ONTARIO COURT OF JUSTICE
DATE: 2024 05 21 COURT FILE No.: Fort Frances 3611-998-24-36100009- 00
BETWEEN: Dawn Gustafson AND: Grant Gustafson
BEFORE: Justice of the Peace P. Clysdale-Cornell HEARD ON: May 9, 2024 REASONS FOR JUDGMENT RELEASED ON: May 21, 2024
COUNSEL: Ann Pollak ......................................... Crown counsel for the applicant Dawn Gustafson Peter Howie .................................................. counsel for the defendant Grant Gustafson
Introduction
1Dawn Gustafson applied for a Recognizance to Keep the Peace order regarding Grant Gustafson under the s. 810 provisions of the Criminal Code of Canada. The Fort Frances Crown Attorney’s office intervened. The application focused on an incident between Dawn Gustafson and Grant Gustafson on December 29, 2023. A hearing was held on May 9, 2024.
Summary of Evidence Presented to the Court
2Dawn Gustafson and Grant Gustafson are siblings. Dawn Gustafson lives beside her mother and father in Fort Frances Ontario. She testified that she has control of her parents money. She specifically testified under cross examination that it was her mother’s and her money and that she didn’t want her brother Grant to have access to her father’s money. Both Dawn and Grant have filed Trespass Notices against each other on behalf of their parents.
3The day before the incident on December 29, 2023, Dawn Gustafson received a text alert that money had been withdrawn from three of her parents’ joint accounts at 4:00 am – specifically $500, $800, and $1000. Her mother was in the hospital at the time. Dawn contacted the police for advice on how to deal with the situation since she suspected that her brother Grant was involved.
4At 7:00 a.m. on December 29, 2023, Dawn Gustafson was cleaning the snow off her truck, getting ready to pick up her mother from La Verendrye Hospital in Fort Frances. Grant Gustafson was parked in his parent’s driveway and started yelling swear words at Dawn.
5A video camera from a neighbour’s house captured the exchange. The six minute video was submitted by the applicant and identified as Exhibit #1. During the exchange, Dawn Gustafson left her truck running and ran to the house to call to her husband for help. She then returned to her vehicle, locked the door and honked the horn multiple times. Dawn indicated that she did not have her cell phone with her and that she was afraid Grant was going to beat her up.
6In the video, Grant Gustafson can be seen yelling at Dawn Gustafson from his truck parked next door in his parents’ driveway and from the end of the Dawn Gustafson’s driveway when he walked down the street. He returned to his truck and backed out onto the street and then stopped his truck at the end of Dawn Gustafson’s driveway, blocking her exit, and yelled at her again. By this time, her husband had come out to the truck and escorted her into the house. Grant Gustafson then drove away.
7At no time did Dawn Gustafson or her husband call 911 for assistance. It was a neighbour, who overheard the yelling and swearing by Grant Gustafson, who contacted the police.
Requirements for an Order to Be Made
8Section 810 of the Criminal Code, reads that:
“…an Information may be laid before a justice, by or on behalf of any person who fears, on reasonable grounds that another person will cause personal injury to then or to their intimate partner or child, and will damage their property.”
9This is the lens in which a decision is made in a section 810 hearing. Section 810 (3) of the Criminal Code also gives the presiding justice further direction. It reads:
“If the justice or summary conviction court, before which the parties appear, is satisfied by the evidence adduced, that the person on who behalf the Information was laid, has reasonable grounds for fear, the justice or court may order that the defendant many enter into a recognizance.”
10The courts have also provided direction through case law. The applicant has the onus to establish that the defendant should be required to enter into a recognizance to keep the peace. It is up to the Crown, on behalf of Dawn Gustafson, to show why Grant Gustafson should enter a recognizance to keep the peace.
11The standard of proof is a civil standard of proof which is based on a balance of probabilities. This requires the applicant to satisfy the court that it is more likely or probable, than not, that the applicant actually fears the defendant, and that the applicant has reasonable grounds for that fear.
12Often, the court is required to balance two competing interests – the right of the defendant to their privacy or to be left alone versus the right of the applicant to be protected.
Analysis and Ruling
13In the evidence that was presented at the hearing, this incident mainly involved angry name calling by Grant Gustafson directed at Dawn Gustafson because of her control over her parents’ finance.
14Dawn Gustafson initially testified that she felt threatened and thought she was going to be beat up. Under cross-examination, she testified that she usually disregards Grant because he yells at everyone. She also testified that December 29 was an isolated incident. She did not stay in the safety of her home, nor did she call 9ll for assistance – both logical responses by a person who is afraid of harm.
15The video submitted as Exhibit #1, gives a clear picture of what happened on December 29, 2023. There was a lot of shouting and name-calling but no audible threats. Grant Gustafson did not enter the property of Dawn Gustafson. He stayed on the street or beside his truck and did not approach Dawn Gustafson in any way.
16Although Dawn Gustafson initially testified that she was fearful of Grant Gustafson, this did not hold up under cross-examination or are supported by her actions on December 29, 2023. It is clear that this is an ongoing situation about who has control over the family finances of elderly parents, whose assets are jointly held. For these reasons, I decline to order a recognizance to keep the peace.
Released: May 21, 2024 Signed: Justice of the Peace P. Clysdale- Cornell