WARNING The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.5(1) , (2) , (2.1) , (3) , (4) , (5) , (6) , (7) , (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.

(2.1) The offences for the purposes of subsection (2) are (a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization; (b) a terrorism offence; (c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act ; or (d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

(4) An applicant for an order shall (a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and (b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

(7) In determining whether to make an order, the judge or justice shall consider (a) the right to a fair and public hearing; (b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed; (c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation; (d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process; (e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant; (f) the salutary and deleterious effects of the proposed order; (g) the impact of the proposed order on the freedom of expression of those affected by it; and (h) any other factor that the judge or justice considers relevant.

(8) An order may be subject to any conditions that the judge or justice thinks fit.

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way (a) the contents of an application; (b) any evidence taken, information given or submissions made at a hearing under subsection (6); or (c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15 ; 2015, c. 13, s. 19

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .

Court of Appeal for Ontario

Date: 2023-06-29 Docket: C70466 & C70590 Doherty, Gillese and Paciocco JJ.A.

Between

Docket: C70466 His Majesty the King Respondent and Allison Dent Appellant

And Between

Docket: C70590 His Majesty the King Appellant and Allison Dent Respondent

Counsel: Alan D. Gold and Ellen C. Williams, for Allison Dent Andrew Hotke and Lilly Gates, for His Majesty the King

Heard: May 15, 2023

On appeal from the conviction entered on December 20, 2021, by Justice Robert N. Fournier of the Ontario Court of Justice, and from the sentence imposed on April 8, 2022.

Paciocco J.A.:

Overview

[1] Allison Dent appeals her conviction of publishing defamatory libel, contrary to s. 300 of the Criminal Code, R.S.C. c. C-46. In the event that her conviction is upheld, the Crown seeks leave to appeal her sentence.

[2] Ms. Dent does not contest that the Crown proved beyond a reasonable doubt that defamatory libelous statements as defined by s. 298(1) had been published against the complainant, Troy Lalonde, by someone who knew those defamatory libelous statements to be false. She argues that the trial judge’s verdict, based on the finding that she was the perpetrator, is unreasonable. In support of that claim, Ms. Dent submits that the verdict rests on material misapprehensions of the evidence that undercut crucial findings that the conviction rests upon. She also supports her unreasonable verdict submission by maintaining that the trial judge engaged in illogical and irrational reasoning, including a legally erroneous and unreasonable “profile” analysis. She argues that the trial judge erred by treating the case as a “whodunnit” that he had to resolve and that he arrived at his verdict by a process of elimination that engaged psycho-analytic theories, rather than an inquiry into whether the Crown had proved her identity as the perpetrator beyond a reasonable doubt.

[3] Ms. Dent also takes issue with the allegedly inadmissible use by the trial judge of some of the admitted evidence, and she argues that the trial judge erred in finding an adopted admission by silence, and by unreasonably and erroneously denying an application for the production of third-party records relating to an alternative suspect (the “O’Connor application”).

[4] In my view, although the judgment is not without its blemishes, the decision is not unreasonable. As I will explain, it is solidly grounded in the evidence, and in logical and rational inferences undertaken by the trial judge.

[5] The only legal error I discern was conceded by the Crown relating to the trial judge’s adopted admission by silence ruling, but for reasons I will explain this error has not caused a substantial wrong or a miscarriage of justice. I see no appropriate basis for interfering with the trial judge’s O’Connor application ruling.

[6] I would therefore dismiss the conviction appeal.

[7] For reasons I will elaborate below, I would grant leave to appeal the sentence and allow the sentence appeal and substitute a sentence of two years less a day of incarceration. The trial judge recognized that Ms. Dent engaged in a serious and sustained attack designed to ruin Mr. Lalonde’s life, but then permitted his concern for incarcerating the mother of a child to overwhelm his analysis and adopted a conditional sentence on the strength of a persuasive precedent, without closely considering the suitability of that sentence in the case before him. These errors warrant intervention and the imposition of the sentence I describe.

Material Facts

[8] Ms. Dent and Mr. Lalonde were formerly married. They share a daughter, born in 2013, during their marriage. They both worked in the banking industry. After they met, Ms. Dent, who is highly accomplished, left a banking job in Europe to join Mr. Lalonde in Ontario, where he worked in a wealth advisory group associated with BMO Nesbitt Burns (“BMO”). Upon joining him, Ms. Dent resumed her successful career in Canada. However, by September 2014, their marriage was over. The trial judge found that when Ms. Dent presented Mr. Lalonde with a separation agreement, she said to him “that if he didn’t sign the [separation agreement], she would do everything to defame his character in the community where he worked.”

[9] In the summer of 2015, Mr. Lalonde began a relationship with another woman, Samantha Oxley, who became pregnant with Mr. Lalonde’s child. Their short‑lived relationship ended by December 2015, after which Mr. Lalonde began a relationship with an American woman, Maureen Frary. Ms. Oxley gave birth to their child, a boy, in July 2016, as a single mother.

[10] It was in August 2016 that Mr. Lalonde informed Ms. Dent of his second child with Ms. Oxley and notified her that he was seeking increased access to their daughter. Acrimonious litigation ensued.

[11] On November 23, 2016, Ms. Dent made a complaint to the BMO Ombudsman, “reporting” that Mr. Lalonde had used their joint account for the “questionable movement of US currency” and alluding to “potential unauthorized/discretionary trading” (the “First BMO complaint”). Ms. Dent sought to keep her complaint anonymous. BMO investigated and cleared Mr. Lalonde, finding no wrongdoing.

[12] On December 25, 2016, Ms. Oxley, angry that Mr. Lalonde had chosen to spend Christmas with Ms. Frary rather than with her and her son, connected through text message with Ms. Dent. Between December 25, 2016, and October 7, 2019, Ms. Dent and Ms. Oxley would go on to exchange hundreds of pages of communication that were admitted into evidence.

[13] Prior to communicating with Ms. Dent, Ms. Oxley had also established contact over social media with Ryan Flaro, a neighbour of Mr. Lalonde who also had grievances against him. Specifically, Mr. Flaro claimed that he had witnessed Mr. Lalonde touch his junior-school aged daughter inappropriately and that Mr. Lalonde was a liar and troublemaker. Numerous messages exchanged between Ms. Oxley and Mr. Flaro were admitted into evidence. It is relevant to this appeal to mention that the trial judge concluded from Mr. Flaro’s messages to Ms. Oxley that he had pursued Ms. Oxley for two years, ultimately entering into an intimate relationship with her.

[14] The trial judge described Ms. Dent, Ms. Oxley, and Mr. Flaro as having formed “‘a triumvirate’ of disdain and hatred for [Mr.] Lalonde”. However, it is important to note that they did not tend to communicate as a group of three, and that Ms. Dent did not communicate frequently with Mr. Flaro, having shared her reservations with Ms. Oxley about Mr. Flaro’s discretion. The overwhelming bulk of messages admitted into evidence were between Ms. Dent and Ms. Oxley, or between Ms. Oxley and Mr. Flaro.

[15] In March 2017, Ms. Oxley advised Ms. Dent that she heard that Mr. Lalonde believed he would succeed in obtaining a psychologist’s report showing that Ms. Dent was alienating their child from him. From that point on, in many of the electronic exchanges between Ms. Oxley and Ms. Dent the theme increasingly related to claims that Mr. Lalonde is a pedophile. A number of the messages discussed funneling information to Raymond David, a court appointed psychologist who was preparing a report in Ms. Dent’s access dispute with Mr. Lalonde (the “Raymond David report”). In the ensuing months a number of attempts were made to provide damaging information about Mr. Lalonde to Mr. David.

[16] In April 2017, Ms. Dent made a police complaint in Quebec where she lived that Mr. Lalonde had been sexually assaulting their child. The complaint was investigated by Det. Nathalie Groleau, who determined by April 26, 2017, that it was unfounded. Continued efforts were made to reignite the investigation, including Ms. Oxley reaching out to Det. Groleau on May 4, 2017, to provide information about Mr. Lalonde, and Ms. Dent and her mother providing further information. Ms. Dent also encouraged Ms. Oxley to give Mr. Flaro Det. Groleau’s contact information, and he subsequently communicated with Det. Groleau on more than one occasion. Even after the Crown Attorney determined in December 2017 that no charges would be laid, steps were taken by Ms. Dent and Mr. Flaro to reignite the investigation.

[17] By July 2017, it had become known that Ms. Frary was pregnant with Mr. Lalonde’s child. Ms. Oxley berated Mr. Lalonde over this in a series of text messages on July 16, 2017. She accused him of being a pedophile. That same day, Mr. Flaro texted Mr. Lalonde threatening him with “hard lessons” for starting rumours. The nature of the rumours allegedly started by Mr. Lalonde was never specified, but by that point Mr. Lalonde had heard from others in the community that Mr. Flaro had been telling people that Mr. Lalonde was a pedophile. Later that evening when Mr. Lalonde arrived at home, Mr. Flaro was waiting for him in his driveway and there was a physical encounter between the two men in which Mr. Lalonde claims to have been assaulted. On September 29, 2017, Mr. Lalonde commenced a civil suit against Mr. Flaro and his wife, Gabrielle Bergeron, including allegations of assault and slander arising out of these incidents (the “Lalonde/Flaro lawsuit”).

[18] Ms. Frary’s son was born in November 2017. Around this time, Ms. Oxley began to harass Ms. Frary and her family, including by leaving what the trial judge referred to as “nasty voicemails” with the principal of the Massena, New York school where Ms. Frary was a teacher. Ms. Oxley also withheld access from Mr. Lalonde to their child and made an allegation to the Children’s Aid Society (“CAS”) of a sexual nature against Mr. Lalonde relating to their child, which ultimately was determined to be unfounded. All of the drama led Ms. Frary, who had been living with Mr. Lalonde in Ontario, to move back to the United States in the spring of 2018.

[19] A period of relative calm appears to have followed. Then, on September 7, 2018, Ms. Dent contacted BMO by telephone advising them that Mr. Lalonde was being “investigated for sexual assault.” She also said in her complaint that she believed that Mr. Lalonde was money-laundering, claiming that Mr. Lalonde had bragged about it (the “Second BMO complaint”). The suspect funds Ms. Dent identified in her complaint had in fact been paid legitimately in 2016 from David Atchison, a friend of Mr. Lalonde living in Kuwait, in connection with a “Wakefield ski chalet” project that they were undertaking together.

[20] Evidence was presented at trial suggesting that Ms. Dent was familiar both with the Wakefield ski chalet project and with Mr. Atchison’s involvement. At its inception, at a time when Mr. Lalonde and Ms. Dent were together, the project was undertaken jointly between Mr. Lalonde and Mr. Atchison’s father. In its early stages Ms. Dent helped to organize the construction, participating in the selection of windows and doors and paying bills, and she had been on site at least once when Mr. Atchison was there. She knew Mr. Atchison well, having travelled with him on more than one occasion, and she was aware that Mr. Atchison was living in Kuwait. The first transfers from Kuwait, totalling $400,000, occurred during this period, between 2010 and 2014.

[21] The $80,000 that Ms. Dent identified in her Second BMO complaint as money laundered funds was wired by Mr. Atchison in 2016, after Ms. Dent and Mr. Lalonde were no longer together. However, their joint account remained open, and that is where Mr. Atchison sent the money as this was the account number he had. Of course, as a joint account holder Ms. Dent would have been legally authorized to remove those funds, had she known they were in the account. Mr. Lalonde quickly removed them after they were deposited there.

[22] On June 21, 2017, Ms. Dent’s family law counsel, Ms. Anne‑France Goldwater, wrote to Mr. Lalonde’s family law counsel demanding an explanation for the funds. It is not clear what became of the inquiry but there is evidence that certainly by 2018 Ms. Dent was well aware of the source and purpose of the funds. She mentioned the Wakefield ski chalet project in 2018 in electronic messages she exchanged with Ms. Oxley prior to making the Second BMO complaint, including on September 3, 2018, only a few short days before that complaint was made. In several of the messages exchanged during this period Ms. Dent also described how much money Mr. Lalonde had received from “Dave”.

[23] The trial judge found a link between the Second BMO complaint and earlier electronic communications Ms. Dent had had with Ms. Oxley. Specifically, in June of 2018, Ms. Oxley had proposed digging up information on money-laundering by Mr. Lalonde, an allegation Ms. Dent had herself made earlier in a June 6, 2017, text message exchange between the two. Ms. Dent responded to Ms. Oxley’s proposal, “I’m well versed as ex bank employee and would rather let pro run with that.”

[24] On March 25, 2019, an examination for discovery of Mr. Lalonde was conducted in the Lalonde/Flaro lawsuit. The day before, Ms. Dent clearly anticipated that Mr. Flaro would provide her with the transcript, telling Ms. Oxley in a text message, “I still need [Mr. Flaro] to either pass it to my lawyers or say it to them.” In other messages she also expressed interest in the transcript.

[25] On April 4, 2019, Ms. Dent became aware of the anticipated release date for an interim version of the Raymond David report, May 17, 2019. The Crown theory was that Ms. Dent feared that this report would not be favourable, and having lost faith in the legal system, resolved to ruin Mr. Lalonde, which she sought to achieve by launching a devastating campaign of defamation. The Crown theory was supported by an electronic message she sent to Ms. Oxley in August 2018, saying, “lawyers were useless” and that they should “write a new playbook”.

[26] On April 23, 2019, Ms. Dent made a complaint to the Ministry of Consumer Services against Mr. Lalonde for falsely listing her as a director of a corporation (the “Ministry letter”). She had known since receiving a 2012 Notice of Change of Directors that she had been listed as a director, yet this complaint was made in the throes of her access dispute.

[27] Whoever was responsible for the campaign of defamation that began on May 16, 2019, it involved the publication and circulation of seven libelous documents in more than 580 targeted mailings. These seven libelous documents included what the trial judge identified as: (1) the “altered civil discovery transcripts”; (2) the “sex offender pamphlet”; (3) the “terrorism document”; (4) “Project Odyssey” (the most devastating and comprehensive document); (5) the “BMO enabler document”; (6) the “National Post arrest document”; and (7) the “Children at Risk document”. Themes in the documents, which were printed on high quality paper, some of which were bound in folios, included claims that Mr. Lalonde was a pedophile who was on the Ontario Sex Offender Registry and who engaged in sex tourism with children; a money-launderer; a terrorist who posed a threat to President Trump; an associate of a wife-beater and a smuggler; and a fraudster. Highly personal details purporting to describe his health and sexual habits were also included. Several of the documents included scandalous allegations about people who were close to him. Mr. Lalonde has no criminal record, and is not on the Ontario Sex Offender Registry. Other details in the documents are clearly manufactured, and demonstrably false.

[28] The distribution of the documents occurred between May 16, 2019, the day before the release of the interim Raymond David report, and August 2019. The dissemination of the documents was targeted, sometimes according to theme, to individuals in Mr. Lalonde’s life, including his family members, his business associates, his lawyers, as well as to the press, police agencies and government offices, including the American consulate and the American secret service. Given the recipients, the campaign was clearly designed to destroy Mr. Lalonde’s reputation, employment, career, and personal relationships, as well as his ability to travel to the United States where Ms. Frary and their son reside. It was also obvious to the trial judge, in a finding not contested on appeal, that given the time frame and similarities in the documents the same person or persons were responsible for the creation and publication of all seven of the documents.

[29] I need not delve comprehensively into the details of the documents. One of those documents, the “altered civil discovery transcripts”, played a particularly prominent role in the trial judge’s finding that Ms. Dent was the architect of the campaign. I will therefore describe this document and relevant background evidence in some detail.

[30] The altered civil discovery transcripts consisted of an edited and embellished copy of original examinations for discovery in the Lalonde/Flaro lawsuit. Included among the changes were an extensive number of insertions into the discovery testimony of Mr. Flaro and Ms. Bergeron that added scurrilous manufactured details about Mr. Lalonde’s sexual abuse of children, including non‑existent police investigations and admissions by Mr. Lalonde, as well as claims of abuse of animals and drugs, and acts of dishonesty, including thefts. A completely manufactured eight-page transcript of a purported examination for discovery of Mr. Lalonde, containing outlandish and manifestly false content, was appended.

[31] It is obvious that in order to have manufactured this altered civil discovery transcript, its author or authors would have required access to a copy of the authentic discovery transcripts. The timing and availability of the authentic transcript was important to the trial judge’s decision because he found that whoever prepared the altered civil discovery transcript, which began to circulate to its target audience on May 16, 2019, required time to make the significant changes reflected in the altered civil discovery transcript.

[32] Extensive evidence was led about the timing and availability of the authentic transcripts. They were completed and then emailed by the stenographer to counsel for the parties on May 7, 2019. On May 8, 2019, Mr. Flaro’s lawyer’s legal assistant sent electronic copies of the transcript to Mr. Flaro and Ms. Bergeron, but no one else.

[33] Ms. Dent’s family lawyer, Ms. Goldwater, testified that her secretary recorded having received, on May 9, 2019, a brown envelope that contained what purported to be transcripts from the examination for discovery. Ms. Goldwater received the envelope and its contents from her secretary but testified she did not read the transcript the envelope contained until May 13, 2019. The trial judge, in a finding that Ms. Dent hotly contests on appeal, concluded that this brown envelope was received by Ms. Goldwater’s office on May 9, 2019, and contained an authentic copy of the transcript.

[34] Evidence was presented at the trial that the computer used by Mr. Flaro’s lawyer’s legal assistant was compromised on May 10, 2019. It was confirmed on May 13, 2019, that the computer had been hacked. The computer, of course, contained an electronic copy of the authentic transcripts. During her trial, Ms. Dent relied on this evidence as contributing to a reasonable doubt as to her involvement in the preparation of the altered civil discovery transcripts, as the hacked computer provided a potential gateway for an indeterminate and unidentifiable number of people to secure a copy of the authentic transcripts to enable preparation of the altered civil discovery transcripts.

[35] The circulation of the seven libelous documents resulted in a police investigation, and the arrest of Ms. Dent in October 2019. Ms. Oxley was arrested two months later for harassing Ms. Frary. After her arrest, Ms. Oxley began to co‑operate with the police, providing them voluntarily with the electronic messages that formed the heart of the Crown’s case.

[36] Mr. Flaro was separately charged and prosecuted unsuccessfully for alleged involvement in criminal libel against Mr. Lalonde. That prosecution was pending at the time of Ms. Dent’s trial and the release of the decision now under appeal.

The Trial Judge’s Decision

[37] As indicated, the only live issue at Ms. Dent’s trial was identity. The defence position was that the Crown had failed to prove beyond a reasonable doubt that Ms. Dent participated in this campaign, because the campaign could have been undertaken by persons unknown, or by Ms. Oxley and/or Mr. Flaro, who along with Ms. Dent had a known motive to harm Mr. Lalonde.

[38] After correctly setting out the applicable legal tests, the trial judge found that Ms. Dent was the architect of the campaign.

(1) Ruling out unknown suspects

[39] The trial judge found that this campaign was not carried out by “random” people, the term he used for persons unknown. The publications occurred during the period in time when Ms. Dent, Ms. Oxley and Mr. Flaro had been actively engaged in communicating harmful information about Mr. Lalonde, and the seven libelous documents reflected themes that featured in their electronic communications with each other. As the trial judge put it, “an outsider could not have created the altered civil discovery-hearing transcript, while touching on the very subject matter that the three original suspects had been discussing extensively.” Moreover, there were biographical or personal details in the seven libelous documents that the trial judge found could only have come from Ms. Dent or Ms. Oxley, and other information that he found could only have come through Ms. Dent, some of which I canvass below.

(2) Findings relating to Ms. Oxley’s role

[40] The trial judge found that Ms. Oxley was not complicit in the publication of the seven libelous documents. In the course of doing so he said, “I find that Ms. Oxley does not fit the ‘profile’ of the person who created this defamatory campaign,”; a conclusion he repeated two further times, and which is the subject of one of the grounds of appeal.

[41] More specifically, the trial judge found that Ms. Oxley’s primary intention was not to destroy Mr. Lalonde’s reputation, which he found to be the purpose of the campaign. He found that her interest was in matrimonial litigation and reaching an “armistice” with Mr. Lalonde, yet the defamation campaign “expanded well beyond the scope of matrimonial proceedings”. The trial judge noted that one of the clear purposes of the campaign was Mr. Lalonde’s financial destruction, yet Ms. Oxley was not interested in his financial destruction because she was seeking financial relief against him. The trial judge found that Ms. Oxley was also interested in getting media exposure to advocate for abused women and children, which he said, “is not the subject matter of defamation.”

[42] Moreover, after finding that Ms. Dent had access to the authentic discovery transcripts on or before May 9, 2019, the trial judge noted that text messages between the women show that Ms. Dent did not tell Ms. Oxley she had the transcript, when Ms. Oxley asked. Although the trial judge did not make this point explicitly, a finding that she did not tell Ms. Oxley promptly that she had the civil discovery transcripts is inconsistent with Ms. Oxley’s involvement in the campaign.

[43] The trial judge also concluded, based on the extensive electronic communications between Ms. Dent and Ms. Oxley, that Ms. Dent was the one who controlled the narrative and that she was the leader in their dealings, using Ms. Oxley as a source of information. He found that Ms. Oxley was not the architect of the defamatory campaign, characterizing her as an “inadvertent collaborator”, who unwittingly provided Ms. Dent with information she was seeking.

(3) Findings relating to Mr. Flaro’s role

[44] The trial judge also said that Mr. Flaro “does not fit the profile of the author of this defamatory campaign.” He found that Mr. Flaro’s primary interest during these events was his sexual obsession with Ms. Oxley. He also concluded that Mr. Flaro would not be the architect of a defamatory campaign, rather “[h]is approach was to attack those he hated bluntly and openly.” The trial judge gave examples from the narrative evidence, such as Mr. Flaro’s physical confrontation with Mr. Lalonde, and his recorded, public meeting with a Ms. Shawna Rousseau, where he pledged to share the authentic civil discovery transcript with a “bunch of people”.

[45] The trial judge also noted that Mr. Flaro acted on Ms. Oxley’s request in communicating information to Raymond David, the court appointed psychologist, and he found that Mr. Flaro was not privy to information included in the campaign, including “the intricate BMO transactions for one”.

[46] The trial judge said of Mr. Flaro, “Perhaps he was an accessory but irrespective of the level of his involvement, there is no inference I can draw in respect of Ryan Flaro, which could possibly exonerate Ms. Dent.”

(4) The affirmative basis for convicting Ms. Dent

[47] The trial judge cautioned himself that because he found “Allison Dent is the only viable suspect standing, it does not follow that she is necessarily guilty.” He also cautioned himself that it is not his role to “solve the puzzle […] and ascertain who committed the offence” or to choose from among the known suspects. Rather, he described his role as determining whether the Crown had proved Allison Dent’s guilt, beyond a reasonable doubt.

[48] In a passage that Ms. Dent featured in appeal arguments before us, he said: “In my view, Allison Dent is better aligned with the type of person capable of creating this massive defamatory campaign.” In concluding that Ms. Dent was the architect of the defamation campaign beyond a reasonable doubt, the trial judge made the following specific findings:

• Ms. Dent threatened to ruin Mr. Lalonde’s reputation if he did not sign the separation agreement (containing the access terms she selected). In electronic messages with Ms. Oxley, she expressed the desire to ruin his reputation so that he “runs to Dubai”. By the end, Ms. Dent’s priority was destruction of Mr. Lalonde’s reputation, not the advancement of her matrimonial litigation, and “she appeared obsessed, with ruining [Mr.] Lalonde’s reputation.”
• Ms. Dent demonstrated the kind of extraordinary animus against Mr. Lalonde that would be required to destroy him, including through her BMO complaints, an animus the trial judge found to be more serious than that exhibited by Ms. Oxley or Mr. Flaro.
• Ms. Dent had the time, energy, and money needed to engage in this “gargantuan undertaking”.
• The campaign was undertaken by a “highly intelligent and sophisticated perpetrator” and “had the malicious ingenuity and imprint of Allison Dent stamped all over it”.
• The timing of the campaign coincided with the anticipated release of the interim Raymond David report, an important event in Ms. Dent’s family litigation, and it occurred close in time to the Second BMO complaint, which was itself false and malicious, as well as the Ministry letter.
• Ms. Dent had been taking active steps to find information about Mr. Lalonde, including “key words” to get his attention.
• Ms. Dent took steps to hide her possession of the authentic transcript, both from her own lawyer and temporarily from Ms. Oxley, supporting an inference that she wanted to hide her involvement in creating the altered civil discovery transcripts.
• Copies of the altered civil discovery transcripts and the “sex offender pamphlet” were provided by Ms. Dent to her lawyer and then submitted to the police, as having been “mailed” to Ms. Dent’s business address, an address which an investigator could not discover online.
• Information Ms. Dent had shared with Ms. Oxley, whom he had ruled out as a suspect, was found in the Project Odyssey document. The trial judge referenced two specific examples:
  • Information about Mr. Lalonde shooting at seagulls
  • Information about Mr. Lalonde’s “mentor”, Ed Lumley
• Other illustrations on the trial record but not specifically mentioned by the trial judge included:
  • The claim that Mr. Lalonde trolls online for women
  • Specified illegal conduct alleged to be engaged in by Mr. Lalonde’s former business partner, Bryan Scobie
  • Sexual abuse alleged to have been committed by an identified uncle of Mr. Lalonde
  • Animosity of another identified uncle towards Mr. Lalonde
• The trial judge relied upon the presence of information in the seven libelous documents that Ms. Dent had recently sought out from Ms. Oxley. He did not identify specific illustrations, but examples on the record before him included:
  • Graphic details about what Mr. Lalonde used to say during sex (which the trial judge narrated in his decision)
  • Information about Mr. Lalonde’s former wife secured from websites supplied by Ms. Oxley at Ms. Dent’s request
  • Background information about “Project Truth”, a large‑scale pedophilia investigation years before in Cornwall, Ontario
• Given that there was “a single architect responsible for this entire defamatory campaign”, the trial judge placed great significance on the use of information in the seven libelous documents that he found “was exclusively within [Ms. Dent’s] knowledge”, which he referred to as “markers”. Those markers included:
  • As holder of the joint account, Ms. Dent alone had intimate knowledge of the bank transfers, identified in the “terrorism document” as money‑laundering in support of terrorism.
  • Although the trial judge did not feature this in his decision explicitly, the “terrorism document” included the precise opening balance of the joint account number and the “Plan Lead account number” that is only available to customers through on-line banking.

The Conviction Appeal

The Issues

[49] A number of the alleged reasoning errors Ms. Dent relies upon are presented by her under the rubric, “unreasonable verdict”, a ground of appeal advanced under s. 686(1)(a)(i) of the Criminal Code. Ms. Dent does not make a general claim that no reasonable jury, properly instructed and acting judicially, could have reached the verdict the trial judge did on the whole of the evidence before him, as contemplated in R. v. Yebes, [1987] 2 S.C.R. 168, at p. 185, or R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36. This is not surprising. Given the bases for her conviction that I have just described, the case against her was powerful.

[50] Ms. Dent argues, instead, that the verdict is unreasonable because it is based on findings of fact and inferences that are reached illogically or irrationally, or in a manner that is demonstrably incompatible with the evidence: R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at paras. 97, 98, per Fish J. (dissenting, but not on this point); R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 44, 45.

[51] Ms. Dent also relies on alleged misapprehensions of the evidence in advancing her unreasonable verdict submission, citing the decision in R. v. Blea, 2012 ABCA 41, 297 C.C.C. (3d) 444, at para. 39, in which the court described the test in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732 for reversible misapprehensions of evidence as a branch of unreasonable verdict appeal. In R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), Doherty J.A. explained that “a misapprehension of evidence does not render a verdict unreasonable”, and I understand Lebel J. to be saying the same in 2011 in Sinclair, at para. 45. Of course, where the unreasonable verdict claim is that no properly instructed reasonable trier of fact could have come to the verdict in question, a demonstrated misapprehension of evidence “can … figure prominently in an argument that the resulting verdict was unreasonable”: Sinclair, at para. 13, per Fish J. (dissenting, but not on this point), citing Morrissey, at p. 220. But as the Alberta Court of Appeal recognized in Blea itself, at para. 39, when the unreasonable verdict appeal is based on a misapprehension of evidence as the illogical or irrational reasoning, the stringent test for material misapprehensions of evidence in Lohrer, associated with subsection 686(1)(a)(iii), is to be used: see also Sinclair, at para. 45. Specifically, the misapprehension must be of substance rather than detail; material rather than peripheral; and it must not merely be part of the narrative but an essential part of the reasoning resulting in conviction: Lohrer, at para. 2; Morrissey, at p. 541.

[52] Given that Ms. Dent’s unreasonable verdict appeal is based on discrete, identified reasoning errors, it is convenient to analyse those identified reasoning errors individually, along with the remaining grounds of appeal Ms. Dent identifies. As I will explain, either alone or taken together those alleged reasoning errors would not render the verdict against Ms. Dent unreasonable. The identified reasoning errors and the remaining grounds of appeal can conveniently be framed and analyzed as follows:

A. Did the trial judge err in law or misapprehend the evidence in finding that Ms. Goldwater received an authentic copy of the discovery transcript on May 9, 2019? B. Did the trial judge err in law in using Ms. Dent’s silence as evidence she had the authentic transcript? C. Did the trial judge misapprehend the evidence in finding that Ms. Dent knew that the bank transfer funds were for the Wakefield ski chalet project, and not the proceeds of money-laundering? D. Did the trial judge engage in unreasonable or legally erroneous “profile reasoning”? E. Did the trial judge engage in unreasonable reasoning relating to Mr. Flaro? F. Did the trial judge err by engaging in impermissible propensity reasoning? G. Did the trial judge misuse electronic messages from Ms. Oxley and Mr. Flaro for impermissible hearsay purposes? H. Did the trial judge err in denying Ms. Dent’s O’Connor application?

Analysis

A. Did the trial judge err in law or misapprehend the evidence in finding that Ms. Goldwater received an authentic copy of the discovery transcript on May 9, 2019?

[53] The trial judge’s finding that Ms. Dent possessed the transcript on May 9, 2019, was significant to his decision as proof that Ms. Dent had the means and opportunity to create the altered civil discovery transcript.

[54] The trial judge based this finding on Ms. Goldwater’s testimony as well as circumstantial support from other evidence. Specifically, the trial judge inferred from Ms. Dent’s electronic messages with Ms. Oxley that Ms. Dent had demonstrated a “keen interest” or “vested interest” in “gaining immediate access to the ‘authentic transcript’” even prior to the examination for discovery itself and expected to receive a copy. He also inferred that she could easily obtain immediate access once the transcript was delivered to Mr. Flaro, because Mr. Flaro had showed his readiness to share it. Considering the anonymous delivery of the transcript to Ms. Goldwater, the trial judge inferred, as well, that unlike the parties to the civil litigation who had copies of the transcript by May 9, 2019, it was Ms. Dent who was interested in getting a copy to Ms. Goldwater, an interest she acknowledged in email communications with Ms. Oxley. She also had the requisite knowledge of to whom and where to send the authentic transcript in order to accomplish the delivery that occurred. Hence the inference that it was Ms. Dent who delivered the document.

[55] This finding, that Ms. Dent delivered the authentic transcript to Ms. Goldwater well in advance of the May 16, 2019, release of the altered civil discovery transcript supported not only the inference that Ms. Dent had time and means to prepare the altered civil discovery transcripts. Given that she had taken the otherwise inexplicable step to make the delivery anonymously, this finding also supported a further inference that Ms. Dent was attempting to keep her early possession of the transcripts from her lawyer so that she could hide her involvement in the creation of the pending altered civil discovery transcripts.

[56] Ms. Dent challenges these lines of reasoning, arguing that the trial judge erred by relying on hearsay evidence as to the May 9, 2019, delivery date, as she submits that Ms. Goldwater derived that date from a note prepared by her secretary, who was not called as a witness. I would not accept this submission. It is not at all clear that Ms. Goldwater’s testimony about the May 9, 2019, delivery date was derived solely from her secretary’s note. She did not say so and was not asked this. To the contrary, she subsequently provided direct testimony that the document was delivered on May 9, 2019. This testimony prompted no hearsay objection, nor was she cross-examined on this point. Clearly, the date of the delivery of the envelope and its contents to Ms. Goldwater’s office was not a matter of controversy at trial.

[57] I would add that even if the date provided by Ms. Goldwater was based on hearsay, improper reliance upon it would have been a harmless error. The accompanying circumstantial case that the document was received on or about May 9, 2019, was overwhelming. Specifically, it is clear from a reading of the whole of Ms. Goldwater’s testimony that she did not read the transcript the same day she received it: “the first moment I had to look at the transcripts was the 13th.” May 13, 2019, was a Monday. Her testimony makes clear that the transcript document was delivered when the office was open, so not on the weekend of May 11 or 12, 2019. The latest the transcript document could have been delivered to her open law office would therefore have been on Friday, May 10, 2019. In my view, the difference between a May 9, 2019, and May 10, 2019, delivery date is immaterial to the outcome, even bearing in mind that there was evidence that the computers at Mr. Flaro’s lawyer’s office were hacked on May 10, 2019. The prospect that a “random” hacker would have seized this document from Mr. Flaro’s lawyer’s law office server, have known to send it to Ms. Goldwater and would have been motivated to do so with such urgency is not the stuff of a reasonable doubt, given the circumstantial support for Ms. Dent’s involvement.

[58] Ms. Dent also argues that in the absence of an evidentiary foundation, the trial judge simply asserted that the transcript document that was delivered was the “authentic” transcript and not the altered civil discovery transcript. She also argues that the trial judge misapprehended the evidence in coming to this conclusion, contrary to Ms. Goldwater’s direct testimony that she thought the document in the brown envelope was an altered civil discovery transcript.

[59] I would not accept these submissions. The trial judge was not required to take this statement by Ms. Goldwater at face value. The evidence before the trial judge was that Ms. Goldwater had received two envelopes containing civil discovery transcripts – the first on May 9, 2019, that I have been referring to, and the second from the Ontario Provincial Police on June 21, 2019, confirmed to be the altered civil discovery transcript. Ms. Goldwater’s testimony was confusing, without clear indications of which transcript or which brown envelope she was speaking of at different points in time. When read as a whole her testimony supports an interpretation that she received both an authentic and altered version of the civil discovery transcript. Indeed, she gave direct evidence to having read both versions. Moreover, as the trial judge pointed out in his decision, the alterations that were made in creating the altered civil discovery transcript would have taken significant effort and time, and the authentic transcript was not even distributed to the parties until May 8, 2019. It was therefore open to the trial judge to find, as he did, that the transcript that was delivered on May 9, 2019, had to have been the original for there was insufficient time to have created the altered civil discovery transcript.

[60] I therefore see no basis for interfering with the trial judge’s findings that Ms. Goldwater received both the authentic transcript and the altered civil discovery transcript, and that it was the authentic transcript that was received anonymously from Ms. Dent on May 9, 2019.

B. Did the trial judge err in law in using Ms. Dent’s silence as evidence she had the authentic transcript?

[61] On May 15, 2019, Ms. Oxley sent a message to Ms. Dent asking if she had received the transcript of the civil discovery. Ms. Dent failed to respond for one‑and-a-half days. The trial judge supported his finding that Ms. Dent had a copy of the authentic transcript based on Ms. Dent’s “radio silence” in response to Ms. Oxley’s inquiry: “I find that her silence speaks volumes to the fact that she was in possession of the transcript.” In effect, the trial judge treated Ms. Dent’s silence as an “adopted admission” by her that she possessed the authentic transcript.

[62] The Crown concedes that the trial judge erred in inferring an adopted admission of possession on this record. There were other equally plausible inferences to the contrary available on the evidence, as well as evidence that Ms. Dent responded to Ms. Oxley’s inquiries by telephone, possibly within a short period after these written queries took place.

[63] I agree, particularly for the former reason, that the trial judge erred in finding that Ms. Dent made an adopted admission of possession. Moreover, it is difficult to see a non-circular reasoning process that could support treating Ms. Dent’s silence as an admission of possession.

[64] However, I agree with the Crown that no substantial wrong or miscarriage of justice has occurred, and I would dismiss Ms. Dent’s conviction appeal pursuant to s. 686(1)(b)(iii) of the Criminal Code, the curative proviso, notwithstanding this error. As I have explained, the trial judge had already determined based on other circumstantial evidence that Ms. Dent had a copy of the authentic transcript which she delivered to Ms. Goldwater on May 9, 2019, six days before he found that the “adopted admission” occurred. He also found that her May 14, 2019, text message to Ms. Oxley that she was going to see “Heather” about a dog, was an allusion to an incident described in the authentic transcript. The coincidence in time between this comment about this previously unmentioned incident, and the release to the parties to the litigation of the authentic transcript only a few days before disclosing this incident also supports the inference that Ms. Dent had knowledge of the contents of the authentic transcript prior to the “adopted admission” occurring. In my view, the trial judge’s adopted admission error had no effect on the inference he ultimately drew, in a case in which the evidence of Ms. Dent’s complicity in the defamation campaign was overwhelming. There can be no doubt about Ms. Dent’s complicity in the defamation campaign given: (1) the inclusion in the seven libelous documents of highly specific information that she had recently discussed in electronic communications; (2) the inclusion in those seven libelous documents of information that could only have been sourced from Ms. Dent; (3) her intense motivation to harm Mr. Lalonde; (4) her threat to do so by ruining his reputation and her demonstrated active efforts to accomplish this leading up to the creation of the seven libelous documents, coupled with the fact that the campaign was clearly designed to ruin his reputation; and, (5) the strong evidence of Ms. Dent’s possession of the authentic transcripts enabling the creation by her of the seven libelous documents. Regardless of the roles played by Ms. Oxley and Mr. Flaro, if any, it is manifest that Ms. Dent participated in the libelous campaign that formed the basis for the charged offence.

C. Did the trial judge misapprehend the evidence In finding that Ms. Dent knew that the bank transfer funds were for the chalet, and not the proceeds of money‑laundering?

[65] Ms. Dent argues that the trial judge’s finding that Ms. Dent knew that the funds she identified as money-laundering were in fact for the Wakefield ski chalet project was unsupported by the evidence, and contrary to Mr. Lalonde’s testimony.

[66] I will begin with the latter point. I do not accept Ms. Dent’s characterization that this finding was inconsistent with Mr. Lalonde’s evidence. Mr. Lalonde did not say Ms. Dent had no knowledge of the purpose of the transaction. He said he did not tell Ms. Dent when the money came in or out, after Mr. Atchison wired the money to their joint account in 2016. He did not say that Ms. Dent had no way of knowing that the money was for the Wakefield ski chalet project.

[67] Nor was the trial judge’s finding unsupported by the evidence. I have described a compelling evidentiary foundation in paras. 20-22 above for the trial judge’s finding that Ms. Dent knew that the funds she claimed were money‑laundering funds had in fact come from Mr. Atchison for the Wakefield ski chalet project.

[68] I would reject this ground of appeal.

D. Did the trial judge engage in unreasonable Or legally erroneous “profile reasoning”?

[69] As described, when determining whether the evidence was consistent with Ms. Oxley, Mr. Flaro and/or Ms. Dent being the architect of the defamation campaign, the trial judge repeatedly referred to whether they fit the “profile” of the perpetrator. Ms. Dent argues that, in doing so, the trial judge erred by assessing her and the other known suspects against “some undefined and unexpressed profile”, instead of applying the burden of proof. I would dismiss this ground of appeal. By using the term “profile” the trial judge was not alluding to the general traits or disposition he expected the perpetrator to exhibit, rather he was describing his analysis of case-specific circumstantial links between the suspects and the offence.

[70] To be sure, it is unfortunate that the trial judge spoke of the “profile” of the perpetrator and of the suspects. This term conjures up the investigative practice of “criminal profiling” which, although not formally and universally defined, involves “an analysis of a crime scene and other details about a crime, in conjunction with the analyst’s understanding of cases of a similar nature for the purpose of inferring the motivation for the offence and producing a description of the type of person likely to be responsible for its commission”: R. v. Ranger (2003), 67 O.R. (3d) 1 (C.A.), at paras. 68-70. Criminal profiling in the Ranger sense often engages an examination of the psychological fit between the perpetrator and potential suspects. It is of dubious admissibility in a criminal trial, and even if admissible, it would be the stuff of expert evidence: R. v. Klymchuk (2005), 203 C.C.C. (3d) 341 (Ont. C.A.), at para. 36, leave to appeal refused, [2012] S.C.C.A. No. 34381.

[71] Had the trial judge’s reasoning turned materially on his engagement in profile analysis of this kind, he would have erred. But the trial judge’s reasoning did not do so, despite the fact that he made periodic unhelpful comments about the personality traits of the primary suspects, a point I will return to below.

[72] First, the trial judge did not create a profile of the offender based on an “understanding of cases of a similar nature”. He did not consider other cases but focused on the case-specific features of the crime itself.

[73] Second, the trial judge did not engage in an attempt to identify “the type of person” who would commit the offence, which is the essence of criminal profiling in the Ranger sense. The factors he focused on were not general traits of character, disposition, or broader lifestyle features that a potential suspect could be expected to exhibit. It is clear from reading the trial judge’s decision as a whole that he used the term “profile” to describe the case-specific features of the crime itself that would be useful in grounding circumstantial inferences that could be applied to the three known suspects to assist in testing whether the Crown had proved Ms. Dent’s guilt, beyond a reasonable doubt.

[74] Nor am I persuaded that the trial judge left undefined the criteria he was considering. He focused specifically on four material case-specific features that would assist:

1. Since the manifest purpose of this sustained campaign was to destroy Mr. Lalonde’s reputation, evidence that someone did or did not exhibit a desire to utterly destroy Mr. Lalonde’s reputation was probative.
2. Given the nature and intensity of the campaign, its architect must have had extraordinary animus against Mr. Lalonde, therefore evidence that someone did or did not exhibit that degree of animus was probative.
3. Given the information contained and the oft-repeated themes included in the seven libelous documents, evidence that someone did or did not have access to that information and/or a demonstrated interest in those themes was probative.
4. Given the resources and time the perpetrator or perpetrators expended, they would have to be well-resourced, highly intelligent and sophisticated enough to manipulate the banking information, so evidence that someone did or did not have these capacities was probative.

[75] In my view, this formula for reasoning is not criminal profiling in the Ranger sense. Rather, it is engagement with circumstantial evidence and inferences relevant to the case. The relevance of animus and motive, the first two inquiries I have identified, is obvious. Apropos the third inquiry, it is equally obvious that possession of special knowledge can assist in identification. Nor can there be any reasonable dispute about the relevance of the fourth inquiry. It is not uncommon for courts to consider whether a perpetrator has the non-dispositional capacity to commit a crime, for example, things such as the strength or size to perform an act the perpetrator performed. If a crime takes resources, intelligence or experience to commit, evidence that a suspect has or does not have those resources, intelligence or experience is relevant and I know of no prohibition on its consideration.

[76] Nor is it problematic that the trial judge focused the inquiry on the three known suspects. As I have explained, he concluded on the evidence that given the timing, themes, and content of the exchanges between the three known suspects, one or more of them had to have been the perpetrator of the crime.

[77] When the trial judge applied these considerations, he found that Ms. Dent had pledged to destroy Mr. Lalonde’s reputation, had been engaged in a course of conduct in which she had taken steps to accomplish this, and had exhibited the extraordinary animus required to sustain the campaign. She was a repository of all of the information included in the campaign, including private information that no one else would have known without her, and she had the financial resources, the intelligence, and the sophistication needed to accomplish the campaign, including banking experience. In the trial judge’s parlance, she “fit the profile”.

[78] In contrast, Ms. Oxley was not motivated to utterly destroy Mr. Lalonde’s reputation, but interested in advancing her matrimonial litigation, and accomplishing an open and public airing of her story to advance the interests of women. Although Ms. Oxley supported the formal complaints that Ms. Dent was initiating and also participated in gathering “dirt” on Mr. Lalonde, she largely took Ms. Dent’s lead, and the seven libelous documents included additional private information that only Ms. Dent knew and that was not referenced in the many communications between Ms. Oxley and Ms. Dent. The trial judge recognized Ms. Oxley’s intelligence, and although he did not engage her sophistication, he made his opinion known that she was less able than she believed. For these reasons, the trial judge found that Ms. Oxley did not fit the profile.

[79] As indicated, in the course of his decision, the trial judge also made comments about Ms. Oxley’s personality. Venturing into personality driven analysis can be perilous without expert evidence and I would not endorse this as a manner of reasoning, but in my view, the comments the trial judge made, some of which were asides or augmentations in his reasoning, did not play a material role in his decision.

[80] I would therefore reject the submission that the trial judge erred by engaging in unreasonable profile reasoning, as it pertains to Ms. Dent and Ms. Oxley. I come to the same conclusion relating to Mr. Flaro, but it is convenient to provide additional explanation for that outcome when considering the next ground of appeal.

[81] I also reject Ms. Dent’s related submission that in engaging in this reasoning, the trial judge treated the case as a “whodunnit” that he had to resolve, thereby arriving at Ms. Dent’s conviction by a process of elimination that engaged psycho‑analytical theories, rather than an inquiry into whether the Crown proved Ms. Dent’s identity as the perpetrator beyond a reasonable doubt. As I explained in para. 47, the trial judge directed himself specifically not to engage in this kind of reasoning, and as I have illustrated throughout, he did not do so. To be sure, the trial judge should not have characterized his analysis as “looking to exonerate anyone who does not fit the profile”, but when his analysis is subjected to close scrutiny, it is evident that he neither engaged in improper profile reasoning, nor arrived at a verdict by identifying the most likely suspect.

E. Did the trial judge engage in unreasonable reasoning relating to Mr. Flaro?

[82] Ms. Dent argues that the trial judge erred in “exonerating” Mr. Flaro. The trial judge did not “exonerate” Mr. Flaro. He recognized explicitly that Mr. Flaro may have been an accessory.

[83] Crucially, the trial judge also said that “irrespective of his level of involvement, there is no inference I can draw in respect of Ryan Flaro, which could possibly exonerate Ms. Dent.” The trial judge’s pointwas that even a finding that Mr. Flaro was involved in the publication of the seven libelous documents would not raise a reasonable doubt about Ms. Dent’s culpability, given the evidence against her and the fact that Mr. Flaro would have depended upon Ms. Dent’s collaboration to create the seven libelous documents. At bottom, the specific findings about Mr. Flaro that Ms. Dent challenges, which I am about to identify, are immaterial to Ms. Dent’s guilt. Even if the trial judge committed reasoning errors or legal errors in making those findings, any such errors would be harmless or would not have caused a miscarriage of justice, so would not lead to a successful appeal. I would reject the challenge to the trial judge’s reasoning about Mr. Flaro as a ground of appeal on this basis alone.

[84] In any event, I am not persuaded that the trial judged erred in his analysis of Mr. Flaro’s involvement.

[85] First, Ms. Dent argues that the trial judge’s findings relating to Mr. Flaro’s lack of sufficient knowledge to be the perpetrator are unreasonable. I disagree. It is obvious that much of the information found in the seven libelous documents had to have come from Ms. Dent. The evidence before the trial judge showed that Ms. Dent did not maintain an intense open line of communication with Mr. Flaro, and she had expressed misgivings about his discretion. The trial judge recognized the defence theory that Mr. Flaro and Ms. Oxley, who did have an extensive line of communication with Ms. Dent, could have collaborated, but that prospect left him in no doubt. Although Ms. Oxley could have channelled information to Mr. Flaro, there is no basis for finding that she shared all of the information with Mr. Flaro that found its way into the seven libelous documents. Indeed, the trial judge found that not even Ms. Oxley possessed some of this information, such as Ms. Dent’s private banking details. In my view, there is no basis for interfering with the trial judge’s finding that Mr. Flaro lacked the knowledge to have been the architect of the defamation campaign.

[86] Ms. Dent also argues that the trial judge erred by finding that Mr. Flaro “does not fit the profile of the author of this defamatory campaign.” I disagree. As explained above, the trial judge did not engage in criminal profiling in the Ranger sense. He used the term “profile” to describe his analysis of case‑specific circumstantial links between Mr. Flaro and the offence.

[87] Ms. Dent takes particular exception, in this regard, with the trial judge’s finding that Mr. Flaro was not the type to engage in an indirect and calculated attack on Mr. Lalonde, but would instead confront him directly, even publicly. I accept that the trial judge did not frame this inference optimally, but when it is examined in context, he was not excluding Mr. Flaro as the architect of the defamation campaign because of Mr. Flaro’s general psychological character. Instead, the trial judge’s inference derived from Mr. Flaro’s specific course of conduct relating to Mr. Lalonde in the months leading up to the defamation campaign. Unlike Ms. Dent, Mr. Flaro had not been engaging his animosity against Mr. Lalonde by gathering dirt on him and filing official complaints against him, but by public or even direct attacks upon him. Given this, the prospect that Mr. Flaro would suddenly shift tactics in the days leading up to May 16, 2019, to become the architect of a subtle, studied if not scholarly and sustained plan of attack was remote in the extreme. I do not find this reasoning to have been in error.

[88] I would therefore deny this ground of appeal.

F. Did the trial judge err by engaging in IMPERMISSIBLE propensity reasoning?

[89] In the course of his decision, the trial judge described a range of uncharged conduct by Ms. Dent, including the two BMO complaints, the Ministry letter, her manner of conducting her family law litigation, and her allegations about Mr. Lalonde sexually assaulting her daughter. Ms. Dent does not take issue with the trial judge’s use of the BMO complaints for the purpose of demonstrating Ms. Dent’s animus but argues that the trial judge unfairly treated this body of evidence as discreditable conduct evidence establishing that Ms. Dent is a vindictive person capable of committing the offence charged.

[90] Had the trial judge reasoned in this fashion he would have fallen into error. “It is trite law that ‘character evidence [called by the Crown] which shows only that the accused is the type of person likely to have committed the offence in question is inadmissible’”: R. v. G.(S.G.), [1997] 2 S.C.R. 716, at p. 747(emphasis in the original). However, I see no indication that the trial judge engaged in prohibited bad character reasoning. Although inelegantly worded, the trial judge’s conclusion that Ms. Dent was “aligned with the type of person capable of creating this massive defamatory campaign” was not a comment on her general bad character. It was a summation of the trial judge’s conclusion that Ms. Dent reflected the circumstantial indicia of guilt that he had identified in his “profile” reasoning.

[91] Instead, the inferences the trial judge drew from the discreditable conduct evidence were permissible, specific inferences material to the case. He was quite explicit about the purpose for which he used the BMO complaints, namely, as demonstrating “malice and animus towards [Mr.] Lalonde,” which is an entirely appropriate inference to draw from discreditable conduct evidence: R. v. Brissard, 2017 ONCA 891, 356 C.C.C. (3d) 494 (Ont. C.A.), at para. 28. Given its timing, he was also entitled to consider Ms. Dent’s Ministry letter for the same purpose. The trial judge did not say that the falsity of Ms. Dent’s complaints about their daughter being sexually assaulted was evidence of animus. Instead, he inferred that the persistence, timing and manner in which those complaints were made, including alleging sexual abuse in the Second BMO complaint, exhibited Ms. Dent’s campaign to destroy Mr. Lalonde. I see no problem with this line of reasoning.

[92] Although the trial judge was not delicate in addressing Ms. Dent’s uncharged conduct relating to Mr. Lalonde, it is important to understand his comments and findings in the context of this case. His conclusion that the objective of the architect of this campaign would have been to ruin Mr. Lalonde’s reputation by exposing him to hatred, contempt, and ridicule, is grounded in the record and unassailable. For the reasons stated by the trial judge, the campaign could have had no other purpose. In this context, it was relevant to gauge not only the existence of animus on Ms. Dent’s part, but its intensity and Ms. Dent’s commitment to it. Evidence showing that at the relevant time she had the kind of “extraordinary animus” towards the complainant required to launch a “multi-faceted campaign of this magnitude” is probative, case-specific evidence that in no way depends for its force on general conclusions about bad character. The trial judge did not engage in unfair or inappropriate character reasoning relating to Ms. Dent.

[93] I would therefore reject this ground of appeal.

G. Did the trial judge misuse electronic messages from Ms. Oxley and Mr. Flaro for impermissible hearsay purposes?

[94] Ms. Dent argues that the trial judge erred by failing to conduct a credibility analysis relating to Ms. Oxley’s testimony and by relying instead on the inadmissible hearsay use of her comments in the text messages, thereby contravening both the hearsay rule and the prior inconsistent statement rule.

[95] I do not find that the trial judge’s failure to engage in an explicit and close analysis of Ms. Oxley’s credibility as a witness was problematic in the circumstances of this case. The trial judge expressly recognized that Ms. Oxley was “perhaps […] an unsavoury witness” given her co-operation with the police after herself having been a suspect. However, it proved to be unnecessary for the trial judge to rely on her direct testimony, including her express denials of complicity, because the case was made out based on Ms. Dent’s own electronic communications with Ms. Oxley, and the circumstantial case against her. It was therefore unnecessary for the trial judge to say much about Ms. Oxley’s credibility.

[96] Ms. Dent does not identify illustrations in her factum of inadmissible hearsay or prior consistent statement reasoning by the trial judge, but she advanced two examples of what she claimed to be inadmissible hearsay uses of Ms. Oxley’s electronic messages in oral argument.

[97] The first example she offered was reliance by the trial judge on Ms. Oxley’s claim, made in her text exchanges with Ms. Dent, that she had not received the authentic transcript as of May 15, 2019. I see no hearsay use of these electronic messages by Ms. Oxley. The trial judge used these conversations between Ms. Dent and Ms. Oxley not as proof that Ms. Oxley did not actually have a copy, but as proof that Ms. Dent was not disclosing her own possession of the authentic transcripts when asked. There is nothing problematic in this. Anything Ms. Dent said in electronic conversations that were admitted into evidence was properly admissible against her as admissions made by an opposing party litigant. The related comments made by Ms. Oxley as a party to those conversations were also admissible to be used to give context and meaning to what Ms. Dent said. This is what occurred.

[98] Nor am I persuaded by the other illustration Ms. Dent offered, namely the trial judge’s finding that Ms. Oxley had “pro-social informative initiatives” relating to the open sharing of information. This finding did not depend on an inadmissible hearsay use of electronic statements Ms. Oxley made. In appropriate cases, words spoken out of court can stand as circumstantial evidence of a speaker’s state of mind. In this case, for example, words spoken by Ms. Oxley to Ms. Dent about what they should do with the information they were gathering about Mr. Lalonde could arguably be used as circumstantial evidence of her objective. Even if her statements could not properly be used as circumstantial manifestations of her relevant state of mind in the fashion I have just described, they would qualify as admissible hearsay statements of her present intention. They were contemporaneous statements of Ms. Oxley’s present intention made in a natural manner and not under circumstances of suspicion: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 168; R. v. Cote, 2018 ONCA 870, 143 O.R. (3d) 333, at para. 22; R. v. P.(H.R.) (1990), 58 C.C.C. (3d) 334, at p. 341 (Ont. H.C.J.).

[99] I am similarly unpersuaded by Ms. Dent’s submission that the trial judge made inadmissible hearsay use of Mr. Flaro’s electronic communications to make his somewhat indelicately worded finding that Mr. Flaro was interested in “getting into [Ms. Oxley’s] pants”. The trial judge was entitled to draw a circumstantial non‑hearsay inference based on Mr. Flaro’s exchanges with Ms. Oxley that he was exhibiting a sexual interest in her.

[100] I would not give effect to this ground of appeal.

H. Did the trial judge err in denying Ms. Dent’s O’Connor application?

[101] For the following reasons, I would deny Ms. Dent’s appeal of the trial judge’s decision to deny her third-party records application, brought pursuant to R. v. O’Connor, [1995] 4 S.C.R. 411. That application was for the production of CAS records of complaints Ms. Oxley had made to the CAS that Mr. Lalonde had sexually abused their child.

[102] At trial, Ms. Dent argued that there was a reasonable possibility that those records were likely relevant as “circumstantial evidence of past conduct [by Ms. Oxley] that is consistent with the defamatory libel made against [Mr. Lalonde]”, and that they would likely be relevant in challenging Ms. Oxley’s credibility and reliability as a witness. She therefore asked the trial judge to inspect them and to produce them to her.

[103] The trial judge found that Ms. Dent had satisfied the “likely relevance” threshold for inspection. He therefore inspected the CAS records, as requested, to determine whether the “salutary effects of a production order”, would outweigh the “deleterious effects” that production would have on competing interests, such as the privacy interests in the documents. I will describe the trial judge’s ruling in some detail, before specifying Ms. Dent’s related grounds of appeal.

[104] After correctly identifying the factors to be considered, the trial judge effectively found that the records would not meaningfully assist Ms. Dent in her defence. With respect to the first purpose for production that Ms. Dent had identified, the trial judge said that he “found nothing in those records which would constitute relevant or probative information to […] establish that Ms. Oxley [was] a suspect”, or that “might show […] some similarity to what is happening in our case”, or that “[Ms. Oxley] is perhaps a likely person who would have authored all of this misinformation” in the seven libelous documents. He emphasized that Ms. Oxley’s CAS allegations had not been found to be “false”, as Ms. Dent suggested, but were found to be “unsubstantiated”. He said he found no indications that Ms. Oxley did not believe the allegations their child had made about being sexually abused by Mr. Lalonde, which the “CAS people” thought had a ring of truth, even though some of those allegations “proved to be not so reliable”. Although the trial judge did not put things quite this way, it is therefore clear that he was of the view that Ms. Oxley’s CAS complaints were not like the “false” claims that were made in the subsequent defamation campaign and that the CAS records could not be expected to provide Ms. Dent with a pathway to prove otherwise.

[105] The trial judge also considered whether the records would otherwise assist Ms. Dent in challenging Ms. Oxley’s credibility as a witness. Based on his inspection of the records he found that there was nothing probative in them “that [Ms. Dent] can use to cross-examine, maybe attack the credibility of [the] witness”. He said there is a “very tenuous” “possibility” that maybe her credibility could be shaken a bit on a “collateral issue” but noted that Ms. Dent could not use the records to challenge her credibility “properly and admissively”.

[106] After effectively concluding that the salutary effects of production would be modest, the trial judge then said that he had identified “very sensitive” and “disturbing” material in the records, “things that they would never say to anybody else”. It is obvious he found the privacy interests in the CAS records to be high. After balancing the salutary and deleterious effects of production he had identified, he chose to deny production.

[107] Ms. Dent’s first argument is that the trial judge erred in refusing production by misinterpreting and misapplying the collateral facts rule. I am not persuaded that he did so. I will begin my explanation by expressing agreement with Ms. Dent on several points.

[108] I agree with Ms. Dent that the collateral facts rule “does not operate to confine the scope of otherwise permissible cross-examination”: R. v. A.C., 2018 ONCA 333, 360 C.C.C. (3d) 540 (Ont. C.A.), at para. 46. Instead, “[t]he rule operates to prevent a party from calling extrinsic contradictory evidence to undermine the credibility of an opposing party’s witness in relation to a collateral issue”: A.C., at para. 46. Put otherwise, the collateral facts rule does not prevent parties from asking collateral questions. It prevents parties from disproving collateral answers.

[109] In O’Connor, at para. 24, the majority cautioned that production is not to be governed by admissibility rules since even inadmissible evidence could nonetheless assist in making full answer and defence. Inadmissible evidence may, for example, still lead to a train of inquiry or the discovery of admissible evidence. For the reasons expressed, I agree with Ms. Dent that in the case of the collateral facts rule, information that cannot be admitted in order to contradict a witness’s answers because of that rule may still prove useful in identifying admissible lines of cross-examination. I therefore agree with her that a trial judge would err if they treated the application of the collateral facts rule as an absolute bar on production.

[110] However, this does not mean that a trial judge must produce information that could lead to permissible lines of collateral cross-examination. The trial judge must still “weigh the salutary and deleterious effects of a production order and determine whether a non-production order would constitute a reasonable limit on the ability of the accused to make full answer and defence”: O’Connor, at para. 30. In my view, when assessing this, a trial judge is entitled to consider that the probative value of the subject information is marginalized because the cross-examination it will facilitate will pertain to a collateral issue, not a centrally important issue in the case, and the utility of production will be limited because, although this collateral information can be used to develop lines of cross-examination, it will not be available to contradict any answers the witness may give.

[111] Although the trial judge’s collateral facts reasoning could have been expressed more clearly, I am not satisfied that he committed the error of concluding that the information could not be produced in the application because of the collateral facts rule. When his decision is read as a whole it can and should be understood as a finding that any cross-examination that may flow from the records would have low probative value, not only because the information could at most provide only a “little bit of ammunition” for challenging credibility, but because that cross-examination would relate not to an important issue in the case, but to a collateral one, and because the information would not then be admissible to contradict any answers Ms. Dent might receive. It is important to bear in mind that the trial judge’s ruling was a largely extemporaneous, oral decision delivered within a day of submissions that must be understood not only in the context of the submissions, but also in light of the presumption that trial judges understand the law. In all of the circumstances, I am not persuaded that the trial judge misunderstood or misapplied the collateral facts rule.

[112] In oral argument Ms. Dent added the submission that the trial judge’s decision not to produce any of the CAS records was unreasonable, particularly given his recognition that he had found some of this information to be capable of providing a “little bit of ammunition” in challenging Ms. Oxley’s credibility. He argues that even a “little bit of ammunition” can make the difference with respect to an unsavoury witness who played a central role in the events. Ms. Dent urges us to inspect the third-party records if we are not persuaded by this submission.

[113] I do not find the trial judge’s decision to be unreasonable. If a trial judge was required to produce any information that bore any degree of probative value, the rule would not invite them to balance probative value against the relevant risks of prejudice in deciding whether to produce the evidence. There is no basis on this record for concluding that the trial judge came to an unreasonable decision in not giving Ms. Dent the tenuously and modestly useful information he identified, given the high privacy interests that were engaged. Ultimately, a trial judge’s assessment of the O’Connor factors and the balance they strike is an evaluation of mixed fact and law that attracts deference: R. v. S.(G.) (2001), 156 C.C.C. (3d) 264 (Ont. C.A.), at para. 13; R. v. C.B., 2022 ONCA 572, at para. 8, leave to appeal refused, 2023 S.C.C.A. No. 40349. I see no basis for interfering.

[114] In my view, it is not necessary to inspect the records to come to this conclusion. It is not for us to routinely re-review the third-party records to determine whether we agree with the trial judge or for the purpose of foreclosing some latent problem in reasoning. We should re-review third-party records only if there is reason to do so. In this case, there are no apparent indications the trial judge may have come to unreasonable determinations. He provided cogent explanations as to why he judged the probative value of the records to be low, and the opposing privacy interests to be high. As the foregoing narrative of the trial judge’s decision demonstrates, the basis for his decision can be readily understood without inspection. In my view, he said enough.

[115] I would therefore reject this ground of appeal.

The Sentence Appeal

[116] The Crown seeks leave to appeal the sentence the trial judge imposed on Ms. Dent, an eighteen-month conditional sentence, followed by three years of probation. I would grant leave to appeal, allow the sentence appeal, and impose a period of incarceration of two years less a day. I would maintain the 3‑year probation order imposed by the trial judge on the same terms, along with all ancillary orders made.

[117] In my view, the trial judge erred by allowing his concerns over the impact of Ms. Dent’s incarceration on her child to dominate his analysis, and by failing to determine whether the conditional sentence he imposed was a fit sentence for this offence.

[118] The trial judge began his sentencing decision by noting that the primary sentencing objectives for this offence are denunciation and general deterrence, and by recognizing that although Ms. Dent is a first offender, this was a worst‑case example of criminal defamation, “a campaign of epic proportions exceeding anything any of us have been able to read about in all of the cases cited for my consideration in this instance.” He called it, “one of the most egregious [offences] she could have committed in the context of s. 300 of the Criminal Code.”

[119] The trial judge’s characterization of the gravity of the offence is warranted. He found Ms. Dent to be “the architect of a premeditated, complex and elaborate defamatory campaign […] deployed over several months with impeccable timing aimed at imparting optimal damage and injury to Troy Lalonde’s character and reputation […] so as to devastate [his] life.” Over the course of many months, in the context of family court proceedings that she was dissatisfied with, and without any sign of hesitation, restraint or remorse, Ms. Dent engaged in a labour intensive, sophisticated and highly planned attack on every sector of Mr. Lalonde’s life. As the trial judge noted, she also inflicted intentional damage upon Mr. Lalonde’s family, friends, and associates. She caused egregious harm in the lives of many, including crippling harm on Mr. Lalonde by contributing to if not causing the loss of his relationship with Ms. Frary, and the loss of his sense of security in his own hometown, as a reputed pedophile.

[120] The trial judge recognized that in these circumstances, Ms. Dent is “not your typical first offender”, and that some form of incarceration is required. He settled on the range of 18 months to two years. When explaining why he opted for a conditional sentence of incarceration the trial judge commented that defence counsel, who had urged him to focus on Ms. Dent’s pro-social past, her continued community support and her declaration of remorse, “had presented a compelling case in support of his position that a conditional sentence is [a] justifiable and appropriate disposition in this instance.” However, the trial judge commented no further on Ms. Dent’s limited mitigating circumstances and did not address the competing positions of the Crown and defence on the worth of her continued community support and her letter of remorse. Nor did he suggest that rehabilitation or restoration was an important consideration in coming to this conclusion.

[121] Instead, in explanation of his conclusion the trial judge cited R. v. Thelwell, [2021] O.J. No. 7373 (Ont. C.J.) as precedent for the proposition that even though “the paramount principles of sentencing for this type of offence [were] general deterrence and denunciation, … it [is] possible for a conditional sentence to adequately reflect the community’s condemnation and deter other like‑minded individuals, and to deter the accused herself from offending in this manner.”

[122] Then he cited R. v. Simoes, 2014 ONCA 144, in which this court found that a trial judge erred in failing to consider the detrimental effect on three children of sentencing a mother to a 90-day custodial sentence instead of a 90‑day intermittent sentence. He said:

[T]he relief for leniency contemplated in this instance is analogous except that here, we propose to convert a continuous sentence, expected to last several months, into a conditional sentence of similar duration, given that the latter allows for the offender to serve her sentence while under house arrest, without having to deprive her young daughter of her mother’s presence in her life. Obviously if Allison Dent were sentenced to a real term of incarceration, as the Prosecution advocates, her daughter might be markedly impacted by deleterious effects occasioned by her mother’s absence at a very crucial time in her life, this [presents] a much greater risk than a 90-day sentence.

[123] The trial judge then repeated this rationale for a conditional sentence at some length, the third time he addressed the effect of separating Ms. Dent from her child in his sentencing decision. He then set out the terms of the conditional sentence.

[124] In my view, the trial judge erred in principle in imposing the sentence he did. Although deference is ordinarily given to the weight a trial judge gives to sentencing factors, when undue weight is given to a relevant mitigating sentencing factor, a trial judge will have erred: R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 77. I am persuaded that the trial judge gave undue weight to avoiding the separation of Ms. Dent from her child, allowing it to overwhelm all other considerations. This is evident from the language he used and his repeated reference to this concern, which stands as the only elaborated explanation he provided for opting for a conditional sentence.

[125] Moreover, the trial judge based his decision on this consideration without any case-specific analysis of why the temporary separation of Ms. Dent from her child warranted such priority. I agree with the Crown that there was “a paucity of analysis”, and an absence of the kind of factual foundation one would expect. He did not refer to the sole relevant exhibit he was provided, the Quebec Child Services report. To be sure, there can be no doubt that the collateral consequences of a sentence on an offender’s children is a relevant sentencing consideration: Simoes; R. v. L.C., 2022 ONCA 863, at para. 24. However, the impact of this consideration is a case-specific determination to be closely assessed in the circumstances of each case. The trial judge did not engage in such an assessment.

[126] Second, and relatedly, the trial judge overstated the impact of the persuasive decision of R. v. Thelwell on the decision he had to make. The trial judge relied on this decision for the proposition that it is possible for a conditional sentence to adequately express the community’s condemnation and deterrence for this manner of offending. Whether that is so depends on the case. The issue before the trial judge was not whether it is possible for a conditional sentence to achieve the requisite denunciation and deterrence. It was whether, given the gravity of the offence the trial judge recognized, a conditional sentence could adequately express the community’s condemnation and deterrence in the circumstances of this case. The trial judge never addressed this question, nor did he address how a conditional sentence would be suitable given the relative absence of mitigating circumstances that could justify a restorative or rehabilitative sentence for Ms. Dent. This court recognized in R. v. L.C., at para. 24, that although it is open to a sentencing judge to consider the impacts of family separation on the offender as well as the children themselves, “the sentence imposed must always remain proportionate to the gravity of the offence and the responsibility of the offender.” The trial judge failed to explain how a conditional sentence would be consistent with the purpose and principles of sentencing in the circumstances of his case.

[127] I am mindful of the importance of deference to the discretionary sentencing decisions of trial judges, but in my view the errors in principle I have identified had a significant impact on the sentence the trial judge imposed, permitting appellate review: R v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 43, 44. I would set the sentence aside and re-sentence Ms. Dent. In doing so I do not intend to cast doubt on the important proposition that a punitive conditional sentence can, in appropriate cases, promote the objectives of denunciation and deterrence, or to contest the proposition that a conditional sentence can provide significant denunciation: R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at paras. 31-35; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 102. Nor do I wish to be taken as suggesting that a conditional sentence cannot meet these objectives for an offence contrary to s. 300 of the Criminal Code. Of course, it can. I am of the view that given the gravity of the offence identified by the trial judge, and the modest number of mitigating factors that operate, a conditional sentence is not a fit sentence in this case. In my view, a carceral sentence of two years less a day, the highest sentence in the range requested by the Crown before us and at trial, is a fit sentence, and it is the sentence I would impose.

Conclusion

[128] I would dismiss Ms. Dent’s conviction appeal.

[129] I would grant leave to the Crown to appeal the sentence and allow the appeal, set the sentence aside, and impose a sentence of two years less a day of incarceration, followed by the three-year probationary sentence imposed by the trial judge, and I would reaffirm the ancillary orders he made. According to the terms of her bail pending appeal. Ms. Dent was not required to surrender into custody on the release of this decision. If it becomes necessary to compel her surrender into custody, a warrant will issue for her arrest.

Released: June 29, 2023 “D.D.” “David M. Paciocco J.A.” I agree. Doherty J.A.” “I agree. E.E. Gillese J.A.”