A man who stalked his ex-fiancée for months after their breakup has been barred from coming within 50 kilometres of the B.C. city where they both live – in what legal experts describe as a rare case of “banishment” as a probation condition.
In his ruling, Judge Oliver Fleck acknowledged the gravity of the condition, which will require Fort St. John resident Dustan Olof Sweder to obtain the court’s permission before coming anywhere near his community, located in the province’s Peace River region, for three years after he’s released from custody.
“I am fully cognizant that this is a major imposition on Sweder’s liberty. He owns a house in Fort St. John and the city has been his home for at least two decades,” Fleck wrote in his Sept. 28 decision, which was posted online last week.
“However, in my view, this condition is necessary to protect the psychological well-being of (his former partner), as lesser no-go conditions that have allowed Sweder to return to Fort St. John have not worked.”
Those lesser conditions were imposed for a series of alarming “criminal acts” Sweder committed after his eight-year relationship with his ex-fiancée ended in summer 2022, and which kept him behind bars for most of the fall, the judge said.
Sweder, according to a risk assessment report, refused to accept the breakup.
The court heard the 49-year-old violated orders not to contact his former partner over and over again, which included showing up at her work, writing her half a dozen letters in a single day from the Prince George Regional Correctional Centre, and threatening suicide in a phone call days after his release.
At one point, he put approximately 75 posters up across Fort St. John with messages urging his ex to reconcile with him.
Fleck summarized that Sweder was jailed for weeks at a time for those offences, only to resume the stalking shortly after being let out. He racked up a number of convictions, including for criminal harassment, breach of probation and disobeying court orders.
The most recent incident took place on Feb. 9, 2023, when Sweder, two days after his latest release, broke into his ex’s workplace after hours and left a series of notes and drawings for her to find – leading to his longest sentence yet, of two years less a day, and the order that he stay away from Fort St. John during his subsequent probation.
AN UNCOMMON APPROACH
Isabel Grant, a professor at UBC’s Peter A. Allard School of Law who wrote a paper on intimate partner harassment that was referenced in Fleck’s decision, said such broadly applied no-go orders are “absolutely not common,” in her experience.
“I teach a course on sentencing and I see very few cases of what’s often referred to as banishment,” Grant said.
These kinds of conditions can have serious consequences for an accused, she said, if they cut an offender off from their support system, or limit their access to their children – but they also recognize the immense impacts these crimes have on their victims, who are more often forced to upend their own lives to protect themselves.
“Usually, when a woman goes to police saying she’s being criminally harassed … the first thing she’ll be told is change your routines, change your phone number, take a different route home from work,” Grant said.
“It’s significant that this court is saying this complainant shouldn’t have to be the one to take all the steps to avoid the harassment.”
Sarah Leamon, a Vancouver-based criminal defence lawyer, said she has represented clients subject to no-go orders, including some that are wide-ranging, and that the conditions are generally a “last resort” when previous interventions have failed.
“We have to remember that sentencing is a highly individualized process,” Leamon said.
“In cases where a person has been previously sentenced for similar offences, and hasn’t rehabilitated themselves, and continues to reoffend, then specific deterrents will be a paramount consideration for the judge.”
While Leamon declined to comment on the specifics of Sweder’s case, she said the banishment decision sounded like a “broad and perhaps very appropriate interpretation of the harm and violence that can occur as a result of offences like these.”
Sweder’s ex declined to provide a new victim impact statement for his latest sentencing – the court heard she was apprehensive about going through the process over again – but she discussed the emotional impact of his break-in with the author of a pre-sentencing report.
“She felt horrified when she arrived at work and realized that the break and enter had been about her. She felt like it was Sweder sending her a message,” Fleck wrote. “While (the victim) tried to work that day, she eventually described feeling like she could not breathe and she needed to go home.”
The report noted that Sweder also destroyed a piece of artwork from the victim’s daughter, which she had been keeping in her office.
“She is scared for her safety, especially should Sweder finally realize that there is no chance of getting back together with her,” Fleck added.
DIFFERENT KINDS OF HARM
A psychiatric assessment found Sweder posed a high-risk of reoffending due to a “strong need to explain himself and to feel heard and understood,” according to the decision, though the psychiatrist opined that Sweder was “unlikely to engage in serious or life-threatening harm” towards his ex.
For his part, Sweder tried to explain his actions away as romantic gestures, and expressed shock that the justice system would consider him a danger because, in his view, he had never demonstrated violent tendencies.
“This attitude betrays a view that the only form of violence is physical violence,” Fleck wrote. “Sweder seems unable to understand that his actions have caused psychological harm to (his ex), and that harm is real.”
Not long after their break up, Sweder was also charged with assaulting his former partner, though that count was ultimately stayed.
Even in cases that never escalate to assault, or worse, Grant said the devastating impacts of criminal harassment should not be underestimated.
“It’s not like an isolated incident of violence, it often goes on for months or years,” she said.
“The predominant harm of these offences is what they do to the lives of the victims, in terms of their ability to feel safe moving through their own communities.”
Grant said she wouldn’t be surprised if Sweder tried to appeal his banishment, pointing to another case from 2020 in which a similar order was overturned by B.C’s Court of Appeal.
She also stressed that she wasn’t arguing such orders are “always appropriate,” or even necessarily appropriate for Sweder, as she was not familiar with all of the details of his case.
“I just want people to think about the impositions we put on victims’ lives in the context of crimes like these,” she said.
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