R. v. J.L. Date:, 2015 BCPC 316

Citation: R. v. J.L. Date: 20150826 2015 BCPC 0316 File No: 93212-1K Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J.L. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Crown: D. Loucks Counsel for the Accused: J. Thorhaug Place of Hearing: Port Coquitlam , B.C. Date of Hearing: August 26, 2015 Date of Judgment: August 26, 2015

[ 1 ] THE COURT : J.L. is before the court today for sentencing on Information 93212-1K. This Information was sworn on January 21st of 2015. It is a five-count Information. J.L. has pleaded guilty to Counts 2, 4 and 5. Count 2 charges J.L. with uttering threats to T.M., his former spouse, to cause death or bodily harm to T.M., Child J. and K.M. Count 4 charges J.L. with the offence of criminal harassment, the complainant being T.M. Count 5 charges J.L. with the offence of criminal harassment, the complainant being another person called L.G. [ 2 ] These guilty pleas were entered relatively late in the day.

Sentencing submissions were heard on the 13th of August of 2015, but the matter was adjourned to today's date for a continuation and completion of the process. [ 3 ] I will start with the circumstances of the offences. J.L. is related in one way or another to all of the complainants in the charges that are under consideration; T.M. was his spouse, Child J. is his daughter by T.M., K.M. is T.M.’s mother.

L.G. is a woman with whom J.L. had a brief relationship following the dissolution of the relationship between himself and T.M. [ 4 ] These offences, the ones in Counts 2 and 4, as to offence dates, are set out as ranges. In Count 2, the range is October 1 of 2008 to October 30th, 2010, so the offence to which J.L. has entered a plea of guilty is to repeatedly uttering threats to T.M. to cause death or bodily harm to T.M. or Child J. and K.M. over that period. Similarly, for Count 4, the date range is August 30th of 2010 to January 1st of 2015.

Here again, the criminal harassment that is at the centre of that offence is harassment that was carried out over a period of years. The criminal harassment involving the complainant, L.G., subject of Count 5, occurred as well over a period of time but a shorter period of time, from December 2nd of 2014 to January 1st of 2015. [ 5 ] I am going to summarize Mr.

Loucks' extensive submissions on the circumstances as briefly but nevertheless as completely as is appropriate in the circumstances. [ 6 ] J.L. and T.M. began their relationship in 2006 and, for a time, it was a relationship that proceeded in a normal way but as time passed the relationship began to falter and abusive behaviours began to feature in J.L.'s conduct within the relationship.

By late 2008, the fraught relationship had become very significantly troubled. [ 7 ] J.L., by all accounts, is a man who, when he does not get his way, reacts with violence, with vulgarity, with abusive, and I dare to say, virtually inhumane conduct. If he does not get his way, he will scream obscenities until someone will yield to his wishes. He will be physically intimidating. He will make threats. He will inflict physical harm. He will terrorize those who stand between him and the things he wishes to have done. [ 8 ] He uses expressions like he will "work" his victims. This is a term of art for J.L.

That term comes into clearer focus when we explore some of the specific facts that were disclosed by Crown in the course of Crown's submissions on sentence.

J.L. told T.M., for example, that if she told other members of her family about problems in their relationship and things that he was doing within the relationship, he would "work" them and "break their legs". [ 9 ] A rather significant example of the seeming lack of any concern for the well-being and the psychological and other health interests of important people in his life emerges from an incident that occurred when Child J., the child that J.L. and T.M. have together, was a newborn and had just returned home from hospital. J.L. wanted something. I am not sure if Mr.

Loucks told me precisely what it was but there was action required on the part of T.M. that she was not in a position to perform because she was nursing this newly- arrived newborn infant. In an un-contradicted assertion made by the Crown, J.L. screamed obscenities at the top of his lungs at T.M. for a period of approaching ten minutes while she was attempting to nurse this newborn infant.

This is, as I say, an unimaginably deviant type of behaviour to see displayed by someone who is confronted with his spouse, newly returned home from hospital, attempting in the very early days of the life of their daughter, to nurture and feed her. This kind of behaviour, one would have thought, would cut against the natural parental instincts of any decent person and would cut across the expectations of any reasonable, fair-minded individual. It may be that it was to get him a package of cigarettes. I have a vague recollection that that might have been what Mr.

Loucks told me, but there were many other incidents of this kind. This example of a matter of relatively trifling importance leading to outbursts of this nature on the part of J.L. says, in my judgment, a great deal about the depth and breadth of the problems with which he is going to have to wrestle in the coming years. [ 10 ] Mr.

Loucks, who I think in all fairness gave very measured submissions, more than once resorted to the use of the words "terrorized" and "terrorizing" to describe the way that J.L. influenced and treated those nearest and dearest to him and by that I mean to include his extended family, his de facto mother-in-law and father-in-law, as well as his de facto spouse. [ 11 ] For some considerable time, J.L. and T.M. had a place made for them to live with this new baby in the home of K.M and her husband, and I believe his name is B.H.? [ 12 ] MR. LOUCKS: B.H. [ 13 ] THE COURT: B.H., thank you.

J.L. did not spare either T.M. or Child J. or K.M. or her husband, B.H., from the kind of treatment that I have been describing. Great dramatic explosions of temper, screaming, threatening. This came to be a pattern that repeated itself over and over again within the household where the complainants and J.L. resided together. [ 14 ] I return to the incident involving the newborn infant in its first few hours in the family home.

This inhuman display of aggression and terrorizing behaviour on the part of J.L. led K.M. to intervene in an effort to protect her daughter and her newly-born granddaughter from the trauma that this incident was causing. For her efforts, she was told that she had better get herself upstairs or J.L. would "knock her head off". [ 15 ] On another occasion with another obscenity-laden screaming episode, as Mr. Loucks described it, B.H., T.M.'s father, intervened by commenting.

That intervention, plainly motivated to shelter and shield his daughter and granddaughter from J.L.'s abusive conduct, netted him a punch in the face that resulted in the breaking of his nose. This J.L. did after threatening earlier in the exchange to

"work" him. While he worked him, he punched him in the face and broke his nose. [ 16 ] This pattern of abuse ebbed and flowed over a period of time until the summer of 2010. As the parties found themselves unable to remain together, there then began a campaign of harassing telephone calls and texts, many of them containing threats to smash property belonging to the M. family, to forcibly remove Child J. and take her away from T.M., her mother. He threatened to break the door down to gain access to Child J.

J.L., at one point -- these are all un-contradicted assertions -- posted on Facebook a posting saying that he intended to hire a hitman to kill T.M., his daughter's mother.

J.L. visited upon T.M. at her workplace a barrage of unwelcome telephone calls, interfering with her relationship with her employer. [ 17 ] To the extent that he was able to have communication with Child J., the daughter, he recruited her as a foot soldier in his war of words with her mother, T.M., and told her, among other things, to describe her mother or refer to her mother as a "bitch". [ 18 ] Police were ultimately brought into the picture. J.L. was arrested in January of 2015 and there was one further incident of harassment that occurred during the time he was bound by release conditions.

That, I think, is a sufficient

summary of the egregious facts that lie behind Counts 2 and 4. [ 19 ] Count 5 involves another complainant, a romantic interest of J.L.'s that developed in the later part of 2014. L.G., a woman who, like J.L., struggles with substances, fell into a relationship with J.L. for a relatively brief period. She had her own intentions to work on her own recovery and free herself from her own demons, and recognized that the relationship with J.L. was going to hinder her progress in that regard.

She therefore sought to bring that relationship to an end so that her prospects of recovery would not be curtailed. [ 20 ] J.L., who does not like "no" for an answer, harassed L.G. by calling her constantly. Once he called her in a drunken stupor, having misdialled and believing that he had called T.M. He called her frequently and those calls were unwelcome. J.L. was not prepared to take "no" for an answer from L.G.

He forced himself upon her through unwanted contact and that is the conduct that gives rise to Count 5, the subject of a guilty plea. [ 21 ] Those are the circumstances of the offences for which J.L. is now before the court and answerable. [ 22 ] J.L. is 34. He works as an ironworker, mostly outside the Lower Mainland, but home base is his mother's home in Mission. One looks hard at this file to find anything that one could describe as heart-warming, but like every cloud there is a bit of silver to be seen if one looks closely.

J.L.’s mother has been present throughout the sentencing and I gather from submissions that she has attended at other appearances leading up to sentencing. She stands behind her son, saying that provided he stays away from alcohol and other substances, she still will make a home for him. That is a display of maternal support that is inspiring and quite remarkable, frankly.

J.L. is luckier than I think he realizes in having a mother who, hearing these terrible things about her son and her son's actions, nevertheless seeks to contribute to his moving forward in a different direction than the pathway he has taken up until now. [ 23 ] As I said, J.L. is an ironworker. He has worked pretty much on a full-time basis on out-of-town assignments. He has good prospects of regaining work of that kind in those kinds of work environments, some of them dry camps, and he hopes to continue working once these criminal proceedings are behind him. [ 24 ] J.L. completed his Grade 12 education.

He has taken some proactive steps to deal with his demons. He has acknowledged, Mr. Thorhaug submits, that he has a problem with alcohol and that he is, in fact, an alcoholic and he has begun attending sessions at AA. Mr. Thorhaug submits that he understands that, given his history, he dare not ever again take another drink. [ 25 ] J.L. has a distressing criminal record, which is part of his make-up and it is an aspect of his make-up that is relevant to sentencing. On his record, his offending began in 1998 when he was still a youth. He has a conviction as a youth for break and enter.

He has, as an adult, crimes of violence on his record, assault causing bodily harm, mischief to property, assault of a different partner, mischief. He has not been unfailingly compliant with court orders. He has breached undertakings and recognizances. All of these aspects of his criminal background are present in the court's mind as sentencing proceeds. [ 26 ] Of particular concern are the crimes of violence. Of considerable concern is the evidence that J.L. is disinclined to abide by court orders. The commission of offences while bound by orders to keep the peace and be of good behaviour, for example.

He breached a conditional sentence order. Some of the offending that is at issue here occurred at a time when he was bound by a conditional sentence order. Court orders are the instrumentality by which the court seeks to exert control over an individual in the community for the benefit of those who might otherwise suffer at the individual's hands and J.L.'s track record as a person who can reliably be expected to abide by court orders is not a good one. [ 27 ] I turn to the effects of the offences on the victims.

I will say first that there was no victim impact statement provided by the complainant in Count 5, that being, L.G.; however, both T.M. and K.M., J.L.'s former spouse and J.L.'s former de facto mother-in-law, respectively, both gave impassioned and frankly quite moving victim impact statements to the court. I listened carefully to them. Written versions of them were handed up to me. I have read them again.

These victim impact statements attest to the horror of having to live in the presence of someone who so easily becomes unhinged, as does J.L. [ 28 ] J.L.'s first concerns are for himself and his own immediate wishes and gratification and when his own gratification is interfered with in any way, he wreaks absolute havoc. He has, through his actions, left an indelible imprint on both T.M. and K.M.

As to what effects long-term may reveal themselves in Child J., we can only speculate but I can hardly think that displays of the kind that were described to me in the submissions of the Crown and in the victim impact statements of the two adult complainants have not left some kind of psychological scar.

No child should ever have to endure what J.L. has visited upon Child J., a child whom he says is at the centre of his life. [ 29 ] I will pause to say that I do not doubt that J.L. has a father's love and affection for Child J., but what J.L. also has is a near-to- ungovernable temper, a near-to-ungovernable tendency to resort to violence and abusive and harassing behaviour whenever life presents him with circumstances that do not suit his wishes. Life presents people with circumstances that do not suit their wishes all the time.

If J.L. is to ever become the kind of person who will not represent a grotesque threat to the happiness and well-being of people around him,

he is going to have to get hold of those tendencies with professional help and develop a repertoire of self-controlling and moderating skills and behaviours that he currently lacks. [ 30 ] J.L. had many things to be thankful for, starting with T.M., his spouse, who bore him a daughter; K.M., and her husband, B.H., who provided space in their home for him.

His way of showing his gratitude for all that has been done for him is, frankly, unfathomable. [ 31 ] J.L. has an enormous amount of work to do in order to corral these tendencies and bring his behaviour within both lawful and civilized limits. [ 32 ] I turn to mitigating circumstances. There is not, quite frankly, a great deal to talk about under this heading. It is true that J.L. entered a plea of guilty and spared the Crown, the court and, most importantly, the Crown witnesses the ordeal and the expense and the inconvenience of having a full trial. That is undoubtedly mitigating and I treat it as such.

I only add the caveat or qualification that the mitigating force, which is considerable, of the guilty plea is blunted to some extent by the fact that it came so late.

It is, nevertheless, a mitigating factor and I treat it as such and it finds a place in the sentencing calculus that I have to perform. [ 33 ] The references to proactive steps taken by J.L. that I mentioned a moment ago -- that is to say, his having begun to attend Alcoholics Anonymous sessions -- represents some measure of insight into the source causes of his offending and the fact that he has taken those steps is, in my judgment, a fact that I ought to take into account by way of mitigation. These are early days.

One might say those are baby steps but any steps in a positive direction -- in a direction aimed at moving past and beyond this man's pattern of behaviour -- are important and ought to be recognized as such and I treat them as mitigating. [ 34 ] I turn to aggravating factors and, sadly, there are many more of those to discuss than there are mitigating factors. Aggravating factors fall into a couple of categories; there are statutory aggravating factors and common law aggravating factors.

Section 718.2(a)(ii) specifies that where an offender, in committing an offence, abuses the offender's spouse or common law partner, that is a statutorily aggravating factor. Well, this case is all about that, and more. [ 35 ]

Section 718.2(a)(ii.

i) specifies that where an offender, in committing an offence, abused a person under the age of 18 years, that is an aggravating factor. Unquestionably, the behaviour that J.L. displayed in the presence of Child J. brings him within the scope of that provision. [ 36 ]

Section 718.2(a)(iii) provides that where an offender, in committing an offence, abuses a position of trust or authority in relation to the victim, that is a statutory aggravating factor. Any spouse occupies a position of trust vis-a-vis the other spouse. Classically, by reason of artefacts like simple differences in strength and power, men frequently enjoy advantages. Men enjoy advantages that can be taken advantage of within the family home, for example, a place that is out of sight relative to the rest of society. This is the kind of thing that happened in the home that J.L. and T.M. occupied together.

J.L.'s behaviour breached the trust that is inherent in the quasi spousal relationship that existed between him and T.M. There is an inherent trust-like character to the welcoming of J.L. into the home of his in-laws. That trust was breached as well. [ 37 ] At common law, the use of violence, when committing an offence, is an aggravating factor. Violence is at the heart of the charges J.L. has pleaded to, violence of a sort. [ 38 ] The absence of remorse or insight is an aggravating factor at common law.

While there is a tiny flicker of insight to be seen in J.L.'s willingness to start attending AA meetings, and Mr. Thorhaug was at pains to make submissions that J.L. now recognizes the error of his ways and appreciates that he has made mistakes, I am, despite Mr.

Thorhaug's well-crafted and able submissions, deeply sceptical as to the sincerity, frankly, and at the very least, depth and breadth of J.L.'s insight. [ 39 ] The very fact that this grotesque display of inhuman behaviour played itself out over such a lengthy period suggests that seeing the effects his behaviours have on the people around him has not deterred J.L. from continuing in that way.

The very fact that, after having a relationship come asunder by reason of that pattern, J.L. enters another relationship, finds the other party wishing to withdraw from it and embarks on the same kind of harassing campaign with this new love interest shows that J.L. seems not to learn from the consequences that naturally befall him, quite apart from those that ultimately will flow through the criminal justice system.

This, in my judgment, is quite powerful evidence that the level of insight that he has into his own offending, his proclivities and the wrongfulness of his actions is quite minimal. [ 40 ] As recently as July of this year, J.L. participated in a careful process that yielded ultimately the pre-sentence report that has been filed in relation to this sentencing. J.L. was interviewed, as well as were others. There are here and there throughout the pre-sentence report clear indications of the minimal insight that he has into his own behaviour and its effects on others.

For example, on page 3 on the subject of substance abuse, there is a sentence begins with the words: “[J.L.] does not feel he has a problem with alcohol abuse.” One shakes one's head when one reads that. How could he not feel that he has a problem with alcohol abuse when so much of his unhinged behaviour is displayed at times when he has consumed alcohol to excess? How could he persist in this self-deluded belief that he does not have a problem with alcohol abuse? Alcohol abuse has him sitting in custody. Alcohol abuse has him estranged from his former spouse.

Alcohol abuse has led to behaviour that has effectively separated him from his daughter. Alcohol abuse has now put him in a position where he will not be able to work for a period of time. “[J.L.] does not feel he has a problem with alcohol abuse.” J.L. will need to have the scales lifted from his eyes in some way so that he can understand in a way that he does not now that alcohol abuse and a lot of the behaviour that seems to come packaged with it has operated to nearly destroy the lives of other people around him who are important to him and is well on its way to destroying his own life.

“[J.L.] does not feel he has a problem with alcohol abuse.” J.L. does not have insight into his own offending and its root causes. That is all that one can take from that reference. [ 41 ] I turn to page 5. "Attitude and Understanding Regarding Offence", that is the heading. J.L., according to the report-writer, Maron Komini (phonetic), denies responsibility for the offence stating that: “It is a means for [T.M.] to get back at him.

He does not think that he was abusive towards either of the victims and feels that they have colluded against him to deny him access to his child.” The report-writer goes on to say: “He does not show any insight into any harm he may have caused either of the victims as well as [T.M.’s] family.” Now, Mr. Thorhaug submitted that J.L. takes issue with that language in the report. There was some discussion in the course of submissions about collusion and what that really means (and I appreciate the import of Mr.

Thorhaug's submissions) but I am still left with the very clear sense that, to the extent that J.L. has insight, it is still minimal insight and that unless and until, with professional assistance, he gains a better understanding of himself, the tendencies that are manifest in his actions toward his daughter, toward his former spouse and other people who are making a place for them in or have made a place for them in their lives, until that all penetrates more deeply than it has, there is reason to be concerned that the risk of re-offending is considerable. [ 42 ] Where an offender lacks remorse or insight, that is a common law aggravating factor and, in my judgment, that common law aggravating factor is writ large on the face of this case. [ 43 ] It is an aggravating factor at common law to show a callous disregard for the harm caused to others by one's actions.

That fits perfectly the facts here. J.L. has shown a callous disregard for the effects of his behaviour on his victims. [ 44 ] It is an aggravating factor at common law to take advantage of a helpless victim. That is exactly what he has done here. His victims have been essentially helpless. He is big enough, strong enough, overbearing enough to overpower all of them. Get in J.L.'s way and at the very least you will be screamed out of the room and you may have your nose broken. It hardly matters that there is a newborn infant being nursed during its first few hours at home.

If J.L. wants something, you better stand to attention, drop everything else, including the baby, and get on with helping him out or he will scream obscenities at you and, if you are so unwise as to intervene, you will receive at the least threats and possibly worse. [ 45 ] It is an aggravating factor at common law to offend over an extended period and I made mention of this before: these offences are described as to offence dates in ranges because this is the type of offending that was repetitive and recurrent over long periods of time. [ 46 ] At common law, where an offender is at a high risk of re-offending given unaddressed underlying factors like addiction, that is aggravating.

That ties into the same logic that governs what I said about lack of insight and that is very much at play in this case. [ 47 ] I am not going to go

section by section, item by item, through all of the various provisions of the Code that speak to considerations that a court must bear in mind. I will quote from a case called R. v. Pommer , [2008] BCSC 737, which provides a nice, compendious

summary of the purposes, objectives and principles of sentencing. “The “normative” principles of sentence are set out in ss. 718 , 718.1 , and 718.2 of the Criminal Code .

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just and peaceful society by imposing fair sanctions that reflect the objectives of sentencing as identified in s. 718 of the Criminal Code : to denounce unlawful conduct; to deter the offender and other persons from committing offences; to separate offenders from society, where necessary; to assist in rehabilitating offenders; to provide reparations for harm done to victims or to the community; and to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.

Section 718.1 sets out the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2 lists other sentencing principles to be considered including aggravating or mitigating circumstances relating to the offence or the offender, evidence that the offender in committing the offence abused the offender’s spouse or a position of trust in relation to the victim; that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and all available sanctions other than imprisonment that are reasonable in the circumstances should be considered.” That is a compressed

summary of the dictates of Parliament with respect to the task that every sentencing judge must undertake in each sentencing.

[ 48 ] Now, I turn to the different positions taken by counsel in recommending sentence. Mr. Loucks for the Crown argues in favour of a two-year custodial sentence less a day. From that, credit for time already served (or dead time as it is sometimes called) must be granted at one-and-a-half days per day of dead time.

He follows that up with a recommendation that J.L. be placed on probation for a period of three years with the usual and expected conditions aimed at isolating J.L. from his victims, requiring him to take the necessary counselling and treatment to build on any benefits that might have accrued through taking of programs while in custody so that the likelihood that these patterns of behaviour will persist into the future can be reduced or eliminated. He also suggests certain other ancillary orders having to do with firearms and so on. That is the Crown's recommended sentence for J.L. [ 49 ] Mr.

Thorhaug, on behalf of J.L., has, I would say, somewhat gently raised for the court's consideration the possibility of a conditional sentence order; that is to say, a term of imprisonment served in the community under strict rules, strict constraining conditions. In the alternative, he has submitted that if a period of conventional incarceration is to be imposed, that it should be not up in the range of two years, as Mr. Loucks suggests, but more in the zone of four months. Mr. Thorhaug, I think, shares Mr.

Loucks' view that a lengthy period of probation is necessary, recognizing that the protective features of probation, coupled with its rehabilitative features, are a very important part of the sentencing equation here. [ 50 ] I will say first in relation to those recommendations that, on the requirements of the Code and on the approach reflected in R. v. Fallofield , I am unable to accede to the suggestion which I say was presented with a certain amount of delicacy by Mr. Thorhaug. I am unable to accede to the recommendation that there be a conditional sentence order here.

I cannot square the circumstances of this case and its unique requirements with the logic and the reasoning in Fallofield and the statutory requirements that must be fulfilled in order to make a conditional sentence order appropriate. [ 51 ]

Section 742.1 says that in order for the court to impose a conditional sentence order as a sentence, the court has to be satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in s. 718 and following. [ 52 ] I do not consider that allowing J.L. to serve his sentence in the community would provide sufficient protection for his victims, those victims being members of the community.

Other members of the community also, while J.L. remains so lacking in insight and control of his behaviour would, in my judgment, be exposed to an intolerable risk.

A conditional sentence order would, in my judgment, endanger the safety of the community and community members, including the victims and others to the point where a CSO is simply unavailable in the circumstances here. [ 53 ] Similarly, when I look at the fundamental purpose and the principles of sentencing, which I summarized earlier, and I look at the objectives of deterrence and denunciation and the separation, where necessary, of an offender from society for the protection of others, those fundamental purposes and principles would not, in my judgment, be properly addressed if I were to impose a conditional sentence order. [ 54 ] It is for those reasons that, with all respect to the carefully-presented arguments that Mr.

Thorhaug made, I am unable to accept the submission that a conditional sentence order is the appropriate sanction here. [ 55 ] I have only one case that has been handed up to me in relation to guidance that can be taken from other authorities. That is R. v. Malakpour , 2008 BCCA 326 . Of course, sentencing is an individualized process and every case involves the tailoring of a sentence to the unique circumstances of that case and the individual circumstances of the offender. No two cases are the same.

Cases that have been decided previously in similar circumstances provide the court with guidance but there is never a ready-made, off-the-rack sentence to be taken from any court decision rendered in another case. [ 56 ] Malakpour has some features that are similar to the case at bar and some that are different. It is different in the sense that Malakpour is a case of harassment only. Here, we have threatening coupled with harassment and two harassment counts, one involving L.G., the other involving J.L.'s former spouse and daughter and de facto mother-in-law.

I would say that the character and pattern of harassment reflected in Malakpour (with thousands of telephone calls) differ from the case at bar just in terms of the sheer volume of behaviour at issue. That is a distinguishing factor. The court in Malakpour , on appeal, only interfered with the decision of Judge Buller Bennett by adjusting the credit for time served. The court in Malakpour considered that a 30-month sentence for Mr. Malakpour's harassing behaviours was appropriate.

He ultimately was called upon to serve only 24 months of new time after the adjusted credit for dead time was subtracted. [ 57 ] In that regard, in terms of the appropriateness in the circumstances of that case of a 30-month sentence, at paragraph 13, Madam Justice Rowles says, and I am quoting: “A review of the case authorities referred to by the trial judge and by counsel before us do not support the appellant’s submission that a thirty-month sentence was excessively long when the circumstances of the offence and the offender are considered. The circumstances of this offence were very serious.

The conduct constituting the offence was unremitting, exceptionally intrusive, and frightening.” [ 58 ] Those words of Madam Justice Rowles, speaking of course of a different case but with some common features, tell me that in terms of the ballpark or the range, Mr. Loucks, in urging a sentence in the zone of two years is closer to the mark than was Mr. Thorhaug in recommending a custodial sentence of four months. [ 59 ] There is a case called R. v. Fader , [2014] BCJ No. 3300 , a decision of Judge Rounthwaite sitting in Abbotsford.

This was a case of harassment, again distinguishable in some ways on its facts but is comparable in others. The victim was a former partner, as is the case here. Mr. Fader engaged in different kinds of behaviour, including breaking into his former wife's residence taking iPads, sending sexually-explicit photographs and videos of her to her work colleagues and son, and repeatedly e-mailing her. He did have a prior record that included the same conduct against a previous wife.

[ 60 ] Well, there is a bit of a parallel there in the sense that the counts here involve serial displays of these behaviours with different partners. J.L.'s record shows that he has been involved violent offending involving another partner as well. Here again, nothing is directly comparable but the case provides some guidance in terms of the ballpark. Two years less a day was considered a proper and appropriate sentence for a combination of break and enter and theft and criminal harassment. That is closer to the range that Mr. Loucks was urging upon the court than the one that Mr.

Thorhaug suggested on behalf of J.L. [ 61 ] R. v. Taylor , [2014] BCJ No. 2082 , is a decision of the Court of Appeal. Here, the offender was harassing his former girlfriend. He had previous convictions for assaulting, threatening and unlawfully confining that same person so that is something that takes this case somewhat away from the case at bar. Mr. Taylor was considered at a high risk for future violence. I consider J.L. to be a relatively high risk as well, given the fact that he shows so little insight into the underlying causes of his behaviour.

This harasser in Taylor repeatedly made unwelcome communications with his victim, sought to persuade her to leave her new husband and resume the relationship with the appellant. The court in that case concluded that a four-and-a-half-year term of imprisonment for criminal harassment in what are recognizably more egregious circumstances was a fit sentence. Again, this inclines me away from the four- month submission of Mr. Thorhaug and in the direction of the two-year submission made by Mr.

Loucks. [ 62 ] Taking all of that into consideration -- taking into account all of the factors and objectives that I am obliged to consider; recognizing that deterrence, both specific and general, denunciation, which is to say the formal and emphatic expression of the court's disapproval of the offending conduct, is a proper consideration; taking into account the safety and security interests of the victims, and by those I mean to include not only physical safety and security but peace of mind that comes from knowing that, at least for a period of time, there is no chance of J.L. stating his reign of terror over the victims; taking all of those considerations into account -- the conclusion I have reached is that there has to be a period of conventional incarceration for J.L. [ 63 ] Would you stand up, please, J.L.?

The period of conventional incarceration that I impose, having regard to the authorities and the unique pattern of facts in this case, is a period of 22 months. [ 64 ] Following his release from custody after serving his sentence of conventional incarceration, J.L. is going to have to be on probation for, as Mr. Loucks recommended, a period of three years.

That is the maximum available period of probation. [ 65 ] While on probation, J.L. must keep the peace and be of good behaviour and report to court when required to do so. [ 66 ] J.L. must report to a probation officer at 2610 Mary Hill Road, Port Coquitlam, British Columbia, forthwith upon his release from custody, and then he must report thereafter, as and when and in the manner directed by his probation officer. [ 67 ] Before moving to the next condition, Mr.

Thorhaug, I just want to inquire of you, does the submission you made about J.L.'s mother's home being the place to which he is welcome to return, that continues to be the case? [ 68 ] MR. THORHAUG: Yes. [ 69 ] THE COURT: Do you have an address for me? [ 70 ] MR. THORHAUG: I didn't write that down.

She's present and can give that to court. [ 71 ] UNIDENTIFIED SPEAKER: [address] [ 72 ] THE COURT: That is Mission? [ 73 ] UNIDENTIFIED SPEAKER: Yes. [ 74 ] THE COURT: Thank you. [ 75 ] Following his release from custody, J.L. must reside with his mother at [address], and he must not change his residence without first obtaining the written consent of his probation officer. [ 76 ] J.L. must have no contact whatsoever, directly or indirectly, with T.M. and Child J., except through counsel involved in family law proceedings, or as authorized by an order of the Family Division of this court.

J.L. must not be found within a three-block radius of any residence, place of education, place of employment or place of worship for T.M. J.L. must not be found within a three-block radius of any residence, place of education or place of worship known to him for Child J., except as authorized by an order of the Family Division of the court. [ 77 ] J.L. must have no contact whatsoever, directly or indirectly, with K.M. or B.J.

J.L. must not be found within a three-block radius of any residence, place of employment, place of education or place of worship for K.M. or B.H. [ 78 ] J.L. must have no contact, directly or indirectly, with L.G. J.L. must not be found within a three-block radius of any residence, place of employment, place of education or place of worship known to him for L.G. [ 79 ] J.L. must enrol in, participate in and complete to the satisfaction of his probation officer such counselling and treatment as his probation officer, in his or her discretion, directs.

This may include, but is not necessarily limited to, relationship violence prevention counselling, anger management counselling and substance abuse counselling and treatment available on an outpatient or residential basis. [ 80 ] I am imposing a ten-year firearms ban under s. 109 of the Criminal Code .

I am making an order that J.L. may not possess any weapons, as defined in the Criminal Code of Canada , including knives, save and except for the immediate preparation and consumption of food and for purposes associated with his lawful employment and then only at his place of lawful employment. [ 81 ] There will be programs available to J.L. while he is serving his custodial sentence and I would urge him in the most forceful

way to avail himself fully of those programs. Those programs have the potential to assist J.L. in gaining a better understanding of his own tendencies to behave in the ways that have him before the court today and to learn the skills that can frankly come to him only with professional assistance that he will need in order to be able to curtail those tendencies and render himself no longer a source of risk and concern to others.

If he lays a foundation, as he is able to do if he avails himself of those resources in the institution, then that foundation will provide him with something that can be built upon as the rehabilitative requirements of this probation order taken effect following his release from custody. [ 82 ] Apart from the victim fine surcharge, do counsel have anything they wish me to address? [ 83 ] MR. LOUCKS: There is the issue that J.L. has a total of 28 days of pre-sentence custody which should -- [ 84 ] THE COURT: Right.

I was wanting to ask you to recalculate the amount of dead time so that I can express that in terms of credit for time served. (SUBMISSIONS) [ 85 ] THE COURT: Okay. I think I can work with that. So the sentence is for 670 days of which credited time served of 42 must be subtracted for a remaining time to be served, new time of 628 days in custody. [ 86 ] Any submissions on the victim fine surcharge, Mr. Loucks? [ 87 ] MR. LOUCKS: None of the Crown. [ 88 ] THE COURT: All right. Then the victim fine surcharge is payable forthwith.

Counsel for J.L. has indicated that he will not pay that fine forthwith and, accordingly, I will impose a sentence of one day in custody in default of payment of the victim fine surcharge and that sentence will be served concurrently with the custodial sentence imposed on the substantive offences. [ 89 ] Anything further? [ 90 ] MR. LOUCKS: Yes, Crown directs stays on the two remaining counts. [ 91 ] THE COURT: That is Count 1 and Count 3? [ 92 ] MR. LOUCKS: Count 1 and Count 3, yes. [ 93 ] THE COURT: Stays of proceedings on Counts 1 and 3 of 93121-1K. [ 94 ] MR. THORHAUG: I think that's everything. [ 95 ] MR.

LOUCKS: Yes, unless there was some need to specify which portions of the sentences apply to which counts. [ 96 ] THE COURT: I have imposed the sentence globally on all three counts. That is, I think, how I heard the submissions. [ 97 ] MR. LOUCKS: Yes. Very good, Your Honour. [ 98 ] THE COURT: I take it no one has any problem with that approach. [ 99 ] MR. THORHAUG: No. [ 100 ] THE COURT: All right then. (REASONS FOR SENTENCE CONCLUDED)