Law360 Canada (August 17, 2026, 12:06 PM EDT) --

John L. Hill

Justice, Ontario Judge Brock Jones recently reminded us, is not simply a matter of punishment: sometimes it requires looking beyond a troubling criminal record to the illness underlying the offending and asking whether treatment, rather than incarceration, better protects society: R. v. Gowers, Aug. 10.

The case concerns Kevin Gowers, a 40-year-old Hamilton man with a lengthy criminal record and a long history of schizophrenia, who pleaded guilty to criminal harassment and subsequently faced a Crown application to have him declared a dangerous offender.

Gowers pleaded guilty on Nov. 27, 2024, to criminal harassment under s. 264(2)(b) of the Criminal Code. The offence stemmed from 87 voicemail messages he left with the Ontario Ombudsman’s Office while he was in custody on an unrelated sentence. Forty-one messages were left on a particular employee’s extension between Dec. 18, 2023, and Feb. 24, 2024, followed by another 46 messages on the office’s general voicemail system.

Some messages contained explicit threats of violence, while others included paranoid and delusional statements, apologies and pleas for medical assistance. Gowers sometimes said he was being poisoned or murdered, threatened people with violence, referred to gangs and guns, and claimed he could contact Vladimir Putin. At other times, he apologized and asked the Ombudsman’s Office to help him obtain medical treatment.

A significant complication arose during the proceedings. The court had originally been told that Gowers knew the complainant, P.M., through a prior professional relationship and had deliberately targeted her. That information was incorrect. The judge ultimately found that Gowers had never met P.M., that he had no prior relationship with her, and that there was no evidence he even knew he was leaving messages for a woman.

The judge was particularly critical of the original presentation of the case, which emphasized the most threatening messages while omitting those demonstrating Gowers’ delusions and remorse. The judge said the inaccuracies had significantly affected the trajectory of the proceedings and created a real risk of a miscarriage of justice.

Gowers was diagnosed with schizophrenia in 2007. His history included repeated hospitalizations, periods of medication adherence and non-adherence, and substantial use of crystal methamphetamine. His psychotic symptoms tended to worsen when he discontinued antipsychotic medication or used methamphetamine.

His criminal record was extensive: 15 prior convictions for violent offences, four prior criminal harassment convictions and 21 convictions for failing to comply with court orders. Many of the violent offences involved former intimate partners.

Forensic psychiatrist Dr. Jonathan Gray nevertheless concluded that Gowers’ schizophrenia was highly treatable. Although standardized risk assessments placed him at high risk of reoffending, Gray believed that his risk could be managed in the community through medication, supervision and treatment. He considered the circumstances of the present offence unlikely to recur if Gowers were properly supervised.

The Crown argued that Gowers met the requirements of s. 753(1)(a) of the Criminal Code. It relied heavily on his lengthy record of repeated criminal harassment offences, arguing that his behaviour was entrenched, chronic and intractable. The Crown ultimately sought a four-year penitentiary sentence followed by 10 years of long-term supervision, rather than an indeterminate sentence.

The judge relied on R. v. Lyons, [1987] 2 S.C.R. 309 and R. v. Boutilier, 2017 SCC 64, which set out four essential elements for dangerous-offender designation:


The Crown bears the burden of proving the requirements beyond a reasonable doubt. Importantly, the judge noted that treatability must be considered at the designation stage. If an offender can be successfully treated through reasonably available community measures, that may preclude a finding of intractability.

The judge first concluded that the Crown had not proven beyond a reasonable doubt that the criminal harassment constituted a “serious personal injury offence.”

Although criminal harassment can apply where conduct is likely to cause severe psychological harm, the judge found these particular messages qualitatively different from the threatening conduct in other cases. They were largely the rantings of a delusional man in the midst of a mental health crisis.

The judge accepted that the complainant was genuinely frightened and experienced anxiety as a result of the messages. However, her victim impact statement, standing alone, could not establish the statutory requirement of severe psychological damage.

More importantly, even if the offence could be characterized as a serious personal injury offence, the judge found that the Crown had failed to establish the remaining dangerous-offender requirements. Gray’s evidence that Gowers could be successfully managed through treatment was particularly significant.

The judge also rejected the Crown’s alternative request for a long-term-offender designation because an LTO sentence requires at least two years’ imprisonment, and the judge found that imposing such a sentence would be disproportionate.

Only four months of pre-sentence custody, credited as six months under R. v. Summers, 2014 SCC 26, was considered appropriate for the offence. The judge found that the much longer period Gowers had already spent in custody was “grossly disproportionate” to his moral culpability. His mental health difficulties also made his incarceration more difficult than for an ordinary inmate. The judge relied on R. v. D.B., 2025 ONCA 577, which recognizes that mental health conditions can intensify the severity of incarceration and support a reduction in sentence.

The judge therefore imposed a three-year probation order, rather than additional incarceration. It contains extensive conditions, including no contact with P.M., a 100-metre exclusion zone around her home or workplace, a prohibition on threatening anyone at the Ombudsman’s Office, counselling and psychiatric treatment, abstinence from intoxicating substances and monitoring for drug use.

The court also imposed a lifetime weapons prohibition and a DNA order.

The decision is notable for its treatment of dangerous-offender applications involving serious mental illness. The judge stressed that public protection is a fundamental sentencing objective, but dangerous-offender legislation is intended for the small group of offenders who pose a “tremendous future risk.” A serious criminal record and a high statistical risk of reoffending do not automatically establish dangerous-offender status where the offender’s condition is treatable and manageable in the community.

It is also a strong reminder of the Crown’s obligation to present accurate facts, particularly when a guilty plea may lead to a dangerous-offender proceeding. The judge praised the Crown lawyers who eventually took over the case for correcting the earlier inaccuracies but warned that inaccurate factual presentations at the outset can have “significant and predictable consequences” and create a real risk of miscarriage of justice.

The decision’s underlying message is perhaps best captured by the judge’s reliance on R. v. Kulatheeswaran, 2026 ONCA 128: sentencing must be proportionate, “but it must also be humane.”

John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM 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) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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