R. v. Evans, 2011 ABPC 116 (CanLII)
In the Provincial Court of Alberta
Citation: R. v. Evans, 2011 ABPC 116
Date: 20110420
Docket: 100234616P10101
Registry: Calgary
Between:
Her Majesty the Queen
- and -
Jayson Andrew Evans
Restriction on Publication: By Court Order, information that may identify the person described in this judgment as [AB] may not be published, broadcast, or transmitted in any manner. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application. See the Criminal Code, s. 486.4 |
Reasons for Sentence of the Honourable Judge A.A. Fradsham
Introduction
[1] Mr. Evans ("the offender") has pleaded guilty to a charge that he:
Between the 4th day of January, 2010, and the 12th day of February, 2010, both dates inclusive, at or near Calgary, Alberta, did, without reasonable justification or excuse and with intent to obtain NHL hockey Memorabilia and money in the amount of $2000, did induce, or attempt to induce, [AB] by threats, accusations, menaces, or violence, to give him two thousand dollars and hockey memorabilia.
Issues
[2] The overarching issue is what constitutes an appropriate sentence for the offender. As part of deciding that issue, it will also be necessary to determine if there is a true joint submission before the court, and, if so, whether the court may impose a sentence not in accord with that joint submission. Finally, it will be necessary to determine if a conditional sentence order is appropriate given the facts of the offence and the circumstances of the offender.
Facts
The Offence
[3] An Agreed Statement of Facts was filed as Exhibit 1. It reads as follows (with appropriate editing to comply with a section 486.4 ban on publication granted to protect the identity of the complainant):
Pursuant to the provisions of Section 724 of the Criminal Code of Canada, the following numbered paragraphs contain facts that are alleged by the Crown and admitted by Jayson Andrew Evans:
1. Between January 4, 2010 and February 12, 2010 Jayson Evans (EVANS) sent numerous emails to the victim, [AB], [AB’s] wife and [AB 's] employer (an American hockey team) suggesting that he had information about [AB] visiting a prostitute and claiming to have a video that showed [AB] with a prostitute.
2. EVANS told [AB] that if [AB] did not send him money and hockey memorabilia that he would sell his story and video to the media.
3. [AB] is a United States citizen who periodically visits Calgary for business purposes.
4. EVANS never identified himself in the emails and his email address name was gonna_say_something@live.com.
5. EVANS sent the first email on January 4, 2010 to [AB] and his employer. The subject line of the email said, "ATTN: [AB] (((URGENT))) Re: Calgary Sheraton Hotel." The body of the email again referred to the Sheraton Hotel and stated that emails would be sent on the 15th of January to [AB's] wife and several media outlets.
6. EVANS sent another email to [AB] on the same day with the subject line. "(Escort in Calgary) I have videos and voice recordings for the media." The body read, "Just letting you know I have videos to share. Contact me before the 15th of January."
7. [AB] responded with an email saying, "I don't understand. What do you want?"
8. On January 6th EVANS responded by saying that, with the help of escorts, he had obtained video and audio footage inside hotel rooms where men were using the sexual services of escorts. He referred to some customers offering hockey jerseys as payment for sex, which was a direct reference to information EVANS had about [AB]. EVANS stated that he did not know why some men would jeopardize their career and home life in this way which is what made his "story" so compelling. EVANS then stated that he thought [AB] might be interested in his story, and that he was,
"selling the full rights to this story, documentation, and video, for $5000 to the first person or media who are willing to pay. I thought I would offer you the chance to purchase it first as I thought you might be interested in such a story, being in your position."
EVANS went on to say that [AB] had until 10:00 pm on January 6, 2010 to decide, and if he was not interested he had people at two media outlets who were interested in buying the rights to the story and video.
9. [AB] then asked his employer for help in dealing with the emails and their sender. Security analysts in both the United States and Canada were consulted by [AB 's] employer and the FBI became involved. The investigation was ultimately handed over to the Calgary Police Service.
10. When EVANS did not receive a response to his demand of January 6th, he sent another email on January 7th providing more information about the story and stating that it was the last day of the offer to [AB] and then he would "go public" with his offer. [AB] responded by saying he needed time to think about it.
11. EVANS responded,
Ok, well this is the last email. If I don't hear from you I will sell it to the interested parties. Should be interesting. Guys have the money to pay for prostitutes, and some won't pay for a story that reveals all to the public. Interesting where some peoples priorities stand. Sex with a stranger is more important than their own relationships and the relationships that can go bad. My interested parties will be able to bring light to the media and everybody will get to see my story. it's going to be amazing. So, if you don't get back to me, consider my story, footage and documentation sold."
12. On January 8th EVANS sent an email stating that he did have another interested buyer, but that he was still willing to sell it to [AB], because he thought [AB] would find it more "interesting", for the reduced price of $2500 and an autographed goalie mask.
13. [AB] responded that he could only afford $1500 and two signed goalie masks.
14. EVANS responded by telling [AB] to send the money by Western Union to Calgary. He went on to say,
"I would need it today, as I have others interested today if you don't. As for the masks, I will give you a PO Box to send them to in the next couple days. Email me when you have sent it with the confirmation number."
15. EVANS then sent another email saying he would need payment by 6:00 pm as he had other offers.
16. On January 9th at 6:15 am EVANS sent another email saying, "Let me know. I need a confirmation it was sent. Otherwise it's sold and you miss out."
17. He sent another email at 8:44 am stating,
"Ok well, the story, videos and audio disks are packaged up and ready to send FedEx to the other parties involved. If you want them you need to buy them today. I can't wait any longer. I have waited and waited and you keep stalling. I accepted your offer of $1500 and autographed mask(s), and you don't seem to get back to me. The offer is less than what I have been offered, but because you can relate to such a story I am willing to sell it to you because it would interest you. If you want it, send it today, or I will ship it to the other buyer overnight express today, and you will have lost your chance to buy it. Today is the last day to purchase it. There are plenty of Western Unions across the USA and Canada, they are open today."
18. On January 10th at 6:55 am EVANS sent the following,
"You have had all weekend to get back to me but you haven't. I have contacted FedEx, and they will be doing a pick up of the parcel to be shipped to my other contacts. I can cancel pick up of the parcel but I will need the payment of $1500 before Monday afternoon. Otherwise consider it sold and shipped to the other contacts. ... If you don't buy it, the highest offer gets it Monday."
19. On January 10th at 12:29 pm EVANS sent the following,
"FedEx has informed me that they pick up in my area Monday between 12pm and 5pm. I have contacted my other interested parties and have informed them I am waiting to hear from somebody and that if I don't get a payment for my story and footage by noon Monday, I will let FedEx pick it up. If I get payment, I will call and cancel the pick up.
20. Then at 7:32 pm,
"I was just made an offer for my story from a national television sports channel. I will need payment from you by noon Monday for sure. The offer made to me was outstanding. Like I stated, I'd rather sell to you, but you might lose out on this great story unless you buy it on time."
21. On January 12th at 10:47 pm EVANS sent the following,
"Well? You going to get back to me? KARE television is waiting. I will contact you at your home to make arrangements if you like. I hope it is you that answers. Or, you can let me know here."
22. On January 16th EVANS sent an email stating,
"I tried contacting your work phone as well as at home. Left a message on both answering systems. Do you want it or not? I will call the house again a few more times and leave a more detailed message for you."
23. On January 23rd EVANS sent the following email to both [AB] and his employer,
"I have a story about a local sports personality who calls and uses escort services while on the road. I have video and audio, as well as recorded phone calls to support this story. Let me know if you are interested. I have a media source already interested in obtaining this audio, video and story."
24. Then on February 5th,
"Ok I am going to the press with this story. … I have interested parties who want to broadcast the footage I have and publish the story. I have waited long enough. I gave you the benefit of the doubt. However, you were on home ice last night, so I know you had time to check your messages. You have 24 hours to either buy the story, or consider it sold to the media. Should be interesting. I lowered it to $1,500 and a goalie mask and now I haven't heard a thing from you."
25. On February 6th EVANS sent the following email to [AB], his employer, and his wife,
"[AB] visits escorts for sexual services and cheats on his wife when he is on the road with the team. A website will be popping up and you will be getting the link to it. This website will promote an upcoming book soon to be published. On this website you will see video clips in and out of the hotel room at the Sheraton in Calgary. As well, you will get to listen to audio clips of his conversation with the prostitutes/escorts."
26. On February 9th a member of the Calgary Police Service took over [AB 's ]email account and began communicating with EVANS as [AB]. He told EVANS, "Okay, I have had enough. I just want this over. What do you want now? How can I make you go away?"
27. On February 10th EVANS responded,
"I want the $1500 and a signed goalie mask you offered for the story. I held on to it because you said you wanted it. Once you buy the story you said you were going to buy, you won't hear from me. But you keep ignoring me. Do you have paypal? You can pay for the story there if you like.
28. EVANS then sent another email telling [AB] that because he had waited so long the price had gone up to $2000 and a goalie mask. On February 11th he sent an email to [AB] telling him not to worry about the mask and to just send the money to his TD Bank Account.
29. On February 12th the police officer, posing as [AB], responded that he did not want to send the money until he saw proof that EVANS had a video. EVANS refused to send the video saying he did not need to "prove" anything. EVANS stated that [AB] needed to pay for the story and video "today", or he would sell it elsewhere. He went on to say,
"Your choice to take that chance. I have nothing to lose by selling it elsewhere. If you don't buy it like you said, media has already stated they will take it. I lose nothing. Do you? I want this done and over as well, but you have to make the decision what is best for you today. If you think it is not real, knowing the happenings, chance it. It's your choice, life and relationship to do so as you wish. I'm not waiting another day. It's either sold today, or I sell it elsewhere tomorrow. No more waiting and messing around."
30. The correspondence between EVANS and [AB] ended on February 12, 2010 with EVANS's last email stating, "This is the last email. Good luck."
31. As EVANS was corresponding anonymously with [AB] by only using the name "Gonna Say Something", police had to track him down by tracing the IP address from the computer he was using and serving a production order on the TD Bank to find out who the bank account belonged to.
32. Police also arrested EVANS' ex‑girlfriend who was a suspect because of the information "Gonna Say Something" had, and questioned his current girlfriend because the IP address used by "Gonna Say Something" was in her name.
33. After interviewing both girlfriends police realized that EVANS was the perpetrator of the extortion.
34. Police arrested EVANS on February 25, 2010 and he admitted that he had been corresponding with [AB] using the email name "Gonna Say Something" and that his current and ex girlfriends knew nothing about it.
ALL OF WHICH IS ADMITTED AS FACT.
The Offender
[4] I have also had the benefit of a Pre‑Sentence Report (Exhibit 3), and find the following facts in relation to the offender[1] :
[5] Mr. Evans was 39 years of age when he committed this offence. He has a criminal record, but the entries are quite dated: 1991: two counts of theft under $1000 for which he was fined $250 (25 days in default) on each count; 1992: one count of theft under $1000 for which he was imprisoned for 30 days, and one count of failure to appear for which he was imprisoned for 10 days, consecutive to the 30 day sentence.
[6] The author of the PSR reported that "the subject considered his childhood to be good, overall." Mr. Evans' mother stayed at home to care for the children (Mr. Evans has two brothers), while his father worked full‑time in construction and truck driving. "[Mr. Evans] reported that he was not the victim of any forms of abuse as a child."
[7] Mr. Evans was a member of Sea Cadets from ages 14 to 18 years. He became rebellious against his parents when he was 14‑15 years old, and for a short period of time left the family home when he was 16 years old.
[8] As a result of a five year romantic relationship with a Ms. Lind, Mr. Evans has two children (aged 16 and 14 years respectively), but "does not currently have a relationship" with them. Mr. Evans is currently in a two‑year old common‑law union with another woman, and "described [this] romantic relationship...as the 'best' he has ever had...."
[9] The offender has a Grade 10 education, and has no plans for further education. He is currently employed on a full‑time basis as an electronics assembler. He also has his own graphic design company through which he free lances as a graphic designer. He has described his current financial situation as "poor", but he says he has no current debt or savings.
[10] Though Mr. Evans has previously abused alcohol and illegal drugs, he currently seems to have no difficulty with either.
[11] As for his attitude regarding the current offence, the Pre‑Sentence Report states:
The subject took limited responsibility for his involvement in the offence. He minimized the seriousness of the offence, and expressed no remorse for the victims.
[12] During the course of submissions made at the sentencing hearing, counsel for Mr. Evans addressed why Mr. Evans evidenced no remorse for his criminal conduct. The following exchange between counsel and me is instructive as to Mr. Evans' view of the matter:
MR. OYKHMAN: Yes, Sir. The ‑‑ taking into account all the aggravating and mitigating circumstances, I would submit that the range ‑‑ or the sentence proposed is appropriate. And the mitigating factors, again, in terms of what actual extortion is and the range of extortion types of cases, I again ‑‑ I would submit that it is mitigating that no actual ‑‑ this wasn’t attempted extortion. It didn’t actually come to fruition. Not much of a mitigating factor but it is attempted, it never went through. There is no violence that was ever threatened. There is a threat, but not violence. And there should be some credit that no violence is threat ‑‑ made. No violent threat is made. The ‑‑ it’s ‑‑ it’s not an applicable case where violence would be threatened but I would suggest that when there is violence threatened, it is more aggravating. And that’s missing in this case.
THE COURT: I’m going to provide information to your spouse and destroy your marriage. You don’t think that that might be as serious as, I’m going to come and punch you in the nose?
MR. OYKHMAN: That aspect of the case is very interesting, Sir. And that’s where perhaps Mr. Evans’ confusion arose in terms of not being terribly remorseful or not appearing terribly remorseful because this isn’t information that he presumably fabricated. This is something that had happened and this individual got caught is essentially what happened. And so Mr. Evans isn’t creating false information to destroy a family. He’s simply bringing to light information that already exists. If Mr. Evans simply wanted to bring that information to light without asking for anything back, there would be nothing wrong with that. If Mr. Evans simply went to the media without contacting this particular individual, this victim, there would be nothing wrong with that. He’s entitled to do that. People sell stories of information. But it’s when ‑‑ and, in fact, if Mr. Evans went to this particular individual and said, I have this information and do you want to buy it? As long as he doesn’t do something that overcomes that person’s will, there’s nothing wrong with that.
THE COURT: I understand the [law as well].[2]
MR. OYKHMAN: So it’s only the fact ‑‑ the gravamen of the offence here is the fact that Mr. Evans went too far in trying to ‑‑ it went from offering to sell this information to coercing this individual to buy the information. That’s the essence of the offence here, not necessarily the material that he was trying to sell. Because the material he was trying to sell already existed and it’s true that it exists. He’s not fabricating evidence, he’s not creating a story. And this victim was right to stay up worrying about this because he had done this, because he had put his ‑‑ his family in jeopardy by having an illicit affair. I’m not trying to minimize what Mr. Evans did because he’s taken responsibility for what he did by going too far in trying to persuade this individual to buy this information. But in terms of the affect that this information has on the victim, the victim created that information. And so I would submit respectfully that the impact on the victim should not be seen as an extreme and aggravating factor as Your Honour had initially suggested it may, based on ‑‑ at least on what I have just represented.
THE COURT: So if I understand the argument, it is that if there was going to be a devastating affect on the victims life, that stems from the acts of the victim initially or primarily results from the acts of the victim initially, as opposed to the acts committed by the accused?
MR. OYKHMAN: Absolutely, Sir. Absolutely. In fact, there is a‑‑ we ‑‑ we didn’t proceed this way. I suggested it and my friend wanted, in ‑‑ in order to resolve this, to proceed by way of a guilty plea to actual extortion. But Your Honour I’m sure knows there is a section in the Code extortion by liable.
THE COURT: M‑hm.
MR. OYKHMAN: And that’s when there is no physical threats. This is exactly what the ‑‑ at least the facts in our case seem to meet that criteria where there is information that is sought to be ‑‑ or money that is sought for ‑‑ in exchange for information. But in that case, it’s false information.
THE COURT: M‑hm.
MR. OYKHMAN: And the gravamen is trying to extort money for false information, ruining somebody’s life with false information or something to that effect. This is actual true information.
The other element that I would suggest also somewhat explains Mr. Evans’ predicament in believing at least at the start that this was legitimate is this is not ‑‑ when he was asking for the money for this information, he is not asking for money from an individual he knows has ‑‑ is the only person interested in this information where it’s a girlfriend situation and an individual asks for money from a girlfriend for not publishing the information. That individual in that type of situation, if you follow me, Sir, knows that unless he sells it to that person whose photographs he has, for example, nobody else will want it.
THE COURT: Right. I understand. Yes.
MR. OYKHMAN: In this case, Mr. Evans, I can tell you legitimately believed that this information was information that he could legitimately sell to somebody, some media outlet. I appreciate Your Honour doesn’t know who this person is. I don’t know who this person is but I don’t follow hockey, either. But somebody in the hometown of this individual who does follow hockey may be very interested in that information for the amount that he was asking for, which wasn’t excessive in Mr. Evans’ opinion at the time.
THE COURT: His view, I gather, was that there was really a market out there for this?
MR. OYKHMAN: Yes.
THE COURT: And when the market wasn’t really ‑‑ wasn’t confined just to [AB], the market was broader than that, there would be a ‑‑ at least a segment of the public who might be interested in knowing this?
MR. OYKHMAN: Yes.
THE COURT: Okay.
MR. OYKHMAN: And would pay for it.
THE COURT: And would pay for it.
MR. OYKHMAN: And would pay for it fair market value, which he thought he was asking of from [AB]. And, again, the gravamen of the offence was he went too far in pushing [AB]. It wasn’t that he was trying to sell it because it was actual real information, true information. It wasn’t that he was trying to sell it to [AB] for the amount that he was trying to sell it for because he thought it was fair market value that somebody else would pay for it. It was that he went too far in trying to convince [AB] to buy it to the point of coercing [AB], overcoming [AB’s] will, and thereby fitting the definition of extortion.
And, now, Sir, I can tell you it took a while to bring this to Mr. Evans’ attention. It took a while to bring it to my attention. I had to research the case law very closely to see if what happened actually constituted a threat within the meaning of extortion because it’s not so clear cut. But upon a thorough review of the case law, I as well as Mr. Evans came to the conclusion that what he did was in fact a criminal offence and he accepts responsibility for that and he pled guilty, of course.
THE COURT: M‑hm.
MR. OYKHMAN: And that is his statement of remorse. He went too far and he knows that and he’s accepting responsibility for that. Now, of course, there is the mitigating factor of the guilty plea but in this case I would submit it is more mitigating than not because this case was a true international case. The Crown would have had to bring many witnesses, subpoena many documents, because it wasn’t just [AB] on the other end, it was a police officer on the other end, if I’m not mistaken. They were contacting various police or policing bodies. It would have been a difficult case for the Crown. And Mr. ‑‑ a ‑‑ a lengthy case.[3]
[13] It is evident that Mr. Evans takes the view that the victim put himself in a compromising position, and therefore has no one to blame but himself for the extortion practiced by Mr. Evans. The offender sees his own conduct as no more than a marketing plan which overstepped the mark. To borrow a phrase from the younger generation, that reasoning is wrong on so many levels:
1. Mr. Evans has adopted a "blame the victim" rationalization of his own criminal conduct. Though such an approach may be time‑honoured in criminal circles, it is none the less a now completely discredited line of defence. Though the following comment adopted by Madam Justice L'Heureux Dubé at paragraph 89 in R. v. Ewanchuk (S.B.) (1999) 1999 CanLII 711 (SCC), 235 N.R. 323 (S.C.C.) was made in reference to sexual assaults against women, the essence of the message equally applies to Mr. Evans' attitude about his extortion victim:
... the more that a person contributes by her behaviour or negligence to bringing about the circumstances in which she is a victim of a crime, the less responsible is the criminal for the crime he commits. A crime is no less unwelcome or serious in its effects, or need it be any the less deliberate or malicious in its commission, for occurring in circumstances which the victim helped to realise. Yet judges who spoke of women 'inviting' or 'provoking' a rape would go on to cite such contributory behaviour as a reason for regarding the rape as less grave or the rapist as less culpable. It adds judicial insult to criminal injury to be told that one is the part author of a crime one did not seek and which in consequence is supposed to be a lesser one.
2. Apart from the fact that the conduct of the victim is legally irrelevant in this sentencing, the offender continues to assert, in the absence of any evidence before the court, that his accusations are true. His assertions are an attempt to again smear the victim with the sludge of immorality. The offender has taken upon himself the role of "morals arbiter" in respect of the victim, and hopes to deflect attention from his own criminal conduct by focusing on what he contends is the disreputable conduct of the victim. Again, it must be clearly stated that: (1) there is no evidence that the accusations of the offender about the victim are true, and they are therefore just a continuation of the offender's disingenuous denigration of the victim; and (2) it makes absolutely no difference in law whether or not the allegations are true.
The Effect on the Victim
[14] A Victim Impact Statement was filed. AB described how the crime affected him emotionally as follows: "...For 2 ½ months, I was a victim of daily threats against me. During this time, I went through emotional hardship, sleepless nights, and the embarrassment of e‑mails sent by the accused to co‑workers in which I was employed." (sic)
[15] [AB] gave the following description of the effect the crime had on his life: "The greatest effect this crime has had in my life is the end result of losing employment."
[16] I was informed by the Crown that the cross‑border investigation which resulted from the accused's extortion attempts significantly inconvenienced AB's employer, and that may have led to AB's employment being terminated. However, that would be an aggravating fact, and, as such, would have to be proven beyond a reasonable doubt. Since it is an allegation not admitted by the accused, and has not been proven beyond a reasonable doubt, I do not rely upon it in this sentencing.
Law and Analysis
Crown and Defence Positions: Did They Constitute a Joint Submission?
[17] Both Crown and defence submitted that the appropriate sentence is 18 months imprisonment served in the community pursuant to the terms of a conditional sentence order (CSO) under section 742.1 of the Criminal Code. There was disagreement with respect to some of the terms of the proposed CSO.
[18] The first task is to determine if what was submitted to the Court was a "joint submission". This is crucial because a judge to whom a joint submission has been presented is bound by law to follow certain procedures as set out in R. v. Tkachuk (E.A.) (2001), 2001 ABCA 243 (CanLII), 293 A.R. 171 (Alta. C.A.), and recently reiterated in R. v. Beal, 2011 ABCA 35 at paragraph12:
[12] Having found both parties intended the submission to be treated as a joint submission and that the sentencing judge understood it to be so, we turn to consider whether the sentencing judge applied the following procedures mandated by this court in G.W.C. and R. v. Tkachuk, 2001 ABCA 243, 293 A.R. 171, at para. 32; (see also R. v. MacDonald, 2004 ABCA 295; 357 A.R. 43, at para. 3):
(i) a sentencing judge must give serious consideration to a joint submission;
(ii) a joint submission should be accepted unless it is considered unfit or unreasonable;
(iii) if the sentencing judge is inclined to depart from the joint submission, the judge must so advise counsel and permit them to submit further submissions in support of the joint submission to address the judge's concerns; and
(iv) if the judge remains of the view that the joint submission is unfit or unreasonable, the judge may impose a different sentence, but must give reasons. [emphasis added]
[19] A true joint submission differs from what one might call a joint sentencing recommendation. A true joint submission is the result of a negotiation between Crown and defence in which there is a quid pro quo flowing between the parties. A joint sentencing recommendation is not the result of such a bargaining process, but is, rather, a convergence of the positions arrived at independently of each other. In R. v. McKay (2004), 2004 MBCA 78 (CanLII), 22 C.R. (6th) 327, the Manitoba Court of Appeal described the difference this way (at p. 331):
20 The distinction between a joint recommendation which emerges as a result of the coincidence that Crown counsel and defence counsel happen to hold a similar view on what would constitute a fit sentence, and a joint recommendation which results from concessions made by the accused in exchange for greater leniency, was forcefully made in the recent decision of this court in R. v. Sinclair, [2004] M.J. No. 144, 2004 MBCA 48. As Steel J.A. noted (at para. 13):
The clearer the quid pro quo, the more weight should be given an appropriate joint submission by the sentencing judge.
21 In the present case, there was no apparent quid pro quo. There is no reason to believe that the Crown could not have established each of the charges beyond reasonable doubt. In those circumstances, the sentencing judge was free to impose a sentence different from that recommended by counsel. Although reasons for departure from the recommendation should ordinarily be given, the failure to provide reasons in a case not involving a true plea bargain is not by itself a ground of appeal. The question on appeal remains that common to all sentence appeals was the sentence imposed a fit one? I hasten to add that in this particular case, the sentencing judge did provide clear and cogent reasons for the departure.
[20] Whether what was put before me was a true joint submission is determined, in part, by how counsel described it to me.
[21] Ms. Nesbitt, as Crown counsel, said:
So, Sir, looking at all those cases, looking at the aggravating and mitigating factors in this case, and I’ll go through those, Sir, my friend and I have come up with a joint submission for your consideration of an 18 month conditional sentence order. And where my friend and I are not in an agreement are on some of the conditions so we’ll have to discuss that with you, Sir. In addition to the 18 month conditional sentence order, a DNA is mandatory for the offence of extortion so the Crown is seeking the DNA order.[4]
[22] She later said:
In mitigation for Mr. Evans is his guilty plea. And, of course, in this case it spared both the embarrassment to the victim as well as having to bring witnesses up from the United States. So the Crown would have happily brought those witnesses, there was no question that the Crown couldn’t prove its case or bring those witnesses here, but of course that would cause ‑‑ cause more expense for the Crown and the justice system. So he should get credit for his guilty plea. However, usually a guilty plea is somewhat a sign of a remorse and from the presentence report it appears that Mr. Evans does not have any remorse. So that takes a little bit away from the guilty plea.[5]
. . .
And it’s because of those reasons, Sir, the Crown is agreeing to a conditional sentence order. From my review of the law, I think in this case the sentence would probably be anywhere between nine to 18 months in gaol. And in this case, because he’s been reporting, because he has support, because he did enter a guilty plea and spared quite a bit of an expense and embarrassment, the Crown thinks that this gaol sentence can be served in the community and that an 18 month conditional sentence order is appropriate.[6]
[23] I then asked Ms. Nesbitt whether this was a true joint submission, and this exchange occurred:
THE COURT: Is ‑‑ this has been phrased as a joint submission but is it a true joint submission or is it simply an agreed upon position? When I think of a joint submission, I think of a quid pro quo, that the ‑‑ the Crown, for example, has a problem proving something or there’s going to be a ‑‑ a live issue about the admissibility of a crucial piece of evidence and, as a result, the Crown enters into an arrangement that it might not otherwise enter into. That’s what I classify as a joint submission. What I hear you saying, and I ‑‑ correct me, please, if I’m wrong, is more along the lines of, The Crown can prove the case. It might have been expensive but we could have done it. It’s, We have concluded that a CSO is appropriate given the factors in terms of the guilty plea and the support of the family, et cetera, as opposed to, We’ve got a problem. We need to ‑‑ and this is how we solved our problem.
MS. NESBITT: Yes.
THE COURT: You understand my distinction?
MS. NESBITT: Yes, I do, Sir. And it’s ‑‑ it’s a joint submission that my friend and I have both agreed that an 18 month conditional sentence order is the appropriate sentence in this case. But it is not a case, Sir, where the Crown couldn’t prove the case. The Crown could have proved the case.
THE COURT: So there’s no quid pro quo here?
MS. NESBITT: No. No, Sir.
THE COURT: This is just a meeting of minds ‑‑
MS. NESBITT: Yes.
THE COURT: ‑‑ in terms of what you think would be
appropriate?
MS. NESBITT: Yes, Sir.
THE COURT: Okay.
MS .NESBITT: And, of course, I mean, the guilty plea is somewhat of a quid pro quo. It’s ‑‑ I’m ‑‑ I’m not ‑‑ the Crown didn’t have a problem proving its case. But, obviously, any time you have to go to trial and there’s witnesses involved, there are potential issues there and by the accused pleading guilty, should get benefit from that. And so part of the benefit to that is an agreement between counsel that the appropriate sentence is a conditional sentence order.
THE COURT: No. I understand that.
[24] Mr. Oykhman, counsel for Mr. Evans, began his submissions with these words:
MR.OYKHMAN: Well, Sir, as my friend indicated, a joint recommendation/submission before you for a conditional sentence order. And my friend went over a lot of the mitigating factors and somewhat stole my thunder. But I’ll review some of them, in any event.
[25] Ms. Nesbitt then said:
...Sir, I just ‑ because it is a joint submission on a conditional sentence order, I feel I have to distance myself from the submissions my friend has made to support the conditional sentence order because nothing he said were any of the reasons why I think a conditional sentence order is appropriate....[7]
[26] I then invited both counsel to submit further written submissions if they wished. Ms. Nesbitt, in explaining why she would probably not do so, explained how she came to the sentencing submissions which she had made:
So, Sir, the Crown’s submissions, and ‑‑ and I honestly am not sure I’d be able to say much more in any written submissions ‑‑
THE COURT: And I didn’t want to ‑‑ you to feel compelled that you had to file them.
MS. NESBITT: Yes.
THE COURT: I just wanted you to know you had the opportunity to file them.
MS. NESBITT: I‑‑ I looked, and of course maybe there’s something there that I missed, but I looked several times to try and find something on point with these same facts and I ‑‑ I could not find anything. So the best, in my opinion, that I could find were the three cases that I’ve provided to you. And in one case, very limited facts, a conditional sentence order was given. I went back to basic principles, first principles, and ‑‑ and the case of Proulx that denunciation and deterrence can be met with a conditional sentence order. I looked at the community service hours that I’ve asked for Mr. Evans to perform. And, in the Crown’s submission, if the no internet, no computer conditions and all the conditions the Crown has asked for were to be imposed then Mr. Evans hopefully could be successfully monitored in the community and would not pose a risk to other members of the community. If those conditions were not imposed, the Crown does have a concern about Mr. Evans’ behaviour on the internet. And ‑‑ and I think I made that quite clear in my ‑‑ in my initial submissions.
So, Sir, the ‑‑ the Crown comes to you with ‑‑ with the joint submission of a conditional sentence order for the reason of based on the case law that I was able to find. And with the conditional sentence order that I’ve crafted, I believe that the principles of denunciation and deterrence can be met with that conditional sentence order and that the public can be protected. And, Sir, I think that is all I have to say.[8]
[27] In my view, what has been put before me is not a true joint submission. There was no plea bargain reached in which the Crown and the defence, recognizing and agreeing that there were specific weaknesses in their respective positions, decided to resolve the matter by the accused tendering a guilty plea and the Crown agreeing to participate in a true joint submission recommending a sentence different than the Crown would have otherwise sought. Rather, Crown counsel was of the view that she could prove the case against Mr. Evans but, after reviewing the law, came to the conclusion that the proposed CSO was the appropriate sentence in law. In my view, what was put before me was a joint sentencing recommendation.
[28] However, out of an abundance of caution, I made it clear to counsel that I had great difficulty in accepting the proposed sentence, and outlined my concerns that it did not adequately address the sentencing objectives of deterrence and denunciation. I invited both counsel to address my concerns and they did so.[9] Those additional submissions led me to reserve my decision in this matter. Defence counsel also submitted further written submissions, and I have considered them.
Aggravating and Mitigating Factors
[29] The aggravating factors in the case at bar are:
1. The length of time over which the acts of extortion occurred. The offender was persistent in his attempts to extort money and hockey memorabilia. Apart from altering his monetary demands, at no point did he retreat from his course of conduct which ended only when police located him.
2. The offender used his then girlfriend's computer and internet connection to send his extortion demands to the victim. He thereby made his girlfriend a suspect in the police investigation; indeed, she was arrested by the police before it was determined that Mr. Evans was the culprit, and not the girlfriend.
3. The offender's callous disregard for not only the emotional harm he was prepared to cause the victim, but also for what he anticipated and assumed would be the emotional harm endured by the victim's family.
[30] The mitigating factor is the guilty plea.
[31] The other factors which must be considered are:
1. The criminal record of the offender is very dated and unrelated. It is a neutral factor in this sentencing.
2. The lack of remorse on the part of the offender is not an aggravating factor, and should not, in and of itself, result in the imposition of a more severe sentence. Rather, it simply means that Mr. Evans is disentitled to any leniency which might have been otherwise granted had he shown genuine remorse: R. v. Sawchyn 1981 ABCA 173 (CanLII), [1981] 5 W.W.R. 207 (Alta. C.A.).
3. That the extortion practiced by Mr. Evans did not include threats of physical violence is not a mitigating factor, it is the absence of yet another aggravating factor.
Sentencing Law on Extortion
[32] The maximum penalty for this offence as committed is life imprisonment.[10]
[33] The primary sentencing objectives to be achieved by this sentencing are deterrence and denunciation. Rehabilitation, while not to be ignored, is very much a secondary objective. As stated by McGillivray, C.J.A. in R. v. McDonald and Tondu (1981), 1981 ABCA 140 (CanLII), 29 A.R. 499 (Alta. C.A.), at p. 506:
Turning to the matter of sentence, it should be first stated that the crime of extortion is a serious one and it should, in most cases, attract a substantial term of imprisonment.
[34] I have found the following cases to be of particular assistance in determining the appropriate range of sentence.
R. v. Hooper (1981), 22 C.R. (3d) 327 (Ont. C.A.)
[35] The offender was sentenced to 15 months imprisonment after pleading guilty to extortion. This sentence was consecutive to other consecutive sentences of four months (break and enter) and five months less one day (possession of weapon for a purpose dangerous to the public peace). The offender appealed both convictions and sentences.
[36] The complainant had been a friend of the offender's parents for approximately 30 years, and had known the offender since the offender was a child. At the time of the offence, the offender was 27 years old, married, the father of two small children, and "bore an exemplary character."
[37] The specific facts relating to the crimes are rather odd, and I can only do justice to them by reproducing them as stated by Martin, J.A. at pp. 328‑330:
The facts giving rise to the charges are these. On December 23, 1978, the complainant returned to his apartment after being absent from the City of Sault Ste. Marie for a number of days and found a small knapsack tied to the door of his apartment. The knapsack was found to contain eight small white paper bags and a plain white envelope containing an anonymous note and two photographs of the appellant's mother. The note directed the complainant to place the sum of TEN THOUSAND DOLLARS ($10,000) in the cloth bags and to place the bags in locker No. 36 at the Bank entrance of the Station Mall in the City of Sault Ste. Marie at 12 o'clock noon on the 6th day of January, 1979 and then to leave the Mall. The note further stated that if the sum of TEN THOUSAND DOLLARS ($10,000) was received all remaining photographs would be returned and it contained a warning that if the complainant went to the police or tried to stop the writer, the materials would be sent to each member of the Hooper family.
The complainant later opened a locked dresser drawer in his apartment by means of a key kept in the apartment, and he discovered that approximately 12 photographs of the appellant's mother were missing along with a Schmeisser pistol and some ammunition which was kept in the same drawer. The photographs were embarrassing to the complainant and, no doubt, to the appellant's mother. On the 31st day of December 1978, the complainant found a second note which had been placed in a plain white envelope and left under the windshield wiper of his car. On the 5th day of January, 1979, the complainant received a knapsack prepared by the police department and was given instructions to follow the procedure outlined in the note. On the following day, at approximately noon, the complainant while observed by police officers and by the appellant, entered the Station Mall and placed the bag in one of the lockers and then left. A short time later, the appellant entered the Station Mall and eventually walked over to the lockers and reached into locker No. 36; he then walked outside the Mall whereupon he was apprehended by the police without incident. He was carrying in his possession the loaded Schmeisser pistol taken from the complainant's home, but the safety catch was on, and he informed the police that he had the loaded pistol in his pocket.
The appellant gave a statement to the police in which he said that his mother had left her car with him and on the key ring which contained the car key there was a key to the complainant's apartment. He recognized the key because he had previously used it in order to put mail in the complainant's apartment. He said that he went to the complainant's apartment to look around, noticed the locked drawer and opened it with a key which he found in the apartment. He said in his statement that he was shocked to discover the pictures of his mother in the locked drawer in the complainant's apartment because they indicated a relationship between his mother and the complainant. In anger, he conceived the idea of demanding the TEN THOUSAND DOLLARS ($10,000) to break off the relationship and he concluded his statement to the police by saying that he would have returned the money and the pistol to the complainant.
[38] Having concluded that the appeal against conviction must fail, Martin, J.A., at p. 330, said:
Turning now to the question of sentence, it should be said at once that extortion is a crime of particular gravity and in the absence of exceptional circumstances would require a substantial custodial sentence.
[39] Martin, J.A. then said, at p. 330:
We are all of the view that the circumstances in this case are sufficiently unusual to fall within the category of 'exceptional circumstances'. The appellant, as previously indicated, bears an exemplary character. He is a skilled diesel mechanic, and since his conviction has upgraded his education. He has worked for one employer for five years, who speaks highly of him. He is a good husband and a good father. He has made important contributions to the welfare of the community by serving as a senior instructor to the St. John's Ambulance Training Corps, of which the complainant is the director. Since this offence, the relationship between the appellant and members of his family has continued to be a good one, and it appears that the appellant's relationship with the complainant himself has also been excellent, and they continue to remain friends.
[40] The Crown conceded that the global sentence (two years less one day) was excessive, but sought a sentence longer than the time already served by the offender. The Court disagreed and imposed "time served". However, the case report does not indicate the amount of "time served". Even so, we can properly infer that the Court of Appeal took the view that it was only the "exceptional circumstances" of the case which deterred the Court from imposing " a substantial custodial sentence".
R. v. R.L.B. (1992), 1992 ABCA 243 (CanLII), 131 A.R. 216 (Alta. C.A.)
[41] The offender was a 47 year old male with a record for one conviction of breach of a recognizance. Madam Justice Veit described the circumstances of the offence in these words:"…with intent to extort forgiveness of child support payments, the appellant did threaten to publish sexually explicit photographs of his ex‑wife." In the Court of Queen's Bench, the offender (who had pleaded guilty) was sentenced to two years imprisonment. The Court of Appeal held that "the sentence is too high."
[42] Veit, J. (ad hoc) said at p. 217:
As to what is the correct sentence in circumstances such as these, we recognize that this is a serious crime which threatens the harmony of the family. It is extremely disruptive to family relationships and can have grave consequences for the person who is threatened, in terms of their emotional stability. We also note that in circumstances such as these the photographs, which are the material which then becomes the tool for extortion, are acquired in circumstances in which a relationship of trust existed between the parties. In our view, a custodial sentence is required in order to denounce this conduct….
[43] The Court of Appeal imposed a sentence of nine months imprisonment followed by two years of probation.
[44] I note that the trust element of the offence as found in R.L.B. is not present in the case at bar.
R. v. D.K.P. (1991), 5 B.C.A.C. 308 (B.C.C.A.)
[45] The offender was a "man in his '40s" who was convicted after trial of extortion. The offender had been unhappy that his relationship with the female complainant had been ended by her. He telephoned both the brother and the mother of the complainant (and perhaps others) telling them of the relationship, and telling them that he had nude photographs of the complainant and some of her clothes. He spoke of "inflicting various kinds of distressing things on the complainant." He said he would return the photographs and the clothes if he were paid $4000.
[46] The offender was sentenced as though he had no criminal record. Lambert, J.A. said, at paragraphs 10‑11:
[10] Counsel for the Crown has submitted that in addition to specific deterrence in relation to this kind of crime a sentence must recognise the importance of general deterrence. Extortion by threats against a woman is a cowardly crime. The particular extortion in this case was not coupled with violence but was coupled with a very cruel threat, cruelly delivered to a person in a very vulnerable position. I agree with the Crown’s submission that general deterrence is an important element in relation to a crime such as this and the sentence must recognise that.
[11] I also recognise that while may extortion cases are cases where a threat is a threat of deadly violence or a threat of terrible property damage the threat in this case was not a threat of violence. On the other hand the injury to reputation that can be caused by the carrying out of this kind of threat can easily last a lifetime.
[47] The offender was sentenced to imprisonment for 15 months followed by two years of probation.
R. v. H.A. (2005), 2005 CanLII 32566 (ON CA), 32 C.R. (6th) 159 (Ont. C.A.)
[48] The offender was convicted after trial of extortion. He had threatened to send to the complainant's employer a letter alleging that the complainant had been involved in "questionable ethical and moral conduct". All of this was in aid of the offender trying to get the complainant to repay money owed by her to the offender. The letter was never sent.
[49] The Ontario Court of Appeal said, at paragraph 101:
…[the offender] was a first offender and …there were many positive features in his background. It is also relevant that the threatening letter was never actually sent to the employer. Like the trial judge, however, I am satisfied that a period of incarceration was necessary on the extortion charge. While I would be inclined to impose a sentence of something less than ten months, I note that the trial judge imposed a concurrent sentence on the possession of 'bugging' equipment charge….
[50] In the end result, the Court of Appeal dismissed the sentence appeal.
R. v. Royz (2006), 2008 ONCA 584 (CanLII), 234 C.C.C. (3d) 205 (Ont. C.A.)
[51] I make reference to this case because it has been specifically brought to my attention by counsel for the Crown.
[52] The facts relating to charge of extortion brought against Mr. Royz were set out by Weiler, J.A. at paragraphs 2-3:
2 Some brief background is necessary to appreciate the issues in appeal. Several years before the alleged extortion took place, the complainant and the appellant were jointly charged in a scheme to defraud the government. Initially the complainant lied to the police about her involvement. Subsequently, the complainant changed her position, cooperated with the police and provided a statement under oath to them. The charges against her were withdrawn. The appellant eventually pled guilty to his charges, was convicted and sentenced to a term of imprisonment.
3 The complainant and her husband moved to [Y] and she obtained new employment. Some time after the appellant was released from prison, he telephoned the complainant and advised her that he had written a book about the investigation and that he planned on sending her a copy. Two days later, the book arrived with a covering letter containing the appellant's phone numbers and indicating that he planned to begin distribution of the book in the community in one week. The appellant and the complainant met that week at which time the appellant told the complainant that people needed to pay for what had been done to him and that he was going to start with her. He told her that, in order to stop distribution, she would have to buy all of the ten thousand copies of the book that he had printed for $70,000. He warned her that if she did not purchase the "distribution rights", as he phrased it, he would personally ensure that important people in her life received a copy of the book and that he would "ruin" her.
[53] Mr. Royz was convicted of extortion, and this was an appeal of that conviction; it was not a sentence appeal. At trial, Mr. Royz was placed on a conditional sentence order, but the report does not indicate the length of the sentence or the conditions of the order.[11] The appeal from conviction was dismissed.
Court's Analysis
[54] As previously noted, the sentencing objectives I must seek to achieve are deterrence and denunciation. Though the offender did not threaten physical violence, his threats were directed at the emotional well‑being of the complainant. The offender was dismissive of the harm he could have caused to the lives of the complainant and his family. Frankly, he remains dismissive.
[55] There is agreement between Crown and defence that incarceration is necessary in this case. Indeed, there is agreement between counsel in a recommendation that the period of incarceration be served within the community.
[56] The question is whether, in the circumstances of this case, and this offender, it is possible to craft a conditional sentence order which can adequately address the sentencing objectives of deterrence and denunciation.
[57] The law is clear that conditional sentence orders can, in some circumstances, adequately address those sentencing objectives. It is also clear that conditional sentence orders are not precluded from the sentencing alternatives available to a judge sentencing an offender for the offence of extortion where the sentence contemplated would be less than two years incarceration. R. v. Royz, supra, would seem to be an example of a CSO being imposed in a case of extortion. Indeed, it would be wrong for a judge in such circumstances not to consider the imposition of a conditional sentence order.
[58] Accordingly, I have considered a CSO, and have concluded that no conditional sentence order which I might craft, even if it were for the maximum period permitted, and required house arrest for that entire time, would adequately convey the necessary of messages of deterrence and denunciation, and it would not achieve those sentencing objectives.
[59] There was no prior connection between the offender and the complainant. While that means that there was no breach of a trust relationship, it also means that the complainant had no idea from whom this threat was coming. To the complainant, it would appear to be what, indeed, it was: a significant threat to the emotional well‑being of the complainant (whether the allegations were true or not) and his family, made by some unknown, faceless person with whom the complainant had no grievance, and who had targeted the complainant for purely financial gain. It is common sense to conclude that the fact that the offender was a faceless, unknown entity to the complainant would tend to make the threat more ominous.
[60] This offence was motivated by pure greed, and was committed by Mr. Evans who either thought he was able to make his demands with impunity because the victim was vulnerable through the victim's own acts, or he thought that the very nature of the threat, regardless of whether the complainant had done the things alleged, would be so damaging to the complainant that he would cower in the face of it. On either analysis, Mr. Evans' acts were cold, cowardly, and predatory. Nothing less than a sentence served within a custodial facility will properly convey society's abhorrence (denunciation) of Mr. Evans' crime, or send an adequate deterrent message in respect of it.
[61] From reviewing the cases, the appropriate range for this type of extortion is 9 to 15 months incarceration. As previously noted, Mr. Evans is not entitled to any particular leniency. I find that the appropriate sentence is 10 months incarceration.
[62] The Crown submitted that if a CSO was imposed there should be restrictions placed on the accused to prevent him from using the internet to victimize other people. It would seem logical that if that was a concern in a CSO, it also should be a concern when the accused is released from custody. However, in my view, the sentence I have imposed will achieve specific deterrence in respect of Mr. Evans, and the suggested restrictions on his ability to access the internet would unnecessarily hamper his ability to operate his home‑based graphic design enterprise.
Sentence
[63] I sentence the offender to 10 months incarceration. Since he will be out of the work force for a significant period of time, I impose no victim surcharge.
Dated at the City of Calgary, Alberta this 20th day of April, 2011.
|
A.A. Fradsham A Judge of the Provincial Court of Alberta |
Appearances:
Nadine Nesbitt
for the Crown
Michael Oykhman
for the Accused
[1] The quotations in this section come from the Pre-Sentence Report.
[2] An error in the Transcript has been corrected.
[3] Transcript, p. 20, l. 38 to p. 24, l. 5.
[4] Transcript, p. 12, ll. 6-11.
[5] Transcript, p. 13, ll. 20-27.
[6] Transcript, p. 13, ll. 35-40.
[7] Transcript, p. 29, ll. 7-10.
[8] Transcript, p. 30, ll. 5‑34.
[9] Transcript, p. 19, ll. 14-38.
[10] See Section 346(1.1)(b) of the Criminal Code.
[11] The only reference to the sentence imposed at trial is found in the dissenting reasons of Justice Borins at paragraph 34: “Mr. Royz received a conditional sentence, which he has served.”
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