COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cook, 2013 ONCA 467

DATE: 20130709

DOCKET: C47282

MacPherson, Cronk and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

William Cook

Appellant

William Cook, in person

Breese Davies, duty counsel

Elise Nakelsky, for the respondent

Heard: July 4, 2013

On appeal from the convictions entered by Justice Paul U. Rivard of the Superior Court of Justice, sitting with a jury, on May 13, 2005, and the sentence imposed by Justice Rivard, on November 22, 2006.

By the Court:

[1] The appellant was convicted of two counts of criminal harassment and one count of threatening death pertaining to Bernard Lenouvel, the appellant’s mother’s common law spouse, and Laura Cook, the appellant’s sister, as well as one count of failing to comply with a probation order that required the appellant to keep the peace and be of good behaviour. He was acquitted of additional counts of criminal harassment and threatening death in respect of his mother, Susan Cook.

[2] On sentencing, the Crown applied under s. 753.1 of the Criminal Code to have the appellant designated a long term offender. The trial judge granted the Crown’s application, declared the appellant to be a long term offender and, after credit for 26 months’ and 10 days’ pre-sentence custody, imposed a suspended sentence and a 10-year community supervision order.

[3] The appellant appeals from his convictions and sentence.

A. Conviction Appeal

[4] The appellant raises three grounds in support of his conviction appeal.

(1) Evidence of Bad Character

[5] The appellant argues that the trial judge erred by permitting the jury to consider evidence of his prior misconduct, adduced during the complainants’ testimony.

[6] We would not give effect to this argument in this case for several reasons. First, the appellant acknowledges that certain of the evidence at trial relating to his prior misconduct was both admissible and inevitable. We agree.

[7] The appellant’s mother, Susan Cook, has been in a common law relationship with Bernard Lenouvel for more than 20 years. During the summer of 2004, one of the appellant’s sisters, the complainant Laura Cook, lived with her child at Susan and Bernard’s home.

[8] The evidence revealed that the appellant had a long history of tumultuous and acrimonious behaviour in respect of his family members, including Bernard and Laura, both of whom testified at trial, and Susan, who did not testify at trial. In particular, Bernard and Laura testified that in the spring and summer of 2004, the appellant continually harassed, threatened and badgered them, together with Susan, by incessant telephone calls, sometimes numbering 20 to 30 calls per day. They said that if his mother answered the telephone, the appellant yelled at her and made demands. If Laura or Bernard picked up the telephone, the appellant frequently threatened them, called them derogatory names, and generally engaged in abusive behaviour.

[9] On August 24 and 25, 2004, the appellant’s behaviour took a serious turn for the worse. Laura testified that on August 24, the appellant telephoned the family home 30 or 40 times. She said that during one of these telephone calls, the appellant threatened to kill her and assault their mother. Bernard went to the police station to obtain police assistance to escort Susan out of the house because it was feared that the appellant was coming to the house. While he was at the police station, the appellant arrived at the family house. Laura was home with her daughter. The appellant banged on the door and rang the doorbell for approximately 30 minutes. Laura, fearful of the appellant, hid in the basement with her daughter and called Bernard on his cell phone. The police were dispatched to the house, but the appellant had left by the time they arrived.

[10] The following day, the appellant repeatedly telephoned the Lenouvel residence. Bernard testified that during a telephone call that day, the appellant threatened to slit Bernard’s throat. The appellant was arrested a few days later. He continued to call the family frequently from jail, until a few days before his trial.

[11] In the context of this alleged behaviour, the evidence of the appellant’s animus and pattern of abusive conduct towards his family members was properly admitted as part of the narrative concerning his antagonistic history and relationships with Bernard, Laura and Susan. It formed the backdrop for the events of August 24 and 25, 2004, which gave rise to the offences charged. No objection was taken by the defence to the admission of this evidence at trial.

[12] Second, much of the complainants’ evidence, now described by the appellant as bad character evidence that should not have been left with the jury, was acknowledged by the appellant during his own trial testimony, including evidence bearing directly on the essential elements of the offences charged.

[13] In his testimony, the appellant acknowledged that he persistently called Susan and Bernard’s residence on the dates in question. He admitted that he became angry, went to his family’s house, banged on the door and used the doorbell for a lengthy time. Although he denied threatening Bernard and Laura, he conceded his animosity towards them and his use of obscenities when referring to or speaking with them. He also admitted that when he spoke by telephone with Bernard on August 25, he “might have said anything about his family”.

[14] Third, at its core, the appellant’s complaint is that the evidence of his prior misconduct went too far, impermissibly straying into non-essential and prejudicial areas. This claim is belied by the theory and conduct of the appellant’s defence at trial.

[15] During cross-examination, defence counsel mounted a vigorous attack on the complainants’ credibility and reliability. In so doing, she raised numerous prior family incidents, including many involving past misconduct by the appellant, with the apparent objective of demonstrating that the appellant’s family was attempting to keep him away from his mother. The transcript of the complainants’ cross-examinations is replete with questions by defence counsel that elicited responses tending to establish prior discreditable conduct by the appellant. Thus, much of the impugned evidence was elicited by the defence for its own purposes.

[16] In these circumstances, we agree with the Crown’s submission that, having embarked on this defence strategy and having developed it at trial in a way that elicited evidence of bad character, the appellant cannot now complain that the elicited evidence should not have been admitted.

[17] We also note that on at least one occasion during Bernard’s testimony, the trial judge delivered a blunt mid-trial instruction, telling the jury to disregard Bernard’s hearsay evidence that the appellant had reportedly broken one of his sister’s car windows. The trial judge’s instruction clearly identified the evidence in question and properly explained both the permissible and impermissible uses of the evidence to the jury.

[18] We appreciate that the appellant complains, particularly, about Laura’s testimony that she had been sexually abused by him as a child. This evidence must be viewed in context. Laura testified that she took the appellant’s threats seriously, that she was afraid of him and that she believed that he was capable of harming her and her mother. When asked about the basis for this belief, Laura indicated that “Since I was a child I’ve been physically abused by that man, and sexually”.

[19] Defence counsel did not object to this evidence. Instead, during her cross-examination of Laura, counsel pursued Laura’s claim of childhood abuse. When the Crown objected, the trial judge stated, “The issue here is not whether or not this witness has been molested. The issue here is criminal harassment, threats and breach of probation. Whether or not she was sexually abused at a young age is not relevant in this action.” He then instructed defence counsel to move on in her questioning.

[20] In all these circumstances, the admission of the challenged bad character evidence does not constitute reversible error. Much of the impugned evidence was necessary narrative evidence of the appellant’s relationship and dealings with his family; other aspects of the evidence were conceded by the appellant himself; and much of the evidence was elicited or developed for the purpose of the appellant’s own defence.

(2) Instructions Regarding Bad Character Evidence

[21] The appellant next argues that the trial judge erred by failing to properly instruct the jury on the permissible inferences that could be drawn from the evidence of his prior misconduct. Again, on the particular facts of this case, we disagree.

[22] It is true that the charge contains no formal limiting instruction on the permissible and impermissible uses of bad character evidence. However, a formal limiting instruction is not required in every case where evidence of prior misconduct by an accused has been led. In our view, it was unnecessary here for several reasons.

[23] In addition to the trial judge’s mid-trial instruction, described above, the trial judge cautioned the jury:

William Cook is charged with criminal harassment and threatening death. You are trying him for those offences. The real issue for you to decide in this case is whether the offences charged ever actually took place. You have heard evidence that Mr. Cook has done other things that may be similar to those for which he is being charged in this case. You are not trying Mr. Cook for that conduct; be careful not to jump to the conclusion that just because the acts appear similar, the offences charged must have taken place. Whether or not you use the evidence of the other conduct to help you decide this case, you must not find Mr. Cook guilty of an offence unless Crown counsel has satisfied you of all the essential elements of that offence beyond a reasonable doubt.

This caution alerted the jury to the proper focus of its task.

[24] The appellant has a history of violence and a lengthy criminal record, including other convictions for criminal harassment and threatening death, evidence of which was adduced during the appellant’s testimony. Further, as we have said, the appellant himself testified about other aspects of his prior misconduct. The impugned bad character evidence was part of the contextual narrative concerning the relationships within the appellant’s family and the volatility of those relationships, much of which was adduced by the defence.

[25] In these circumstances, in our opinion, there was no realistic possibility that the challenged evidence would be used improperly by the jury to reason that the appellant was guilty of the offences charged. Indeed, given the way in which this trial unfolded, a formal instruction on the permissible and impermissible uses of bad character evidence might well have unnecessarily emphasized the evidence of the appellant’s discreditable conduct, to his potential detriment. See R. v. Beausoleil, [2011] O.J. No. 2819 (C.A.).

[26] Finally, we note that defence counsel did not request a formal limiting instruction. Nor did she object to the charge on this issue. This supports the conclusion that the instruction contended for on appeal was unnecessary in the circumstances of this case.

(3) Alleged Instruction Regarding Similar Act Evidence

[27] The appellant’s final ground of appeal is that the trial judge erred by permitting the jury to use the evidence on the counts on the indictment as similar act evidence in relation to one another.

[28] For convenience, we repeat what the trial judge told the jury:

William Cook is charged with criminal harassment and threatening death. You are trying him for those offences. The real issue for you to decide in this case is whether the offences charged ever actually took place. You have heard evidence that Mr. Cook has done other things that may be similar to those for which he is being charged in this case. You are not trying Mr. Cook for that conduct; be careful not to jump to the conclusion that just because the acts appear similar, the offences charged must have taken place. Whether or not you use the evidence of the other conduct to help you decide this case, you must not find Mr. Cook guilty of an offence unless Crown counsel has satisfied you of all the essential elements of that offence beyond a reasonable doubt. [Emphasis added.]

[29] The trial judge continued:

Mr. Cook is charged with six offences. Each charge requires its own proof. The real issue for you to decide in this case is whether the offences alleged by each complainant ever actually took place. Be careful to not jump to the conclusion that if one complainant is telling the truth, the others must be telling the truth as well. Nor should you jump to the conclusion that because the complainants alleged similar conduct, they all must have occurred if any one of them is proved. It is up to Crown counsel to prove each charge independently of the other. You may, but do not have to find that there is a pattern of similar behaviour that confirmed each complainant’s testimony as to what took place. It is for you to say.

In considering this evidence, bear in mind the relationship between Mr. Cook and the complainants, as well as the circumstances of each of these situations. Whether or not you use the evidence of any of the complainants to help you decide whether any other complainant is telling the truth, you must not find Mr. Cook guilty of any offence unless Crown counsel has satisfied [you] beyond a reasonable doubt of all of the essential elements of that offence. [Emphasis added.]

[30] The appellant argues that these instructions failed to direct the jury as to the manner in which similar act evidence may be used. He says that these instructions were deficient because they (1) failed to identify which charges could be used as similar act evidence in relation to specific other charges, (2) failed to tell the jury the purpose for which the charges could be used as evidence, and (3) failed to warn the jury of the dangers of impermissible propensity reasoning.

[31] We disagree. This was not a similar act case. It did not involve multiple offences against multiple victims with the admission of similar act evidence outside the scope of the indictment. The Crown brought no similar act application. Rather, as the Crown contends, the evidence of the appellant’s other misconduct was admissible in its own right for the purposes we have already described. The allegedly similar acts were not extrinsic to the offences charged. Rather, the evidence regarding the appellant’s prior misconduct and his relationships with his family was relevant to all the counts. It was also relevant to demonstrating his animus towards the complainants.

[32] Further, the trial judge was careful to warn the jury that “each charge requires its own proof” and that the Crown was obliged “to prove each charge independently of the other”. He also twice told the jury that it must not find the appellant guilty of any offence “unless Crown counsel has satisfied [you] beyond a reasonable doubt of all of the essential elements of that offence”. These were proper and, in the circumstances, adequate instructions.

(4) Fresh Evidence

[33] The Crown’s case against the appellant was overwhelming. As we have said, the appellant admitted most of the essential elements of the offences charged during his own testimony at trial. Arguably, even on his own evidence, the offence of criminal harassment in respect of both Laura and Bernard was made out. We emphasize that the appellant admitted to speaking with Laura and Bernard at the time of the alleged death threats and, further, that at least in his discussion with Bernard, he might have said “anything” about his family.

[34] The fresh evidence sought to be introduced by the appellant on appeal does not alter this conclusion. The fresh evidence does not relate to evidence at trial that was critical to the Crown’s case. Indeed, the trial judge made no mention in his charge of the trial testimony of the police officer whose creditworthiness is now sought to be undermined by the fresh evidence. Moreover, the evidence of a second police officer, who heard the appellant utter the same statements as the officer whose credibility is now impugned, was also led at trial.

B. Sentence Appeal

[35] The appellant challenges his long term offender designation, particularly the 10-year community supervision order imposed by the trial judge. He submits that he was denied the right to make submissions on whether the requirements of the long term offender provisions of the Code had been met, specifically, whether the offence of criminal harassment constitutes a “serious personal injury offence” as defined under s. 752 of the Criminal Code. As a result, the appellant contends, he was denied procedural fairness at his sentencing hearing.

[36] We accept this submission. The record reveals that from the outset of the Crown’s long term offender application, defence counsel signalled her intention to argue that none of the offences charged constituted a “serious personal injury offence”. While other issues were addressed throughout the ensuing multiple court appearances before argument of the Crown’s application, argument of this threshold issue did not take place. Yet, the transcript reveals that when the trial judge eventually delivered his ruling, after a two-month adjournment of the proceedings, on whether the criminal harassment convictions constituted serious personal injury offences, he mistakenly believed that defence counsel had already made her submissions on this issue. He therefore denied her request for an opportunity to address the issue.

[37] With respect, this was an error. Neither the Crown nor the defence had made submissions on this issue before the trial judge’s ruling. The appellant’s right to hearing fairness was thereby fatally compromised. Consequently, the sentence imposed as a result of the flawed sentencing hearing, including the appellant’s long term offender designation and community supervision order, cannot stand.

[38] The Crown and duty counsel acknowledge that there is a full record before this court regarding the Crown’s long term offender application. They also agree that, in the somewhat unusual circumstances of this case, this court is positioned to determine whether the offences charged meet the statutory definition of a “serious personal injury offence” and, if so, to rule on the Crown’s long term offender application and impose a fit sentence.

[39] The sentencing judge ruled that the criminal harassment charges of which the appellant was convicted are “serious personal injury offence[s]” within the meaning of s. 752 of the Code.

[40] We agree. Under s. 752, the phrase “serious personal injury offence” is defined to include an indictable offence, other than certain specified offences that do not apply here, involving “conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person”, for which the offender may be sentenced to imprisonment for ten years or more.

[41] The evidentiary record confirms that the appellant’s conduct, in the context of his criminal harassment convictions, involved conduct likely to inflict severe psychological damage upon another person, within the meaning of the statutory definition of “serious personal injury offence”. The pertinent evidence demonstrated that:

(1) the appellant abused his family for many years, necessitating repeated involvement of the police;

(2) Laura feared the appellant and, on August 24, was sufficiently frightened of him that she hid from him, with her daughter, in the basement of the family home;

(3) the appellant used obscene, menacing and aggressive language in his calls with Laura, including on the dates relevant to the indictment, going so far as to threaten her death and the assault of their mother;

(4) as a result of the appellant’s conduct, Laura was scared of him, anxious, and believed that he was capable of harming her and their mother;

(5) the aggressiveness of the appellant’s threats progressed over time; and

(6) the appellant threatened to slit Bernard’s throat.

[42] We have no hesitation in concluding that the appellant’s harassing conduct involved conduct likely to inflict severe psychological damage on Laura. Indeed, it would be astounding if it did not. There is ample evidence on this record to support the conclusion that the criminal harassment of which the appellant was convicted in respect of Laura constituted a “serious personal injury offence”. The appellant’s persistent and threatening conduct was neither trivial nor de minimis. To the contrary, it demonstrated a likelihood of the appellant inflicting severe psychological harm, if not physical violence, on Laura. This meets the statutory definition of “serious personal injury offence”.

[43] The issue, therefore, is what sentence should appropriately be imposed at this juncture. We are satisfied that a sentence identical to that imposed by the trial judge is fit, given the appellant’s circumstances and the circumstances of these offences.

[44] Accordingly, we would grant leave to appeal sentence and allow the sentence appeal. We would not interfere with the suspended sentence imposed, or the appellant’s long term offender designation. However, as part of the 10-year community supervision order imposed by the trial judge has now run its course, we would impose a community supervision order for that number of years remaining on the original 10-year community supervision order imposed by the trial judge. If the Crown and duty counsel are unable to agree on the unexpired term of that original order, the parties may request an opportunity, through the Registrar of this court, to make further brief, written submissions on that issue.

C. Disposition

[45] Accordingly, the conviction appeal is dismissed. The sentence appeal is allowed in accordance with these reasons.

Released:

“JCM” “J.C. MacPherson J.A.”

“JUL -9 2013” “E.A. Cronk J.A.”

“Paul Rouleau J.A.”