R. v. Mathieu, 2016 ONCJ 276

Information #15-21694 DATE: 2016-04-26 CITATION: R. v. Mathieu , 2016 ONCJ 276 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. ERIC PETER MATHIEU R E A S O N S F O R S E N T E N C E DELIVERED ORALLY BY THE HONOURABLE JUSTICE G. R. WAKEFIELD on April 26, 2016, at OSHAWA, Ontario

APPEARANCES G. Hendry Counsel for the Crown D. Barrison Counsel for Eric Mathieu R E A S O N S F O R S E N T E N C E WAKEFIELD, J. (Orally): Eric Mathieu was acquitted after trial on a charge of dangerous operation of a motor vehicle and found guilty of criminal harassment onwhich the Crown had elected by indictment. Both Crown and Defence are ad idem regarding my imposing the maximum period of probation, a lifetime s. 109 prohibition and yetanother DNA order. Both Counsel are in agreement that Mr.

Mathieu has now served 292 days of pre-sentence custody and should becredited with the equivalent of 438 days or, in other words, 14 months and 16 days. The Crown advocates additional custody to the equivalent of two years less a day while Defence urges me to suspend the passing ofsentence on a time served basis. The offender has a prior criminal record commencing as a youth which included an assault and breaches of court orders and continuingas an adult with further crimes of violence and breaches of court orders.

He has two prior convictions for criminal harassment, the first anon-domestic in 2008, but the second in 2012 was with respect to a domestic partner, and on the latter occasion included convictions forassault, breach of court orders and intimidation. Three months later he was convicted for a breach of court order and threatening thesame victim of the domestic criminal harassment. This is a criminal record which demonstrates that Mr. Mathieu has a recidivist historyof contempt towards court orders and towards the emotional security of his victims.

His history of lacking any impulse control wasvividly acted out both during the trial and the sentencing hearing. I also accept that the most egregious examples of his impulse control issues in these proceedings were connected to questions regardinghis previous domestic victim’s decision to terminate her pregnancy of their child. Today, four or five years later, Mr. Mathieu does notaccept that decision and has not stopped grieving the loss of his child. His continuing lack of impulse control regarding this issue in myview escalates his risk to the community.

His harassment of the previous domestic partner was described in 2012 by Justice Wolski as his behaving “in a most bizarre and aberrantway to publicly humiliate and harass her causing her to fear for her safety by following her and shouting out to members in the public,”which description could easily be used to describe Mr. Mathieu’s conduct towards this current victim and her daughter. Justice Wolskitook into account Mr.

Mathieu’s pre-sentence custody and despite that concluded, “I find myself thinking that some further short periodof incarceration is required to denounce the behaviour,” and I too now find myself concluding the same as His Honour in this sentencing,notwithstanding substantially greater length of pre-sentence custody this time around. As expressed by the Ontario Court of Appeal in R. v. Denkers (F.P.) (1994), (ON CA), 69 OAC 391 at 394 andadopted in R. v. Bates (ON CA), [2000] O.J. No. 2558: “This victim, and others like her, are entitled to break offromantic relationships.

When they do so they are entitled to live their lives free of harassment by and fear of their former lovers. Thelaw must do what it can to protect persons in those circumstances.”

Mr. Mathieu refused to accept that this relationship was over and created an atmosphere of fear in his former partner expressed in her victim impact statement. He used intimate knowledge of the victim and tried to use her daughter to emotionally hurt the victim. He attempted to embarrass and imperil her employment with messages left about her at her workplace.

Especially unsettling to the victim was the knowledge that being surrounded by heavily armed police and with a helicopter hovering over his house that he was not in any way deterred in continuing with the harassing phone calls which if not made with the intent to cause fear then certainly such fear was the result of his uncontrolled impulse to express his sense of personal injustice. As with his previous domestic partner, Mr. Mathieu’s conduct was indeed bizarre and aberrant. I also recognize that absent a far more intrusive application by the Crown, at some point Mr.

Mathieu will be released back into our community and community safety is as much a product of rehabilitation as punishment. In my view rehabilitation cannot take a back seat in the balancing of sentencing factors or we risk endangering our community. This sentence must speak as much to his return into his neighbourhood, as to an assertion of societal denunciation for his conduct and a warning to other like minded offenders. This sentence must clearly express to Mr.

Mathieu a strong deterrent message that he is warned and ideally intimidated to prevent further offences and motivate him to fully engage in the probationary resources available to him. His pre-sentence report holds out a glimmer of rehabilitative hope. I acknowledge that I view the pre-sentence report and its author differently from that expressed by the Crown. I found the pre-sentence report to be thoughtful and a refreshing change from a bare-bones acceptance of history predicting the future. I infer that a substantial amount of time went into its preparation and I strongly make the recommendation that Mr.

Forstner continue supervising this offender. It is all very well to point out that it is the offender’s obligation to engage in probation and follow any probation officer’s direction, but the reality is without building a trust relationship, which takes time, the ability to share intimate conversations leading to a focus on the underlying causation of criminal behaviour is far more challenging, especially when the officer is also fulfilling a counselling role.

It is my experience that counselling is most successful when, for the lack of a better word, there is a positive chemistry between the counsellor and the counselled. Mr. Forstner asserted having obtained a breakthrough with Mr. Mathieu and should be afforded the opportunity to bring that hope into fruition. I also note that Mr. Forstner confirmed by a vigorous nodding of his head that his first duty is to public safety in priority to his belief in this offender’s reclamation. Mr. Mathieu has community support. His cousins have been in daily attendance at these proceedings.

I trust that he understands the value of such family commitment. He has demonstrated pro-social interactions in the community in his work environment. It is the lack of impulse control in his domestic relationships which endanger his potential future partners and the community at large. His conduct towards the police surrounding his house endangered himself and those officers whose restraint prevented an escalating tragedy from happening. Unless that lack of impulse control is addressed and resolved, I fear Mr. Mathieu will be spending the rest of his life in prison.

While I acknowledge that the police threat assessments carry restricted utility, I do not reject what I believe to be the parallel conclusions to my own observations of the offender. Only the pathway to public safety is in dispute between that assessment and myself. The CAMH assessment of Dr. McDonald carries greater weight with me, but I also read this assessment in the context that Mr. Mathieu undermined, if not outright torpedoed its assistance by his lack of cooperation, and prevented that doctor from any ability to form a diagnosis or at least insight as to the underlying causation of the criminal behaviour.

Mr. Forstner testified to Mr. Mathieu chaffing under the thumb of the justice system. Mr. Mathieu needs to understand and to accept that easing the weight of that thumb is entirely within his control by engaging in all the rehabilitative resources in the community and earning the trust of the community by demonstrated progress. With documented and demonstrated progress, I would welcome future applications to ease the controls in the sentence that I now impose. I note the 292 days of pre-sentence custody and credit the offender for the equivalent of 438 days or 14 months and 16 days.

There will be a further 34 days incarceration for a total sentence that would have been 15 months. Mr. Mathieu’s specific deterrence requires his further incarceration to afford him the opportunity on a daily basis to appreciate how his choices have kept him incarcerated and how his future choices if criminal will have the same, but much longer, result.

In my view, a 15-month sentence is both the minimum necessary to address proportionality to the impact on the victim and her daughter and lack of effective deterrence in his previous, cognate sentences, while being a substantial jump from his previous sentence that Justice Wolski structured as the equivalent of 60 to 90 days. My sentence is five to seven times longer. More importantly, 15 months is sufficiently long to open up the penitentiary door should Mr. Mathieu re-offend, and possibly provide the foundation for the Crown to obtain a sentence that imprisons him for the rest of his life.

He has already been flagged I am advised as

a high risk offender by the Ministry of the Attorney General which I understand to be a step towards a dangerous offender designation. I direct Mr. Mathieu’s probation officer to explain to Mr. Mathieu the consequences of such a designation. There will be followed this sentence of incarceration a three year probation order.

Those terms: You will keep the peace and be of good behaviour; you will appear before the court when required to do so; you will notify the court or the probation officer in advance of any change in name or address and promptly notify the court or the probation officer of any change in employment or occupation. You will report in person to a probation officer and after that at all times within two 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.

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. And by inference from what I said earlier, it is a three-year duration. Mr. Mathieu must become accustomed to the weight of the thumb of the law. At this point in time, I am going to impose a curfew. Seven days a week you will remain in your residence or on the property of residence between the hours of 11:30 p.m. and 5:00 a.m.

A) Except for any medical emergency involving any member of your immediate family and you must provide written justification to the probation officer within 72 hours of any such absence during curfew hours;

B) For any hospital visit or funeral attendance you must provide written justification to the probation officer prior to any such absence during your curfew hours. If there is any difficulty with those curfew hours, I am certainly open to a variation application, which certainly the Crown will have some submissions as to the appropriateness of any change of that. I am also open, with the right accomplishments, demonstrated accomplishments, with the type of counselling and psychiatric intervention that you have apparently opened up and promised to Mr.

Forstner, that you can come back and see me for either a variation of the curfew or even the elimination of the curfew, subject to Crown submissions, but most importantly, subject to demonstrated advancement of all the programming that the Probation Services have tried to put in your way before now. I want to see you accomplishing something before you ask me to change something. You will not contact or communicate in any way directly or indirectly, by physical, electronic, or other means with Nancy Norris or any member of her immediate family. There are no exceptions to that.

You will not be within 500 metres of any place where you know any of the persons named above to live, work, go to school, frequent, or any place you know the person to be except for required court attendances. By the way, if you are just driving along in Pickering and you happen to recognize Ms. Norris that means you are within 500 metres. You have to go in the opposite direction. If you are at a restaurant and you are there first and she happens to come in, you have to leave immediately. ERIC MATHIEU: And what if that does happen and then she just calls?

THE COURT: Then you will have the benefit of being able to show that you have left immediately. But you have to understand just how much of a weight the thumb of the law is that you have put yourself in this situation where you are the one that has to be proactive and prevent yourself from being put in places where she might even potentially show up. And you already know some of them. You know her, you know where her nail salon is. You have to stay away from those places just in case she happens to be there when you are around there. Do you understand? ERIC MATHIEU: So I essentially have to live in fear, as well.

THE COURT: And some people in the community might suggest that somebody who has caused fear might very well need to understand what it is to live in fear. But if you accomplish the psychiatric programming that can be made available to you, the psychological programming, come back and see me. I will hear the Crown, I will hear a progress report, and again there may be some variations on some of these terms, but you have to demonstrate to me first what you have changed, and what you have accomplished. ERIC MATHIEU: I have a cottage. THE COURT: Just a moment. You will talk to Mr. Barrison in a moment.

ERIC MATHIEU: I will not be able to go there? THE COURT: I am just going to finish these terms, sir. Did you check if it is

section 109 or 110? I know you have been busy, as well, but we had that conversation as to whether criminal harassment opens up which? MR. HENDRY: No. I apologize, Your Honour.

THE COURT: Is there a joint submission by either it is a

section 109? MR. BARRISON: I believe it is a

section 109, Your Honour. THE COURT: Notwithstanding it is a

section 109 order, I am also going to make a term of the probation order that you not possess any weapons as defined by the Criminal Code , including BB guns, pellet guns, firearms, imitation firearms, crossbow, prohibited restrictive weapons or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury, or to threaten or intimidate any person. That is more wide-ranging than the

section 109. Paragraph 11, you will 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. Anger management, psychiatric and psychological issues, stress management.

Subject to the discretion of Probation Services, I am checking off bereavement and grief issues because frankly, from my perspective, you have not dealt with your loss, and that’s something you are going to have to feel the real import of grief counselling for you to really deal with the impulse control issues, at least with respect to that one issue. I don’t think there are any other specific ones, but under “other” any other counselling that Probation feels will assist in your rehabilitation.

You will sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling, or rehabilitative programs as directed. Now in addition, paragraph 19, and I am happy to hear submissions as to wording, you will advise the probation officer of the name and identifying information of any intimate relationship prior to a second date or similar such meeting.

In other words, I am trying to find a balance between having a conversation at a local pub and it turning into something where you are going to see the person on more than one occasion. The community, potential dating partners need to have the protection and the reassurance that your probation officer is aware of and will have the obligation of determining how to notify such people. That is a term you might want to have removed at some point. The Crown might object to it ever being removed for the entire three years.

Again, I want to see demonstrated progress before I change the wording of that sort of restriction on your social life. But in terms of the wording itself, do either Crown or Defence have any preferred wording? MR. HENDRY: Could I have the wording again, Your Honour? THE COURT: Advise your probation officer of the name and identifying information of any intimate relationship prior to a second date or similar such meeting. Mr. Hendry, if Mr. Forstner has any suggestions as to wording, as well, I would hear them. I know there is tension, but I hear them through you. MR. HENDRY: I am happy to do that.

I am not sure if he wants to talk to me or not. I think Mr. Forstner, on behalf of Probation, the concern is just difficulty he may have in defining with Mr. Mathieu what “intimate” means. Does it have to become sexual at that point, or perhaps some more clarification? I think the thrust of this is it is not necessarily a sexual relationship. It is just if there is some sort of relationship that is more than a casual acquaintance or friends, something that may become intimate or romantic type of situation. THE COURT: Any suggestion?

I think there is some merit into enforcement and the Probation obligation, but I am trying to think of some wording or definition to where the line is that triggers the obligation on Mr. Mathieu to open up with his officer. MR. HENDRY: Perhaps intimate or romantic intent I think would cover that off in terms of something rather than a more platonic, friendly relationship you would have with someone. THE COURT: All right.

I will put in the words “intimate or romantic relationship” but I think the trigger here says, “prior to a second date or similar such meeting.” So that the obligation is if he is going to see somebody, even if there is not even the first kiss yet, but a second meeting with the same person that opens up the obligation to tell the probation officer that they can have that conversation. So advise the probation officer of the name and identifying information of any intimate or romantic relationship prior to a second date or similar such meeting. I will give you that sheet here, before I give it to Madam Reporter.

Any other terms of probation that either Crown or Defence feels, or Mr. Forstner feels would assist in this individual’s rehabilitation? MR. BARRISON: I don’t have any further suggestions. MR. HENDRY: Not from the Crown. THE COURT: All right. Mr. Mathieu, the other aspect here is that with indictable election there is a $200 victim surcharge in both probation and custody, so that I have no discretion by changing it to a fine or anything like that. He is going to have some further disruption in his ability to earn an income. He otherwise gets 60 days in which to pay that.

Are you seeking a further extension of time? MR. BARRISON: I would, Your Honour. I’d ask for six months, please. THE COURT: Any contrary submission to that?

MR. HENDRY: No, no submissions to make, Your Honour. THE COURT: Six months in which to pay a $200 victim surcharge, two days in jail consecutive if the surcharge is not paid. There will be, I believe on consent, a DNA order made. Am I correct it is on consent? MR. BARRISON: Yes, Your Honour. THE COURT: And as well, there will be a

section 109 order on consent which means pursuant to

section 109 you are prohibited from possessing any firearm, crossbow, restricted weapon, ammunition, explosive substance for a period beginning today, and ending for lifetime prohibition, and after release from imprisonment, which commences after release from imprisonment you are further prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, prohibited ammunition for life. Any breach of that order is a new criminal offence. Any breach of the probation order is a new criminal offence.

And with your record of court order breaches, you are just opening up the door for a penitentiary sentence, especially where I suspect next time around, if there is, the Crown is just going to elect indictable in anything that brings you back in front of the court, or far more intrusive applications. Do you understand all those terms, sir? If you want to have a quick chat with him to make sure you understand them. ERIC MATHIEU: I understand it. THE COURT: All right, sir. You are under sentence.

I leave it to you to discuss with your probation officer how you take yourself away from all the restrictions I have just imposed upon you. I do mean it. This is entirely within your control. You put your effort into it, I will acknowledge it. If you don’t, there will not be any change for the three years that this probation order will control you. You are under sentence, sir. Thank you. COURT CLERK: If I could have Mr. Barrison just confirm an address once he is released from custody? MR. BARRISON: It should be the same address on the information. COURT CLERK: Thank you.

And just to confirm, the DNA is secondary? THE COURT: Is it secondary? All right. Still conceding, given the prior record, the circumstances? MR. BARRISON: Yes, Your Honour. THE COURT: And with that criteria being satisfied, the DNA order does stand. A D J O U R N E D FORM 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act I, Cathy Haidinyak, certify that this document is a true and accurate transcript of my recording of R. v.

Eric Mathieu in the Ontario Court of Justice, held at 150 Bond Street East, Oshawa, Ontario, taken from Recording No. 2811-101-20160426-093411-10-WAKEFIG, which has been certified in Form 1.

Date Cathy Haidinyak Certified Court Transcriptionist THIS IS NOT A CERTIFIED COPY UNLESS ORIGINALLY SIGNED Transcript Ordered ............................. April 22, 2015 Transcript Completed .............................. May 7, 2016 Ordering Party Notified ......................... May 16, 2016