Her Majesty the Queen v. Nolan
[Indexed as: R. v. Nolan]
Ontario Reports Court of Appeal for Ontario K.N. Feldman, Gillese and D.M. Miller JJ.A. December 10, 2019
150 O.R. (3d) 647 | 2019 ONCA 969
Case Summary
Criminal law — Evidence — Admissibility — Prior discreditable conduct
Accused charged with criminal harassment for spreading nude photos of complainant at parking lot of her workplace. Trial judge allowing Crown's application to admit evidence of prior discreditable conduct of very similar behaviour. Accused also charged with intimidation and obstruction of justice arising from behaviour during Family Court proceedings. No improper use of evidence of prior discreditable conduct.
Criminal law — Sentencing — Conditional sentence — Consecutive sentences
Accused sentenced to jail term of 12 months for criminal harassment and two 18-month conditional sentences for intimidation and obstruction of justice. Sentence illegal for blending custodial and conditional sentence exceeding two years. Global sentence of two years less a day imposed.
Criminal law — Sentencing — Principles — Criminal harassment
Accused sentenced to jail term of 12 months for criminal harassment and two 18-month conditional sentences for intimidation and obstruction of justice. Sentence illegal for blending custodial and conditional sentence exceeding two years. Global sentence of two years less a day imposed. Penitentiary term unnecessary in recognition of attempts at reform. Custodial sentence necessary to reflect objectives of denunciation and deterrence.
Facts
The accused and the complainant had been in a romantic relationship that ended shortly after the accused was released from prison. There were custody and access disputes over their two children, leading the complainant to seek full custody. While the complainant waited outside the Family Court for her custody application to be heard, the accused appeared unexpectedly and told her not to proceed with the application. He pressured her to drop outstanding criminal charges against him, told her to withdraw a restraining order against him, and threatened to shoot her family if she did not comply. During the Family Court hearing, the presiding judge told the accused not to try to intimidate the complainant. The accused's disruptive behaviour ultimately caused the judge to close the court. Two years after that incident, nude photographs purporting to be of the complainant were spread around the parking lot of the school yard where she was working as a teacher. At the accused's criminal trial the judge allowed the Crown's application to admit evidence of prior discreditable conduct being very similar to the nude photo incident. As a result of the Family Court incident the accused was convicted of threatening death, intimidation by threats of violence, and obstruction of justice. He was convicted of criminal harassment in relation to the nude photograph incident and sentenced to a jail term of 12 months. An 18-month conditional sentence was imposed for each of the intimidation and obstruction of justice convictions, to be served consecutively to the jail sentence but concurrently with one another, followed by 12 months of probation. The conviction for threatening death was stayed. The accused appealed the convictions and the Crown appealed the sentence.
Held
The accused's appeal should be dismissed; the Crown's appeal should be allowed.
The accused was properly convicted of the offences arising from the Family Court incident. The trial judge's use of the transcript of the Family Court proceeding was proper. He did not use it for the truth of its contents. Rather, he relied on it to draw permissible inferences about the accused's aggressive and controlling demeanour. He then used those inferences to bolster the complainant's credibility about what happened outside the courtroom before the hearing. The wording of the information regarding obstruction of justice stated that the complainant was dissuaded from giving evidence. While the complainant did in fact give affidavit evidence, the trial judge found that she had not been able to give "full and candid evidence free of outside pressure" in the Family Court proceeding, such that the course of justice had been affected. There was no error in that reasoning. The information regarding the counts of threatening and intimidation mistakenly recited that the threat of violence was to the complainant rather than to her family. Although the defence initially opposed the Crown's motion to amend, the parties proceeded on the understanding that the information conformed to the evidence. Out of an abundance of caution, the information was formally amended by the Court of Appeal as such an amendment caused no prejudice to the accused.
The trial judge did not err in relying on the accused's discreditable conduct in the Family Court proceedings when ruling on the criminal harassment charge. The Crown had not formally applied to use evidence across counts but had it done so, the cross-count evidence would have been ruled admissible as being relevant to identity of the perpetrator of the nude photo incident, with probative value outweighing prejudicial effect. The trial judge did not engage in any prohibited propensity reasoning. The judge made little use of the cross-count evidence, but concluded that the whole of the evidence, including the discreditable conduct evidence, proved a credible basis to infer animus and motive. Despite the absence of a formal Crown application, the accused was not prejudiced.
The sentence was illegal because it was a blended custodial and conditional sentence exceeding two years and because a period of probation was imposed where the global sentence exceeded two years. It was substituted by a global custodial sentence of two years less a day: 12 months for criminal harassment, and two sentences of 12 months less a day for intimidation and obstruction of justice to be served concurrently to one another and consecutively to the criminal harassment sentence. A penitentiary term was not necessary in recognition of the accused's attempts at reform. A custodial sentence was necessary to reflect the primary sentencing objectives of deterrence, denunciation and the need to separate a violent offender from society. A term of probation of 12 months was to follow the prison sentences.
Cases Referred To
R. v. Tsigirlash, 2019 ONCA 650, distd
R. v. MacCormack, 2009 ONCA 72
R. v. Tsekouras, 2017 ONCA 290
Statutes Referred To
Criminal Code, R.S.C., 1985, c. C-46, ss. 109, 683(1)(g), 742.1(a)
APPEAL
Appeal by the accused from the convictions entered by L.T. Feldman J., 2018 ONCJ 898 (C.J.); Appeal by the Crown from the sentence, 2019 ONCJ 338 (C.J.).
Counsel:
- Ravin Pillay, for William Nolan
- Caitlin Sharawy, for the Crown
The judgment of the court was delivered by GILLESE J.A.
A. Overview
[1] Mr. Nolan (the "appellant") was convicted of threatening death, intimidation by threats of violence, obstruction of justice and criminal harassment. The first three convictions (threaten death, intimidation and obstruction of justice) arose from an incident in the Family Court of the Ontario Court of Justice on January 7, 2013 (the "Family Court incident"). The threaten death conviction was stayed pursuant to R. v. Kienapple. The criminal harassment conviction arose from an incident on January 7, 2015, in which copies of a nude photograph bearing the complainant's name were spread around the school yard of the school where she taught (the "2015 nude photo incident").
[2] A jail sentence of 12 months was imposed for the criminal harassment conviction. An 18-month conditional sentence was imposed for each of the intimidation and obstruction of justice convictions, to be served consecutively to the jail sentence but concurrently with one another. These were to be followed by 12 months of probation. The trial judge also imposed a weapons prohibition order under s. 109 of the Criminal Code, R.S.C 1985, c. C-46.
[3] The appellant appeals against conviction. The Crown seeks leave to appeal against sentence.
[4] At the conclusion of the oral hearing of these appeals, the court advised that the conviction appeal was dismissed with written reasons to follow. The court also advised that it would address the sentence appeal in those reasons. These are the promised reasons.
B. Background in Brief
[5] The appellant and the complainant began a romantic relationship in 2004. They had two sons, the first born in 2006 and the second in 2007. In 2009, the appellant was sentenced to a four-year period of imprisonment. While the appellant was in prison, the complainant went to teacher's college and, by 2012, she was employed as a grade 5 and 6 teacher at CJPS. The relationship between the two ended shortly after the appellant was released from prison in 2012.
(1) The 2013 Family Court Incident
[6] Following the appellant's release from jail, there were custody and access disputes between the two. These disputes led the complainant to seek full custody of the children.
[7] According to the complainant, on January 7, 2013, while she waited outside the courtroom for her custody application to be heard, the appellant arrived unexpectedly and told her not to go through with the application. He pressured her to drop outstanding criminal charges against him, told her to withdraw a restraining order that she had obtained against him, and threatened to shoot her family if she did not comply.
[8] The parties then appeared before Paulseth J., the presiding judge. A copy of the transcript of the hearing before Paulseth J. was introduced into evidence at the appellant's trial on these matters.
[9] During the Family Court hearing, the appellant's behaviour led Paulseth J. to tell him not to try to intimidate the complainant. Justice Paulseth also asked the appellant to sit down but he refused, saying he was angry and needed to pace, which he then did. When a court officer entered the courtroom, the appellant told him to "get the fuck out" and carried on until Paulseth J. was forced to close the court. The appellant then left the courtroom and attacked the officer, causing him injury.
[10] The appellant was later convicted of assaulting a peace officer and assault with intent to resist arrest in relation to the altercation with the court officer.
(2) The 2015 Nude Photo Incident
[11] On January 7, 2015, exactly two years after the Family Court incident, nude photographs purporting to be of the complainant were spread around the parking lot of the CJPS school yard where she was working as a teacher. The following words had been typed on the photograph:
This is your jr kg teacher, [the complainant's first and last names were then written out in full, using capital letters]. This will keep happening as long as she's at TDSB. Find more of [the complainant's name] www.dirty.com.
(3) Trial Ruling on Prior Discreditable Conduct
[12] At the close of its case, the trial Crown applied to have admitted two bodies of evidence of the appellant's prior discreditable conduct. The evidence in support of the application was blended with the trial evidence. The two bodies of evidence were (1) evidence relating to an incident in September 2012 in which copies of a nude photograph of the complainant were distributed in the parking lot of the CJPS schoolyard (the "2012 nude photo incident"); and (2) transcripts of the facts admitted by the appellant when he entered pleas of guilt, before Otter J. on November 15, 2012, to charges of intimidation and criminal harassment of the complainant arising from a different incident in September 2012.
[13] The trial judge granted the application in part. He ruled admissible all evidence relating to the 2012 nude photo incident. This evidence came from the complainant who testified that after his release from prison in September 2012, the appellant was angry about lack of access to the children and he threatened the complainant that he would "destroy [her] life" by spreading sexually explicit photographs of her at the school where she worked, the children's school, the daycare and her gym. The following day, copies of a nude photograph of her that had her name and phone number written on it, were scattered in the parking lot of the CJPS school yard. The photo was one that the complainant had sent to the appellant while he was in prison. The complainant testified that in January 2013, before the Family Court hearing, the appellant admitted that he was responsible for the 2012 nude photo incident and apologized.
[14] The trial judge admitted the evidence of the 2012 nude photo incident, finding that it was strikingly similar in nature and detail to the allegations in the 2015 nude photo incident. In his ruling, the trial judge said that he accepted the complainant's evidence set out in the above paragraph and that it permitted the inference that in perpetrating these distinctive acts, the appellant was motivated by an intent to humiliate the complainant and threaten her livelihood. The trial judge also found that this evidence tended to enhance the complainant's testimonial credibility on the material facts in issue. He concluded that the cogency of the evidence, its unique facts and relevance to the nature of the relationship and the appellant's animus supported its threshold admission as prior discreditable conduct. He described its probative value as high.
[15] The trial judge ruled the second body of evidence inadmissible. He described this body of evidence as showing the appellant as derogatory, confrontational and intimidating in his dealings with the complainant over the issue of access. Further, the trial judge said that the appellant displayed animus when he threatened to destroy the complainant's life. However, the trial judge found that while the evidence was similar in nature to the allegations in the 2015 nude photo incident, the facts were not proximate in time, similar in detail, nor did they have distinctive features that elevated their probative value over the prejudicial effect of propensity evidence.
(4) The Defence Position at Trial
[16] The appellant did not testify at trial nor did he call defence evidence. His defence was a straight denial. He challenged the complainant's credibility regarding the Family Court incident. In particular, he pointed to the complainant's failure to report that incident until two years later, when the 2015 nude photo incident occurred. He challenged the criminal harassment charge on the basis that the Crown had not proven beyond a reasonable doubt that he had anything to do with the 2015 nude photo incident. At trial, the defence did not dispute that the complainant was the subject of the 2015 nude photographs.
C. The Conviction Appeal
[17] The appellant raises a number of grounds of appeal against both his convictions arising from the Family Law incident and his conviction for criminal harassment arising from the 2015 nude photo incident.
(1) The Convictions Arising from the Family Court Incident
[18] The appellant submits that the trial judge erred in convicting him of the offences arising from the Family Court incident (threaten death, intimidation and obstruction of justice) by (1) improperly relying on the transcript of the Family Court proceedings for the truth of its contents, and (2) finding him guilty when the counts were not proven as particularized on the information.
[19] I do not accept this submission.
(a) Use of the Family Court Proceedings Transcript
[20] At para. 10 of his reasons, the trial judge explained how he used the transcript:
The defence denies that the [appellant] threatened the complainant in the hallway of the courthouse and challenges the reliability of her testimony in this regard, but in my view, on this evidence, [the complainant's] credibility is, rather, enhanced by an assessment of the [appellant's] behaviour during the course of the proceedings before Justice Paulseth. Given that behaviour, it is understandable that the complainant felt pressured into reversing her position on custody in court by [the appellant's] threats and intimidation[.]
(Emphasis added)
[21] The trial judge then reviewed the transcript, focusing on the appellant's behaviour and what was said during the Family Court hearing. He concluded by finding that the appellant's behaviour during the hearing enhanced the complainant's credibility with regard to what had happened immediately prior to it and gave rise to the "strong inference that [the appellant] gave the [complainant] her marching orders prior to the commencement of the [family law] proceedings in a manner consistent with [the appellant's] subsequent overbearing behaviour during the hearing".
[22] Thus, the trial judge's use of the Family Court proceeding transcript was entirely proper. He did not use it for the truth of its contents. Rather, he relied on it to draw permissible inferences about the appellant's aggressive and controlling demeanour in the hearing before Paulseth J. He then used those inferences to bolster the complainant's credibility about what happened outside the courtroom before the hearing. This limited use of the Family Court proceedings transcript was permissible. Transcripts of judicial proceedings may be admissible to prove what was actually said or what actually happened in an earlier proceeding: R v. Tsekouras, 2017 ONCA 290, at para. 179.
[23] The appellant also argues that the trial judge erred in finding that the appellant had injured the court officer after he left the Family Court courtroom in which the hearing before Paulseth J. had taken place. The Crown agrees that there was no evidence at trial that the officer had been injured but says that it was undisputed that a physical altercation between the appellant and the court officer had taken place outside the courtroom in which the hearing took place.
[24] I do not accept the appellant's submission on this matter. During an exchange with defence counsel, the trial judge indicated that he understood from the transcript that there had been a "physical altercation". His mention of the officer's "injury" was not a material misapprehension of the evidence. It had little bearing on his overall analysis, coming as it did in his recitation of how the Family Court hearing unfolded.
[25] Reading the trial judge's reasons as a whole, it is apparent that his reliance on the Family Court transcript was proper. His primary focus was on the appellant's statements and behaviour during the Family Court hearing. He drew permissible inferences about the appellant's aggressive and controlling demeanour which he used to bolster the complainant's credibility about what had happened outside the courtroom before the Family Court hearing took place.
(b) Particularization of the Counts Arising from the Family Court Incident
[26] The wording of the obstruction of justice count on the information was that the appellant "did wilfully dissuade [the complainant] by threats from giving evidence in a judicial proceeding". At para. 26 of his reasons, the trial judge rejected defence counsel's submission that this count had not been proven as particularized. He explained that while the complainant had been able to give evidence through the affidavits she filed in the Family Court proceedings, he found that she had not been able to give "full and candid evidence free of outside pressure" in the hearing before Paulseth J. He concluded that the course of justice had been affected by the appellant's actions prior to and during the hearing.
[27] I see no error in the trial judge's reasoning on this matter. The appellant threatened to shoot the complainant's family if she did not drop the restraining order and agree to joint custody. As a result, the complainant agreed to the restraining order being withdrawn and resiled from her position seeking full custody of the children. On the findings of the trial judge, the complainant had been "wilfully dissuaded" from giving evidence in the family law proceeding.
[28] Different considerations apply, however, in respect of the threaten death and intimidation counts. These counts recited that the threat of violence was to the complainant. However, on the evidence at trial, the threats were directed at the complainant's family, not her.
[29] Before the close of its case, the trial Crown brought an application to amend the information to conform to the evidence. Defence counsel initially opposed the motion. The trial judge ruled that he was "inclined to grant the amendment if the complainant [was] recalled" to cure any potential prejudice to the defence. The defence ultimately stated, on the record, that he would no longer pursue the matter and that he did not wish to cross-examine the complainant. Thereafter, the parties proceeded on the understanding that the threaten death and intimidation counts had been amended to conform to the evidence.
[30] In the circumstances of this case, the information was amended in substance -- any lack of a formal amendment to the physical information was a clerical error or oversight. Out of an abundance of caution, the Crown asks that this court amend the information to reflect that the threaten death and intimidation counts relate to the complainant's family. An amendment at this stage will cause no prejudice to the appellant and I would make the amendment as sought under s. 683(1)(g) of the Criminal Code.
(2) The Criminal Harassment Conviction
[31] The appellant challenges his conviction for criminal harassment -- which was based on the 2015 nude photo incident -- on the grounds that the trial judge improperly relied on (1) cross-count prior discreditable conduct in the absence of a Crown application, and (2) extrinsic prior discreditable conduct that he had ruled inadmissible.
(a) Use of Cross-Count Prior Discreditable Conduct
i. The Parties' Positions
[32] The appellant submits that in convicting him of criminal harassment, the trial judge erred by relying on presumptively inadmissible cross-count prior discreditable conduct, namely, the threats, intimidation and aggression the appellant exhibited prior to and during the Family Court proceedings. That evidence formed the basis of the threaten death, intimidation and obstruction counts. He points out that the Crown did not apply to use the evidence across counts, the trial judge did not conduct an admissibility inquiry regarding the use that could be made of the evidence cross-counts and he had no opportunity to respond to the use of the evidence. He says that resort to this evidence was critical to the trial judge's finding of guilt on the criminal harassment count and, as a result, the conviction must be set aside. The appellant relies on R. v. Tsigirlash, 2019 ONCA 650 in support of his position.
[33] The Crown concedes that there was no formal Crown application to use evidence across counts as prior discreditable conduct. However, it submits that in the circumstances of this case, the trial judge's use of this evidence occasioned no prejudice to the appellant. The Crown says that the evidence would have been admissible across counts had an application been brought and the trial judge's use of it discloses no error. If this court finds that the trial judge erred, the Crown submits the error was harmless and relies on the proviso.
ii. The Applicable Legal Principles
[34] In Tsigirlash, Zarnett J.A., writing for the court, thoroughly reviewed the legal principles relating to the use of evidence across counts. I summarize below the principles, as discussed in Tsigirlash, that are relevant to this case.
[35] The general rule is one of presumptive inadmissibility: evidence of the accused's discreditable conduct is inadmissible, unless that conduct is the subject matter of the charge in question. In multi-count indictments, already admissible evidence can be used only on the count to which it relates. Before that evidence can be used to prove guilt on another count, the Crown should bring an application and the trial judge conduct an admissibility inquiry. In this way, the defence has a meaningful opportunity to respond to the use of the evidence across counts and no prejudice will have occurred (Tsigirlash, at paras. 23-27).
[36] However, while it is an error for a trial judge to rely on cross-count prior discreditable conduct in the absence of a Crown application, that error is not necessarily fatal. This principle is evident in paras. 46 and 48 of Tsigirlash.
[37] In para. 46 of Tsigirlash, Zarnett J.A. discusses R. v. Graham, 2015 ONCA 113. In Graham, this court upheld a conviction where the trial judge used extrinsic evidence and count-to-count evidence of specific acts without the Crown having sought a formal ruling on the use of that evidence. At para. 32 of Graham, this court stated that while it would have been preferable for the trial judge to have conducted an admissibility inquiry, the evidence was admissible, properly used and caused no procedural unfairness. Its finding of no procedural unfairness was based on the fact that defence counsel at trial did not object to the Crown's failure to bring an application and, in closing submissions, the Crown relied on propensity reasoning. Defence was "thereby alerted and given the opportunity to respond".
[38] At para. 48 of Tsigirlash, Zarnett J.A. explains that the absence of a Crown application provides "important context" for a consideration of the trial judge's admission of the evidence and removes the basis for the appellate deference normally afforded to trial judges. Put another way, he does not say that the absence of a Crown application is fatal. Rather, he signals how an appellate court is to approach its consideration of the trial judge's admission of the evidence.
[39] See, also, R. v. T.C., 2019 ONCA 898, a recent decision written by Zarnett J.A. that addresses the issue of reliance on cross-count discreditable conduct. In T.C., this court upheld convictions in which the trial judge relied on cross-count evidence despite the absence of a formal Crown application. At para. 30 of T.C., the court affirms the importance of a Crown application to admit evidence across counts and the need for an appropriate process to determine whether the presumption should be displaced and the evidence admitted. It concludes by noting that, on appellate review, the absence of a formal application may not be fatal if the defence had a meaningful opportunity to respond.
iii. Analysis
[40] In my view, in the circumstances of this case, despite the absence of a Crown application, the trial judge did not err in relying on the cross-count prior discreditable conduct. As I explain below, that evidence was admissible across counts, the trial judge made no error in his use of it and, despite the absence of a formal application, given the way in which this trial unfolded, there was no prejudice to the appellant.
Was the Evidence Admissible Across Counts?
[41] I begin by considering whether the evidence would have been admissible across counts had the Crown brought a formal application. There is no doubt in my mind that if such an application had been brought at trial, the cross-count evidence would have been admissible across counts. It was relevant to an issue at trial (the identity of the perpetrator of the 2015 nude photo incident) and its probative value was greater than its prejudicial effect.
[42] Such evidence is frequently admitted in domestic cases to assist the court in understanding the relationship between the parties, the context in which the alleged wrongdoing took place, and to prove animus and motive. See, for example, R. v. Sandhu, 2009 ONCA 102, at para. 16; and R. v. F.(D.S.), at pp. 616-17 O.R.
[43] This case was no different. The cross-count evidence fulfilled all the purposes for which it was admissible. The appellant's aggressive and threatening behaviour before and during the Family Court hearing provided important context within which the alleged wrongdoing took place, an understanding of the relationship between the appellant and the complainant, and evidence of the appellant's animus and motive.
[44] In terms of prejudice, there is little risk of reasoning prejudice in a judge-alone trial because the trial judge is presumed to know the law and the proper and improper use of evidence. Moreover, the risk of moral prejudice is also not a significant concern in a judge-alone trial. See R. v. J.H., 2018 ONCA 245, at paras. 22-24; R. v. B. (T.), 2009 ONCA 177, at para. 26; and R. v. MacCormack, 2009 ONCA 72, at paras. 56, 69.
Did the Trial Judge Err in His Use of the Cross-Count Evidence?
[45] Next, I must assess the trial judge's use of the cross-count evidence. In my view, it was entirely proper. As you will see from my review of his reasons, below, the trial judge did not engage in any prohibited propensity reasoning. Instead, he used the evidence to draw inferences about the appellant's animus and motive, which were directly relevant to the sole live issue of identity.
[46] To make out the offence of criminal harassment, the Crown at trial had to prove that the appellant was responsible for the 2015 nude photo incident in which copies of a sexually explicit photo of the complainant were spread around the parking lot of the school yard where she worked. Defence counsel had conceded that the complainant was the person in the photo. Thus, the sole issue was the identity of the perpetrator.
[47] The trial judge found circumstantial evidence that it was the appellant who spread or arranged for the spread of the copies of the nude photo in 2015. This evidence included the fact that the appellant knew the complainant's first name (both the complainant's first and last names had been typed on the photo), the history of conflict and intimidation by the appellant of the complainant, and the "unique nature of this cruel act".
[48] However, the trial judge identified weaknesses that made the evidence of identify insufficient, without more, to support a finding of guilt. One weakness he identified was that the complainant could only say that the face in the photo looked like her. (I add parenthetically that in light of defence counsel's concession that it was her, I do not view this as a weakness in the evidence.) The other weaknesses the trial judged noted were: the complainant did not teach kindergarten, she had not seen the appellant since the Family Court hearing, she had remarried, and the appellant had a girlfriend. However, the trial judge added, tension over custody remained because the complainant was in charge and the appellant was not.
[49] The trial judge then turned to the evidence of prior discreditable conduct that he had ruled admissible, namely, the complainant's evidence on the 2012 nude photo incident. He summarized that evidence as follows. In the course of a continuing dispute over custody in 2012, the appellant threatened to destroy the complainant's life by distributing nude photos of her at work. The complainant had sent the appellant a nude photo of her while he was incarcerated. The complainant's name and phone number were written on the nude photo before copies were made and strewn about the parking lot of the school yard where the complainant worked, the same location as the distribution of the nude photos in 2015. The appellant acknowledged to the complainant that he was responsible for the 2012 nude photo incident.
[50] The trial judge then stated, "The whole of this evidence provides a credible basis to infer motive and animus on the [appellant's] part." He accepted that the appellant was the sole individual with the motive to perpetrate the 2012 nude photo incident that "was uniquely similar in nature and modus" to the 2015 criminal harassment allegations.
[51] It was at this point in the reasons that the trial judge referred to the cross-count evidence. At para. 35 of the reasons, the trial judge wrote:
Mindful of the weaknesses in the evidence regarding the 2015 school incident, I take into account the threats, intimidation and aggression exhibited by the [appellant] prior to and during the course of the Family Court proceedings, the continuing tensions over custody and access and the distinctly similar nature of the prior act that was so exceptionally unique to the personal circumstances of the parties and to the commission of the subject offence.
(Emphasis added)
[52] He concluded that the evidence was compelling in enhancing proof of identity in relation to the 2015 nude photo incident and that no one but the appellant had the motive and animus to perpetrate the spreading of the photos in the schoolyard in 2015.
[53] As this review of the reasons shows, the trial judge made little use of the cross-count evidence. His only reference to it is at para. 35 of the reasons, when he took into account the appellant's threats, intimidation and aggression in the Family Court proceeding. Immediately prior to that, however, at para. 34 of the reasons, the trial judge had concluded that the "whole of the evidence provides a credible basis to infer motive and animus on the part of the appellant". In reaching this conclusion, the trial judge had relied on the evidence of the 2012 nude photo incident evidence, admitted after a contested Crown application.
Was the Appellant Prejudiced?
[54] Despite the absence of a formal Crown application, given the way in which this trial unfolded, in my view there was no prejudice to the appellant.
[55] In this case, the Crown made no request, formal or informal, to use the cross-count evidence. Further, the Crown did not rely on the evidence in the Family Court incident in her closing submissions on the criminal harassment charge. Thus, unlike cases such as Graham, it cannot be said that the Crown's actions had alerted the defence and given it a chance to respond to the use of evidence across counts.
[56] However, in his closing submissions, after acknowledging that the trial judge had ruled admissible the evidence of the 2012 nude photo incident and would consider it, defence counsel argued that the appellant should not be found guilty of distributing the nude photos in 2015 because after all that "stuff happened back in 2012 . . . there was nothing going on as between the two of them".
[57] The defence position that nothing transpired between the two after the 2012 incident all but invited the trial judge to use the evidence across counts -- that is, to consider the evidence in the 2013 Family Court incident. Put another way, for the trial judge to fairly consider the defence position, he needed to refer to that evidence.
[58] In these circumstances, while it would have been preferable for the trial Crown to have brought the appropriate application and the trial judge run an admissibility inquiry, I see no procedural unfairness in the trial judge's very limited use of the cross-count evidence.
[59] Because of the appellant's heavy reliance on Tsigirlash, I would close by simply stating that it is a very different case than the present one. In Tsigirlash, the trial judge made numerous errors in the way he considered and used evidence across counts as similar fact evidence. The errors included deciding each count on the basis of evidence related to that count and 48 others. And, importantly, Zarnett J.A. states that the court could not be assured that the similar fact inferences drawn by the trial judge would have been available to him if a proper admissibility inquiry had been undertaken. As I have explained, the trial judge in this case made no such errors, the evidence would have been admissible had an application been brought, and the inferences he drew from the evidence were fully available to him.
(b) Use of Extrinsic Prior Discreditable Conduct
[60] The appellant argues that the trial judge erred by relying on the appellant's 2012 threat to destroy the complainant's life by distributing nude photos of her at work in order to find that he was the perpetrator of the 2015 nude photo incident. He contends that in his ruling on the Crown's application to admit prior discreditable conduct, the trial judge ruled that the threat, as opposed to the actual distribution of the photos, was inadmissible.
[61] The Crown does not accept that the trial judge relied on extrinsic prior discreditable conduct that he had ruled inadmissible. Nor do I. As I explain above, the trial judge ruled admissible all evidence pertaining to the 2012 nude photo incident, including evidence of the appellant's threat in 2012 to the complainant that he would spread nude photographs of her at her place of work.
D. The Sentence Appeal
(1) The Parties' Positions
[62] The Crown seeks leave to appeal against sentence on two grounds:
the sentence is illegal because it is a blended custodial and conditional sentence that exceeds two years and because a period of probation was imposed where the global sentence exceeded two years; and
the 18-month conditional sentences for intimidation and obstruction of justice are demonstrably unfit.
[63] The Crown asks this court to impose a global sentence of two years' imprisonment -- a 12-month custodial sentence for criminal harassment and two 12-month custodial sentences for intimidation by threats of violence and obstruction of justice, to be served concurrently to one another and consecutively to the 12-month sentence for criminal harassment. It also asks that a 12-month probation order be imposed.
[64] The appellant concedes that the sentence is illegal for both of the reasons given by the Crown and that, as a result, he must be re-sentenced. He submits that a fit and just sentence is a global custodial sentence of 12 months followed by a period of probation. He disagrees that a conditional sentence is inappropriate. Thus, if this court finds that a further period of custody is required, he asks that any period greater than 12 months be served by way of a conditional sentence.
(2) The Sentence
[65] I begin by considering the principles that guide sentences for criminal harassment. As the sentencing judge indicated, this court has made clear that behaviour of this sort must be denounced in clear terms, a heavy sentence is required, and general and specific deterrence are overriding considerations. It is necessary to signal to the offender and the public that this conduct is not to be tolerated: R. v. Bates, at paras. 30-31.
[66] At para. 30 of the reasons for sentence, the sentencing judge wrote:
What [the appellant] subjected [the complainant] to was heartless. His motivation was loathsome. The irreparable harm perpetrated on his own boys was shameful. It is also significant that it wasn't the first time.
[67] Nonetheless, the sentencing judge did not impose a penitentiary term. Giving as much weight as he could to the appellant's more recent efforts to reform and despite the gravity of the offence, he imposed a sentence of 12 months in prison for the criminal harassment conviction.
[68] The Crown urges this court to impose the same sentence for the criminal harassment conviction as was imposed by the sentencing judge. I accept that sentence is fit, for the reasons given by the sentencing judge.
[69] I turn next to the question of a fit sentence for the convictions for intimidation by threats of violence and obstruction of justice. In my view, the prerequisites for a conditional sentence set out in s. 742.1(a) of the Criminal Code are not met. The appellant is a repeat offender with over 30 prior convictions which include crimes of violence, weapons-related offences, and breaches of court orders. I am not satisfied that service in the community would not endanger the safety of the community nor is service in the community consistent with the fundamental purpose and principles of sentencing for offences such as these. A custodial sentence is necessary to reflect the primary sentencing objectives of deterrence, denunciation and the need to separate this violent offender from society.
[70] In recognition of the appellant's efforts at reform, I would not accede to the Crown's request for a penitentiary term. In my view, a fit and just sentence is a global custodial sentence of two years less a day, broken down as follows: a 12-month custodial sentence for criminal harassment, and two 12-month less a day custodial sentences for intimidation by threats of violence and obstruction of justice, to be served concurrently to one another and consecutively to the sentence for criminal harassment. Like the trial judge, I would impose a 12-month probation period following imprisonment and make a s. 109 order.
E. Disposition
[71] Accordingly, I would dismiss the conviction appeal and order that count 1 of the information be amended to read that the complainant received a threat to cause death to her family (rather than to her) and count 2 be amended to show intimidation by threats that violence would be done to the complainant's family (rather than her).
[72] I would grant leave to appeal sentence and allow the sentence appeal. I would sentence the appellant to a global custodial sentence of two years less a day, broken down as follows: a 12-month custodial sentence for criminal harassment, and two 12-month less a day custodial sentences for intimidation by threats of violence and obstruction of justice, to be served concurrently to one another and consecutively to the sentence for criminal harassment.
[73] Further, I would order 12 months of probation to follow the prison sentences on the same terms and conditions as those imposed by the trial judge with one exception: I would change the wording of the condition prohibiting the appellant from contacting or communicating with the complainant to that proposed by the Crown at the oral hearing of the appeal. As the proposed wording includes the names of close family members, for the sake of their privacy, I will not repeat the proposed wording here. The Crown may submit a draft probation order to me for signature.
[74] Finally, I would also impose the s. 109 order on the same terms as those of the trial judge.
Appeal by accused dismissed; appeal by Crown allowed.
End of Document