Ontario Court of Justice

Date: 2018-01-11

Court File No.: Central East Region: Oshawa Courthouse 17-86338

Between:

HER MAJESTY THE QUEEN

— AND —

JORDAN FOLEY

Before: Justice Peter C. West

Heard on: January 10, 2018

Reasons for Judgment released on: January 11, 2018

Counsel

Mr. N. Trbojevic — counsel for the Crown

Mr. J. Smart — counsel for the defendant Jordan Foley

WEST J.:

Charges and Plea

[1] Jordan Foley is charged with criminal harassment contrary to s. 264(2)(d) of the Criminal Code; fail to comply with probation (no contact provision respecting Brian Macdonnell); fail to comply with probation (remain 100 metres away from Brian Macdonnell's residence, work etc.); fail to comply with probation (keep peace and be of good behaviour: 2 separate probation orders). The Crown proceeded summarily on all charges. Mr. Foley pleaded not guilty to all charges.

Crown's Evidence

[2] The Crown called two witnesses, Mr. Brian Macdonnell and P.C. Jamie Bramma. At the beginning of the trial it was admitted that Mr. Foley was subject to two probation orders, the first probation order by Justice Halikowski is dated September 2, 2016, Exhibit 2, and the second probation order of Justice Block is dated January 27, 2017, Exhibit 1.

Evidence of Brian Macdonnell — Background

[3] Brian Macdonnell is currently a staff sergeant with the Toronto Police Service for the past eight months at 43 Division. Prior to that he was a Detective Sergeant with the Guns and Gangs Task Force for six and a half years and prior to that a Detective with the same unit for seven years. He has worked for Toronto Police Service for 30 years. In October 2016 he observed Mr. Foley engage in what he believed was dangerous driving and attempted to arrest Mr. Foley. He was not in uniform and was driving an unmarked police vehicle. He had been to a meeting with other officers but was off duty. Mr. Foley became very aggressive when Detective Sergeant Macdonnell approached him. Mr. Foley apparently was yelling and swearing and did not remain when asked to. The incident occurred in a golf club or close to a golf club and Mr. Foley left Detective Sergeant Macdonnell and went onto the golf course to play. The interaction between Detective Sergeant Macdonnell and Mr. Foley lasted approximately 13 minutes.

[4] A Durham Regional Police officer arrived as a result of Detective Sergeant Macdonnell calling police and the DRPS officer and Detective Sergeant Macdonnell went out into the golf course on a golf cart to try to locate Mr. Foley. Detective Sergeant Macdonnell pointed out Mr. Foley but when the DRPS officer tried to speak to Mr. Foley he apparently ran away. Mr. Foley was subsequently arrested with a number of offences and on January 28, 2017, he was placed on probation by Justice Block for two years, with conditions: two of which were not to have any contact with Brian Macdonnell, directly or indirectly and to remain 100 metres away from any known place of residence, employment or education.

[5] Brian Macdonnell in his evidence described Mr. Foley as being very volatile, he got red in the face and his eyes bulged out when he became angry. Mr. Macdonnell testified he would never forget Mr. Foley's face. That is the extent of evidence relating to the prior incident between Mr. Foley and Brian Macdonnell.

OIRPD Complaint

[6] On February 16, 2017, Mr. Foley filed a complaint against Detective Sergeant Macdonnell with the Office of the Independent Police Review Director (OIRPD). Brian Macdonnell was made aware of the complaint by the OIRPD, which was prepared by Mr. Foley. The complaint form identified Brian Macdonnell as a Sergeant with G & G (Guns and Gangs Task Force) and Mr. Foley had entered Brian Macdonnell's personal residence's address (I am not setting out the address in my decision for privacy reasons).[1] As a result of observing his personal address Mr. Macdonnell contacted the MTO and arranged to have his address suppressed so no other person would be able to identify where he lived. Mr. Macdonnell testified the complaint was dismissed and as far as he was concerned everything was done. Mr. Macdonnell was aware of the restrictive conditions in Mr. Foley's probation concerning contact and remaining away a 100 metres from Mr. Macdonnell's residence, employment or education.

August 28, 2017 Incident — Initial Observation

[7] On August 28, 2017, Mr. Macdonnell was in his driveway of his family's personal residence with his wife and his 14 year old autistic son. They were getting into his pickup truck to attend a family BBQ at his sister's house. As he was walking down the driveway to get into his vehicle he saw a black Dodge Ram pickup truck with a reel hose attached to the truck bed, the reel was black and the hose was red. The truck was proceeding quite slowly as it passed in front of his house. He could not see who was driving the truck. He backed out of his driveway and observed the black pickup pull into a driveway several houses north of his house on the east side of his street.

Following and Traffic Light Encounter

[8] Mr. Macdonnell came to the through-street, stopped at the stop sign and then turned right onto it, proceeding east. As he turned he observed the black pickup back out of the driveway and proceed north to the through-street. Mr. Macdonnell observed the black pickup proceeding behind his vehicle also driving eastbound. When they were approaching Thickson Road, the black truck was no longer a normal distance from Mr. Macdonnell's pickup, rather, it was within a half car length behind his vehicle.

[9] Mr. Macdonnell came to a stop in the through lane because a red light. The black pickup pulled up beside his truck in the southbound right turn lane. Mr. Macdonnell could see the driver of the black truck lean forward and look around Mr. Macdonnell's son and look directly at Mr. Macdonnell. At the same time the driver's window of the black pickup truck was lowered and Mr. Macdonnell saw Mr. Foley was the driver. Mr. Macdonnell's son had the passenger window lowered. Mr. Foley had a grin on his face and gave a little bit of a chuckle. The two men looked each other in the eye for about 30 to 45 seconds. Mr. Foley did not say anything. Mr. Foley edged his vehicle forward a little bit, his driver's door was parallel to Mr. Macdonnell's front passenger bumper. Mr. Foley leaned out of his truck and pointed with his hand at the front of Mr. Macdonnell's pickup. Mr. Macdonnell believe Mr. Foley was pointing at his license plate. As Mr. Foley did this he laughed and chuckled and then completed his right turn and proceeded southbound on Thickson Road. He never said anything.

Macdonnell's Reaction and Police Report

[10] Mr. Macdonnell testified he was upset about the whole thing and did not want to have any interaction with Mr. Foley again because of the previous incident. He was concerned about that interaction and he was concerned about the safety of his family and his son at the time. He testified he did not say anything to his son or his wife. Mr. Macdonnell did not take down the license number because he recognized the driver as being Mr. Foley. When they arrived at his sister's house Mr. Macdonnell called DRPS to complain about Mr. Foley.

[11] Mr. Macdonnell testified he had told his son about Mr. Foley after the first incident in October 2016 because he was concerned that Mr. Foley might try to contact his son and he wanted his son to be aware of what happened. He testified his son was upset by what he was told because of his autism. This was why Mr. Macdonnell did not raise anything in the truck with his wife or son about seeing Mr. Foley. He testified he was concerned about how his son might react if he knew Mr. Foley had been beside their truck. He told his wife at his sister's what had occurred and that he was going back to their house to speak to the police.

Cross-Examination of Macdonnell

[12] In cross-examination Mr. Macdonnell testified he was positive it was Mr. Foley in the black pickup. His attention was drawn to the black pickup that went past his house because it was going so slowly.

[13] Detective Sergeant Macdonnell testified he has seen many OIRPD complaint forms because he was part of management and a number of the officers under his command had received complaints over the years. He knew from reviewing those forms that the complainant filled out the officer's address if they had it.

Evidence of P.C. Jamie Bramma

[14] P.C. Jamie Bramma attended Mr. Macdonnell's home and obtained a statement from him. He and his partner P.C. Ho did not receive the dispatch until 7:36 p.m. Mr. Macdonnell indicated to the officers he would prepare a more formal report the next day. As a result of the information provided by Mr. Macdonnell P.C. Bramma and his partner attempted to locate Mr. Foley. They attended 9 Covington Drive in Brooklin. There was a black Dodge Ram pickup truck with a hose reel in the truck bed in Mr. Foley's driveway. The license number came back to Jordan Foley. The description of the black pickup truck matched Mr. Macdonnell's description. P.C. Bramma believed the truck in the driveway was the same truck that had been driven by Mr. Macdonnell's home and later stopped beside Mr. Macdonnell's vehicle before turning south on Thickson Road.

[15] The officers decided to wait until they were provided the formal statement promised by Mr. Macdonnell for the next day. Also they intended to speak to the acting Staff Sergeant on their shift to get his input and advice on what charges to lay based on the evidence. P.C. Bramma testified there was no immediate urgency or need for immediate action. They wanted to conduct a thorough investigation.

[16] They re-attended 9 Covington Dr. the next night. They attended with Sergeant Wright. P.C. Bramma remained by the garage door and P.C. Ho and Sgt. Wright went to the front door. Mr. Foley answered the door but refused to attend with the officers to the police station. He finally agreed that he would attend the police station the next day after speaking to his lawyer.

Legal Analysis

Section 264 of the Criminal Code

[17] Section 264 of the Criminal Code reads as follows:

(1) "No person shall, without lawful authority and knowing that another person is harassed or is reckless as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them."

(2) The conduct mentioned in subsection (1) consists of

(a) "repeatedly following from place to place the other person or anyone known to them;"

(b) "repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;"

(c) "besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be;" or

(d) "engaging in threatening conduct directed at the other person or any member of their family."

Essential Elements of Criminal Harassment

[18] In R. v. Sillipp (1997), 1997 ABCA 346, 120 C.C.C. (3d) 384 (Alta. C.A.); leave to appeal refused (1998), 228 N.R. 195 n (S.C.C.) cited with approval in R. v. Kohl (2009), 2009 ONCA 100, 94 O.R. (3d) 241 (Ont. C.A.), R. v. Kosikar (1999), 138 C.C.C. (3d) 217 (Ont. C.A.) at para. 19, and R. v. Krushel (2000), 142 C.C.C. (3d) 1 (Ont. C.A.). In Sillipp, supra, Berger J., for the court, set out the five essential elements of the offence of criminal harassment that the Crown must prove beyond a reasonable doubt (para. 18):

1. It must be established that the accused has engaged in the conduct set out in s. 264(2)(a), (b), (c), or (d) of the Criminal Code.

2. It must be established that the complainant was harassed.

3. It must be established that the accused who engaged in such conduct knew that the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassed;

4. It must be established that the conduct caused the complainant to fear for her safety or the safety of anyone known to her; and

5. It must be established that the complainant's fear was, in all of the circumstances, reasonable.

Definition of Harassment

[19] It should be noted that conduct that causes a person to be "vexed, disquieted, or annoyed" does not amount to harassment. Harassment is not defined in s. 264 of the Criminal Code. In Kosikar, the Court of Appeal held the Crown must prove that as a consequence of the prohibited act the complainant was in a state of being harassed or felt harassed in the sense of feeling "tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered". These words are not cumulative. If anyone of them properly describes the effect of one's conduct on another, that other person is harassed, see R. v. Kordrostami, [2000] O.J. No. 613 (Ont. C.A.).

Threatening Conduct

[20] In R. v. Burns, 2008 ONCA 6, [2007] O.J. No. 5117 (Ont. C.A.), the Ontario Court of Appeal stated:

To establish harassment under s. 264(2)(d) of the Criminal Code, the Crown had to establish that the appellant engaged in "threatening conduct". We accept the definition of threatening conduct given in R. v. George (2002), 2002 YKCA 2, 162 C.C.C. (3d) 337 (Y.T.C.A.) at para. 39 that, in order to meet the objectives of s. 264, the threatening conduct must amount to a "tool of intimidation which is designed to instill a sense of fear in the recipient". The impugned conduct is to be viewed objectively, with due consideration for the circumstances in which they took place, and with regard to the effects those acts had on the recipient.

Findings on Criminal Harassment

Credibility of Macdonnell

[21] I found Mr. Macdonnell to be a forthright and truthful witness. He did not attempt to embellish and he was not evasive in answering questions in cross-examination. His evidence was in no way seriously challenged or undermined. Mr. Macdonnell testified he was upset by the whole thing of seeing Mr. Foley grinning and chuckling when he leaned forward to get Mr. Macdonnell's eye and when he put his hand out of his window and pointed at the front of Mr. Macdonnell's truck.

Analysis of Harassment Element

[22] I can certainly understand Mr. Macdonnell being upset or even concerned about the safety of his family as a result of seeing Mr. Foley in his truck but it is difficult to reasonably conceive that Mr. Macdonnell was tormented or plagued or bedeviled as described by the Court of Appeal in Kosikar. As discussed above the offence of criminal harassment has to be something more than being disquieted or annoyed. There were no threats uttered by Mr. Foley. No one specifically asked Mr. Macdonnell how long this interaction took as he came to a stop at the red light at Thickson Road but it could not have lasted for much more than several seconds.

[23] Based on Mr. Macdonnell's evidence I find his primary concern was how his son might react if he became aware Mr. Foley had been driving his truck beside his father's truck. It is my view this does not reasonably amount to any of the descriptions provided in Kosikar. Mr. Macdonnell's concern as expressed in his evidence was that he knew Mr. Foley was subject to legal restrictions in his probation to not have any contact with Mr. Macdonnell and to stay away from any place Mr. Foley knew Mr. Macdonnell might be, including his residence and work place.

Police Response and Urgency

[24] In fact, the lackadaisical manner in which Durham Regional Police treated Mr. Macdonnell's complaint in my view does not support that Mr. Macdonnell was troubled or tormented by what had happened involving Mr. Foley. The police did not knock on Mr. Foley's door to arrest him on August 28, 2017 or the early morning of August 29, 2017 after they confirmed and identified the black Dodge Ram pickup truck with a hose on a reel described by Mr. Macdonnell in his complaint belonged to Mr. Foley. Further, the police agreed that Mr. Macdonnell could provide his more detailed statement the next day. If there had been urgency or significant immediate concerns expressed by Mr. Macdonnell for his or his family's safety, it is my view the police would have arrested Mr. Foley that evening. When the police returned to Mr. Foley's house the next evening they gave Mr. Foley an option of attending the police station the next day rather than accompanying them to the police station that night. There was no urgency in any of the police actions. There was no concern of Mr. Foley engaging in further threatening behaviour towards Mr. Macdonnell or his family.

Analysis of Threatening Conduct

[25] It is my view Mr. Foley's actions did not amount to being "a tool of intimidation which was designed to instill a sense of fear" in Mr. Macdonnell as referred to in Burns. Viewed objectively it is difficult to view Mr. Foley's conduct as "threatening." He certainly was breaching his probation conditions, which I will discuss in more detail later in my reasons; however, his actions did not have the effect set out in Burns. I am not satisfied Mr. Foley's actions were done for the purpose of intimidating Mr. Macdonnell to instill a sense of fear in Mr. Macdonnell.

Acquittal on Criminal Harassment

[26] Mr. Trbojevic quite candidly conceded the evidence in this trial, at best, was on the line as to whether the offence of criminal harassment had been made out. Considering the totality of the evidence it is my view the charge of criminal harassment has not been proven beyond a reasonable doubt. I find the first two essential elements have not been proven beyond a reasonable doubt. As a result of this finding I do not have to address the third essential element referred to above.

Findings on Probation Breaches

Breach of No Contact Condition

[27] The breach of probation charges are an entirely different matter. Mr. Macdonnell recognized Mr. Foley at the stop light at Thickson Road. Mr. Foley put down his window and leaned forward to be able to "get Mr. Macdonnell's eye." If he was innocently driving on this street leading to Thickson Road there would be no reason for Mr. Foley to put down his window unless Mr. Foley knew Mr. Macdonnell was ahead of him and he wanted to let Mr. Macdonnell know this. Their interaction lasted 30-45 seconds, which is a long time. I accept the evidence of Mr. Macdonnell concerning his identification of Mr. Foley. Further, the police found a black Dodge Ram pickup with a reel and hose attached in the truck box, the registered owner was Jordan Foley and this was the same truck described by Mr. Macdonnell. I find beyond a reasonable doubt Mr. Foley engaged in initiating contact directly with Mr. Macdonnell, which was prohibited in his probation order. He will be found guilty of count two on the information.

Breach of 100 Metre Restriction

[28] Further, the black Dodge Ram pickup truck drove slowly in front of Mr. Macdonnell's residence with Mr. Foley driving. He was well within the 100 metre restriction. The complaint filed by Mr. Foley, Exhibit 3, to the OIRPD contains Mr. Macdonnell's home address and therefore Mr. Foley knew where Mr. Macdonnell lived. It would be nonsensical to find otherwise. I am satisfied beyond a reasonable doubt Mr. Foley breached this term of his probation. When he drove by Mr. Macdonnell's house he drove very slowly when Mr. Macdonnell and his family were getting into Mr. Macdonnell's pickup truck. I find there is a reasonable inference available that Mr. Foley saw Mr. Macdonnell walking in his driveway before he got into his vehicle. I find Mr. Foley guilty of count three in the information.

Breach of Keep the Peace Conditions

[29] The remaining two counts, counts four and five, are breach of probation by failing to keep the peace and be of good behaviour. As discussed earlier, it was admitted Mr. Foley was subject to two probation orders at the time the offences involving breaches of the no contact with Mr. Macdonnell and to not be within 100 metres of Mr. Macdonnell's residence, etc. I find as a result of the earlier findings of guilt relating to the two other breaches of probation that Mr. Foley failed to keep the peace and be of good behaviour. He will be found guilty of counts four and five on the information.

Released: January 11, 2018

Signed: Justice Peter C. West

Footnote

[1] The Crown brought an application to file the OIRPD business records pursuant to s. 30 of the Canada Evidence Act, relating to Mr. Foley's complaint on February 16, 2017. I allowed the two page complaint to be filed as Exhibit 3 and did not allow the affidavit from a representative of the OIRPD or the OIRPD's decision dismissing the complaint to be filed. Mr. Foley's complaint was permitted to be filed only to indicate that Mr. Foley was aware of Mr. Macdonnell's personal residence's address but not for Mr. Foley's explanation of his interaction on October 5, 2016 with Detective Sergeant Macdonnell. My reasons respecting the admissibility of the complaint were given orally.