Appeal Court quickly sides with trial judge’s sentencing in social media harassment case

By John L. Hill

Law360 Canada (November 7, 2023, 10:56 AM EST) --
John L. Hill
John L. Hill
In one of the shortest decisions to be handed down by the Ontario Court of Appeal, Associate Chief Justice J. Michal Fairburn wasted no time dismissing the appeal of M.M. (R. v. M.M. 2023 ONCA 735). The reasons for decision are only six paragraphs. Two paragraphs set out the factual situation before the court for consideration and two paragraphs spell out why M.M.’s appeal should be dismissed.

M.M., a man whose age is not disclosed, had been charged with and convicted of criminal harassment before Superior Court Justice Shaun Nakatsuru on Dec. 11, 2020. The female complainant had a single sexual encounter with M.M. in which he took photos of the complainant when he had been with her. After their meeting, M.M. continued to contact the complainant electronically. These communications included sharing the pictures M.M. had secretly taken of her. The complainant made it clear that the continued communications were unwelcome. She wanted him to discontinue any contact with her. He refused. At that point, the complainant exercised her option to have M.M. charged criminally.

M.M. was convicted and a suspended sentence and three years’ probation ordered. M.M. appealed. He claimed the sentence was unwarranted because the trial judge used the “gendered context” within which the criminal harassment occurred as an aggravating factor in the imposition of sentence.

Unfortunately, a reader of the judgment is left to surmise if the term “gendered context” has any more significance other than the harassment was the product of an unfulfilled sexual invitation between a man and a woman. This definition seems borne out by Associate Chief Justice Fairburn’s comment that “It is open to the trial judge to take into account the fact that criminal harassment is often committed in the context of a woman saying she does not want a relationship or further contact with a man. There is nothing controversial about this fact.” The Appeal Court goes on to add that the trial judge had included several other aggravating factors in his reasons for sentence.

The Appeal Court was unwilling to change the trial judge’s sentence. It concluded that deference was owed to the trial judge in prescribing a proper penalty for the criminal act. A conditional discharge would be contrary to the public interest in this case. Although unstated in the judgment, a discharge was granted in R. v. May 2012 ONSC 6797.

The appellant also asked the Appeal Court to admit fresh evidence in the hope of receiving a reduction in the penalty. The Appeal Court was asked to consider that the appellant had contributed a significant amount of community service since the trial judge’s sentence was imposed. He had also successfully completed counselling. But none of that would serve to give grounds for the Appeal Court to interfere with the sentence that had been imposed. Leave to appeal the sentence was granted, but the appeal was dismissed.

It is obvious that M.M. was seeking to avoid having a criminal record for his inappropriate behaviour. The likelihood is that he was unaware of the seriousness of his actions. Criminal Code s. 264 provides a maximum sentence of 10 years if the Crown proceeds by indictment or a possible term in the provincial reformatory if the Crown proceeds by summary conviction.

Hopefully by his experience before a trial judge and an appeal court panel, M.M. will consider that his behaviour is more serious than sending some unwanted emails. Everyone with a cell phone and access to social networking has seen cases where viciousness and unthinking comments can disturb an unsuspecting target. According to the government of Canada, “the main motivation for stalking another person is the desire to control, particularly in cases where the subject is a former partner.” Statistical information tells us that one in 10 women 15 years of age and older have been the victims of stalking. The omnipresence of social media platforms can make this behaviour happen instantaneously.

Hopefully a judicial decision such as this will encourage parties, when a breakup of a relationship occurs, to take a moment to consider that pressing the send button on an email may have life-altering consequences.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

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Photo credit / © MILHRANDT YULIIA, 2018 ISTOCKPHOTO.COM

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