Information No. 10-3043
ONTARIO COURT OF JUSTICE
Her Majesty the Queen
v.
David L. Hubbard
REASONS FOR JUDGMENT
Before the Honourable Justice S. O'Connell
on May 16, 2012, at Milton, Ontario
APPEARANCES
M. Ward – Counsel for the Crown
L. Jackson – Counsel for David L. Hubbard
REASONS FOR JUDGMENT
O'CONNELL, J. (Orally):
Mr. Hubbard is charged with two counts of unlawfully being in a dwelling-house with an intent to commit an indictable offence, contrary to Section 349(1) of the Criminal Code, and one count of theft under $5,000.00, contrary to Section 334(b) of the Criminal Code.
The issues of date, jurisdiction, and identity are admitted by Mr. Hubbard. The Crown elected to proceed summarily.
Specifically, the Crown alleges that on or about July 1st to July 31st, 2010, Mr. Hubbard entered, without lawful excuse, the dwelling-house of Ms. Amy Jockel at 1178 Treetop Terrace with the intent to commit an indictable offence, and while in her dwelling-house, Mr. Hubbard stole a number of audio tapes from Ms. Jockel that were in the residence of a value not exceeding $5,000.00.
Further, that on a second occasion, between August 1st, 2010 and August 27th, 2010, Mr. Hubbard, without lawful excuse, again entered the dwelling-house of Ms. Jockel with the intent to plant a listening device in Ms. Jockel's residence to intercept her private communications in the dwelling-place without her consent.
Legal Framework and Burden of Proof
The issue in this case is, clearly and obviously, whether the Crown has proved beyond a reasonable doubt the essential elements of the offences. In this case, the evidence at trial consisted, essentially, of the testimony of the complainant and the defendant who each gave different versions of the events in question. I must therefore apply the direction of the Supreme Court of Canada in R. v. W.(D.); when assessing the evidence I heard at trial. Mr. Hubbard is presumed innocent.
Background Facts
By way of background facts, Mr. Hubbard and Ms. Jockel met in Miami, Florida, in August of 2005. Ms. Jockel is an American citizen; Mr. Hubbard is a Canadian citizen. They formed a relationship and got married in November of 2005 in the United States. Their son, Jacob, was born September 9th, 2006. In August of 2008, the family moved to Canada. Mr. Hubbard applied to sponsor Ms. Jockel for permanent residency in Canada after they relocated to Canada. In January of 2010, the family was residing in a home located at 2257 Ridge Landing in Oakville, Ontario.
It is not disputed that, in January of 2010, Ms. Jockel rented a second home at 1178 Treetop Terrace in Oakville. Ms. Jockel's father helped her pay the rent on this home. It is further not disputed that although Ms. Jockel had some financial assistance from her father to pay the rent on the Treetop Terrace residence, she was paying the expenses for both homes and was the sole income provider for the family at that time. Ms. Jockel was employed at that time as an exotic dancer.
Although the date of separation is disputed by the parties, it is not disputed that the parties separated some time in 2010 and Ms. Jockel commenced Family Court proceedings regarding custody and support of their son, Jacob, in September of 2010.
Crown's Evidence
The Crown's evidence consisted of the complainant, Ms. Jockel, and also introduced, as exhibits, Mr. Hubbard's statement to the police upon arrest, which was admitted as voluntary, and an affidavit that Mr. Hubbard had sworn on September 13th, 2010, in the Family Law proceedings between Mr. Hubbard and Ms. Jockel. The defence called Mr. Hubbard.
Evidence of Ms. Jockel
In first addressing the evidence, I will turn to the evidence of Ms. Jockel. Ms. Jockel testified that she rented the second home at Treetop Terrace because she intended to separate from Mr. Hubbard. She testified that Mr. Hubbard was a very controlling individual; that she was not comfortable living with him; and that she told him in January of 2010 that she wanted a separation. She testified that she rented the Treetop house very close to the home on Ridge Landing so that she and Mr. Hubbard could continue to co-parent their son. She wanted to be close to the home and Jacob's school.
Ms. Jockel further testified that, at that point, Mr. Hubbard was still sponsoring her and, given her vulnerable immigration status, she felt powerless to permanently separate from Mr. Hubbard until she obtained permanent residency status. She testified at the time that she left in January that she advised Mr. Hubbard that it was a form of a trial separation. At page 11 of the transcript of her evidence in-chief she testified that she advised Mr. Hubbard that she had given him the following time, and I quote:
'January 'til July;' I said, 'I'll give you six months. You start working, we'll try to work this out…' you know? '…but in the meantime, I want this house.' [Being the house at Treetop Terrace.] 'I need to keep this house because I don't feel that you are going to come through. I don't trust you, I don't feel comfortable with you, and I want a separation.' I told him that in January. I told him, 'I'm leaving you and I don't want to be with you.'
Ms. Jockel testified that this was her "safe house," to use her words. She testified that she needed to get away from Mr. Hubbard and that she did not feel comfortable living with him, although she had not entirely extricated herself from the relationship given her lack of immigration status in Canada and the fact that they had a child together that she wished to maintain custody of and to continue to parent. Therefore, she testified that although obtaining the residence at the Treetop Terrace, she would sleep almost every night at the Ridge Landing residence between January and July of 2010, although she had her residence at the Treetop Terrace.
Ms. Jockel further testified that the Treetop Terrace was her home; that Mr. Hubbard was not permitted to be there when she was not there; that she did not give him a key to that home; that he never slept there, nor did he have any personal effects there. She testified that Mr. Hubbard had been to the property on one occasion when she first rented it to fix the plumbing, and in the summer he came over two or three times to mow the lawn because they had one lawn mower between the two of them, however he was not permitted into the home unless she was present.
She testified that between January to August of 2010, he was inside the Treetop Terrace home with her on approximately two occasions for approximately 10 to 20 minutes; once to drop off a computer and once to fix some plumbing when she first moved in.
After approximately six months, on or about July of 2010, Ms. Jockel testified that she was spending more and more time at the Treetop residence and moved most of her belongings to the Treetop residence, however she still would return to the Ridge Landing residence to sleep at night and to be with Jacob because Mr. Hubbard would not permit Jacob to sleep overnight at the Treetop residence.
A significant event occurred in July of 2010. Ms. Jockel wanted to take Jacob to the United States for a holiday to visit her family. She planned to leave on July 4th and return July 10th. Although Mr. Hubbard initially signed a consent to travel or some form of notarized document permitting Ms. Jockel to travel with Jacob, the day before they left Mr. Hubbard withheld Jacob's passport, thus causing the trip to be cancelled.
Ms. Jockel also gave evidence that on one occasion, in July, she discovered that some tapes were missing from a closet of her bedroom. These were tapes that she had prepared of conversations between herself and Mr. Hubbard once she intended to separate from him. In cross-examination, Ms. Jockel testified that the tapes, which were older, plastic cassette tapes, may initially have been Mr. Hubbard's tapes and that she wasn't quite sure about that, but, at a minimum, the tapes were equally owned by both of them, although she did convert those tapes and tape over some of the tapes where Mr. Hubbard had business conversations regarding his previous business.
Evidence of Mr. Hubbard
Mr. Hubbard's testimony: Mr. Hubbard admits that he entered Ms. Jockel's residence at the Treetop Terrace on two occasions when she was not present — once in July of 2010 and once in August of 2010 — however he testified that he was entitled to enter the home at Treetop Terrace because, he testified, it was the matrimonial home.
Mr. Hubbard testified that the parties did not in fact separate until September of 2010 and that they were still an intact, married couple in January of 2010. He testified that the Treetop residence was the parties' second matrimonial home that they had rented in January of 2010 for Ms. Jockel to use as a place where she could change and prepare for her work as an exotic dancer. Mr. Hubbard testified that he helped Ms. Jockel move in; he did repairs around the house; he did work on the house; he helped her fix the plumbing on one occasion; and he used the kitchen sink to wash his hands after he mowed the lawn.
Although he was not on the lease, he testified that he witnessed the lease that Ms. Jockel had signed. He testified that between January and August of 2010, he was at the home on at least four or five occasions in Ms. Jockel's presence and that he was at the home approximately once a month between January and August of 2010. He testified that he had meals there and he believed that he was entitled to be there.
Mr. Hubbard testified that he became suspicious that Ms. Jockel was having an affair. He testified that several times, late at night, at approximately two or three o'clock in the morning, he would bicycle by the house and see a large black vehicle in the driveway after Ms. Jockel had finished her night shift. Mr. Hubbard testified that he became suspicious that Ms. Jockel was involved with someone else and was somehow plotting against him.
He admitted that he withheld Jacob's passport in July of 2010 because he was afraid that Ms. Jockel would take Jacob to America and not return.
Mr. Hubbard testified that he entered the Treetop home on two occasions — once in July and once in August — when Ms. Jockel was not present and she was working. Both occasions were late at night. On the first occasion, Mr. Hubbard testified that he entered the home with a key that he made a copy of that he had received from Ms. Jockel. He testified that he entered the closet in Ms. Jockel's bedroom and removed three cassette tapes from a plastic bin that was in her closet. He also found a diary or a journal of Ms. Jockel's in the same location and took photographs of its content. He testified that the tapes he removed were his tapes originally from his recording business and that Ms. Jockel had taken them and recorded conversations that they had had together. He testified that he realized that Ms. Jockel was clearly planning to obtain custody of Jacob and had sought some form of legal advice to do exactly what she needed to do — in his words, and I quote — "…to get her status, get her son, and set up shop with this new boyfriend."
After this discovery, Mr. Hubbard testified that in August, he cancelled his application to sponsor Jockel and reported her new address to immigration authorities. He further returned to the home in August of 2010. On this occasion, he testified that he left the rear door unlocked in the back of the home after being at the address some time earlier. He again entered the home late at night when he knew that Ms. Jockel was at work, this time through the unlocked rear door. On this occasion, Mr. Hubbard planted a listening device — or an "intercom" as he described it — behind Ms. Jockel's television so that he could intercept and listen to communications between Ms. Jockel and the other person whom he described as her boyfriend. Mr. Hubbard testified that it was his obligation to "get to the truth" about exactly what was taking place and he believed that Ms. Jockel and her boyfriend were "plotting against him."
Mr. Hubbard testified that after planting this listening device behind her television, he remained outside the home at Treetop Terrace late at night on at least two separate occasions in his vehicle to listen to the conversations between Ms. Jockel and the man he described as her boyfriend. However, it became apparent that the listening device that he had installed was not working properly so he could not hear anything.
At all of these times, or on these two occasions which are the occasions before the court, Mr. Hubbard testified that he believed that he was lawfully entitled to be at the Treetop Terrace home because it was a matrimonial home.
Legal Analysis
Standard of Proof
In turning to the law and my analysis, I will first start with the Crown's burden of proof. As the charges are Criminal Code offences, the onus is upon the Crown on the totality of the evidence to prove the offences beyond a reasonable doubt in order for the accused to be found guilty of the offences charged.
The Supreme Court of Canada has commented on the principle of proof beyond a reasonable doubt in several cases. In R. v. Lifchus, [1997] 3 S.C.R. 320, the court stated as follows:
Ordinarily, even the most important decisions of a lifetime are based upon carefully calculated risks. They are made on the assumption that certain events will, in all likelihood, take place, or that certain facts are, in all probability, true, yet to invite jurors to apply to a criminal trial the standard of proof used for even the important decisions in life runs the risk of significantly reducing the standard to which the prosecution must be held.
Indeed, to liken reasonable doubt in any way to daily activities weakens the special significance of the criminal standard of proof unique to the legal process.
Later on in the Lifchus, Supra case, the Supreme Court of Canada held that the meaning of proof beyond a reasonable doubt is as follows:
The standard of proof is higher than a balance of probability, yet less than proof to an absolute certainty.
The court further defined the reasonable doubt standard in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 by explaining that it falls much closer to absolute certainty than to proof on a balance of probabilities.
Credibility Assessment
As I indicated earlier, given that the majority of the evidence at trial consisted of the evidence of Ms. Jockel, the complainant, and Mr. Hubbard, the defendant, I must apply the analysis that has been set out by the Supreme Court of Canada in R. v. W.(D.) (1991), 63 C.C.C. (3rd) 397. The court in that case set out the three-step path that a trial judge must undertake when assessing the evidence of both the complainant and the accused and determining whether or not the guilt of the accused has been established beyond a reasonable doubt by the evidence.
First, if the trial judge believes the evidence of the accused, then the judge must acquit; second, if the trial judge does not believe the evidence of the accused but is left in reasonable doubt by it, then the accused must be acquitted; third, even if the trial judge does not believe the accused and is not left in reasonable doubt as a result of the accused's evidence, the trial judge must still decide, on the basis of the evidence which the trial judge does accept, whether the guilt of the accused has been established beyond a reasonable doubt by the whole of the evidence. It is therefore essential that the credibility and reliability of the complainant's evidence be tested in light of all of the other evidence.
Although this trial is not a credibility contest, where the evidence at trial is essentially the testimony of the complainant and the defendant, comparison of their versions of events is proper and part of the duty of the trial judge to assess the evidence of the accused in the context of the whole of the evidence adduced at trial, and that is a principle enunciated by the Ontario Court of Appeal in R. v. Howe.
Section 349(1) of the Criminal Code
In addressing the burden of proof and the analysis that I must undertake as set out in R. v. W.(D.), Supra, it is necessary to specifically address the offences in question, and, particularly, the elements of the offence of being unlawfully in a dwelling-house, contrary to Section 349(1) of the Criminal Code, and in so doing, I want to read that section. Section 349(1) states:
Every person who, without lawful excuse, the proof of which lies on that person, enters or is in a dwelling-house with intent to commit an indictable offence in it is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.
Under (2) of that section, it reads as follows:
For the purposes of proceedings under this section, evidence that an accused, without lawful excuse, entered or was in a dwelling-house is, in the absence of any evidence to the contrary, proof that he entered or was in the dwelling-house with [an] intent to commit an indictable offence therein.
"Dwelling-house" is defined in Section 2 of the Criminal Code, and it is not disputed by the parties that the building at Treetop Terrace was Ms. Jockel's dwelling-place and was occupied by her as her residence.
There are two elements of the offence of unlawfully being in a dwelling-place: First, there must be entry without lawful excuse; second, there must be an accompanying intent to commit an indictable offence in the dwelling-place.
In this case, the Crown is alleging that the entry into Ms. Jockel's dwelling-place was with the intent to commit the indictable offence of theft under $5,000.00 by stealing the audio tapes, contrary to Section 334 of the Criminal Code. The second entry into the dwelling-place, it is alleged, was with the intent to commit the offence, by means of a mechanical device, to willfully intercept Ms. Jockel's private communications without Ms. Jockel's consent, which is an offence contrary to Section 184(1) of the Criminal Code.
Under Section 349(1), a person is not guilty of this offence if he has a lawful excuse for entering or being present in the dwelling-house; however, the onus is on the person to establish the lawful excuse on a balance of probabilities. It is also important to note that the accused person need not have entered the dwelling-house with the requisite intent to commit the indictable offence provided that he formulates that intent while present in the dwelling-house. Subsection two provides that evidence of entry or presence in the dwelling-house without lawful excuse in the absence of evidence to the contrary is proof of the existence of the requisite intent. This subsection provides a mandatory presumption; it is not permissive. This means that if the Crown proves beyond a reasonable doubt that Mr. Hubbard entered into Ms. Jockel's dwelling-house without lawful excuse, I must convict in the absence of evidence to the contrary on the issue of intent.
"Evidence to the Contrary"
"Evidence to the contrary" has been explained by the Ontario Court of Appeal in R. v. Nagy, [1998] O.J. No. 1832. At page 5 of that decision, the court states:
Evidence to the contrary means any evidence in either the prosecution's or the accused's case which is not disbelieved by the trier of fact and which gives rise to a reasonable doubt with respect to the existence of the intent to commit an indictable offence on the part of the accused.
This principle was earlier articulated by the Supreme Court of Canada in R. v. Proudlock, which was cited by R. v. Nagy, Supra, and in that case, as in R. v. Nagy, it is important to note that the court also made very clear that an explanation by the accused which is not believed by the trial judge and does not raise a reasonable doubt in the trial judge's mind is not evidence to the contrary.
Application to the Facts
Lawful Excuse
I, first, therefore, must address whether Mr. Hubbard had a lawful excuse to enter the Treetop residence on the two occasions in question.
Section 18 of the Family Law Act clearly defines a matrimonial home as the home that is ordinarily occupied by two spouses as their family residence at the time of separation, and it is certainly not disputed that there can be more than one matrimonial home.
After listening very carefully to Mr. Hubbard's evidence and reviewing the transcripts again in preparing my reasons, I do not believe that Mr. Hubbard believed that he had a lawful excuse to be in the Treetop Terrace residence. In my view, Mr. Hubbard knew that he was not entitled to be in that residence on the two occasions that he entered without Ms. Jockel's knowledge or consent. Simply put, Mr. Hubbard knew that he was not supposed to be in that home, and I say this for the following reasons.
In cross-examination, Mr. Hubbard admitted the following: first, he was not a tenant on the lease; second, he had never slept in the house or he had never stayed over in the house on Treetop Terrace; third, none of his clothes were in the house at Treetop Terrace; fourth, none of his personal effects were in the house, none of his personal toiletries were in the house either; fifth, Mr. Hubbard testified he was only at the house four or five times between the months of January and August and he was only at the house once per month during the period of January and August. On each occasion, Ms. Jockel was present with him and he was never alone in the house. Mr. Hubbard testified that other than the two times that he went that are the subject of this trial, he never went alone to the Treetop Terrace home between January and August of 2010.
Mr. Hubbard further swore an affidavit in the family law proceedings that the parties had separated in January of 2010 when Ms. Jockel rented the Treetop Terrace home. He further admitted to copying the key to the Treetop Terrace home without Ms. Jockel's knowledge or consent in cross-examination. He further admitted that he was aware that Ms. Jockel had changed the locks, and on the second occasion, when he went back to the home in August, he left the back door open and unlocked so that he could easily enter the house without her knowledge and consent. On both occasions that Mr. Hubbard entered the home, he entered late at night when he knew Ms. Jockel was working, without her knowledge or consent.
He testified, and admitted, that he went to the home on both occasions late at night, without Ms. Jockel's permission, when he knew that she was working, with a key that he had copied without her permission, and entered into her closet, on the first occasion, in her bedroom, and removed cassette tapes that he found in a plastic bin there.
In my view, Mr. Hubbard knew that the parties were entering, at a minimum, a trial separation in January of 2010. The affidavit that was entered as an exhibit at trial, which he swore in the family court proceedings, confirms this.
His explanation, for the first time in this trial, that the second home at Treetop Terrace was used as a "changing room" or a changing place for Ms. Jockel to change into her work clothes for her job as a dancer, defies common sense. This is the first time that Mr. Hubbard offered up this explanation; not in the family court proceedings or affidavit that was filed, not in the statement to the police that he made in September of 2010, and, significantly, this explanation was not put to Ms. Jockel in her cross-examination.
I accept the submission made by Ms. Frew on behalf of the Crown that the failure to cross-examine Ms. Jockel on this very significant evidence — it was a central aspect of Mr. Hubbard's testimony that the second home was rented as a changing place for Ms. Jockel so that she could change into her work clothes as an exotic dancer and then drive to her workplace in Mississauga — that central aspect of his testimony was not put to Ms. Jockel in cross-examination and was raised the first time in this trial, is something that I can consider in assessing credibility. That is made clear by the decision of R. v. Silver, [2007] O.J. No. 4746, a decision of Justice Dawson of the Superior Court of Justice.
Simply put, I do not believe that Mr. Hubbard believed he had a lawful excuse to enter the Treetop Terrace home on the two occasions he did so, late at night, surreptitiously, without Ms. Jockel's consent, to, first, remove the tapes, and, secondly, to plant a listening device to intercept private communications between her and whom he thought was her boyfriend.
Intent to Commit an Indictable Offence
Having said that, the analysis does not end. I accept Mr. Jackson's submissions on behalf of Mr. Hubbard that the proof of the intent to commit an indictable offence, which intent must exist at the time of entry or after entry, is a necessary ingredient for the conviction, and on the first entry in July of 2010, I am left in a reasonable doubt with respect to the theft of the cassette tapes, and that is because Ms. Jockel gave evidence that she was not clear who actually owned the tapes, and that, in fact, Mr. Hubbard and Ms. Jockel, at best, equally owned the tapes together as a married couple. The specific intent to steal the tapes has not been proven beyond a reasonable doubt by the Crown with respect to the first offence given Ms. Jockel's evidence that she believed the tapes were equally owned by both Ms. Jockel and Mr. Hubbard.
However, with respect to the second offence, the entry into the dwelling-house of Ms. Jockel in August of 2010, late at night, without her permission, through the unlocked rear door that Mr. Hubbard had made sure was unlocked earlier on, to plant a listening device to intercept private communications between Ms. Jockel and what Mr. Hubbard described as her boyfriend, was clearly with an intent to commit an indictable offence — as I indicated earlier, the offence of intercepting private communications of two parties without their knowledge and consent.
Verdict
There will be a finding of guilt with respect to the second incident that occurred in August of 2010, but there will be an acquittal with respect to the first incident in July of 2010 and the theft under.