Court File No. -00-000133



SUPERIOR COURT OF JUSTICE

BETWEEN:



HER MAJSESTY ThE QUEEN


-AND-


CALVIN CUMBERLAND






PROCEEDINGS AT SENTENCING HEARING

Before Mr. Justice T. A. Platana held on Wednesday, February 7, 2001 at the City of Thunder Bay, Ontario




APPEARANCES:

Assistant Crown Attorney
Counsel for the Accused
Court Reporter
Trevor Jukes Representing Himself
Lenore McKevitt

WEDNESDAY, FEBRUARY 7. 2001
UPON RESUMING:



PLATANA. T.A. (talking):

Calvin Cumberland was convicted on January the 16 of this year by a jury, that he did, on or about the 23 day of May and the 24 day of May 2000, at the City of Thunder Bay, publish a defamatory libel knowing that it was false, by posting posters defaming xxx xxxxxxxx, contrary to Section 300 of the Criminal Code of Canada.
The brief facts, as I recall them from the trial, are that it was apparent that Mr.
Cumberland had a dispute with Revenue Canada or Canada Customs and
Revenue Agency as it is now called.
Mr. xxxxxxxx is a field investigator whose responsibility is to deal with individuals
who don't file income tax returns. The evidence in this case suggested that Mr.
Cumberland had not filed his 1998 return and therefore was contacted by Mr.
xxxxxxxx.
Mr. xxxxxxxx indicated that he personally served what is known as a "Demand Requirement" on Mr. Cumberland on April the 11th of 2000. On April the 13th, following a telephone call to arrange a meeting, Mr. Cumberland and two friends met with Mr. xxxxxxxx and other employees of Canada Customs and Revenue

Agency in order to discuss the situation. Mr. xxxxxxxx's evidence was that the issue raised by Mr. Cumberland at that time was his objection to the federal government collecting provincial income taxes.
Mr. xxxxxxxx says that he then explained to Mr. Cumberland that if that was his position he had two options. He could either file his tax returns and then appeal through the normal court process, or he could not file, in which case he would in all probability be charged and he could then argue his position in court.
On May the 1~ Mr. Cumberland did file a return. However, Mr. xxxxxxxx categorized that as a "nil" return because of the fact that it contained no information as to Mr. Cumberland's income. Mr. xxxxxxxx then contacted Mr. Cumberland and met him at his residence to show him how the filed form did not comply with regulations. Mr. Cumberland at that time indicated that he would not comply and he warned Mr. xxxxxxxx not to come onto his property again or there would be circumstances of trespass.

Mr. xxxxxxxx states that was his last personal contact with Mr. Cumberland. Mr. xxxxxxxx's evidence then goes on to state that on May the 23rd of 2000, on leaving the Canada Customs and Revenue Agency building on May Street, he saw some posters on poles.


There was then the Crown's evidence of several other witnesses who saw the same poster at various locations throughout the City of Thunder Bay, including on North Cumberland at the Husky Convenience Store1 victoriaville Mall, telephone and hydro poles in the vicinity of Canada Customs and Revenue Agency buildings on May Street and on Brodie Street, near St. Patrick's Cathedral, and on posters in Marina Park.


For purposes of this sentencing I read again and describe for the record the poster which I am referring to. It is a poster which appears to be approximately eight and a half by fourteen with a large picture dominating approximately one half of the page. The top of the page reads, "Caution, Attention". There is then the picture, the name xxx xxxxxxxx is printed in large print immediately under the picture and underneath that is the wording:

"This man is known to be working for an insidious organization accused of causing people's deaths. Protect yourself from organized crime. If you are approached by this man be prepared to defend yourself".
It is on the basis of that evidence and other evidence, which was accepted by the jury, that Mr. Cumberland was found guilty of this offence.



Evidence was presented at this sentencing hearing. Filed by Mr. Jukes, on behalf of the Crown, was a Victim Impact Statement. He has referred to some portions of it during his submissions and I refer to some of the other portions of the statement without reading it entirely. In the section dealing with personal reaction, Mr. xxxxxxxx describes the incident in question;

".has left me emotionally scarred and upset. If the intended message in the poster was to target me for threats, abuse or physical harm, I have every right to believe that my personal safety was at risk in addition to my family. He goes on,

"For several months this incident has been weighing on my mind and to this day I cannot reconcile the reasons for this personal attack on my character and reputation." Further,

"Because of the poster campaign I was sent home by my employer for three and a half days. However, I contemplated seeking additional leave to deal with the stress that this incident created for my family."


Further, filed as an exhibit by Mr. Cumberland was a letter of apology to Mr. xxxxxxxx, which I required him to read out in open court. There is also a letter


filed as an exhibit on this sentencing dated August the 24th of 2000, filed on consent of the Crown, which Mr. Cumberland addressed to one of his friends. Without reading that letter

in detail, I will simply indicate that to some extent I found this letter disturbing in as much as it expresses the fact that the blame for this incident arising is on Mr xxxxxxxx and further indicates in there that Mr. Cumberland somehow "forgives Mr. Peltonen for the things that he has done to us." That letter on August the 24th of 2000, demonstrates to me further that, at least at that point in time, Mr. Cumberland seemed to be blaming Mr. xxxxxxxx for the circumstances in which Mr. Cumberland found himself.
Mr. Cumberland has also filed a number of documents which verify what I would have accepted in any event, which are his earlier submissions to me with respect to his training background as an auto body repair person. They also verify the fact that he has had some extensive involvement, apparently, in dealing with foster children over the years. He has filed some certificates of appreciation and acknowledgement from Children's Aid Society or as we now know it, Children and Family Services.
Mr. Cumberland also called several witnesses who spoke of his character. The Crown acknowledged prior to doing so that Mr. Cumberland was clearly of what the law would determine as being previously good character in terms of having no criminal record. After hearing the witnesses, I am certainly satisfied that up

to the time of this particular offence, he is someone who could only be categorized as being a helpful, caring individual who obviously had an appreciation of the value of helping others.
In seeking disposition on this case, Mr. Cumberland has asked me to consider the provisions of the Criminal Code dealing with discharges. The Crown has asked that I impose a conditional sentence of between six to nine months with certain conditions imposed.


In my view, the Crown has appropriately directed my attention to Section 718 of the Criminal Code which sets out the purpose and principles of sentencing. That section reads:
The fundamental purpose of sentencing is to contribute along with prime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives;
a) to denounce unlawful conduct;
b) to deter the offender and other persons from committing offences;
c) to separate offenders from society where necessary;


d) to assist in rehabilitating offenders;

e) to provide reparations for harm done to victims or to the community;

f) to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community.

Let me digress for a moment and indicate that it appears from the letter, which Mr. Cumberland has filed today addressed to Mr. xxxxxxxx, that he now, at least, seems to accept a sense of responsibility for what he has done and recognizes the harm which he has caused to Mr. xxxxxxxx.
I have also considered, for purposes of the record, Section 718.2 of the Criminal Code, which sets out other principles that courts must consider. And in particular I have noted Section 718.2(b), which states that a court should consider that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. I have also considered in particular clause (d), which states that an offender

should not be deprived of liberty If less restrictive sanctions may be appropriate in the circumstances.
I have also reviewed and considered Section 730 of the Criminal Code which deals with absolute and conditional discharges. That section states;
that where an accused other than a corporation pleads guilty to or is found guilty of an offence other than an offence for which a minimum punishment is prescribed by law, or an offence punishable by imprisonment for 14 years or for life, the Court before which the accused appears may, if it's considered to be in the best interest of the accused, and not contrary to the public interests, instead of convicting the accused by order direct that the accused be discharged absolutely or in the conditions prescribed in a probation order made under Subsection
731(2)."
In asking me to consider a discharge in this case, Mr. Cumberland has argued that a criminal record may cause him hardship in view of the fact that he is considering a career in the future which requires him to deal with children, and on the second basis that he has a mother in the United States and he may not be able to gain entry to the United States for the purpose of visiting her.
Mr. Jukes, on the other hand, has argued before me that the cases which he has cited to me indicate that the few reported cases dealing with this offence all
stress the importance courts must place in preserving an individuals dignity or as the Supreme Court of Canada noted in the decision in Lucas [1995J 1 S.CR 439;
"Is the goal of the protection of reputation a pressing and substantial objective in our society? I believe it is. The protection of an individual's reputation from wilful and false attack

recognizes both the innate dignity of the individual and the integral link between reputation and the fruitful participation of an individual in Canadian society. Preventing damage to reputation as a result of criminal libel is a legitimate goal of the criminal law."
The Supreme Court of Canada goes on in the Lucas [1995]2 s.CR. 1130
decision to refer to the earlier decision in 11111 vs. Church ofscientolopy. In that case it was noted:
"Although much has very properly been said and written about the importance of freedom of expression, little has been written of the importance of reputation. Yet to most people their good reputation is to be cherished above all. A good reputation is closely related to the innate worthiness and dignity of the individual. It is an attribute that must, just as much as freedom of expression be protected by society's laws."



In that same case, Supreme Court of Canada noted:

"Those whose work makes them especially vulnerable to criminal libel like social workers, police officers, or nurses require the protection which only the criminal law can provide. When they are victimized by someone with no means of satisfying the civil judgement a criminal recourse may be their only means of vindication, and the only solution that offers a first step on the road to restoring their good reputation in the community."

I further adopt the words used by Hrabinsky, J of Saskatchewan's Court of

Queen bench in the trial decision in R V. Lucas 132 Sask R. 71: [1995] S']. No. ~where that judge stated:

"An attack on the reputation of an individual is a serious matter which cannot be tolerated in our society. Such an attack can be equated with psychological abuse which strikes not only at the victim but his family as well. It can cause emotional damage. Such a defamatory attack on an individual's reputation violates that individual's integrity and human dignity similar to a physical assault and may even result in more serious consequences such as



emotional distress and worry. There is no price which can be put on the value of an individual's good reputation. It is invaluable.

There is no evidence before me in this case which could lead to any other conclusion but that Mr. xxxxxxxx was an individual whose integrity deserved to be protected. There is no evidence which would suggest to me that there is anything which should diminish in any way Mr. xxxxxxxx's personal reputation in carrying out his duties.

Mr. Cumberland in his letter to his friend, filed as exhibit three, suggests that his actions were to prove a principle. I agree that it is an admirable quality to place a high value on principle. However, it is not a quality that can be permitted to be paramount if indeed acting upon same results in the commission of a criminal offence. It may perhaps be even more serious when claiming to be acting because of principle when one seriously violates the rights, the reputation and the dignity of another individual. Such is the case here. Despite his conflict with Canada Customs and Revenue Agency, there is no justification in the evidence for the kind of personal attack levied on Mr. xxxxxxxx.

We elect our public officials. We hire our public servants to do what we expect them to do: to serve the public and to carry out their appointed duties as best they can in the interest of the public whom they serve. This is what I find Mr

xxxxxxxx was doing in this case: carrying out the responsibilities given to him to inquire into and to enforce the income tax laws of this country.

There is of course always room for public protest in appropriate cases and directed in the appropriate fashion. Protesting against Canada Customs and Revenue Agency or the government of Canada's tax laws by attacking an individual employee doing his job is not such an appmpriate form of protest.

I note that I am further troubled in this case by the design of the poster itself. It is fairly obvious that in some fashion, which was not made clear in the evidence, it would have required Mr. Cumberland to somehow obtain a photograph of Mr. xxxxxxxx. No evidence is before me, but I must express some concern as to note that that would obviously require a very deliberate act, a very planned act on the part of Mr. Cumberland to produce a poster of this nature. I also agree with the submissions by the Crown that this was not a spontaneous reaction but rather by virtue of the nature of the way the posters were spread around the city and indeed the preparation of them them self had to have been a planned and deliberate act.

What I find also grievous in this case is that the evidence shows that on May the 13 in a meeting with employees of Canada Customs and Revenue Agency,



including Mr. Peltonen, Mr. Cumberland was told how he could use the legal system to make his protest in an appropriate manner.

In many respects, it may often be said that the most serious problems in society today is that people are losing or not showing sufficient respect for one another. It is not only the integrity of our legal system which demands such respect be shown1 but the very foundation of our society requires that a very high value be placed on such mutual respect.

I have considered Mr. Cumberland's submissions as to a possible detrimental effect on him for future involvement in childcare. I have also considered the possible difficulty in gaining entrance into the United States. I must balance that against the interest of the public, of the public servants in all levels of government, and of all individuals having anyone else deterred from publishing or broadcasting the type of defamation as was done in this case. While this may be categorized as a very misguided judgement and action on the part of Mr. Cumberland, it is one, which I consider to be very significant on it's effect on Mr. Peltonen personally, and certainly an effect indirectly on all public servants.

Mr. Cumberland's argument for a discharge must fail. On the basis of the principles enunciated in the cases referred to, I am satisfied that it would. be contrary to the public interest to grant a discharge in this case. I do however

agree with the Crown's position that because of Mr. Cumberland's clearly good side of his character with respect to the witnesses that were called, with regard to the other side of him as being a caring and helpful person, one who is the sole provider of his family, and as one who appears before me today as a first offender, that no institutional incarceration is necessary.

The sentence which I am imposing is intended to direct not only to Mr. Cumberland but to others that if you are going to cause a significant serious effect on the life of another by actions such as this, there must be a deterrent factor, not only to Mr. Cumberland but also to anyone else who might ever consider, misguided as it may be, protesting in this fashion via a personal attack upon someone who is doing their job.

The significance of this sentence is one which all members of the public may not always understand in view of the fact that it is in effect a custodial sentence although not served in an institution.

Would you please stand up, Mr. Cumberland. I am sentencing you to a period of incarceration of seven months to be served conditionally. During that seven months, you will be placed on the following restrictions, and I will tell you Sir, and I will tell you Mr.

Jukes, that I am open to submissions to both of you in the event that the restrictions that I am about to impose may cause difficulties which

I'm not now aware of. During that seven-month period you have indicated that you work at your own residence, the place of your own residence. Therefore, you are required to be in your own residence each day between the hours of 8:00 p.m. and 8:00 a.m except for Saturday and Sundays when you may be outside of your residence between the hours of 8:00 a.m. to 12:00 p.m.
In addition to that, you are not to be within 500 feet of 130 5. Syndicate Avenue and 201
N. May Street unless requested to be so by an employee of Canada Customs and Revenue
Agency. That clearly does not refer to travelling past those areas.
MR. CUMBERLAND: Can I travel past the building on May Street?
THE COURT: You may travel past both buildings. You may not
stop within 500 feet of either building.
Secondly, as a statutory term obviously, you must keep the peace and be of good behaviour.
Thirdly, you are to deal with Revenue Canada by correspondence only, unless you are contacted by an official or employee of Revenue Canada for a personal meeting in which case you will be permitted to go on the premises.
Are there any of those terms, Sir, which you don't understand.
MR. CUMBERLAND:
things but.
THE COURT: It certainly does. It was exactly my intention to impede you pretty significantly so that you will at minimum miss one summer's entertainment.
MR. CUMBERLAND: Entertainment?
THE COURT: Whatever your social activities may have been on
any evening or any weekend, at least for the purposes of between now and the rest of this

summer, you will not be participating in them.
MR. CUMBERLAND: On weekends, can you go over that again?
THE COURT: Weekends you may be out of your residence between the hours of 8:00 a.m. to 12:00 p.m. To twelve noon. I've done that for purposes of shopping and providing for your family and in the event you are in the habit of attending any worship services on Sunday mornings. Do you understand all those terms, sir? Are there any of those terms that you can't abide with?
MR. CUMBERLAND: Tuesday nights, I'm the one who puts on those health meetings at the College. They run from about seven until 10:30 at night. I was in charge of putting on these health meetings to help people with their problems. It's like volunteer work and I'm the one that puts these on so...
THE COURT: That's all, sir?
MR. CUMBERLAND: I think so.
I understand them. It sort of impedes a lot of

THE COURT: Mr. Jukes, do you have any comment with respect to that? I indicated that I would give both of you an opportunity for input into the terms.
MR. JUKES: I'll leave that in Your Honour's hands. I don't have a position one way or the other on that.
THE COURT: What exactly is that, sir?
MR. CUMBERLAND: It's alternative health that was mentioned in my
letter there. We put on meetings for people with chronic pain and cancer and different things. We look for ways to help them.

THE COURT: And what is your responsibility in that?

MR. CUMBERLAND: I was the one who books the room and I put the things together and I call all the people. That goes to sometimes 11 o'clock at night, Tuesday nights.
THE COURT: You're going to have to get somebody else to do that for you for seven months. All right. Anything else then?
MR. JUKES: Does Your Honour think that we could maybe include a clause not to have any contact directly or indirectly with Mr. xxxxxxxx and his family?
ThE COURT: Oh. Thank you very much. It was absolutely my intention. I have it here in notes but just got side tracked. In addition, you are not to initiate any contact directly or indirectly with Rod Peltonen or any member of his family. Do you know who his family members are? Is it necessary that I...
MR. JUKES: I don't actually know as far as names.
THE COURT: All right. I'll simply leave it at that then. That's initiate. That means if he calls you about a business matter, you are fine. All right. Anything else then?
MR. JUKES: Nothing that I can think of adding, Your Honour.
THE COURT: I have not included the term not to distribute or advertise or publicize anything defamatory libellous towards Revenue Canada because this charge is like I said from the beginning did not involve Revenue Canada. It involved Mr. xxxxxxxx personally.
MR. JUKES: That's correct, Your Honour.
THE COURT: It was probably Mr. Cumberland's problem in the first place. All right. Thank you very much.
MR. JUKES: Excuse me, Your Honour. I don't know if you explained to

Mr. Cumberland what he has to do now with respect to contacting the supervisor?
THE COURT: You are required by law to report to a sentence supervisor within 48 hours of today. Mr. Jukes, I'm going to impose upon you to explain to him how he has to go about doing that.
MR. JUKES: I'll deal with that. Yes sir.
THE COURT: That curfew obviously begins today.


COURT ADJOURNED

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