CITATION: R. v. Whyte, 2016 ONCJ 824
ONTARIO COURT OF Justice
Central West Region
Regina
-v-
Darren Whyte
Proceedings conducted, 20 October 2016, at Brantford, Ontario
Decision issued 12 August, 2016
Reasons issued 04 November, 2016
Appearances:
Fritzley, L. for the Crown
Gulka, D. for the Defendant
Statutes Considered or Cited:
Criminal Code of Canada, R.S.C., 1985, c. C-46, as amended (“CCC”)
Cases Considered or Cited
R. v. Arcuri, 2001 SCC 54, [2001] S.C.J. No. 52
R. v. C.F.R. [2015] S.J. No. 422
R. v. Soungie, [2003], .,J. No 899
The United States of America v. Sheppard 1976 SCC 8, [1977] 2 S.C.R. 1067
Witnesses:
Stacey Whyte, complainant
Susan Coderre, independent witness
Decision of the Court
- On 27 July, 2016, I conducted a hearing during which the Crown sought to show cause why the defendant, Darren Whyte should be required to enter into a recognizance to keep the peace, pursuant to s.810 of the CCC. At the completion of the Crown case, counsel for the defence brought a motion for non-suit or directed verdict. On 12 August, 2016, I made an oral ruling granting the defence motion and indicated that reasons would follow. These then are those reasons.
Background and Evidence
This proceeding was initiated by the informant – also the complainant - swearing a information on 19 November, 2015, pursuant to s.810 of the CCC. On that date, process was issued requiring the defendant to attend court on 18 December, 2015, which he did. Informations were also sworn against James Whyte, Terrence Whyte and Diana Whyte (his father, mother and brother). The parties made appearances in January, March, and April, 2016 and the matter was set for a hearing. At some point in time, the Crown took carriage of the matter, and prosecuted the matter on the hearing date.
In the course of the hearing, the Court received evidence from the complainant and her neighbour, an independent witness. The neighbour’s evidence simply confirmed on a limited basis the evidence of the complainant.
The complainant’s evidence establishes that she and the defendant were married for a period from 2008 through 2015. Like many, their marriage experienced challenges, and notable among them were a motor vehicle accident resulting in injuries to the defendant. This resulted in changes to his personality. She described him as quick to temper and easily set off. Notwithstanding, she remained committed to the marriage and supported him through these struggles. He also was involved in a second motor vehicle accident in 2014.
At some point – sometime in 2013, to the best of Stacey’s recollection – she advised she had inherited some guns. She was making arrangements to give them to the “appropriate people”. In the meantime, they were stored in the matrimonial home. Stacey advised that in the presence of a family friend, Darren was reported to have made some comments about self-harm involving the guns, so she had them removed for his safety.
Stacey also advised that Darren had developed an interest in knives and sport-related airguns. According to her evidence, they were numerous and not stored safely, causing her to feel “uneasy”. It appears that they may have been handed over to police for disposition (it appears that the time for this may have been after the separation in 2015), however, there was no information about the authority by which this may have occurred.
In further evidence, Stacey suggested that Darren may have struggled with drugs, including prescription drugs related to his medical conditions.
Ms. Whyte also gave evidence about other disputes related to his relationship with another woman and her child, and what seemed to her to be an inordinate interest, financial support for and involvement in their lives.
Inevitably, this resulted in some level of physicality between the parties, which involved each of them. The clear inference was that her involvement may have been more “defensive” than aggressive; however, there was an equal inference that she may have been an aggressor on at least some occasions.
She also recounted situations involving property she inherited and which she kept in a storage locker in her name only. She alleged that Darren “misrepresented himself” in order to gain entry to the locker and took some of the belongings.
In January, 2015, Darren Whyte suffered a heart attack and was taken to hospital, where he remained in hospital in a coma. In the early stages of recovery, it was clear that he suffered what might be described as traumatic injuries, resulting in him needing to re-learn how to walk, feed himself and generally care for himself.
After recovering from his coma, he was treated with medication and Stacey and Darren began discussing modifications to their home to facilitate his return home and rehabilitation. Even previously, as a result of a second motor vehicle accident, his family began urging her to consider moving together with her husband to live with his parents in their home, on the premise that he could receive better support and care there. Notwithstanding, Stacey was of the understanding that Darren did not want to go through with any plan by which they would move into his parents’ home.
It appears that the complainant and her husband did struggle financially, and, as it happens, her father-in-law shared an ownership interest in the matrimonial home.
When Darren Whyte was deemed sufficiently well to be discharged from hospital, he left in the care of his parents, without the knowledge of his wife. She was surprised and troubled by this as he as they had not concluded their discussions on this subject. In fact, the first she knew of his discharge was when he showed up at the matrimonial home to collect personal belongings, accompanied by his father. Her surprise was undoubtedly increased by the presence of a police officer.
In her evidence, Stacey Whyte alleged that she faced threats in the form of an admonition that she had “messed with the wrong person”, and that she “would get her due”. Her father-in-law is said to have told her he would make sure she came away “with nothing”. She recalls comments suggesting that the house would be burned down and she would be left with nothing.
Darren was unable to collect all his belongings during the first visit and made arrangements to return to collect more.
During each return visit, Darren attended typically with his father and, on at least one occasion, with one of Darren’s friends. There were disputes about which items were his, as well as whether he should or could drive a truck, given his license status. Notably, all interactions were in the presence of police.
In the course of time, issues arose with regard to the sale of the matrimonial home, which necessitated maintenance and repairs. As with the removal of personal belongings, these did not go smoothly. On another occasion, she described herself as feeling “uncomfortable”. On a third occasion, she indicated she was “nervous and apprehensive”.
When asked about how this made her feel, she said “shocked and stunned”.
Stacey Whyte conceded under cross-examination that she took no steps to obtain exclusive possession of the matrimonial home.
Further, she gave evidence of commencement of a civil action between the parties, but, apart from court proceedings, confirmed she had had no contact – with Darren since swearing the s.810 Information. They are now separated; he lives with his parents out of town and has no reason to contact her. She has no expectation that they would reasonably even encounter each other in public.
Motion for Non-Suit
- Section 810 of the CCC provides:
810 (1) An information may be laid before a justice by or on behalf of any person who fears on reasonable grounds that another person
(a) will cause personal injury to him or her or to his or her spouse or common-law partner or child or will damage his or her property…
(3) If the justice or summary conviction court before which the parties appear is satisfied by the evidence adduced that the person on whose behalf the information was laid has reasonable grounds for the fear, the justice or court may order that the defendant enter into a recognizance, with or without sureties, to keep the peace and be of good behaviour for a period of not more than 12 months.
At the completion of the Crown case, the defence brought a motion for non-suit or directed verdict. Fundamentally, the defence argued that the prosecution had failed to provide evidence that the complainant had fear for her safety (or that of a member of her family or her to her property), and further, that any such fear is unreasonable.
During further interchange with the Court, the defence conceded that the evidence established that Ms. Whyte was fearful at the time she swore the Information, however, could not establish a ground for such fear at the time of the hearing, some ten months later.
The prosecution argued for the application of the principles found in The United States of America v. Sheppard, when making a determination with regard to the non-suit. While that case speaks to the standard to me met before a preliminary hearing judge commits and individual to trial (and, in that case, to be extradited for a trial in a different country), the Crown argues that the standard is similar as to what ought be applied in this case. Put simply, in the view of the Crown, the question is “is there even a scintilla of evidence that the complainant harbours fear. Then the court can assess whether this fear would be objectively reasonable.
Further to this point, the Crown further relied on the decision of the Supreme Court in R. v. Arcuri. In that case, the Court wrote
The judge's task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence -- that is, those elements as to which the Crown has not advanced direct evidence -- may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established -- that is, an inferential gap beyond the question of whether the evidence should be believed: see Watt's Manual of Criminal Evidence, supra, at par. 9.01 (circumstantial evidence is "any item of evidence, testimonial or real, other than the testimony of an eyewitness to a material fact).
- Interestingly, the Crown advanced the line of reasoning in R. v. C.F.R. However, it formed part of the defence reasoning in support of the proposition that application of the principles of a non-suit may apply to both legs of the case required to be put forward by the prosecution, that is, that there must be fear and that there are “reasonable grounds for the fear”. In that case, the judge partially granted a non-suit, although it is not clear whether a result of there being no evidence whatsoever or whether the evidence supported a finding that any fear revealed by the evidence was “reasonable”.
In this case I am not satisfied that (1) there is some admissible evidence upon which a reasonable jury, properly instructed could find J.W. actually fears psychological injury to her children and (2) that there are reasonable grounds for the fear. I am of the view that the evidence before me does not establish that the children have been emotionally traumatized, intimidated or otherwise sustained psychological injury. As a result the motion for a non-suit respecting the application for a peace bond in relation to the children is granted.
Accordingly, I accept that the issue for me to decide is whether the Crown has led any evidence whatsoever on the two legs of the issue to be decided, that is, whether the informant now complainant has a fear and whether such a fear is reasonable.
There is no doubt that the complainant was and remains fearful. True, evidence to that point largely emerged in response to a leading question (to which no objection was raised). However, applying the test, I am satisfied that there is some evidence – direct and by inference - on that point.
The further question, however, is more problematic. First of all, it is clear that this hearing was conducted some ten months after the Information was sworn.
At the time that the complainant swore the Information initiating these proceedings, the evidence reveals that she had been “shocked and stunned” by the sudden separation, and was more “concerned”, and “uncomfortable” than fearful of her ex-partner. In every instance where there was contact between the parties, it was in the presence of police, who saw no basis for initiating charges against Mr. Whyte. The parties had a need to disentangle themselves in relation to matrimonial property and Mr. Whyte, based on Ms. Whyte’s evidence, was endeavouring to do so. Ms. Whyte took steps to “protect” herself; it would appear that those steps were animated at least in some part to protect her property rights rather than her person. Her motive for doing so may have been increased as a result of the perception of threats she reported receiving in the early stages of the separation process. There were clearly squabbles about who owned what, and, it is clear, Ms. Whyte vigorously sought to assert her claims. Mr. Whyte’s efforts to prepare the property for sale may have become something of a lightning rod for the frictions between the parties.
The evidence further establishes that there has been almost no contact between the parties in the interval after the Information was sworn, except for court appearances on this and other family law matters. None of those contacts has featured either the acrimony or troubling behaviour described up to the date of the swearing of the Information.
I am mindful that s.810 of the CCC reads in the present tense, as opposed to past tense (ie, the complainant “fears”, as opposed to “did fear”). Although the complainant did give evidence that she still felt a peace bond was needed at the time of the hearing, applying the approach even adopted by the Crown, it is open to me to assess whether the basis for that is reasonable.
The court invited the Crown and defence to comment on the approach adopted by Allen, Ct. J (Alberta) in R. v. Soungie, in regard to the guidance it offers on how I ought determine whether any fear harboured by the complainant is “reasonable” in the circumstances. In that case, the hearing judge said “In many cases, the issue to be determined is the presence of reasonable grounds. The test requires the Judge to apply the perception of the reasonable person in a similar situation. The Judge is compelled to use logic, common sense and common experience in making that determination.”
Later, in that case, the Judge discussed the standard of proof and the notion of “future harm”1.
In all the circumstances, I can find no support based on the evidence for the proposition any fear harboured by Ms. Whyte at the time of the hearing (or, indeed, at time the Information was sworn) to be reasonable or, as set out above, that is, that a reasonable person in a similar situation would hold such fear as reasonable. For this reason, the defence request for a non-suit or directed verdict should succeed.
That said, I remain alive to a concern that, in circumstances like these, a defence strategy might be to delay the hearing for such a long time as to evacuate any on-going, residual fear or basis for inference of fear. I need therefore be careful in my view to ensure that the passage of time not work simply to the benefit of the defendant and the detriment of the complainant. I must therefore consider the reasons for any delay between the swearing of the Information and the disposition of the matter.
In this case, I note that the last date of any meaningful contact between the defendant and the complainant would have been in September, 2015. The Information was not sworn, as noted above, until November, 2015. I have no information regarding the progress of the case for the appearances in January, March, and April, at which time the hearing was set. Specifically, I have no evidence about whether any delay was occasioned by the defendant, as opposed to delay necessitated, for example, by the need to receive and review disclosure, retain counsel, and, potentially, conduct Crown resolution discussions.
On the first appearance date, the Crown did not take an interest in the matter, however, was able to provide “disclosure” in the form of incident reports arising from police involvement in these matters.
Prior to the first appearance, Darren Whyte had retained counsel. Other defendants indicated that they would likely retain the same lawyer to represent them. In the fullness of time, it appears that Darren Whyte changed lawyers and Ms. Gulka started making appearances on behalf of the defendant as early as March, 2016.
Finally, it may well be that the swearing of the Information and service of the summons on the defendant has served to achieve the purpose intended by s.810 of the CCC. From another perspective, had a hearing actually taken place on the date that the Information was sworn, any Order ensuing as a result of a finding in favour of the complainant might well have expired by the date the matter was otherwise disposed of (noting that Order can be made for a period not exceeding one year).
Absent any evidentiary basis for determining that the proceedings might have been tactically prolonged in order to benefit by the defendant’s “good behaviour”, taken together with the complainants own recognition that there has been no behaviour by the defendant that would otherwise justify the Order sought, I am satisfied that the end of justice are not subverted in any way by considering the uneventful passage of time between the swearing of the Information and the hearing of the case in arriving at the conclusion I have, nor has there complainant been in any way prejudiced.
For all the reasons described above, I decline to issue the Order requested.
Issued at Brantford, Ontario
_____________________________
His Worship Donald Dudar
Justice of the Peace