In November 2011, Agnieszka Mikulska sought a roommate in an ad on the internet. Within a month, her worst nightmare had come true. Patrick Doherty had responded to the ad. Ms. Mikulska chose someone else – perhaps not surprisingly, another woman. Doherty began a shocking stalking campaign that resulted in his March 2012 conviction for criminal harassment, two counts of attempting to obstruct justice and two counts of breaching a court order. He was sentenced to 5 ½ years in jail. He appealed. He lost: 2012 ONCA 855.

The harassment started shortly after Ms. Mikulska made her decision not to live with Doherty. It started with verbal abuse, threatening comments, multiple phone calls, showing up at her home and leaving notes. Shaken, Ms. Mikulska called police. The police intervened with Doherty and told him to stay away from her.

Clearly Doherty didn’t get the message. The day after the police warned him, Ms. Mikulska called them again, in the middle of the night, to report another call. Doherty was arrested and charged with criminal harassment. As is fairly standard practice, the Crown sought and was granted an order in the bail court prohibiting Doherty from contacting Ms. Mikulska.

Clearly Doherty didn’t get that message either. He wrote a letter to Ms. Mikulska from the jail. Taking a somewhat curious approach, the letter was threatening but also attempted to convince Ms. Mikulska to change her statements to police. Doherty then went so far as to send another letter to Ms. Mikulska addressed to her as “Angie Doherty.” This allusion to matrimonial bliss with Mr. Doherty was terrifying for Ms. Mikulska.

Upon his conviction after a four day trial and upon hearing detailed evidence from Ms. Mikulska as to the impact these offences had upon her, the trial judge sentenced Doherty to 4 years jail on the criminal harassment, 1 year on each of the attempt to obstruct justice counts, concurrent to each other but consecutive to the rest and 6 months on each breach of court order count, concurrent but consecutive.

The Court of Appeal upheld this sentence, citing Doherty’s lengthy criminal record - 70 convictions, including 27 for breaches of court orders, 10 for violent or weapons offences and 3 for criminal harassment. They also cited the fact that he had been told by Ms. Mikulska, the police and the Court to stop yet he did not. Further, they accepted the trial judge’s findings with respect to the impact on Ms. Mikulska, including the impact of having to testify.

A.C.J.O. O’Connor directly addressed a submission that is often made in sentencing submissions on criminal harassment cases as follows:

I agree with the respondent that the appellant is not entitled to mitigation on the basis that there were no physical assaults. As the trial judge noted, submissions suggesting that the lack of physical violence makes this offence less serious, ‘reflect a failure to appreciate that the primary impact of harassment is very often psychological…there is not requirement that there be physical harm to make out a very serious case of criminal harassment’ [para 15].

Ultimately, the Court of Appeal concluded that the sentence, though significant, was entitled to deference. The trial judge properly identified deterrence and denunciation as the primary principles to be considered. Further, her concern that Doherty had not been deterred by three separate prior two-year stints in jail was well founded.

Lastly, it is interesting and instructive to note that this was a situation where the trial judge imposed a sentence higher than that requested by the Crown.

There was no joint submission as to sentence. Her Honour advised counsel that she was considering imposing something higher than the range suggested and invited further submissions. This way of proceeding was endorsed by the Court of Appeal because, while judges must always consider the submissions of counsel, they must also always impose sentences that they consider fit and just.