WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) Failure to comply with order.

Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Court File No.: 121002 Location: Sarnia, Ontario Date: October 4, 2012 Ontario Court of Justice

Between: Her Majesty the Queen — and — Hendrick Reckman

Before: Justice J.C. George

Heard on: September 18 and 26, 2012

Reasons for Judgment released on: October 4, 2012

Counsel:

• R. Evans, for the Crown
• The accused Hendrick Reckman on his own behalf

BACKGROUND

[1] The accused Hendrick Reckman is before the court for a preliminary hearing. There is one information which includes one count of criminal harassment contrary to section 264(1), one count of utter a threat to cause bodily harm contrary to section 264.1(1)(a), thirteen counts of breaching a court order contrary to section 127, and thirteen counts of breaching a probation order by failing to keep the peace and be of good behaviour contrary to section 733 of the Criminal Code of Canada. Respecting both substantive offences, the complainant is Mr. Reckman's wife. Respecting all counts under section 127 it is alleged the accused breached a restraining order by communicating with her, several of his children, and by attending the municipality of Lambton Shores.

[2] Mr. Reckman is self-represented. A motion was brought by the Crown seeking an appointment of counsel to conduct the cross-examination of his wife and their children. On September 4, 2012 an order was made appointing counsel to conduct the cross-examination of his wife at the preliminary hearing. No order was made respecting the children. Mr. Peterson, as appointed counsel respecting the one witness only, has been present throughout assisting Mr. Reckman and when appropriate has made submissions on his behalf. His input was quite helpful and assisted greatly in ensuring this matter proceeded efficiently.

[3] Evidence was taken over the course of two days. Six Crown witnesses testified and fourteen exhibits were filed. It was agreed that, for at least some of the relevant time, the accused was subject to the terms of a probation order which required him to keep the peace and be of good behaviour. That order was made August 16, 2011. The court also received into evidence a certified copy of a restraining order made under the provisions of the Family Law Act R.S.O. 1990, Chapter F.3 ("FLA"), dated November 20, 2002. This order prohibited Mr. Reckman from attending the municipality of Lambton Shores and from having any contact, direct or indirect, with his children or his wife. The order did not contain an expiry date nor have there been any attempts by the accused to vary its terms.

[4] The evidence was clear that as at November 20, 2002 some of the children were under the age of 18, and that at the time of the alleged breaches - relative to allegations the accused communicated with them - they were all over the age of 18. This fact, together with what could be construed as an officially induced error on Mr. Reckman's part, resulting largely from representations made by a Justice of the Peace and Assistant Crown Attorney in a related matter in Gore Bay, Ontario, the Crown is not seeking a committal to stand trial on those counts under section 127 (and related probation breaches). Therefore, I can now indicate that Mr. Reckman is discharged on counts three, counts five through twelve, counts seventeen and eighteen, twenty-one and twenty-two, and twenty-five. These counts all allege communication with the children of the marriage.

[5] I can also at this point address count one, which alleges a criminal harassment. Although the count lacks specificity in terms of which of the listed conduct in section 264(1)(2) Mr. Reckman engaged in, it is clear the conduct alleged could, if believed, fall within the section. That is, there is evidence his wife had a fear for her safety and that it was reasonable in all the circumstances. Furthermore, there is some evidence to support a finding that Mr. Reckman repeatedly communicated with his wife, through some limited direct contact, but more through indirect contact by way of letters, various treatises and essays, and family members, which a trier of fact could either conclude he intended to have passed onto her, or that it was reasonably foreseeable that the messages would be communicated to her. Even if I am wrong in how I've characterize the various forms of communication, it would be open to a trier of fact to conclude that, even if not repeated communication, that Mr. Reckman engaged in threatening conduct directed at his wife. Mr. Reckman will, therefore, be committed to stand trial on count one.

ISSUES BEFORE THE COURT

[6] The remaining counts can be grouped as follows. Count twenty-seven alleges that Mr. Reckman conveyed a threat to one of his sons to cause bodily harm to his wife. Counts two, thirteen, fifteen, nineteen, and twenty-three allege that Mr. Reckman communicated with his wife contrary to section 127 of the Criminal Code of Canada and that he, on one occasion, attended the Municipality of Lambton Shores all contrary to the FLA restraining order described earlier. All remaining live counts are breaches of the probation order which required Mr. Reckman to keep the peace and be of good behaviour.

[7] There are two issues:

[8] First, could a reasonable jury, properly instructed, convict on the allegation Mr. Reckman uttered a threat to his son to cause bodily harm to his wife?

[9] Second, should Mr. Reckman be ordered to stand trial on counts two, thirteen, fifteen, nineteen and twenty-three (section 127)? More specifically, is there a statutory bar to the Crown proceeding on these counts?

ANALYSIS

Utter Threat to Cause Bodily Harm

[10] Mr. Reckman's son testified that on May 22, 2012 he received a phone call from his father wherein they discussed Mr. Reckman's desire to reunite with his wife. According to the son this phone call lasted approximately forty minutes.

[11] In the son's statement to the police, which he adopted, confirmed as being true, and which was filed as an exhibit at this hearing, he indicates the following:

On Tuesday May 22 at 915pm I got a phone call from my dad. He had gone to a church service.............on Saturday and had a conversation. My mom was at the service. He was encouraging me to talk to my mom and that the speaking in tongues at the end of the service was a message directed at mom. This could be....I felt it could be your last chance....I fear that your mom needs to make things right or something bad could happen to her and if you could pass this message on to your mom for me. He repeated it three times in the phone call................This could be mom's last chance for returning to him or he felt something bad might happen. He said this about 3 times. Not sure what his intentions were........It worried me about the conversation it left me with a concerned feeling. Basically my mom's well being it's hard to explain. No nothing in the conversation hinting my dad was going to do anything. The conversation suggested something bad might happen to my mom so that left me with a bad feeling. I felt it was threatening but nothing said specifically going to do anything, but I definitely felt uncomfortable.

[12] In his viva voce evidence, and in response to questions from the Crown, the son indicated that his father said the following to him – "I fear your mom needs to make things right or something bad could happen to her and if you could pass this message on to your mom for me." On cross examination, he indicated that the above noted conversation with his father was replete with religious references and biblical analogies. He specifically mentioned his father's belief that Satan had a grip on his wife. At this point he attributed to his father an indication that "...something bad would happen to her". He expressed his belief that this was not a threat; that he didn't understand it to be a threat; that it wasn't "mentioned as a threat", but rather it just left him "with a bad feeling".

[13] During submissions, I expressed concern respecting the state of the evidence on this count. This is not a direct threat - that is, it is not alleged that the accused said his wife must do "A" and if she doesn't he's going to do "B" to her. In that sense, it is circumstantial which allows the court, in my view, to engage in a limited weighing of the evidence.

[14] What inferences could be drawn from Mr. Reckman's statement to the son? I suggested to the Crown that the evidence overwhelmingly favours the religious inference that the wife would not be right with God; that she would remain in "Satan's grip"; and that there would be consequences (i.e. not going to heaven, facing other spiritual hardships for her disobedience), were she not to reunite with her husband. The son's evidence supports this. The evidence of Mr. Reckman's daughter speaks of her clear belief that her father has an, albeit misguided, notion that his wife's (her mother) religious well-being and relationship with God is at risk. Considering the evidence as a whole, this is the best inference to draw.

[15] The Crown submits that there is no evidence to support this inference, meaning, I take it that that explanation had not been specifically offered by Mr. Reckman given he did not testify at this hearing. The accused did not testify nor would it have been in his interests to do so, but having regard to the testimony of the children the evidence is overwhelming on this point. However, the Crown also, and quite rightly, points out that to discharge at this stage would require me to conclude that there are no competing inferences, rather that there is only one – that which I've outlined above. I cannot come to that conclusion. Without further commenting on the quality of the evidence, it would be open for a trier of fact to conclude that what was conveyed to the son was a threat to cause bodily harm, or perhaps death, to his wife.

Section 127 Criminal Code of Canada

[16] Section 127 states as follows:

127. (1) - Disobeying order of court - Everyone who, without lawful excuse, disobeys a lawful order made by a court of justice or by a person or body of persons authorized by any Act to make or give the order, other than an order for the payment of money, is, unless a punishment or other mode of proceeding is expressly provided by law, guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.

[17] At the outset of the preliminary hearing, Mr. Peterson, on Mr. Reckman's behalf raised the appropriateness of this charging section, submitting that there is a punishment and another mode of proceeding expressly provided by law. The argument focused on the Provincial Offences Act, R.S.O. 1990, Chapter P.33 ("POA"). There can be no doubt that each of Parts I and III of the Provincial Offences Act has application to a breach of the restraining order provisions of the FLA. The issue then is what is meant by the term "expressly" and is the exception found in section 127 triggered here.

[18] Section 46 of the FLA states that:

46. (1) - restraining order - On application, the court may make an interim or final restraining order against a person described in subsection (2) if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody. 2009, c. 11, s. 35.

(2) A restraining order under subsection (1) may be made against,

(a) a spouse or former spouse of the applicant; or

(b) a person other than a spouse or former spouse of the applicant, if the person is cohabiting with the applicant or has cohabited with the applicant for any period of time. 2009, c. 11, s. 35.

[19] Sections 1 and 61 POA provides as follows:

"offence" means an offence under an Act of the Legislature or under a regulation or by-law made under the authority of an Act of the Legislature; ("infraction")

61.- General penalty - Except where otherwise expressly provided by law, every person who is convicted of an offence is liable to a fine of not more than $5,000. R.S.O. 1990, c. P.33.

[20] Sections 3 and 21 of the POA provides as follows:

3. (1) - Certificate of offence and offence notice - In addition to the procedure set out in Part III for commencing a proceeding by laying an information, a proceeding in respect of an offence may be commenced by filing a certificate of offence alleging the offence in the office of the court. R.S.O. 1990, c. P.33, s. 3 (1).

21. (1) - Commencement of proceeding by information - In addition to the procedure set out in Parts I and II for commencing a proceeding by the filing of a certificate, a proceeding in respect of an offence may be commenced by laying an information. R.S.O. 1990, c. P.33, s. 21 (1).

[21] On a plain reading of sections three and twenty-one alone, I am inclined to characterize the procedural and punishment provisions of the POA as being, although applicable, somewhat residual in that they do not directly reference a breach of, in this case, section 46 of the FLA. However, sections 1 and 61 of the POA complicate this in that there is here direct reference to "an Act of the Legislature or under a regulation...", which section 46 of the FLA clearly is. The general punishment provisions are therefore applicable and this does in fact represent another mode of proceeding which provides for a well defined penalty.

[22] During argument, counsel referred me to two Supreme Court of Canada decisions both which address the nature of the exception found within section 127. In the case of R. v. Clement, [1981] 2 S.C.R. 468 the court considered the term "expressly provided". The facts in Clement revolved around the courts contempt powers and in assessing the applicability of section 127, the majority rejected the argument that rules of the court and rules of procedure amount to a mode of proceeding or punishment as expressly provided by law, in large part because the court's contempt powers were inherent and founded in the common law.

[23] In R. v. Gibbons 2012 SCC 28, [2012] S.C.J. No 28, the accused was appealing from a lower court decision that determined Rules 60.11 and 60.12 of the Ontario Rules of Civil Procedure, which governed motions for contempt orders, did not preclude the application of section 127 of the Criminal Code. The accused in Gibbons was charged with contempt of an interlocutory injunction that prevented him from displaying protest signs in the vicinity of specific abortion clinics.

[24] Both cases stand for the proposition that neither the specificity nor comprehensiveness of the (alternate) procedure is determinative of whether a law satisfies the conditions for ousting the application of section 127. The focus must be on whether or not it can be said that in establishing the 'other' mode of proceeding or punishment, Parliament or the Legislature intended to limit the application of section 127 by creating an express alternative statutory response to the acts complained of. The court seems to be, in each case, focused on the fact that what they were considering were rules, as opposed to a specific statute. This clearly impacted the analysis respecting whether or not something is 'expressly' set out. Justice Deschamps indicates at paragraph 5 of Gibbons that:

In Clement, this Court held that the term "lawful order" in s. 127 refers to a court order that is either "criminal or civil in nature (p.472). It also held that the "law" referred to in that section is statute law. The Court was of the view that the inherent power of a court to conduct its business and punish for contempt cannot be said to be "expressly provided" within the meaning of s. 127; something "inherent", almost by its nature, is not "express" (p. 476). The Court held that the provisions of the Rules of the Court of Queens Bench of Manitobe were insufficient to preclude the application of s. 127, because they did not provide the legal foundation for a proceeding for contempt of court. Instead, the common law continued to provide such a foundation. The Court added that, "without that common law substratum, these rules alone cannot be a fulfillment of the exceptional requirement of s. 127 that there be some penalty or punishment or other mode of proceeding.....expressly provided by law...." (p.475).

[25] The case at bar does not involve the application of Ontario's rules of procedure, other codified rules of court-practice, nor are we contemplating any inherent power of a judge. Mr. Reckman's alleged conduct, at least as it relates to any breach of section 46 of the FLA, is, in my view, clearly and expressly provided for not only within the POA, but in the FLA itself. Crown counsel submitted that there was nothing in the FLA that even mentions a mode of proceeding or punishment. However, section 49 does set out the following:

49. (1) - Contempt of orders of Ontario Court of Justice - In addition to its powers in respect of contempt, the Ontario Court of Justice may punish by fine or imprisonment, or by both, any wilful contempt of or resistance to its process, rules or orders under this Act, but the fine shall not exceed $5,000 nor shall the imprisonment exceed ninety days. R.S.O. 1990, c. F.3, s. 49 (1); 2006, c. 19, Sched. C, s. 1 (2).

[26] This, I believe, expressly details the courts powers and describes what is to occur when there is a violation of the Act other than its inherent powers respecting contempt. In fact, the inclusion of the language "in addition to" clearly distinguishes the court's jurisdiction in this instance, from any power it otherwise has.

[27] The dictionary definition of expressly is: "for an express purpose; with specific intentions; plainly, exactly, or unmistakably". The FLA and POA, each on their own, but most certainly together, expressly provides for another mode of proceeding and punishment as it relates to breaches of its restraining order provisions.

[28] The awkwardness of addressing this at the preliminary hearing stage is the Crown is burdened, really, with having to establish a negative - that there is no other applicable law. Better put perhaps is for the court to simply conclude, as I have, that counts two, thirteen, fifteen, nineteen and twenty-three are not offences known in law and therefore Mr. Reckman cannot be committed to stand trial on them as no reasonable jury, properly instructed, could convict. Mr. Reckman will be discharged on those counts.

CONCLUSION

[29] Mr. Reckman will be committed to stand trial on counts one (criminal harassment), and counts twenty-six through twenty-eight (utter threat and two breaches of probation). Count twenty-six, on the evidence, covers a time period beginning Aug 16, 2011 (the date of the probation order) and ending on May 22, 2012. He will be discharged on counts two through fifteen, counts seventeen through nineteen, twenty-one through twenty-three, and twenty-five (section 127 and most of the related probation breaches). I have so far remained silent on counts sixteen, twenty, and twenty-four, which are breach allegations associated with his contact with his wife. Despite my conclusions respecting section 127, there is some evidence to suggest that on those occasions Mr. Reckman failed to keep the peace or be of good behaviour, either by his unwanted communications with his wife or simply by virtue of the fact he, allegedly, violated the provisions of a provincial statute.

[30] Mr. Reckman will appear in the Superior Court of Justice at its next scheduled assignment court to stand trial on the counts identified.

Released: October 4, 2012

Signed: Justice J.C. George