2003 MBCA 49, 2003 MBCA 49

IN THE COURT OF APPEAL OF MANITOBA Coram: Twaddle, Steel and Hamilton JJ.A. B E T W E E N : HER MAJESTY THE QUEEN ) R. B. Brecht ) for the Appellant Respondent ) ) ) C. A. Vanderhooft - and - ) for the Respondent ) ) CHRIS KELL ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) March 26, 2003 STEEL J.A. (for the Court): 1 This is an appeal as to a sentence of two years less a day for conviction on three charges, the most significant of which, by far, was the charge of criminal harassment.

The accused argues that the sentence was harsh and excessive, that the three-year term of probation should be unsupervised as opposed to supervised and that several of the conditions attached to the probation order were inappropriate. 2 This appeal involved a horrendous case of criminal harassment over a period of four years, with not only direct harassment of the victim, but indirect harassment as well by means of communications about her to a number of third parties, including her husband, members of her family and many members of her small, rural community.

The facts are detailed in the reasons for decision of the sentencing judge and need not be repeated here. We are all of the view that the sentencing judge took all of the relevant factors into account in arriving at the accused’s incarceratory sentence.

We see no error warranting appellate intervention, nor is the length of sentence outside the appropriate range. 3 However, given the fact that the accused is presently under a removal order pursuant to the Immigration and Refugee Protection Act and will most definitely be removed from Canada at the end of his incarceration, and given the Crown’s agreement, we see no reason for the probation order to be supervised.

From a review of the reasons for sentence, it does not appear that this was made clear to the sentencing judge. 4 As well, we would delete the condition prohibiting the accused from possessing any personal computers or mobile cell phones capable of transmitting email messages. The accused is a free-lance journalist, and the prohibition against possessing computers would, in effect, prohibit him from working in his profession. Moreover, the acts of harassment were committed by computer, fax, mail and telephone.

The means of communication were not exclusively by computer or cell phone, and it was not the technology that was significant in these offences, but the acts of harassment themselves. 5 Therefore, leave is granted. The sentence of two years less a day will remain, but the three years of probation will be unsupervised. The accused has consented to not attending at all to the victim’s hometown.

The conditions attached to the probation order are as follows: (1) keep the peace and be of good behaviour; (2) appear before the court when required to do so by the court; (3) no contact or communication directly or indirectly with the victim, her husband, J.T., or members of her family; and (4) no attendance at the victim’s residence, place of worship or place of employment or at New Bothwell, Manitoba . The mandatory ten-year prohibition on the possession of firearms and weapons will, of course, remain. In addition, at the sentencing

hearing, a publication ban respecting the identity of the victim in this matter was imposed pursuant to s. 486(4.1) of the Criminal Code . That publication ban will be continued. _______________________________ J.A. _______________________________ J.A. _______________________________ J.A.