Court of Appeal for Ontario

Date: 2019-10-09 Docket: C64435

Justices: Strathy C.J.O., Doherty and Tulloch JJ.A.

Between

Her Majesty the Queen Respondent

and

Jennifer Gladys McGaw Appellant

Counsel

Robert Sheppard, for the appellant

Karen Papadopoulos, for the respondent

Heard: October 1, 2019

On appeal from: Convictions entered at London, Ontario by Justice A.T. McKay of the Ontario Court of Justice on May 2, 2017, and from the sentence imposed on June 30, 2017.

Reasons for Decision

Background

[1] The appellant and Michael McCaughey had a romantic relationship. Mr. McCaughey ended that relationship in 2012. He continued to have some contact with the appellant and her two children. Mr. McCaughey met, and eventually married, another woman.

[2] The appellant would not accept Mr. McCaughey's decision to terminate their relationship. In the words of the trial judge, she reacted by:

[c]onducting an intense, prolonged, multi-faceted and vicious campaign against her former domestic partner and his new partner.

[3] The appellant was charged with several offences arising out of the ongoing harassment of Mr. McCaughey and his wife. The charges included counselling murder. The Crown alleged that the appellant had separately incited her brother, Billy, and her ex-husband, Rick, to murder Mr. McCaughey. The other charges against the appellant involved allegations of the breaching of court orders and the ongoing criminal harassment of Mr. McCaughey and his wife.

[4] The appellant pled guilty to some of the charges. The trial on the other counts, including the counselling murder charge, proceeded before a judge alone. Both Billy and Rick testified that the appellant had asked them to murder Mr. McCaughey. According to both men, the appellant told them that Mr. McCaughey had sexually assaulted her young daughter who was also Rick's daughter. The Crown argued that the allegation was false and that the appellant had used it to incite both men to kill Mr. McCaughey.

[5] The appellant did not testify.

[6] The trial judge convicted on all counts, save one count of criminal harassment. He imposed a sentence of 7 years plus 1 month on the counselling murder charge, having given the appellant credit of 35 months for pretrial custody. The effective sentence on the counselling murder charge was 10 years. The sentences on the other counts were made concurrent.

[7] The appellant appeals conviction and, if leave is granted, appeals from the sentence imposed.

[8] The appeals are dismissed for the following reasons.

The Conviction Appeal

(i) The trial judge's assessment of the evidence on the counselling murder charge

[9] There was a great deal of evidence against the appellant on the counselling murder charge. Much of it came from her brother Billy and her ex-husband, Rick, the two men the Crown alleged the appellant had asked to kill Mr. McCaughey. The credibility of both men was vigorously challenged at trial.

[10] The trial judge's reasons demonstrate that he was alive to the credibility concerns in respect of both witnesses. He correctly characterized them as "Vetrovec" witnesses and highlighted the problems associated with their credibility and reliability. The trial judge appreciated that one "Vetrovec" witness could confirm the evidence of another. He also found substantial other confirmatory evidence. For example, the trial judge concluded that the overwhelming evidence of the appellant's unbridled longstanding animus toward Mr. McCaughey and his new wife and her many efforts to physically harm them and ruin their lives provided confirmation of Billy's evidence that the appellant asked him to murder Mr. McCaughey. We agree that the evidence of the appellant's strong and unrelenting animus toward Mr. McCaughey was capable of making the evidence of Billy more credible.

[11] Ultimately, the trial judge accepted the evidence of Billy to the effect that the appellant sought over several months to get Billy, whom she knew to be a very violent man, to kill Mr. McCaughey. The efforts culminated in December 2014 when, on Billy's evidence, he went to the McCaughey home intending to kill him. Fortunately for Mr. McCaughey, Billy changed his mind.

[12] The trial judge also indicated that while the evidence of Rick, the ex-husband, could not, on its own, support a conviction on the counselling charge, its "striking similarity" with the evidence of Billy made Rick's evidence confirmatory of the evidence given by Billy. In other words, on the trial judge's findings, Rick's evidence, while not sufficiently credible to carry the full burden of the Crown's case, was sufficiently credible to render the strikingly similar evidence given by Billy more credible. This analysis reveals no legal error and was reasonably open on the evidence.

[13] Not surprisingly, given the nature of the witnesses and the length of this trial, there were many inconsistencies in the evidence of some witnesses. Different witnesses also had different versions of the relevant events. Many of the differences were in respect of factual issues that were not central to the charge of counselling murder.

[14] The trial judge's detailed review of the evidence, and his somewhat briefer analysis, shows that he was aware of the inconsistencies and contradictions. He addressed the main ones. For example, he acknowledged that Billy's evidence in respect of several events was quite different than the evidence of his girlfriend. Ultimately, the trial judge found that the girlfriend's evidence was not credible. He gave reasons for that finding.

[15] The trial judge was not obliged to go through each and every inconsistency and contradiction and offer an explanation for its impact on his analysis of the evidence. The reasons provide ample explanation for the credibility assessments and factual findings made by the trial judge.

(ii) Did the trial judge err in allowing the Crown to amend the counselling murder charge to conform with the evidence?

[16] The count in the information charging counselling murder initially alleged that the offence occurred between April and July 2015. After evidence was called indicating that the appellant counselled Billy to commit murder in December 2014, the Crown moved to amend the information to conform with the evidence.

[17] The trial judge allowed the amendment and gave careful reasons for his ruling. We agree with those reasons.

[18] Section 600 of the Criminal Code sets out broad powers of amendment. If the amendment is supported by the evidence, the amendment must be allowed, unless the accused can demonstrate "irreparable" prejudice: see R. v. Bidawi, 2018 ONCA 698, at paras. 30-33, leave to appeal refused 2019 SCCA No. 145.

[19] The amendment caused no possible prejudice to the appellant. She had full disclosure of all of the relevant evidence long before trial. The appellant also had ample notice from the Crown of the proposed amendment and a full opportunity to mitigate any potential prejudice by, for example, seeking a brief adjournment or postponing cross-examination of Billy. No mitigating steps were requested, no doubt because there was no prejudice. Finally, the amendment in no way expanded the scope of the evidence. All of the evidence relevant as a result of the amendment of the counselling murder charge was already properly before the court in respect of another count in the information.

(iii) The admissibility of statements attributed to the appellant's daughter, Hailey, to the effect that she had been sexually assaulted by Mr. McCaughey

[20] Billy and Rick testified that the appellant told them that Mr. McCaughey had sexually assaulted Hailey. It was the Crown's position that she did so in an effort to get Billy or Rick to kill Mr. McCaughey. Both men and one other witness also testified that Hailey also told them that she had been sexually assaulted. They further testified that she later said she had not been assaulted.

[21] Hailey did not testify.

[22] The appellant submits that the evidence of Hailey's statements constitutes inadmissible hearsay.

[23] We accept the Crown's position that the evidence was not offered for its truth, but rather as evidence of the state of mind of Billy and Rick and, in particular, their animus towards Mr. McCaughey which, in part, led them to agree to kill Mr. McCaughey.

[24] The Crown contended that the animus arose, in part, out of what they were told by Hailey about the sexual assaults. The truth of Hailey's statements was irrelevant to their admissibility as evidence of the state of mind of Billy and Rick and, in particular, their animus towards Mr. McCaughey.

(iv) Was the trial judge's analysis "clouded" by findings of the appellant's bad character?

[25] Clearly, on the trial judge's findings, the appellant engaged in a barrage of vindictive, cruel and criminal activity, all directed at Mr. McCaughey and his new wife. The findings made against the appellant flow from the evidence which obviously painted the appellant in a very bad light.

[26] There is, however, nothing in the reasons to support the contention that the trial judge improperly inferred guilt from the appellant's bad character. Indeed, the trial judge cautioned himself against misusing the evidence in that fashion.

[27] The trial judge reviewed the entirety of the evidence and made factual findings grounded in the evidence. His verdicts reflect those factual findings. The nature of those findings and the convictions they warranted inevitably shows the appellant as a person of very bad character. That consequence does not, however, "cloud" the trial judge's findings of fact, or the legal correctness of his analysis.

(v) Was the conviction on count 7 unreasonable?

[28] Count 7 charged the appellant with harassing Mr. McCaughey by "besetting or watching" him at his home on July 30, 2015. The evidence revealed that the appellant drove slowly past Mr. McCaughey's home at about 10:00 p.m. on July 30th. She had been previously charged with harassing conduct toward Mr. McCaughey and had been designated by the police as a "high risk domestic offender". The police were following the appellant when she drove slowly past Mr. McCaughey's home.

[29] As of July 30th, the appellant was on bail for various offences relating to her harassment of Mr. McCaughey. She was with a young person named Darren Weston. According to his evidence, the appellant had spoken to him many times about different ways they could terrorize Mr. McCaughey in his own home. At the appellant's request, Mr. Weston had slashed Ms. McCaughey's tires. As of July 30th, Mr. McCaughey had also learned from the police that the appellant had tried to have him murdered.

[30] Mr. McCaughey did not know that the appellant was driving slowly past his home at 10:00 p.m. When the police told him about it the next day, Mr. McCaughey expressed serious concern for his and his wife's safety.

[31] In oral argument, counsel for the appellant did not suggest that there was no evidence of the actus reus required for the crime of criminal harassment as defined in s. 264(2)(c) of the Criminal Code. He submitted, however, that there was no evidence from which it could be inferred that the appellant knew that her conduct would harass Mr. McCaughey. Knowledge in this context includes recklessness or willful blindness. Knowledge is part of the fault component of the offence.

[32] The brief factual outline set out above provides ample basis upon which the required knowledge or recklessness could be inferred. Indeed, having regard to the entirety of the appellant's conduct toward Mr. McCaughey, the inference is irresistible.

[33] There was ample evidence to support the conviction on this count.

The Sentence Appeal

[34] The trial judge imposed a lengthy sentence, especially given that the appellant had virtually no criminal record. However, the offence was a very serious one. The harassment was vicious, long-term and relentless. It culminated in genuine attempts by the appellant to get two men to kill Mr. McCaughey. She knew both men were capable of doing so.

[35] The counselling charge was clearly the most serious charge. However, several of the other charges were also serious and warranted significant jail terms. In considering the fitness of sentence, it is appropriate to look at the totality of the conduct, even though the trial judge chose to impose concurrent sentences on all charges.

[36] In addition to the seriousness of the offence, the trial judge found that the appellant showed no remorse, no empathy for her victims, and no real appreciation for what she had done. According to the trial judge, she posed a "significant risk to offend". These findings were open to the trial judge and properly played an important role in determining the fit sentence. These factors also distinguish this case from R. v. Shier, 2018 ONSC 5624, the authority relied on by the appellant.

[37] The trial judge made no error in principle. Nor is the sentence manifestly excessive. We would grant leave to appeal sentence, but would dismiss the appeal.

Conclusion

[38] The appeal from conviction is dismissed, leave to appeal sentence is granted, and the appeal is dismissed.

"G.R. Strathy C.J.O."

"Doherty J.A."

"M. Tulloch J.A."