R. v. Fader Date:, 2014 BCPC 327

Citation: R. v. Fader Date: 20140828 2014 BCPC 0327 File No: 79231-1K, 4KA, 5Ka Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MICHAEL JAMES FADER REASONS FOR SENTENCE OF THE HONOURABLE JUDGE C.J. ROUNTHWAITE Counsel for the Crown: S. Thomson Counsel for the Defendant: D. Schulz Place of Hearing: Abbotsford , B.C. Date of Sentence: August 28, 2014 [ 1 ] THE COURT : Michael Fader is before the court having pled guilty to four separate offences. All of these offences relate to

[ 1 ] THE COURT : Michael Fader is before the court having pled guilty to four separate offences.

All of these offences relate to his spouse, [omitted for publication], whom I understand to be his third wife. (I will refer to her from here on as wife number 3, to preserve her privacy.) The offences are: April 17th, 2013, break and enter and theft from wife number 3's residence; between dates of April 15th to April 22nd, 2013, so the week surrounding that break and enter, criminal harassment of wife number 3; August 30th, 2013, breach of the no contact order, and; another breach of the no contact, this time over roughly a two-month period, from January 30th, 2014 to March 21st, 2014.

I will give some specific details with respect to each of these offences. [ 2 ] I understand that the relationship between Mr. Fader and his wife had deteriorated. Specifically, approximately two weeks before the break and enter date their relationship had deteriorated to such an extent that they separated. [ 3 ] [Wife number 3] has given details about being forced out of the home and having the locks changed and the door barricaded against her. I am not sure whether Mr.

Fader agrees with those specific details, but he says that ending the relationship was not of his choosing and that he continued to be in love with his wife. [ 4 ] She obtained a new residence and was sufficiently concerned about her safety that she showed the accused's photo to her landlord, asking to be warned if he was seen anywhere about the premises. Mr. Fader, throughout this period, was texting her. She told him to stop, but the texting continued, saying he had disposed of her clothes by donating them or throwing them away, or that he was going to drop off her clothes at the front of her building.

That was not the essential part of the criminal harassment, as I will get into later. [ 5 ] On April the 17th, wife number 3 returned home to find that the locks to her residence had been damaged, her place broken into and two of her iPads were missing. Video showed Mr.

Fader leaving the apartment building carrying those two iPads and subsequent investigation revealed that he had managed to gain entry into the apartment building by telling another tenant that he had just moved into the building and had forgot his keys. [ 6 ] I have referred to the significant part of the criminal harassment not being texting, but rather it was sending sexually explicit photographs and videos to a variety of his wife's work colleagues, as well as her son. [ 7 ] He had originally contacted the son, who was 23 years old, asking that he intervene in the breakdown of the relationship.

When the son hung up on him, he texted the young man, "You think your mom's such an angel in this," and attached a sexually explicit video of Mr. Fader and wife number 3 having sex. In the sentencing proceedings, Mr. Fader says he did not intend to send the son this video; however, I find that difficult to accept given the accompanying message, and the attachment of the video. [ 8 ] Clearly he did intend to send such sexually explicit photographs and videos to a variety of wife number 3's work colleagues. At first, the messages were more work-related.

The victim worked as a manager for a well-known grocery chain, in a variety of different locations. Mr. Fader had obtained private store information of code locks of doors and things of that sort, so he started by sending this high security information to her various work colleagues.

He then went on to send revealing photographs of the victim, as well as two video clips of the couple having sex. [ 9 ] He also sent wife number 3 a nude photo of herself, with the message, "Everyone in your contacts now has this." The victim subsequently discovered that at least ten of her work colleagues in one of the stores had received this sexually-explicit material, and she also has been provided with up to, as I understand it, ten names of people from other stores who received it as well. [ 10 ] After having been charged with these April offences of break and enter and criminal harassment, Mr.

Fader was released on $5,000 cash bail with a specific order for no contact, direct or indirect, and a term that he was not to access the Internet and not to use any form of text messaging or social media. [ 11 ] In May, he was charged with a breach (which will be stayed at the end of these proceedings) and rereleased, this time on $7,000 cash bail. [ 12 ] Notwithstanding the increase, there was a new charge for which he has pled guilty, that being a breach of the no contact on August 30th, 2013.

There he sent a text to her co-worker, another manager, which included, "Tell [omitted for publication]," being wife number 3, "it's time to come home where she belongs." He was charged with that offence and released on the same bail, being the $7,000 cash. Again, notwithstanding that kind of deposit to secure his good behaviour, he continued to breach the no contact order, this time from January 30th, 2014 to March 21st, 2014. Of note, all of his breaches of the no contact order also include breaches of the term that he not access the Internet or use texting or any form of social media.

All of these breaches have been done through text or Gmail. [ 13 ] The January to March 2014 breach was ongoing. The Ministry of Children and Families was involved with respect to Mr. Fader's grandchildren, who had been placed with wife number 3. Mr. Fader, knowing that he had this no contact order in place, attended a face-to-face meeting with the social worker and wife number 3 to discuss plans for the children. He also repeatedly e-mailed messages to wife number 3, by hacking into her Gmail account, and using that account to e-mail messages to her new account.

These messages were clearly from him, and by his guilty plea he is acknowledging having sent them: Discussing the children, discussing his damage to her door, suggesting that they hang out together.

While the contact was not of a violent or threatening nature, indeed it shows a blatant and repeated breach of the no contact, as well as a blatant and repeated breach of the term that he not access the Internet or use any form of text messaging or social media. [ 14 ] Those are the circumstances underlying the offences. [ 15 ] In sentencing, I have referred to two victim impact statements filed by wife number 3, the presentence report, as well as a variety of letters in support of Mr.

Fader, and various of certificates of achievement which he has received for programs that he has taken while he has been in custody. He was subsequently arrested, I am told, in June of 2014 and has been in custody since that time. That arrest was due to a warrant for the most recent allegation of breach, as well as a 524 warrant for not reporting. [ 16 ] The two victim impact statements make it clear that these offences have had a significant impact on wife number 3, and that the

negative consequences still persist, notwithstanding the passage of time. She refers to having been on a roller coaster, having experienced stress, panic attacks, fear, anxiety, uncontrollable crying, loss of appetite, loss of sleep and stomach aches. She lives in fear. She is cautious when she goes out. She is suspicious of everyone. She has a hard time concentrating at work. She has been embarrassed and humiliated both with her co-workers, her work colleagues, as well as with her own son. In my view, the feelings that she expresses are entirely understandable given what Mr.

Fader has put her through. [ 17 ] What makes this case so surprising and, indeed, shocking is the fact that this 54-year-old man, with an excellent work history, has done all of this, exactly the same, on a previous occasion. His criminal record is attached to the presentence report. It includes a February 11, 2009 conviction for criminal harassment of his previous spouse, whom I will call wife number 2; August 6, 2009, breach of the no contact order in relation to wife number 2; as well as a June 2011 conviction for forgery where he signed wife number 2's signature on a passport application for his daughter.

The convictions for criminal harassment and breach of another spouse obviously cause this court considerable concern. [ 18 ] Crown has filed both the reasons for judgment for that earlier conviction as well as the reasons for sentence. The reasons for judgment are found at R. v. Fader, 2009 BCJ No. 413 . The reasons make it clear that Mr. Fader sent sexually explicit photos of that former spouse to her new partner, 150 photos and four video clips. Mr.

Fader also threatened to send the same material to friends, family and co-workers. [ 19 ] There also was some posting of intimate pictures on a website which was then referred to in the reasons for sentencing, R. v. Fader , 2009 BCJ No. 412 . At paragraph 6, the judge refers to Mr. Fader's behaviour as being "cold and calculating", and "the primary motive seemed to be to subject his ex to humiliation by posting these intimate pictures on a website". The same, too, can obviously be said for these offences that are before this court. Notwithstanding the seriousness of his behaviour on this earlier occasion, Mr.

Fader was fortunate to be sentenced to a fine of $500 and probation for 18 months. It is to be noted that Crown had proceeded summarily with respect to those charges, whereas they have proceeded by indictment in the offences before me. [ 20 ] At paragraph 17 of the reasons for sentence the judge says: I have considered the Crown's recommendation that he not possess any pictures, videos, et cetera.

I have concluded it would take a particularly brazen individual, in view of what he has been through during these court proceedings, to leave this courthouse and go back and engage in the same type of behaviour that got him in so much trouble to begin with. I am sure you recognize, Mr. Fader that any further activity like this could result in some very harsh consequences, and that could be covered by the criminal law itself. He then goes on to say that he is not going to impose any sort of restraint on his ability to use the computer out of concern that it would negatively affect his ability to work.

What this court emphasizes is the notion that it would take a particularly brazen individual to go and do this again, and yet that is exactly what Mr. Fader has done. [ 21 ] Counsel have provided me with a variety of cases dealing with sentences that have been imposed for criminal harassment. Five of the cases were, I think, of assistance when it comes to the sentencing today. This court is mindful that the fundamental principle of sentencing is that the sentence be proportionate with the gravity of the offence and the circumstances of the offender.

Sentences which have been given in other cases are obviously of use when determining the appropriate sentence today. [ 22 ] I will refer to the five cases which I have found helpful. Of these five cases, they all dealt with people who had no previous criminal record or an unrelated record. I was not provided with any case where the offender was back for the second time under the same circumstances. For first-time offenders, a range has been provided of roughly six months' jail to 20 months' jail, and one case refers to going as high as two years. [ 23 ] Going through those cases in detail: R. v.

M.K. 2004 OJ No. 2574 . Nude photos were taken without the accused's girlfriend's knowledge and subsequently posted on the Internet. M.K. was a young person with an unrelated record, and six months' jail was imposed. The court referred to the conduct as being serious, intrusive and malicious and having deeply upset the victim. The six months of imprisonment was to serve as a deterrent factor. [ 24 ] Next, the case of R. v. DaSilva , again a decision of the Ontario Court of Justice, 2011 OJ No. 1298 .

There again, sexually explicit videos taken without the knowledge of the victim, were posted on Facebook and sent to friends and family. That court also imposed a sentence of six months' jail, emphasizing the need for specific and general deterrence, as well as denunciation of the behaviour. I will quote from certain paragraphs of the decision.

After commenting on the need for a sentence which specifically deters the accused, the court went on, at paragraph 33: As regard to the principle of general deterrence – crimes involving the use of new technologies are becoming increasingly common and the misuse of social networking sites such as Facebook are becoming common vehicles for the commission of crime. The potential for harm is enormous.

With the single click of a mouse, information can be circulated instantly and globally and once circulated, the ability to undue any harm caused, is very limited. [ 25 ] I pause to note that in this case the instant click of a mouse circulated harmful and damaging material to work colleagues and to family, the son, making this all the more harmful. [ 26 ] Going on with the DaSilva decision, at paragraph 35: Given the common use of social networking sites and their potential for enormous harm, general deterrence plays a significant principle in this sentencing.

A clear message to all users of social networking sites is a valuable sentencing objective in this case. So, too, here, this court must emphasize specific deterrence for Mr. Fader, who is a repeat offender, but also general deterrence, getting the word out that if people send sexually explicit photos and videos out into the stratosphere, periods of imprisonment are likely. [ 27 ] The court in DaSilva continues, at paragraph 36:

Denunciation is also a valid sentencing principle. The violation here was one of trust in a near domestic relationship. The violation was of the victim’s sexual integrity. . . . Denunciation should be clear. All the more so in this case where these two were husband and wife and this has been Mr. Fader's pattern of behaviour regarding his former spouses. In this case before me, as in the case of DaSilva , the offences are breaches of the most personal of trusts between partners. [ 28 ] The decision of R. v.

Corbett (phonetic) was relied on by both counsel, a decision of the Ontario Court of Justice, 2012 OJ No. 5285 . That involved a couple who had been in an extramarital relationship, and with the breakdown of that relationship the accused stole his mistress' diaries, address book, and cell phones and used the content and contact information to publish highly embarrassing texts and website links to numerous sexually explicit photos and videos that the parties had made during their relationship. That accused again had no record and was otherwise a law-abiding citizen.

The court found that the six-month range was appropriate, but given the specific circumstances of that case had a blended sentence of 90 days jail and six months conditional sentence. [ 29 ] The case of R. v. Barnes , 2006 ABCA 295 , the Alberta Court of Appeal dealt with the issue of conditional sentences in cases such as this. There the accused had pled guilty to one count of harassment, one count of uttering threats to damage property and one count of unlawfully in a dwelling, as well a variety of breaches of bail orders.

It seems the offences were similar to the offences before the court, not including that threat to damage property, although there do appear to be more convictions than are before me. There, the court upheld a 20-month jail sentence, followed by three years of probation, and specifically confirmed the trial judge's decision in determining that a conditional sentence would not be appropriate.

At the bottom of paragraph 9: After considering the aggravating factors and the mitigating factors of no prior record, the guilty pleas and the appellant’s potential to be productive, the trial judge could not be satisfied that a conditional sentence order would not endanger the public. In his view, one with which we concur, this was a predatory crime where the focus had to be on deterrence and denunciation.

In short, the risk for public safety and the need for deterrence made a conditional sentence order unavailable for this appellant. [ 30 ] Now, I do note that neither counsel have made any submissions with respect to a conditional sentence, but in my view, given Mr.

Fader's previous criminal record, the serious offences before the court, coupled with the blatant and repeated breaching while he was on bail, both before and after having entered some guilty pleas, a conditional sentence would put the community at risk if he were allowed to serve his sentence within the community, and clearly would not meet with the principles of sentencing. [ 31 ] The same view was held by the Alberta Court of Appeal in the decision of R. v. Wenc 2009 ABCA 328 .

There, the court referred to the appropriate range for this type of criminal harassment as being nine to 24 months imprisonment and also confirmed that a conditional sentence would not meet the primary sentencing objectives of denunciation and deterrence. [ 32 ] With those cases in mind as guidance, I turn to the aggravating and mitigating factors in this case. [ 33 ] The aggravating factors are obvious. First of all, this was a break and enter of a residential setting, the new home which wife number 3 had set up for herself. She had taken steps to try to protect herself.

I agree with Crown that this appears to be a purposeful, calculated effort to get hold of the iPads that contained the sexually explicit material, as well as the contact information. The sending of the sexually explicit material was a serious breach of trust between husband and wife, which is statutorily an aggravating factor. Clearly this has caused psychological and emotional harm to the victim. It has damaged her reputation both at home and at work. This is a gross misuse of technology, both the tool with which the criminal harassment was done, but also the continued breaches.

These breaches of the no contact order also involved a breach of the term that he not use Internet or social media. These were blatant and repeated breaches which occurred notwithstanding the significant cash bail and even after guilty pleas had been entered. Finally, Mr. Fader has a prior related record for having done exactly the same thing. None of the cases which I have been provided involve a person back before the court for a second time engaged in this kind of behaviour. [ 34 ] In mitigation, I have referred to Mr. Fader as being 54 years old, with an excellent work history.

He has entered guilty pleas with respect to this matter. In spite of the guilty pleas, it is difficult to see that Mr. Fader actually has a real understanding of the significance, the criminality of his behaviour. My impression of him is that he has not yet achieved that degree of understanding which would constitute real remorse. [ 35 ] Crown is seeking a global sentence for all of these offences of two years less a day, coupled with a probation order for a period of three years.

Defence acknowledges that jail is required, but asks for a range between seven to nine months globally for all offences before the court. Thus, counsel have provided me with a range between seven months at the low end and two years at the higher end. [ 36 ] As stated by all of the cases which have been provided to me, deterrence and denunciation of this kind of behaviour is paramount, but uniquely in Mr. Fader's case, specific deterrence is also required. Notwithstanding the words of the sentencing judge in the previous proceedings, it turns out that Mr.

Fader has indeed been particularly brazen in reoffending, and reoffending in exactly the same way involving technology and that gross breach of trust within a family setting. [ 37 ] When I weigh all of the circumstances, the prior criminal record, the aggravating and mitigating circumstances, when I look at the cases and what has been said there, I am satisfied that Crown's global position of two years' imprisonment is required. The word has to get out, both to people in general in the community, but also to Mr.

Fader in particular, that if he chooses to behave in this kind of fashion towards his partners, people with whom he has been in a relationship, he is going to go to jail and he will go to jail for a very long time. [ 38 ] Mr. Fader, I will get you to stand up. [ 39 ] On 79231-K1, the two counts of break and enter and criminal harassment, I am satisfied the appropriate jail sentence would be two years less a day. Mr. Fader has been in custody for roughly two months. Notwithstanding Crown's submissions that he should not get the benefit of time-and-a-half, I do indeed find that he should.

By serving time in remand he is not getting the benefit of the statutory release program; given the one-and-a-half credit his two months pre-trial time amounts to three months. So, taking into account three

months time served, there will be an additional period of custody of 21 months imprisonment, concurrent. I have already stated that it would be entirely inappropriate and not meet with the principles of sentencing for this to be served by way of a conditional sentence, so that will be served by way of real jail. [ 40 ] On the same Information, I am going to make an order pursuant to s. 743.21 that Mr. Fader have no communication with [wife number 3] while he is in custody. [ 41 ] With respect to the breaches, I note that he has two previous breaches in his record.

I find these breaches to be blatant and repeated breaches, both of the no contact orders and also of the term that he not use texting to do so. Ordinarily the sentences for these would be consecutive, but given the fact that Crown was asking for the maximum amount of provincial time and a three-year probation order to follow, I agree with Crown that the sentences can be concurrent rather than consecutive. [ 42 ] On the 4KA breach, which is the one in August of 2013, the sentence will be 21 days' jail.

On the 5KA breach, a sentence of 60 days' jail, with all of these periods of imprisonment to be concurrent with each other. So, Mr. Fader, it means in total an additional 21 months. [ 43 ] With respect to the break and enter and the criminal harassment, a three-year probation order will attach upon the expiry of your period of imprisonment.

The terms of that probation order are these. [ 44 ] You are to keep the peace and be of good behaviour. [ 45 ] You shall report in person to a probation officer within 72 hours of your release from custody and report thereafter as, when and where directed by the probation officer to do so. [ 46 ] You shall reside at a residence approved of by the probation officer, maintain that residence and do not change it without the prior approval of the probation officer. [ 47 ] You shall have no contact or communication, directly or indirectly, including through telephone message, printed or verbal, e- mail, text message, or any other electronic means with [wife number 3] or any member of her immediate family, except contact with [wife number 3]. through legal counsel or incidental contact in court. [ 48 ] You shall not attend within 200 metres of [omitted for publication]. [ 49 ] You shall not attend within 200 metres of any residence or workplace of [wife number 3]. as those may be known to you. [ 50 ] Mr.

Schultz, can you remind me what he is doing now? I know there was a -- well, will he be -- [ 51 ] MR. SCHULTZ: How do you mean? Working? [ 52 ] THE COURT: Never mind. Who knows what he will be doing at the expiry of his sentence. [ 53 ] MR. SCHULTZ: It would be in British Columbia -- [ 54 ] THE COURT: Okay. [ 55 ] MR. SCHULTZ: -- or Alberta. [ 56 ] THE COURT: All right. No, it is not -- [ 57 ] MR. SCHULTZ: Or Saskatchewan. [ 58 ] THE COURT: -- that I am thinking about. Given his gross misuse of the Internet and texting, I am going to include prohibitions.

In my view, given the previous related criminal record as well as the continuity of the offences before the court, that is necessary. However, I also recognize that the Internet is sometimes necessary for work purposes, so I will provide for that. [ 59 ] So the next term is you shall not access the Internet or use any form of text messaging, e-mail or social media, except while at work and only for work purposes. So depending on what work you might have, when you are at work if you need to use the Internet or to text, et cetera, you can do so, but it has to be for work purposes.

It cannot be anything to do with [wife number 3], any new partners, anything other than for work purposes. [ 60 ] You shall not possess any weapons as defined by the Criminal Code of Canada. [ 61 ] You are to attend and participate in psychiatric, psychological assessments, counselling or core programs as may be directed by and to the satisfaction of the probation officer. [ 62 ] Finally, I am going to invite counsel if they wish to make any submissions with respect to any of these terms to do so, but this next one I am composing at the top of my head, so in particular if you have suggestions with respect to this I would invite you to make them. [ 63 ] You shall not engage in any intimate relationship without first notifying the probation officer of that relationship and having the probation officer review the specifics of your criminal convictions with that person.

Do either counsel have submissions with respect to the wording of that? [ 64 ] MR. THOMSON: It's not an uncommon phrasing for this type of situation.

[ 65 ] THE COURT: Mr. Schultz, nothing? [ 66 ] MR. SCHULTZ: Nothing at this point, Your Honour. [ 67 ] THE COURT: Okay. You have a bad habit, Mr. Fader, of doing this, so for three years after the release from custody I think it is highly appropriate and necessary for the protection of the community that before you engage in any intimate relationships that person needs to be notified of your pattern of behaviour.

Hopefully, steps can be taken, such as not taking these sexually explicit photos or videos and, therefore, not exposing themselves to the same kind of criminality which your two former spouses have experienced. [ 68 ] Because break and enter is a primary designated offence, I am required to make an order that you provide a sample of your DNA forthwith. So, either the sheriffs will take a sample of your DNA today or they may well be able to check, ensure that you have already provided one and not have to take the sample.

But it is a primary designated offence so I make that order. [ 69 ] Are there any other corollary orders that need to be made? (OTHER MATTER SPOKEN TO) [ 70 ] MR. SCHULTZ: With respect to the victim fine surcharges, I'm not sure exactly how to deal with that. He will be in custody for a lengthy period of time. Either given a very long time to pay or -- or forthwith I suppose are the two options. [ 71 ] THE COURT: Okay. Two of these offences, two of the Informations are before the change. [ 72 ] MR.

THOMSON: I believe so, so you can waive those. [ 73 ] THE COURT: So, with respect to the break and enter, criminal harassment, and the first breach, the 4KA, I will waive the victim surcharge. On the 5KA I will -- you are asking that I make it payable forthwith by way of default time? [ 74 ] MR. SCHULTZ: Yes, yes. [ 75 ] THE COURT: Okay, so I will do that. [ 76 ] MR. SCHULTZ: Thank you, Your Honour. [ 77 ] MR. THOMSON: And then I think Crown needs to direct some stays. There is a -- let's see, 79231-2KA, one count Information of a breach. We'll direct a stay on that. And then Ms.

Schmidt has careful notes on this. 79231-5KA, I think there was a guilty plea on Count 1 and the agreement was to direct a stay on Count 2, and I'll do that. C.J. ROUTHWAITE Provincial Court Judge