R. v. Butler

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation: R. v. Butler, 2019 NLCA 21 Date: April 5, 2019 Docket Number: 201801H0023 BETWEEN: LORNE BUTLER APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: Hoegg, O’Brien and Goodridge JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador Grand Bank Appeal Heard: January 23, 2019 Judgment Rendered: April 5, 2019 Reasons for Judgment by: Hoegg J.A. Concurred in by: O’Brien J.A. Dissenting Reasons by: Goodridge J.A. Counsel for the Appellant: Derek Hogan Counsel for the Respondent: Dana Sullivan Page 2 Hoegg J.A.: INTRODUCTION [1] On September 3, 2017, Lorne Butler was charged with criminally harassing a female complainant contrary to section 264(2) of the Criminal Code. The Crown proceeded by way of indictment. He was arrested, denied bail, and convicted after trial on December 21, 2017. On March 7, 2018, he was sentenced to two years less a day followed by three years probation with conditions. [2] Mr. Butler appealed his conviction and sentence. In the summer of 2018, he applied for judicial interim release. During the course of his judicial review application, Mr. Butler withdrew his conviction appeal, and I granted him leave to appeal his sentence. On September 6, 2018, I granted his bail application on strict conditions. His sentence appeal was heard on January 23, 2019. ISSUES [3] Mr. Butler’s sentence appeal raises two issues: 1. Did the sentencing Judge err in principle by disregarding the exceptional nature of Mr. Butler’s reason for harassing the complainant or by failing to consider Mr. Butler’s mental illness as a mitigating factor? 2. Was Mr. Butler’s sentence demonstrably unfit? BACKGROUND Mr. Butler [4] Mr. Butler is 60 years old. He is married with two adult children. He lives with his wife in a small Newfoundland community approximately 40 kilometres from where the complainant and her family live. Mr. Butler has no formal education. He has worked seasonally in fish plants and as a farm labourer most of his adult life. At the time of his incarceration for this offence he was receiving employment insurance benefits. [5] According to a Pre-Sentence Report (PSR) dated March 22, 2006 prepared in relation to convictions at that time but submitted at the sentencing hearing in this matter, Mr. Butler had had significant health and substance abuse Page 3 challenges in his early adulthood, but they resolved after his conversion at the age of thirty. [6] Mr. Butler adheres to a strict belief system which governs his attitudes and behaviour towards the people around him and life in general. He testified that he carries a bible and a flower through the community of Burin in protest of the fact that the bible is no longer taught in schools. He has told police that they are “secret agents of the papacy” and stated that they had sworn an oath to Satan whereas he had sworn an oath to God. He espouses conspiracy theories, follows a rigid dietary regime, and does not believe in the use of medications or western medicine. Cross-examination of Mr. Butler at trial ended when he stated that school teachers, judges, nurses and physicians take a Jesuit oath to provoke him, and that those who swear that oath are called to be spies and dissemblers, and to cause wars and revolutions. [7] Mr. Butler has a criminal record, most of which is quite dated. In the mid to late 1970s he was convicted of three break and enters. In 1984 he was convicted of failing to obey a summons, and in 1985 he was conditionally discharged for possessing marihuana. In 2006 Mr. Butler was convicted of threatening a social worker and attempting to obstruct justice. According to the March 2006 PSR, these charges arose from the intervention of Social Services into a family conflict which involved his daughter’s wish to attend school with her friends rather than being home-schooled. [8] Mr. Butler’s approach at his trial was that he had done nothing wrong. He did not show that he appreciated the seriousness of his actions and their effect on the complainant, did not take responsibility for them, and was not remorseful. The Judge observed that Mr. Butler lacked insight into his behaviour. The Complainant [9] The complainant is a medical doctor. Her home and clinic are in the town of Burin, and she has privileges at the Burin Peninsula Health Care Centre located in Burin. Mr. Butler is not her patient, nor is he a patient of the other doctor in her clinic. The complainant’s medical practice services a large geographical area on the Burin Peninsula. Without question, she has a profile in the Burin Peninsula community. [10] The complainant and Mr. Butler had no previous relationship, although the evidence discloses that he had consulted with the complainant in the Page 4 Emergency Department at the Burin Hospital prior to the events which gave rise to the charge. [11] The complainant and her husband have two young children who attend school in Burin and participate in extra-curricular activities there and in the surrounding communities. Although the charge against Mr. Butler identifies only the complainant as having been harassed, the complainant’s husband and children have also been subjected to and affected by Mr. Butler’s harassing behaviour – both directly and indirectly. [12] Mr. Butler’s harassing behaviour has had a profound effect on the complainant and her family. The Judge succinctly described it at paragraph 7 of his sentencing decision: There is no doubt that the criminal harassment of her has had a profound effect on her. She described the experience of trying to cope with the harassment as a four year nightmare. It has left her in a state where she is afraid to be home alone, and where they keep the doors of their home locked, even when they are at home. The harassment has caused her and her husband to miss work, she has had to attend counselling, and all of the family, spouse and children, have been negatively impacted by the actions of the accused. In short, until Mr. Butler was incarcerated, the complainant and her family were anxious and frightened and felt as though they were in a state of siege with no end in sight. The Harassment [13] The complainant first noticed Mr. Butler driving by her and her daughter one evening in 2013 when they went out for a walk. Thereafter, she began to notice Mr. Butler driving or walking slowly by her home and peering into it. On one occasion he yelled at the complainant and her children as they were going into the house. On two occasions he “popped up” near the complainant’s husband at a grocery store. On another occasion he entered a travel agency when the complainant was there doing business although he had no business to do there. Mr. Butler’s actions occurred during the spring and fall of the years. The complainant found them strange and became increasingly concerned about them. [14] The incidents involving Mr. Butler were frequent enough to cause the complainant to document many of them. She testified to 26 documented Page 5 instances of Mr. Butler’s harassing behaviour over four years, but said there were other incidents that she had not recorded. [15] For a long time the complainant did not want Mr. Butler to be criminally charged for his behaviour. Eventually she and her husband requested the police to ask Mr. Butler to stay away from them and their home. The police spoke with Mr. Butler on three occasions, and the complainant’s husband thrice confronted Mr. Butler and warned him to stay away from them and their children. These warnings were to no avail. Mr. Butler’s response was “it’s a free world” and that he had as much right to be on public streets or in local stores and businesses as they did. [16] In September 2017 Mr. Butler showed up at the complainant’s clinic where he used the washroom, and made a nuisance of himself to patients waiting in the lobby area. It was after this incident when the complainant sought a criminal investigation. [17] The Judge summarized Mr. Butler’s behaviour at paragraph 18 of his conviction decision, saying: He has continued to walk or drive by their home (up to five times a day), he walked into the travel agency while the complainant was there, he followed the spouse of the complainant in the supermarket, and he went into the complainant’s clinic uninvited and without an appointment. He had no business in either the travel agency or the clinic … [18] The Judge convicted Mr. Butler for his besetting of the complainant’s dwelling house and other harassing behaviour towards the complainant and her family and detained him in custody pending his sentencing. THE APPEAL [19] Appellant’s counsel argues that the Judge erred in principle by disregarding the exceptional nature of Mr. Butler’s reason for harassing the complainant and also by failing to consider his mental illness as a mitigating factor. While the two arguments are different, they do overlap. Mr. Butler’s Reason for Harassing the Complainant [20] The argument that the Judge disregarded the exceptional nature of Mr. Butler’s reason for harassing the complainant must fail. It is abundantly clear from the Judge’s decisions on conviction and sentence that he appreciated Mr. Butler’s reason for harassing the complainant. Mr. Butler’s own evidence Page 6 established that he held fixed views of certain people (of whom the complainant was one by virtue of her profession) and he said that he held those views because those certain people had not been converted to his religion. Mr. Butler did not state why he was besetting the complainant and her house, and indeed denied doing so, claiming that his appearances by the complainant’s home were coincidental to his enjoyment of nature in the area. [21] It is evident from his decision that the Judge was aware that Mr. Butler’s harassing behaviour stemmed from his professed religious views and lack of insight into his actions. [22] Mr. Butler’s counsel argues that Mr. Butler’s motivation is distinct from that which is typically seen in criminal harassment cases. His counsel suggests that the difference warrants a reduced sentence. [23] I agree that the jurisprudence suggests that the most common motivations for criminal harassment are jealousy, possessiveness, and the inability to handle rejection following the demise of an intimate relationship. Such harassment is frequently tied to domestic violence, which is an aggravating factor in sentencing (section 718.2(a)(ii)). [24] While an accused’s reasons or motivation for harassing a complainant can be a relevant factor in his or her sentencing, it does not determine a sentence nor does it outweigh other factors. Mr. Butler’s reasons for harassing the complainant in this case do not make the harassment any less serious. It is the nature and degree of the harassing actions that principally inform an appropriate sentence. In any event, it is clear from the Judge’s decision that he considered the evidence and circumstances that may have motivated Mr. Butler’s harassing actions, including his own explanations and reasons for his conduct. Mr. Butler’s Mental Health Argument [25] Counsel for Mr. Butler argues that the Judge failed to take Mr. Butler’s mental health into consideration when sentencing him. While this argument lacks specifics, the essence of it is that Mr. Butler’s persistent besetting of the complainant and her home show obsessive or delusional behaviour, and that the Judge erred by not considering this to be a mitigating factor. [26] There was no medical evidence presented at the trial or at the sentencing hearing respecting Mr. Butler or his mental health. There was, however, a reference in the January 29, 2018 PSR prepared in relation to this matter respecting a consultation Mr. Butler had with Dr. Gill while he was incarcerated. Page 7 [27] Dr. Gill is a forensic psychiatrist. Her observations of Mr. Butler were described by the author of the PSR as follows: Medical Records, Her Majesty’s Penitentiary, St. John’s, NL indicated that the accused was noted by Dr. Gill as being very religious and of the Seventh Day Adventist faith. She had noted that there were no noted auditory or visual hallucinations. The accused was described as presenting as a very calm and pleasant individual. He was logical and coherent. She had stated that there was some evidence of paranoia regarding the police and other medical professionals, etc. having a conspiracy to prevent him and others from spreading the word of God. Dr. Gill suggested a further query regarding Schizotypal Personality Disorder. She had stated however this was unclear due to some delusions and paranoia over his religious ideas. Dr. Gill had noted that there were no acute concerns at the time of his visit. As shown, Dr. Gill did not diagnose Mr. Butler with a mental illness. Neither did Mr. Butler adopt or advance Dr. Gill’s comments or any mental health argument at his sentencing hearing in support of an argument that his sentence ought to be mitigated. In fact, Mr. Butler appears to have denied having a mental health condition at his hearing. [28] This Court considered the effect of mental illness on sentencing in R. v. Branton, 2013 NLCA 61, 341 Nfld. & P.E.I.R. 329. The Court explained that a connection or nexus between the commission of the offence for which the offender is being sentenced and the offender’s mental health condition must be established to support an argument for mitigation (paragraphs 34-35 and 38). [29] In R. v. Bourgeois, 2018 NLCA 13, this Court stated that a mental health condition can be a mitigating factor when a nexus is established between the commission of the offence and an offender’s mental health condition. In such a situation, the condition may reduce the offender’s culpability or responsibility for the offence. As well, the offender’s mental health condition may be relevant in determining the offender’s prospects for rehabilitation or the likelihood to reoffend (paragraph 24). Finally, in Clayton Ruby et al, Sentencing, 9th ed. (Toronto: LexisNexis Canada, 2017) at 341, it is noted that the effect of imprisonment could be disproportionately severe for a mentally ill offender such that a lower sentence is justified. [30] The fundamental problem with counsel’s argument respecting Mr. Butler’s mental health is that there was no evidence put before the Judge on which he could rely to conclude that Mr. Butler was suffering from mental illness. Dr. Gill did not testify, nor did she provide a report on him. Moreover, Mr. Butler, who was represented by counsel, did not assert any mental health Page 8 condition or issues. The notion of care and treatment for Mr. Butler’s mental health was neither proposed nor canvassed. [31] I pause here to address what might be considered to be the elephant in the room. That is the notion that Mr. Butler’s behaviour and stated beliefs are so unusual, and such a marked departure from what most people would consider to be normal, that he must be mentally ill to act and believe as he does. After all, this notion goes, no normal person would give evidence that the police and people who work in schools or courts have taken a religious oath to torment him. [32] The above-referenced notion invites the temptation to conclude that Mr. Butler must be suffering from a mental illness. However, the temptation for a court to “diagnose” a defendant like Mr. Butler with mental illness in the absence of medical evidence and any acknowledgement by the defendant that he has any such a condition must be resisted in all but the most egregious of circumstances. Courts on their own motions cannot jump to the conclusion that a defendant is delusional or that his or her belief system is the product of mental illness. People are all different, and those who adhere to religious beliefs or conspiracy theories that are outside the norm are not necessarily mentally ill. As Crown counsel points out, it is not for the court to press an agenda unsupported by evidence and disavowed by the defendant himself. While Mr. Butler’s views and beliefs may be considered weird or outlandish, they do not necessarily mean he is mentally ill. More importantly, they do not mean that he should bear less responsibility for his actions. [33] When mental illness is argued to support the mitigation of sentence, the argument usually is accompanied by a plan to address either the mental illness itself or its management so that the risk of future criminal conduct is diminished. Such a plan usually provides for the defendant to willingly seek and follow medical advice designed to assist in his or her rehabilitation (Branton at paragraph 35). In this case, Mr. Butler neither acknowledged a problematic condition affecting his behaviour nor proposed any willingness or plan to get help to manage or modify it. [34] In the result, there was no mental health condition for the Judge to account for in sentencing Mr. Butler. Accordingly, he did not err in principle by failing to do so. Page 9 The Fitness of Mr. Butler’s Sentence [35] The fundamental purpose of sentencing is to protect society and contribute to respect for the law and the maintenance of a just, peaceful and safe society (section 718 of the Code). This goal is meant to be achieved by application of the principles and objectives set out in the Code and interpreted in the jurisprudence to the facts and circumstances of each case. [36] The Supreme Court of Canada has made it clear that sentencing an offender is a “highly individualized exercise that goes beyond a purely mathematical calculation” (R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089). At paragraph 58 the Court stated that sentencing: … involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case. … [37] The jurisprudence also makes clear “that sentencing judges enjoy a broad discretion to craft a sentence that is tailored to the nature of the offence and the circumstances of the offender” and that imposing a fit sentence “requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case” and that “[n]o one sentencing objective trumps the other and it falls to the sentencing judge to determine which objectives of sentencing merit the greatest weight” in any particular case (R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 43). Sentencing judges are regarded as being in a better position than appellate court judges to determine appropriate sentences and therefore deference is owed to their sentencing decisions (R. v. M. (C.A.), [1996] 1 S.C.R. 500, at paras. 91-92). [38] The above principles do not mean that all sentences imposed by sentencing judges are unassailable. Errors of law in the course of imposing sentence can justify interference by an appellate court if the error had an impact on the sentence imposed, and the fitness of a sentence under appeal is always a potential issue, regardless of whether the sentencing judge made an error of law or principle (Lacasse at paragraph 11). [39] The above principles do mean that when an appellate court overturns, modifies or otherwise interferes with a sentence on the basis that it is unfit, the sentence must be something more than “on the high side” or “on the low side” Page 10 or “outside the range”. Rather, the standard for appellate intervention is that the sentence must be “demonstrably unfit” (Lacasse at paragraph 52). [40] Lacasse also provides guidance on how the fitness of a sentence is to be determined. At paragraph 53, the Court states that an inquiry into fitness must be focused on the fundamental principle of proportionality stated in section 718.1 of the Criminal Code, which provides that a sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”. [41] Proportionality is determined both on an individual basis and by comparing the case in issue with similar cases, all the while taking into account the sentencing objectives set out in sections 718 and 718.2 of the Code (Lacasse at paragraphs 53-54). Accordingly, a sentence will be demonstrably unfit if it is disproportionate to the conduct underlying the offence and constitutes a marked departure from sentences imposed for similar conduct. [42] The issue in this case is whether the two year custodial portion of Mr. Butler’s sentence is in accordance with the proportionality principle. I am of the view that the two-year incarcerating sentence, in addition to three years’ restrictive probation, is disproportionate to the gravity of his conduct, excessive when compared to other sentences for criminal harassment, and in conflict with the objectives of sentencing. The Judge’s probation order – including its three- year duration and strict conditions – and other ancillary orders are, in my view, entirely appropriate. [43] I begin by considering the three criminal harassment cases relied on by the Judge to support his imposition of two years’ incarceration in addition to probation. They are: R. v. Lepore, 2001 CarswellOnt 2177 (S.C.J.); R. v. Hyra, 2016 MBQB 171, and R. v. Ahmad, 2017 ONSC 6972. The Judge stated that these cases compared to Mr. Butler’s case with the “notable exception” that the accuseds and the complainants in them were known to each other, whereas Mr. Butler and the complainant in this case had had no previous relationship. [44] In Lepore, the sentencing judge described Mr. Lepore’s conduct as follows: 2 Mr. Lepore and his victim, K.G., had a tumultuous live-in relationship, characterized by arguments and conflict, both verbal and physical. After their separation, he began a six month program of harassment against her, starting with hundreds of phone calls, some depicting persons engaged in sexual activity. The harassing conduct culminated in Mr. Lepore distributing around to about a dozen of Page 11 her neighbours copies of a videotape showing him and her having sex. The videos were accompanied by a letter, supposedly from her, offering sexual favours. Further, he attempted to burn down her family cottage, and he slashed her van tires. 3 Mr. Lepore concocted an alibi defence and blamed all the harassing conduct on another supposedly jealous girlfriend. During the course of this activity, he was told twice to discontinue. About six weeks before he was finally arrested, his victim told him to stop calling, that she did not wish to see him again. About two weeks before his arrest, the police invited him to the station where they warned him to discontinue all further contact with the victim. [45] The Judge noted that Mr. Lepore’s behaviour had escalated over time and that his harassment had also affected family and friends of the complainant. Mr. Lepore had no criminal record. He was ultimately sentenced to two years less a day plus three years’ probation with conditions. [46] In Hyra, the harassing conduct spanned three years. Mr. Hyra and the complainant had dated once or twice before the complainant indicated she was no longer interested in him. Mr. Hyra did not take this rejection well, and began to telephone the complainant sometimes 10 to 15 times per day, and sent her numerous letters professing his love for her. He also sent her condoms and lubricant, referred to sexual fantasies, and made subtle threats and demeaning remarks in his communications. He ignored a warning from police to stop the behaviour. The complainant took out a peace bond against him which Mr. Hyra breached. The harassment charge against Mr. Hyra took eight years to get to trial, mostly due to his pre-trial motions alleging abuse of process, corruption, bias and impropriety. Mr. Hyra had initiated a civil action against the complainant and commenced seven private prosecutions against five different Crown attorneys involved in the prosecution against him. The Judge described Mr. Hyra’s behaviour as irrational and obsessive, and stated that he was either unwilling to control his behaviour or incapable of doing so. On the positive side, Mr. Hyra was gainfully employed in a job he held for many years, and he was willing to see a psychologist for what was described by a psychologist at sentencing as an “adjustment disorder”. Mr. Hyra received a two-years-less-a- day conditional sentence with very onerous conditions followed by three years’ probation with onerous conditions. The Judge was satisfied that the sentencing objectives of specific deterrence and rehabilitation would be better served by enabling a path to rehabilitation and longer monitoring of Mr. Hyra’s conduct. [47] In Ahmad, Mr. Ahmad and the complainant were non-romantic roommates for a few months prior to Mr. Ahmad’s arrest on a charge of criminal harassment not involving the complainant. He was convicted, and after his Page 12 release from custody for that offence, he asked the complainant if he could live in her apartment again as he had no place to live. When she refused, he persisted in his request and began to email her frequently. The emails became insistent, profane, threatening and sometimes lewd. After Mr. Ahmad threatened to kill people with firearms or Molatov cocktails, the complainant went to the police and Mr. Ahmad was charged. Mr. Ahmad was on probation when he reoffended. Additionally, he had been subject to several different peace bonds for similar behaviour in the past and was estranged from his family as a result of threatening them with serious criminal actions. Mr. Ahmad had been diagnosed with a “delusional disorder provoked by substance abuse” and a “narcissistic personality disorder”. He was sentenced to two years less a day, less credit for pre-sentence custody plus three years’ probation with conditions. He was also ordered to pay restitution to the complainant for her loss of work due to his actions. [48] The harassment in the above cases involved relentless threatening and often violent conduct visited directly on the complainants. It bears little resemblance to the harassment in this case. While harassing conduct can be of different forms and degrees, the harassment in Lepore, Hyra, and Ahmad involved conduct of a much more serious nature and degree than Mr. Butler’s harassment of the complainant. Excepting the one time Mr. Butler shouted at the complainant and her children when they were going into their house, he did not directly communicate with the complainant or her family members. Nor did he ever do violence or threaten to do violence to her, her family, or her property. While Mr. Butler, like the offenders in Lepore and Hyra, had received warnings prior to the initiating of criminal proceedings, unlike Mr. Lepore and Mr. Hyra, Mr. Butler had no prior convictions for similar behaviour, nor was he on probation when he offended. Mr. Butler’s criminal record is unrelated to criminal harassment and for the most part quite dated. [49] Other cases were referred to by counsel on appeal. In R. v. Finnessey (2000), 135 O.A.C. 396 (Ont. C.A.), the accused was sentenced to four years’ for several convictions among which was one for criminal harassment. The accused had broken into the complainant’s home and threatened to kill her. He had a criminal record for several assaults, threats, and other offences. The appellate court found that the sentencing judge’s sentence of 20 months and 3 years’ probation had not sufficiently emphasized denunciation and deterrence, and increased the offender’s sentence to four years. [50] In R. v. Bates (2000), 146 C.C.C. (3d) 321 (Ont. C.A.), the accused received a suspended sentence (after serving seven months in pre-trial custody) Page 13 and three years’ probation for 11 offences, including uttering a death threat, three assaults, several failures to comply with judicial interim release orders, and one count of criminal harassment, respecting his former wife. The appellate court found the sentence unfit on the basis that it did not sufficiently denounce the offender’s predatory behaviour and deter him and others from engaging in such conduct. Mr. Bates’ sentence was increased to 30 months’ incarceration, less time served. [51] In R. v. Kohl, 2009 ONCA 100, 94 O.R. (3d) 241, leave to appeal to SCC refused, [2009] S.C.C.R. No. 130, the offender was sentenced to three years’ imprisonment for a single incident of criminal harassment. The complainant was jogging in the evening on a residential street when the offender, who was a big man unknown to her, ran past her with a “gorilla-like” gait. He looked back at her four times, then disappeared behind some bushes. Shortly after, he emerged from the bushes, confronted the complainant and moved toward her in a threatening manner. When the complainant ran in the opposite direction, the offender chased her, and then stood in the driveway of a home where the complainant sought refuge and stared at her while she knocked on the door. The offender had a serious drug addiction, a serious and current criminal record, and was on probation when he reoffended. He appealed his three-year sentence on the ground that it was manifestly unfit. [52] The appellate court allowed his appeal and reduced the sentence to two years’ on the basis that the sentencing judge had not given sufficient weight to the nature of the harassment, saying the three-year sentence was disproportionate to the single incident of harassing conduct underlying the offence and therefore manifestly unfit. The Court commented that the case was quite different from the sentencing authorities respecting criminal harassment and that it was difficult to discern a range of sentence for criminal harassment from the jurisprudence. [53] In R. v. Pennell (2014), 359 Nfld. & P.E.I.R. 211 (N.L. Prov. Ct.) Judge Gorman imposed a suspended sentence and two years’ probation on Mr. Pennell for subjecting the complainant, who had terminated an intimate relationship with him, to various forms of intimidation, including driving by her residence and place of employment, following her in his vehicle, and sending her frequent and persistent text messages over a seven-month period. He also harassed the complainant’s friend. His conduct continued after he was released on an undertaking prohibiting him from communicating with the complainant but ceased after his rearrest and release on a recognizance. He pleaded guilty at Page 14 trial, had no criminal record, and had abided by the non-contact order in the recognizance. Notably, the Crown had not sought an incarcerating sentence. [54] In Pennell, Judge Gorman commented that, in his view, the jurisprudence supported an incarcerating sentence of six months for Mr. Pennell. However, while Judge Gorman rejected the defence request for a discharge, he agreed to the Crown’s suggestion that a suspended sentence with probation conditions would be appropriate. [55] In Pennell, Judge Gorman canvassed 14 reported cases of criminal harassment from this jurisdiction. Four of them garnered conditional sentences (30 days, 6 months, 9 months, and 13 months) and in one case the sentence was suspended. None involved custodial sentences over 13 months. All but one of the complainants were former girlfriends or spouses. [56] Three of the cases Judge Gorman referenced are especially relevant. In R. v. Meehan (1998), 158 Nfld. & P.E.I.R. 217 (Nfld. T.D.) the offender had driven his car repeatedly back and forth in front of his former wife’s home – hundreds of times. He had been previously convicted of assaulting her and had twice breached his probation by not staying away from her. He minimized his behaviour and took no responsibility for it, although once released on bail he complied with his undertaking to stay away from her. The Court imposed a nine-month conditional sentence plus three years’ probation. [57] In R. v. Bailey (1998), 162 Nfld. & P.E.I.R. 191 (Nfld. C.A.), the trial judge imposed a six-month conditional sentence plus 3 years probation on the offender, who harassed a young woman with whom he had a previous relationship. His harassment comprised showing up for hours at the restaurant where she worked and, going to her home late at night and shouting threats through her bedroom window. The sentence was upheld by this court on appeal, save for varying a probation condition in order to allow him to attend the rowing club where he and the complainant were members. [58] In R. v. Skinner, [2002] N.J. No. 43 (Nfld. Prov. Ct.) aff’d 2002 NFCA 44 the offender had previously broken into the residence of the complainant, who was the sister of his girlfriend, and was hiding in her bedroom closet when discovered. He was convicted of break and entry and sentenced to five months in jail and three years’ probation. After he was released from jail he was caught driving a rental vehicle up and down the street the complainant lived on and crawling around her residence late at night. He pleaded guilty, was convicted and sentenced for a charge of criminal harassment, breaching a peace bond, and Page 15 two breaches of probation. He had a significant criminal record. He was sentenced to a total of 13 months’ incarceration. He appealed his sentence but it was upheld by this court. [59] Without describing the facts of the other cases Judge Gorman referenced, my review of them indicates that the harassment involved in them was of a more serious nature and degree than Mr. Butler’s harassment of the complainant. Of all the cases, the acts of harassment in Pennell, Meehan and Bailey, as described above, most closely align with Mr. Butler’s harassment of the complainant. However, comparison shows the harassment in those three cases involved direct contact with the complainant with undertones or threats of violence. [60] All of the cases referenced by Judge Gorman emphasized denunciation and deterrence as the most important sentencing principles in such cases. Several of them were prosecuted by summary conviction whereas the Crown proceeded by way of indictment in Mr. Butler’s case. In any event, the election of the Crown as to how to proceed does not make a meaningful difference to sentence provided the sentence is within the limits established by Parliament for the mode of procedure chosen (R. v. Solowan, 2008 SCC 62, [2008] 3 S.C.R. 309, at paras. 15-16). [61] The comments in Clayton C. Ruby’s text Sentencing respecting sentences for criminal harassment are also instructive. At 23.1016 it states “the lower range of a conditional sentence [for criminal harassment] is under one year”. At 23.1027 it states “the middle range of sentence for criminal harassment is between six months and two years”. At 23.1030 he states “a sentence between two and four years is on the higher end of the sentencing range for criminal harassment, and almost always involves violence or threats”. I note that a conditional sentence is no longer available as a sentence for criminal harassment prosecuted by indictment. [62] In summary, the jurisprudence shows that incarcerating sentences for criminal harassment of two years or more involve more serious and more blameworthy harassment than Mr. Butler’s harassment of the complainant. His two-year sentence exceeds by a considerable margin what would be an appropriate sentence for the nature and degree of his conduct. Like the Ontario Court of Appeal in Kohl, I am of the view that when a sentence is disproportionate to the conduct underlying it, it should be modified. [63] I agree that an incarcerating sentence was necessary to denounce Mr. Butler’s conduct to the complainant and the community (section 718(a)), and to Page 16 deter him from continuing his harassing conduct (section 718(b)). It was also necessary to separate him from society - in particular from the complainant - for a period of time (section 718(c)) and to promote a sense of responsibility in him and his acknowledgement of the harm he has done (section 718(f)). [64] However, two years’ incarceration, in addition to three years’ restrictive probation, exceeds what is in all likelihood necessary to meet these sentencing objectives. They are easily met by the imposition of a shorter period of incarceration along with the three-year probation order. [65] Finally, I add that I am mindful of the principle of deference to sentencing judges who are on the front lines of criminal justice. I am also mindful of the notion that interference with sentences by appellate courts is often considered tinkering. I say only that a reduction of a sentence by half is more than tinkering. One year in custody is a long time; two years is twice as long. [66] In the result, I am of the view that in the circumstances, Mr. Butler’s two- year incarcerating sentence was unreasonably long, and therefore manifestly unfit. [67] Something more must be said. This judgment is not meant to minimize Mr. Butler’s harassment of the complainant and her family. Mr. Butler’s harassing conduct was disconcerting, creepy, and cause for concern, to say the least. It is quite understandable that the complainant finally reached the end of her rope with the situation and pressed charges. While Mr. Butler’s criminal behaviour warrants a jail sentence, the solution cannot be to lock him up for an inordinately long time. Other reasonable measures must be tried first. [68] Mr. Butler is bound by very strict probation conditions for a period of three years. One of the important purposes of probation conditions is to protect the public. In this situation the public especially includes the complainant and her family. In addition to the usual no contact and stay away orders by which Mr. Butler is bound, he is prohibited from entering the town of Burin except for attendance at the hospital. While necessary in the circumstances of this case, this in itself is a significant condition for a man living in a tiny, rural community nearby the larger commercial town of Burin. [69] Mr. Butler has already spent a full year in custody. He submits that a one- year incarcerating sentence, along with the sentencing Judge’s probation and ancillary orders by which he has agreed to abide, is a fit sentence. I agree. I am Page 17 confident that should Mr. Butler breach any of his conditions of probation, such breach will be detected in short order and he will be dealt with according to law. [70] In the result, I would allow Mr. Butler’s appeal and substitute a one-year jail sentence for the two-year jail sentence imposed by the Judge. The Judge’s sentence in all other respects is upheld. _______________________ L. R. Hoegg J.A. I concur: _______________________ F. P. O’Brien J.A. Dissenting Reasons by Goodridge J.A.: [71] Mr. Butler appeals his sentence on the basis that the trial judge erred in principle by failing to consider mental health as a mitigating factor and by emphasizing denunciation and deterrence in disregard of the “exceptional nature of the appellant’s reasons for harassing”. Mr. Butler has no issue with the probation terms or the ancillary orders, but argues that the custodial portion of the sentence is excessive. As stated in the reasons of Hoegg J.A., Mr. Butler’s appeal raises two issues:  Did the sentencing judge err in principle by disregarding the exceptional nature of Mr. Butler’s reason for harassing the complainant or by failing to consider Mr. Butler’s mental illness as a mitigating factor?  Was Mr. Butler’s sentence demonstrably unfit? [72] I would answer both questions in the negative and dismiss this appeal. [73] On the first issue raised by this appeal, I agree with my colleague, Hoegg J.A. Page 18 [74] The sentencing judge did not disregard the reasons behind Mr. Butler’s harassing behavior. He discussed and considered the reasons, with other factors, to arrive at a fit sentence. The judge was aware that Mr. Butler’s harassing behavior was motivated by his religious beliefs. The reasons for harassing the complainant, in this particular case, did not make the harassment any less serious, and were not mitigating. [75] The sentencing judge also discussed and considered the evidence touching on Mr. Butler’s mental health. In particular, the judge referred to the summary of the psychiatric consultation with Dr. J. Gill, as detailed in the pre-sentence report. Dr. Gill acknowledged that Mr. Butler had strong religious beliefs and paranoia that police and physicians were preventing him from spreading the word of God. Dr. Gill noted that, at the time of her consultation with Mr. Butler, there were no acute concerns; he was calm, pleasant, logical and coherent. The observations of Dr. Gill did not support the diagnosis of a mental health condition. Defence counsel at the sentencing hearing (not the same counsel that appeared on appeal) made no submissions to suggest that mental health was a relevant factor in play. [76] I agree that a mental health condition can be a mitigating factor when a nexus is established between the commission of an offence and an offender’s mental health condition (see R. v. Bourgeois, 2018 NLCA 13). In this matter, there was no mental health condition diagnosed, and accordingly, no error in failing to consider mental health as a mitigating factor. [77] On the second issue raised by this appeal, I disagree with my colleague. In my view, the sentence imposed was not demonstrably unfit, and no appellate intervention is warranted. [78] Sentencing decisions attract a high level of deference. Except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit (para. 11 of R. v. Lacasse, 2015 SCC 64). The assessment of whether a sentence is demonstrably unfit must focus on the fundamental principle of proportionality. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A sentence will only be demonstrably unfit if it constitutes an unreasonable departure from this principle (Lacasse, at paragraph 53). [79] Trial judges have wide latitude to individualize the sentence to meet this objective of proportionality, and for that reason, appellate courts must show Page 19 restraint when reviewing sentences. In Lacasse, Wagner J. (as he then was) for the majority, stated at paragraph 39 that “appellate courts may not intervene lightly, as trial judges have a broad discretion to impose the sentence they consider appropriate within the limits established by law.” At paragraph 11 of Lacasse, Wagner J. recognized the importance of giving wide latitude to the sentencing judge, since he or she is “in the best position to determine, having regard to the circumstances, a just and appropriate sentence that is consistent with the objectives and principles set out in the Criminal Code in this regard.” At paragraph 49, Wagner J. cautioned that an appellate court should not modify a sentence simply because it would have weighed relevant factors differently. [80] In R. v. Shropshire, [1995] 4 S.C.R. 227, Iacobucci J. stated at paragraph 46 that an appellate court should not modify a sentencing order merely because it feels that a different order ought to have been made: The formulation of a sentencing order is a profoundly subjective process; the trial judge has the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in the sentence should only be made if the court of appeal is convinced it is not fit. That is to say, that it has found the sentence to be clearly unreasonable. [81] In the current matter the complainant was a female family physician residing in a small rural community; the harassment continued over a four-year period and significantly affected the complainant and members of her family. The conduct included frequent occasions when Mr. Butler drove or walked to the complainant’s residence (up to five times a day), then slowed or stopped, and stared toward the home. On one occasion while the complainant was exiting her car, in her driveway with her two children, Mr. Butler parked across the street and began calling out to her in a very angry voice, ranting and raving. On two occasions, Mr. Butler came into premises where the complainant was conducting private business, once at a travel agency and once at her medical clinic. On three occasions, the police cautioned Mr. Butler to stop the harassing behavior; on several occasions, the complainant’s husband cautioned Mr. Butler to stop the harassing behavior. Mr. Butler ignored these warnings. [82] The trial judge’s reasons indicate awareness of the gravity of the crime for which Mr. Butler was being sentenced, the impact that the harassment had on the complainant, the long duration of the harassment, and the legal principles bearing upon the appropriate sentence. He noted that Mr. Butler did not accept responsibility for his criminal behavior, had little insight into the impact of his behavior, and had no remorse. Relying on the victim impact statement, the Page 20 judge found that the complainant had been through “a four year nightmare”; that she was afraid to be alone in her home; that she required counselling; that she occasionally missed work in consequence of the harassment. The trial judge noted Mr. Butler’s several prior criminal convictions, but found that these were not a significant factor in the sentence calculation. There were no prior convictions for criminal harassment. The trial judge determined that “the predominant sentencing objectives in cases of criminal harassment are denunciation, deterrence, specific and general protection of the public”. Referring to paragraph 10 of R. v. Wall (1995), 136 Nfld. & P.E.I.R. 200 (P.E.I. C.A.) the judge said that the focus in crafting a fit sentence must be to send a message to the offender, and the public, that harassing conduct against innocent and vulnerable victims is not tolerated by society. [83] The sentence imposed on Mr. Butler is above the historical range of sentences imposed by courts in this Province for criminal harassment, but it is still within the broad range when one considers sentencing decisions from other jurisdictions. In R. v. Pennell (2014), 359 Nfld. & P.E.I.R. 211 (N.L. Prov. Ct.), at paragraph 114, Gorman P.C.J. suggested that the sentencing precedents in this Province establish a range of sentence for the offence of criminal harassment extending from the suspending of sentence to fifteen months imprisonment. The longest sentence reviewed in Pennell was a conditional sentence of fifteen months. The highest in custody sentence reviewed in Pennell was thirteen months imposed in R. v. Skinner, 2002 NFCA 44. [84] There are criminal harassment decisions from outside this Province, engaging somewhat comparable circumstances, which resulted in custodial sentences of two years and higher. [85] In R. v. Kohl, 2009 ONCA 100, a 33-year-old male offender, with a criminal record and a drug addition, harassed a female jogger. He ran past her with a “gorilla-like" gait, he looked back over his shoulders on four occasions after he passed by, he ducked into the bushes then emerged on the road in front of her with outstretched arms, and he stared toward her from the end of a driveway. There was no physical contact and no words were exchanged. The duration of the harassment was minutes. The Court of Appeal reduced the three- year custodial sentence (less time served) imposed at trial, and imposed a two- year custodial sentence (less time served). The three-year probation term imposed at trial was not altered. [86] In R. v. Campbell, 2012 BCSC 904, a 36-year-old male offender, upset about visitation rights to his child, and motivated to re-establish visitation, called Page 21 the complainant several times over a two day period, and one time (during those same two days) entered her home while she was not there. The offender had a serious criminal record that included crimes of violence (three involving the complainant) and he had problems with drugs and alcohol. The judge noted (at paragraph 12) that there is no usual range of sentence for offences of this kind because, perhaps more than most offences, they can be committed in an almost infinite variety of circumstances. The court imposed a sentence of two years less a day followed by three years probation. [87] In R. v. Ahmad, 2017 ONSC 6972, a 38-year-old male offender harassed his former roommate by sending emails over a period of about three years. Gradually the emails became threatening and profane. The offender displayed a lack of insight into the impact of his actions. He had a criminal record, which included three prior convictions for criminal harassment (not the same victim). The court imposed a sentence of two years less a day followed by three years probation. [88] In R. v. Pilch (1999), 141 Man. R. (2d) 283 (Man. Q.B.) a 34-year-old male offender, with borderline intelligence, harassed a former female acquaintance (not a former intimate partner) over a six-month period by sending her seven letters or cards. The complainant only opened the first two letters, and placed the others to one side until they were passed over to police. The letters contained obscene descriptions of acts that the offender indicated he would perform on the complainant. The complainant was a fragile person and the emotional impact of receipt of the letters was significant. The offender had a criminal record that included 24 prior convictions for criminal harassment. The court imposed a sentence of three years (reduced to two years less a day after credit for pre-sentence custody) followed by two years probation. [89] These criminal harassment decisions from outside this Province are not perfect comparables to Mr. Butler’s facts and circumstances, but that is the challenge for the sentencing judge. There are no perfect comparables. The judge must craft a unique sentence in every case, suited to the facts and circumstances in play, and proportionate to the gravity of the offence and the degree of responsibility of the offender. These out of Province decisions illustrate that the historical range is quite broad. Even if an ultimate sentence imposed falls above the historical range, it is not necessarily an unfit sentence. In R. v. Nasogaluak, 2010 SCC 6, LeBel J. for the Court stated at paragraph 44 that a judge can order a sentence outside the range as long as it is in accordance with the principles and objectives of sentencing: Page 22 Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred. [90] In Lacasse, at paragraph 51, Wagner, J. expressed a similar view when stating that an appellate court may not intervene simply on the ground that it would have put the sentence in a different range: … [T]he choice of sentencing range or of a category within a range falls within the trial judge's discretion and cannot in itself constitute a reviewable error. An appellate court may not therefore intervene on the ground that it would have put the sentence in a different range or category. It may intervene only if the sentence the trial judge imposed is demonstrably unfit. [91] In Mr. Butler’s circumstances, the Crown sought a custodial sentence of 18 to 24 months because of the duration and frequency of the harassment, the serious impact on the complainant and her family, and the failure by Mr. Butler to accede to police requests that he discontinue. The trial judge agreed with the Crown’s submissions and imposed a custodial sentence of two years less a day, followed by three years probation. In my view, the sentence imposed on Mr. Butler is at the higher end of the range; however, the sentence is not demonstrably unfit considering the circumstances of the offence and the offender, and the needs of the community in which the offence occurred. [92] I would dismiss the appeal. ________________________ W. H. Goodridge J.A.