the trial judge said, that he was incapable of functioning appropriately in terms of his relationship with others. [ 66 ] The Court of Appeal agreed with the trial judge's assessment that the appellant was not entitled to mitigation on the basis that there were no physical assaults. As the trial judge noted, submissions suggesting that the lack of physical violence makes this offence less serious reflects a clear failure that the primary impact of harassment is often psychological.

There is no requirement that there be physical harm to make out a very serious case of criminal harassment. [ 67 ] Most recently, and finally, in R. v. Blake , 2006 ONCA 508, the Ontario Court of Appeal upheld a sentence of two years less one day for criminal harassment and probation to follow. The accused pled guilty. He had been involved in an intimate relationship with the victim. She alleged that he had sexually assaulted her, but he denied that. She told police that she wanted the accused to leave her alone.

In the five-day period following the alleged assault, he followed her. [ 68 ] He was 31 and had a lengthy record. He had five convictions for criminal harassment. His longest sentence was seven months. The Court of Appeal dismissed the appellant's appeal, pointed out that he had demonstrated a disturbing pattern of harassment against women. The offence was also committed while he was awaiting disposition on an assault charge against another female partner.

Sentence [ 69 ] With respect to the sentence at hand, I am mindful of the positions taken by counsel with respect to the sentences, and although these matters do not come before me by way of a joint submission, I must give very careful consideration to their recommendations. I have also considered and carefully applied the principle of totality. [ 70 ] With respect to Information 43365, Count Number 2, the charge of criminal harassment, I am satisfied that a substantial period of incarceration is necessary to denounce the reprehensible conduct and deter Mr.

Lynch and others from engaging in similar contact with partners, former partners, and those associated with them. But for the principle of totality, and the fact that the sentence I am imposing will include a term of banishment and house arrest, the sentence I would have imposed would have been longer. The sentence

I would have imposed is 30 months or 900 days. Mr. Lynch has been in custody for 538 days and he is entitled to enhanced credit for 807 days. The sentence is 93 days. [ 71 ] Surprisingly, DNA is a secondary designated offence. One would have thought that this would have been a primary designated offence. Regardless, I am ordering that he provide a sample of his DNA. [ 72 ] Pursuant to s. 109, I am also satisfied that Mr.

Lynch should never possess a firearm for as long as he lives, and I am prohibiting him from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance, for life. [ 73 ] Mr. Newcombe, does your client possess any of those items? [ 74 ] MR. NEWCOMBE: I believe that he is already on lifetime firearm prohibition -- [ 75 ] THE COURT: Okay. [ 76 ] MR. NEWCOMBE: -- Your Honour. [ 77 ] THE COURT: So he does not possess any of those items? [ 78 ] MR.

NEWCOMBE: Not that I know of, no. [ 79 ] THE COURT: Okay. [ 80 ] Pursuant to s. 743.2(1), I am also ordering that he not have any contact or communication, except through a lawyer, with Jeri McMullin, Doris McMullin, and John Tomkins. [ 81 ] With respect to Information 43069-B-5, Count Number 2, failing to report to his probation officer, it is very important to emphasize to you, sir, the objectives of denunciation and specific deterrence with respect to the breach. The probation order that I am about to impose is the only arsenal that I have left in my toolkit to protect the victims and it must be complied with.

I hope that the sentence I impose will indeed send a clear message to you that the orders are not recommendations on how you should be conducting yourself in the community, but that they are court orders that must be complied with, and if you choose not to comply with them in the brazen way that you have chosen not to comply with previous orders, you will face very serious consequences. The sentence on this matter is 180 days' consecutive. [ 82 ] With respect to Information 43365-A-3, the same comments apply.

You pled guilty to Count Number 1, failing to inform your probation officer of your residential address and changing that address without the permission of the probation officer. That sentence is 180 days' consecutive. [ 83 ] Now that you are a sentenced prisoner, I am hopeful that more intensive programming will be made available to you and that you now have some incentive from the perspective of parole to engage in that programming. I also hope that during the next several months in custody that you can work with Community Corrections and B.C.

Housing to find suitable housing for you when you get out of custody. Perhaps with their assistance and the assistance of parole, Community Corrections can find a way to utilize electronic monitoring with you. [ 84 ] I am placing you on probation for a period of three years. This is the maximum that I am allowed to impose.

What you need to understand, sir, is that conditions like the banishment term and electronic monitoring can be reviewed, but that will all be dependent on the progress that you make with respect to your rehabilitation. [ 85 ] The terms of the probation order will be as follows. [ 86 ] 200, you shall keep the peace and be of good behaviour. You shall appear before the court when required to do so by the court.

You shall notify the court or your 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. [ 87 ] 201A, and it will read, Madam Clerk, "Within two business days after the completion of this or any other jail sentence or conditional sentence, you shall report in person to the probation office located at 105 Martin Street, Penticton, B.C., and after that, you shall report as and when directed by the probation officer." [ 88 ] 202, you must carry a copy of this order and any permission slips -- so we will put, "And any written" -- you must carry a copy of this order and any written permission from your probation officer with you at all times when not in your residence and produce it on the request of any peace officer or staff of Corrections Branch. [ 89 ] 203, you shall reside at a residence approved in advance by your probation officer and you shall not change your residence at any time without first obtaining the written consent of the probation officer. [ 90 ] 205, and as I indicated to you, sir, this term is reviewable.

You are to remain within your approved residence at all times -- it will read, "For the first nine months of the order," Madam Clerk, "You are to remain within your approved residence at all times except with the express written consent of your probation officer or as follows: in the event of a medical emergency and then only when travelling directly to or returning directly from a hospital emergency ward," and we will add the words, "You shall provide your probation officer with written proof of your attendance at the hospital emergency ward if requested to do so." [ 91 ] 206, this condition of house arrest is to be electronically monitored.

You must comply with such regulations as necessary for electronic monitoring.

[ 92 ] 207, you shall present yourself at the door to your residence when any peace officer or probation officer attends there for the purposes of determining your compliance with either the curfew or house arrest condition of this order. [ 93 ] 207, you shall respond personally and immediately to the telephone when a peace officer or a probation officer makes a telephone call to your residence for the purposes of determining your compliance with the curfew or house arrest condition of this order. [ 94 ] 204, for the next 12 months of the order, following house arrest, you shall obey a curfew by being inside of your approved residence between the hours of 9:00 p.m. and 7:00 a.m. each day, except with the written consent of the probation officer or as follows: in the event of a medical emergency and then only when travelling directly to or returning directly from a hospital emergency ward and we will also add the words, Madam Clerk, that "You shall provide proof of your attendance at the hospital emergency ward if requested to do so." [ 95 ] 208, you shall have no contact or communication directly or indirectly with Jeri McMullin, Doris McMullin, and John Tomkins. [ 96 ] 213, you shall not attend within a 50-kilometre radius of the City of Princeton, except with the written permission of your probation officer. [ 97 ] I am also going to include a term in case any one of the victims ends up relocating. 211A, you shall not attend at or be within 100 metres of any place which you know or believe to be the residence, school, or workplace of Jeri McMullin, Doris McMullin, or John Tomkins. [ 98 ] 215, you shall not possess or consume any alcohol or any illegal drug or controlled substance within the meaning of s. 2 of the Controlled Drugs and Substances Act .

Any prescription drugs that you possess or consume must only be those which are specifically prescribed to you by a qualified medical practitioner or dentist. [ 99 ] 222, you shall not possess any weapon as defined in s. 2 or item listed in s. 109 of the Criminal Code or any imitation thereof. [ 100 ] 227, you shall attend, participate in, and successfully complete any assessment, counselling, or program as directed by the probation officer and you shall comply with all the rules and regulations of any such assessment, counselling, or program. [ 101 ] You must provide your probation officer with the particulars of your employment or relationship status.

You must inform your probation officer within two business days of any change in your employment or relationship status. [ 102 ] You must not date or enter into any marriage or common law relationship with any person until you have identified to your probation officer the person with whom you propose to live and your probation officer has informed that person of these convictions, this order, and your history, if any, as described in your criminal record. [ 103 ] You must provide the bail supervisor with the carrier information and phone number of any mobile device or tablet that you possess, and the make, model, colour, and licence plate numbers of any vehicles that you drive. [ 104 ] You must not use or possess anything intended to allow you to mask or disguise your face including a facemask or balaclava. [ 105 ] Mr.

Lynch, I cannot emphasize enough the importance of you getting the counselling that you need while you are in the institution. When you get out of the institution, just let Ms. McMullin live the life she deserves to live; a life without you in it. [ 106 ] Victim Crime Act surcharges? [ 107 ] MR. VANDERSLUYS: No submissions from me. [ 108 ] MR. NEWCOMBE: He is not in a position to pay those, Your Honour. [ 109 ] THE COURT: Okay, I will waive the Victim Crime Act surcharges. [ 110 ] MR.

VANDERSLUYS: Your Honour, Crown will direct a stay on Count 1, Information 43365-C-2, as well as a stay on 43069- 3-B and 4-B. [ 111 ] THE COURT: Sir, you need to understand, as well, that -- and I am sure your counsel will explain it to you, that your parole is somewhat dependent on whether you engage in counselling. So there is some advantage for you, as well, to engage in the counselling. I strongly encourage you to do it. [ 112 ] THE ACCUSED: Absolutely. I have no problem with that. [ 113 ] THE COURT: Okay. (REASONS FOR SENTENCE CONCLUDED) The Honourable Judge G.W. Koturbash