R. v. D.D., 2005 CanLII 42472 (ON CA)

W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. Subsections 486(3) and 486(5) of the Criminal Code provide:

486.(3) Subject to subsection (4), the presiding judge or justice may make an order directing that the identity of a complainant or a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way, when an accused is charged with

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(ii) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i), (ii) and (iii).

(5) Every person who fails to comply with an order made under subsection (3) or (4.1) is guilty of an offence punishable on summary conviction. R.S., c. C-34, s. 442; 1974-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20.

DATE: 20051118

DOCKET: C41460

COURT OF APPEAL FOR ONTARIO

ROSENBERG, MACFARLAND and ROULEAU JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Christine Bartlett-Hughes, for the appellant

Appellant

• and -

D.D.

Brian Bond, for the respondent

Respondent

Heard: July 15, 2005

On appeal from the acquittal entered by Justice Alfred J. Stong of the Superior Court of Justice, dated February 3, 2004.

MACFARLAND J.A.:

THE FACTS

1The respondent D.D. was charged with one count of criminal harassment in relation to an incident that occurred on October 15, 2002, described below. The respondent elected to be tried before a judge and jury and his trial began in Barrie, Ontario on February 2, 2003.

2The complainant and Mr. D. had a short relationship in 1994 which produced a daughter, M. The relationship ended before M.’s birth.

3On October 15, 2002, the complainant was at home with her boyfriend. Mr. D. telephoned about 8:00 a.m. Initially, he yelled at the complainant because her boyfriend’s car was in the driveway. Mr. D. then indicated that he wanted to take his daughter to school and the complainant refused his request. The telephone connection was interrupted and soon after Mr. D. materialized on the doorstep of the complainant’s home. The complainant went outside to avoid her daughter being exposed to Mr. D.’s comments. The Crown makes the following additional allegations: Mr. D. complained in less than polite terms that the complainant was having sex with her boyfriend while their daughter was in the house. He positioned himself about one inch away from the complainant’s face while he yelled at her. He was asked to leave but kept banging on the door of the house demanding that the complainant’s boyfriend come outside. The complainant tried to push Mr. D. away from the door and move back inside as she was becoming scared. Eventually, she got back inside. Both parties agree that M., the daughter, called 911 and the respondent, Mr. D., left.

THE RULING UNDER APPEAL

4At the opening of trial, the Crown brought an application to introduce evidence of prior discreditable conduct on the part of the respondent. The purpose of the evidence was to assist in assessing three elements of the offence of criminal harassment:

1. whether the conduct of the respondent on October 15, 2002 caused the complainant to fear for her safety;

2. whether the respondent was aware or reckless as to the fear his conduct may have caused;

3. whether the complainant’s fear was objectively justified.

5The trial judge ruled the evidence inadmissible, finding that the prejudicial effect of the evidence outweighed its probative value. The Crown’s position was that the evidence as to what occurred on October 15th, 2002, standing alone, would not make out the charge of criminal harassment; therefore, the Crown submitted that an acquittal should be entered. The trial judge entered an acquittal after the respondent changed his election as to the mode of trial to judge alone. The Attorney General of Ontario appeals that acquittal.

6In order to establish the elements of the offence set out above, the Crown sought to tender evidence of six prior incidents wherein the respondent resorted to discreditable behaviour that involved harassing or threatening the complainant.

7The trial judge considered each incident independently, applying the decision of the Supreme Court of Canada in R. v. Handy (2001), 2002 SCC 56, 164 C.C.C. (3d) 481 (S.C.C.). In each instance the trial judge ruled that the prejudicial effect of the evidence of bad character outweighed the probative value of the evidence.

THE SUBMISSIONS OF THE PARTIES

8The Crown submits in its factum that the evidence should have been admitted. The evidence was not tendered to establish propensity and as such, the trial judge’s analysis of the relevance of the evidence of the prior discreditable conduct to the charge before the court was flawed. Further, the trial judge’s focus on similarity and proximity between the prior conduct and the incident before the court was misplaced. The value of the evidence of the prior conduct was that it would have allowed the trier of fact to properly understand the effect of the respondent’s behaviour on the occasion in question, and whether the respondent had awareness in the form of knowledge or in the form of reckless inadvertence to the fact that the complainant was afraid of the respondent.

9The respondent submits that the trial judge was correct to analyze the six incidents of prior discreditable conduct as similar fact evidence under Handy. The respondent argues that the evidence sought to be tendered is propensity evidence, which is inadmissible because its prejudicial effect outweighs its probative value.

10I agree with the Crown’s submission and for the reasons that follow, I would allow the appeal, set aside the acquittal and direct a new trial.

ANALYSIS

(1) The legal framework

11The admissibility of pre-charge conduct in cases of criminal harassment was considered by this court in a set of three appeals heard together and reported as R. v. Krushel (1999), 2000 3780 (ON CA), 142 C.C.C. (3d) 1 (Ont. C.A.). At paragraphs 16-17, in relation to the charge against Mr. Krushel, the court noted:

The first such submission made on behalf of Krushel concerned the admission of evidence of the appellant’s conduct from the period between May 1991 and November 1993, prior to the period specified in the indictment. The trial judge admitted the evidence “for the sole purpose of showing the state of mind of the complainant during the period set forth in the indictment.”

Counsel for Krushel submitted that the trial judge erred in admitting this evidence. I do not agree. Section 264(1) refers to conduct that causes the victim “reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.” Pre-charge conduct is admissible as going to the issue whether the complainant’s fear was reasonable in all the circumstances: R. v. Hau, 1996 488 (BC SC), [1996] B.C.J. No. 1047 (QL) (S.C.); R. v. Ryback (1996), 1996 1833 (BC CA), 105 C.C.C. (3d) 240 (B.C.C.A.), leave to appeal refused 107 C.C.C. (3d) vi; R. v. B. (S.), [1996] O.J. No. 1187 (QL) (Gen. Div.). The trial judge properly admitted the evidence of this purpose and properly instructed himself regarding the limited purpose for which it could be used (some citations omitted).

In relation to the charge against Mr. Connors, the court further noted:

The first ground of appeal addressed by the appellant Connors in his submissions was that the trial judge erred in admitting evidence of his conduct from 1987 to August 1993. This ground of appeal fails. As noted above, precharge conduct is admissible as going to the issue whether the complainant’s fear was reasonable in all the circumstances. It may also be relevant to the issue whether the accused knew that or was reckless whether the complainant was harassed: R. v. Ryback, supra; R. v. Kosikar, [1998] O.J. No. 5558 (QL) (Gen. Div.)…. In my view, the evidence was properly admissible as relevant to the reasonableness of the complainant’s fear and to the appellant’s mental state.

12Pre-charge conduct was also considered by this court in R v. Kosikar (1999), 1999 3775 (ON CA), 138 C.C.C. (3d) 217 (Ont. C.A.). The charge before the court in Kosikar concerned a single incident of threatening conduct under s. 264(2)(d). The court had before it and considered the entire history between the parties from the time they first met in 1983 through to the time of the incident which gave rise to the charges in 1998. The court noted at paragraph 27:

Here the single incident constituting the threatening conduct is the sending of the letter in January 1998. The evidence of the prior contact between the appellant and the complainant is used to prove that as a consequence, the complainant felt harassed. That prior contact is not an element of the offence. The fact that the complainant felt harassed as a consequence of receiving the letter is. Hence, this conviction is not a conviction of the appellant for this prior contact.

13The British Columbia Court of Appeal has also considered the admissibility of pre-charge conduct in R. v. Ryback (1996), 1996 1833 (BC CA), 105 C.C.C. (3d) 240 (B.C.C.A.). At paragraph 32, after reviewing the comments by Cory J. in R. v. McCraw (1991), 1991 29 (SCC), 66 C.C.C. (3d) 517 at 525 (S.C.C.), a case concerned with uttering threats, Finch J.A. (as he then was) offered the following helpful analysis at paragraphs 32-35:

In my view, a similar test can be applied to a charge of harassment under s. 264. The appellant’s conduct which is the subject of the charge is to be looked at objectively and in the context of all that preceded it. Viewed in that way, the question is whether the complainant would reasonably fear for her safety by reason of the appellant’s conduct between December 1, 1993, and February 15, 1994, given her knowledge of the appellant’s prior conduct. It is, therefore, clear to me that the evidence of the appellant’s pre-charge conduct was relevant to the issues of whether the complainant had fear for her safety and whether it was reasonable that the complainant should be fearful “in all the circumstances”.

I am also of the view, however, that the pre-charge conduct is relevant to the appellant’s intent, that is to say as to whether he knew or was reckless as to whether his conduct harassed the complainant. The appellant was warned by the police in the summer of 1992 to desist from the conduct of the previous six months. The complainant had consistently ignored or rebuffed the appellant’s approaches. Any reasonable person would have understood at that time, and thereafter, that his approaches were unwelcome and a nuisance.

The appellant’s state of mind would, of necessity, depend in large part on his past association with, and conduct towards, the complainant. His knowledge that the complainant was harassed, or his recklessness as to whether she was harassed, could be realistically decided only by looking back to what had gone before. Similarly, pre-charge conduct which tended to show an innocent state of mind on the appellant’s part would also be admissible. If the pre-charge evidence tended to show that there had previously been a friendly relationship between the two, or that the complainant had encouraged the appellant in his advances so that the appellant believed his attentions were welcomed, it would be difficult to conceive a sound reason for excluding the evidence. It would clearly be relevant to showing an innocent state of mind and the absence of mens rea. If evidence of pre-charge events might be led to exculpate the appellant, then equally it would be admissible to inculpate him.

So I am persuaded that the learned trial judge did not err in admitting the evidence of pre-charge events. It was relevant to the context in which the offensive conduct occurred and to the state of mind of both the complainant and the appellant.

14The trial judge was not referred to these decisions; he relied solely on the decision of the Supreme Court of Canada in R. v. Handy (2002), 2002 SCC 56, 164 C.C.C. (3d) 481 (S.C.C.) and in particular, on the factors set out in paragraph 82 of that decision. Handy was not a case concerned with criminal harassment and while the facts in Handy are different, the case does set out the principles to be applied where, as here, the Crown seeks to introduce evidence of prior discreditable conduct. In considering such evidence, a court is obliged to consider and weigh the probative value of the evidence in relation to its prejudicial effect.

15In my view the trial judge failed to properly assess or weigh the probative value of the evidence and in so doing overemphasized its prejudicial effect.

16This evidence of prior discreditable conduct was proferred to provide a context within which to assess the effect of the incident charged on the complainant and whether the conduct of the respondent was of such a nature that he knew that the conduct would cause the complainant to be fearful or that he was reckless as to whether or not she was fearful, an essential element of the offence of criminal harrassment. Such evidence would also provide the necessary context in which to consider whether her fear was objectively justifiable.

17The trial judge was obliged to consider the probative value of the evidence in relation to the purpose for which it was tendered. In these circumstances he was wrong to exclude the evidence because, as he put it, it lacked “similarity” or “connectedness” to the incident charged. The trial judge placed undue emphasis on similarity given the issues to which the evidence of discreditable conduct was directed.

18To minimize prejudice the trial judge on the new trial will instruct the jury in relation to the purpose for which the evidence is tendered and the only use they are to make of such evidence and the use they are not to make of such evidence.

(A) The First Incident

19In 1994 the respondent would go to the golf course where the complainant’s new boyfriend worked. The trial judge was not satisfied that there was a sufficient nexus between this incident (or incidents – it is not clear from the record whether the respondent attended at this golf course more than once) and the incident giving rise to the charge before the court “either in terms of time, similarity or connectedness to be able to overcome the prejudicial effect”.

20In my view, the trial judge erred in the analysis used to exclude this evidence. It is clear from the cases cited that the history of the relationship between the complainant and the accused is relevant in terms of providing background and context for the proper consideration of the charges before the court. The fact that this conduct occurred in 1994, some 8 years prior to the incident which gave rise to the charges, is a factor, but a minor one. The evidence was part of the history of the relationship which is relevant to the issue before the court.

21The fact that the conduct was directed to the boyfriend rather than the complainant herself does not mean that it is not relevant. Section 264(1) refers to conduct which, in all the circumstances, causes a person to fear for his or her own safety or the safety of anyone known to the person. In my view, the complainant reasonably would be concerned about conduct directed toward her new boyfriend. I agree with the Crown’s submission that this evidence provides a context within which to assess the effect of the incident charged in the complaint.

(B) The Second Incident

22Again in 1994 the respondent stopped outside the new boyfriend’s residence and pretended to have trouble with his truck. The respondent walked around the building. The next day, a dead raccoon was found in the boyfriend’s vehicle and there were eggs on the windshield. The Crown conceded there was no direct evidence that the respondent had placed the dead raccoon inside and eggs on the vehicle.

23The trial judge excluded this evidence for essentially similar reasons.

24It was open to the trial judge to exclude the evidence regarding the dead racoon and the eggs in light of the Crown’s concession that it could not link these incidents to the respondent. In my view, however, he erred in the approach used to justify the exclusion of the balance of the evidence in respect of this incident; it is part of the history and provides context.

(C) The Third Incident

25In 1994 the respondent made a series of telephone calls to the complainant. This was shortly after the birth of their child and relatively soon after their relationship had ended. The respondent is reported to have said that he would “have no other male in his daughter’s life” and insisted that the complainant loved him and would go back to him.

26Again the trial judge excluded this evidence for lack of similarity in detail and “proximity in time” which I take to mean he excluded because it happened so long before the incident charged. This evidence ought to have been admitted. I note that in Kosikar the charge before the court was a single incident of threatening conduct which had occurred in 1998. The court had before it and considered the entire history between the parties from the time they met in 1983 until the time of the incident in 1998 – some fifteen years in total. The history of the relationship between the parties is a relevant factor in cases of criminal harassment. This incident had particular probative value in this case, given the nature of the charged incident which concerned the couple’s daughter and the presence of the complainant’s boyfriend.

(D) Fourth Incident

27The Crown proposed to lead evidence that on July 17, 1997 the respondent threatened the complainant with death during a telephone call and for which he was convicted and sentenced to a 12 month period of probation.

28The trial judge again excluded this evidence because five years had intervened between the time he made the threat and the conduct which is the subject of the charge. Further he found a lack of similarity in the nature of the conduct and lack of uniqueness such that the prejudicial effect outweighed any probative value.

29In my view the passage of time between prior incidents and the conduct which gives rise to the charge, in circumstances where the evidence demonstrates that the respondent’s attitude toward the complainant had not changed over the years, is no basis upon which to exclude such evidence. Again, this is not a case where the identity of the perpetrator is in issue.

30Further where the evidence is tendered to prove that the complainant reasonably feared the respondent and whether the respondent would have known of or been reckless with respect to the complainant’s fear, lack of similarity or uniqueness is of minimal relevancy.

(E) The Fifth Incident

31Between September 1997 and September 1998 the respondent was on probation in relation to the death threat of July 1997.

32On January 21, 1999 he attended at a Zehr’s store where the complainant worked. He asked other employees whether she was working. When she went to speak with him, he said he wished to see his daughter that evening. When the complainant refused he called her a “fucking bitch” and moving off into the store. After the complainant returned to the floor of the store, she encountered the respondent who signalled to her that he would see her after work by touching his watch. The complainant called police. A second Zehr’s employee watched the respondent go to the parking lot where he had parked his vehicle beside that of the complainant. He was observed bent over near the rear wheel on the driver’s side of her car. He stood, walked to his truck and drove away. On inspection, the complainant’s tire was flat and the valve stem had been removed. Later that same night she received 2 phone calls at 3:20 a.m. The respondent was convicted of mischief and received a suspended sentence and two years probation.

33For similar reasons the trial judge excluded this evidence. It had occurred some three years prior to the incident in question and lacked any “unifying distinctive feature.” I am of the view that the trial judge misapprehended the probative nature of this evidence and overemphasized any prejudicial effect. Neither the passage of time nor the lack of any “unifying distinctive feature” justifies the exclusion of this evidence where the charge before the court is one of criminal harassment and the evidence is important to provide context.

(F) Sixth Incident

34In its factum the Crown describes this incident as follows:

The Crown sought to tender evidence that the police were called when the respondent attempted to pick up his daughter from school. The complainant was advised by the school that the respondent was attempting to pick up his daughter and the complainant called the police. As the complainant approached the school she saw the respondent on his motorcycle. Although there was no direct contact between the complainant and the respondent on this occasion, the respondent’s conduct in attempting to pickup his child on a day for which he did not have access and did not have the complainant’s agreement, constituted a deliberate attempt to inject himself into the complainant’s consciousness, inconvenience her and disrupt her schedule. The complainant called 911. On anther occasion the respondent called his daughter at home and tried to get her to go outside, where the respondent was sitting on his motorbike. The complainant prevented her daughter from doing this. The complainant called 911, as did the respondent. The respondent finally left.

35Again the trial judge focused on the lack of similarity and the lack of uniqueness between these incidents and the conduct giving rise to the charge and refused to admit the evidence. For reasons given I am of the view that the trial judge misapprehended the probative value of this evidence.

36In view of these errors, the trial judge’s decision excluding the evidence of all six incidents cannot stand. The trial judge failed to properly assess the probative value of the evidence and unduly emphasized the prejudicial effect. The evidence of incidents three through six should have been admitted. The Crown has shown that if this evidence were admitted the result would not necessarily have been the same.

37The first two incidents, which did not involve the complaint directly, have somewhat less probative value. It would be open to a judge after carrying out the proper analysis and balancing the probative value and prejudicial effect, to exercise his discretion to exclude the first two incidents. This, however, is best left to be decided by the judge hearing the new trial.

38For these reasons I would allow the appeal, set aside the acquittal and direct a new trial.

RELEASED: November 18, 2005 “MR”