Court File and Parties

Court File No.: 0311-998-12-476-00

Ontario Court of Justice

Her Majesty the Queen

v.

Rita Kathleen McBride

Reasons for Judgment

Before the Honourable Justice G.J. Brophy

on November 15, 2012 at Walkerton, Ontario.

Appearances

D. Scapinello – Counsel for the Crown

M. Hewitt – Counsel for Rita Kathleen McBride

Reasons for Judgment

BROPHY, J. (Orally):

Overview of Charges and Procedural Context

Ms Rita Kathleen McBride has been charged with six offences under Information 12-476. The sixth count on that Information was withdrawn by the Crown at the commencement of the trial. Therefore she stands before this Court dealing with counts one through five. All of which are a form of criminal harassment. With reference to those counts, the Crown has elected to proceed by way of indictment and on the 31st of August, 2012, Ms McBride elected to proceed in the Ontario Court of Justice and pled not guilty to those five counts.

I will deal with the specifics of the counts in a moment, but it is necessary to indicate of course that this case has an unusual aspect, in that the Crown has signaled that they will be seeking a ruling after the trial, dependent upon of course the result of the trial, that Ms McBride is not criminally responsible for her actions. There has previously been a psychiatric report prepared in that regard which leaves the Crown with some belief that they can achieve that objective.

The defence has indicated that depending upon the outcome of the trial proper the defence may well resist the Crown's request. Having said that, it is important to understand that this is effectively then a form bifurcated hearing if we get that far. And what I mean by that is that as counsel are well aware, the process under Section 672 and the attendant sections dealing with a not criminally responsible protocol is governed by legislation and is also reflected upon in the R. v. Swain (1991, 1 S.C.R. 933. Now that decision predated the modifications to the Criminal Code related to this, but it set the basic ground work for these matters. I have referenced a book by Justice Richard Schneider, who is on the Ontario Court of Justice and Hy Bloom, Mental Disorder and the Law, which is a text which has been published in 2006. So Justice Schneider on our court is also a psychiatrist and is a renowned writer in this field.

There is not anything earth-breaking or ground shattering about what Justice Schneider and Mr. Bloom or Dr. Bloom I believe it is, say in this text, other than to say that there is a structure which requires the Crown to prove the charge in the first instance. This is derived from the text and also the legislation and also from the Swain decision. And it would produce in the right circumstances, a bifurcated trial. The important point to recognize for our purposes right now is that in the trial proper, where the Crown is required to prove the charge against Ms McBride in the ordinary fashion on the ordinary criminal standard, has associated with it, all of the appropriate criminal law principles that we deal with every day. That is to say that Ms McBride is presumed to be innocent until proven guilty. The burden is on the Crown to prove the case. That burden never shifts. Ms McBride does not have to say anything, do anything and she is entitled to all of the appropriate criminal law defences that would be available to her. And ultimately the Crown has to satisfy the Court that the offences are made out beyond a reasonable doubt.

So that is the test. It's nothing extraordinary. But that has to be satisfied before we move to Section 672 and a trial of the issue as to whether or not Ms McBride is not criminally responsible for her actions.

Issues in the Case

Now having said that, it begs the question, what are the issues in this case? To illustrate the issues, I will just give a brief summary of the factual backdrop that gets us to why we are here. And it is important to note, that Ms Hewitt in a very careful presentation of Ms McBride's case acknowledged that many of the facts that the Crown was going to introduce were true. The issue as I understand it from Ms Hewitt's perspective on behalf of Ms McBride is that the actions of Ms McBride were not criminal in nature. That is the essential defence. The Crown seeks to put a different light on those various actions.

So the factual summary is simply this. Ms McBride in 2000 and 2001 became enamored of Mark McBride, one of the named complainants. She pursued him in an ordinary sense, approaching him and he rebuffed her. But she did not go away. She continued to take an interest in him and in his life. And there are various reasons why she did that and we will explore some of those in just a moment.

In any event, those interests she had in Mr. McBride continued, were fairly intense and in 2005, she was charged with criminal harassment and she pled guilty to criminal harassment and an offence of prowling at night on the property of Mark and Donna McBride. The criminal harassment offence was contrary to Section 264(2)(b) of the Criminal Code, which was with reference to repeatedly communicating directly or indirectly with him. The second offence was under Section 177 of the Criminal Code and the facts are that she was found on his property – perhaps not in the middle of the night, but certainly well after dark in circumstances where she had no right to be there and I will talk about that in a moment as well. She pled guilty to those offences and on the 15th of September 2005 she was sentenced on the following basis. She was granted a conditional discharge and was placed on probation for two years and made subject to a Section 110 firearms prohibition order. The probation order was issued and she was on probation for two years. Terms and conditions of the probation order included, counseling and non-association with Mark McBride and his spouse and his children and not attending at his residence. She was also required as part of that probation order, to continue to engage in counseling, but most specifically with a psychiatrist I believe, by the name of Dr. Marriott and to attend regular counseling sessions with Mental Health Court Support case managers.

So two years go by, Ms McBride properly adheres to the terms of the probation order and nothing happens.

In 2007, in September, Mr. Mark Ryan, the Probation Officer who had been supervising Ms McBride calls the McBride household, speaks to Mr. McBride and his spouse Donna McBride and tells them that the probation order is about to conclude and that they should expect a call from Ms McBride. Mr. Ryan testified and indicated that he thought Ms McBride still had an interest in Mark McBride.

The call came through. It was put on the speaker phone. Mr. McBride again rebuffed Ms McBride and Donna McBride was a party to that conversation in the sense that she overheard the conversation and participated to a certain extent. Certain things were said by Ms McBride which are irrelevant to the case. That was that, and that was in 2007.

Post-2007 Incidents

Subsequent to that, there were a number of incidents that occurred, whereby Ms McBride had contact with Mr. McBride and Donna McBride. They are few in number. They span a period of time over five years. There seemed to be some modest escalation to them, in that more of them occurred in 2011, 2012 than previously. In any event, all of this culminated in Ms McBride, the accused before the court, having changed her name. It is noteworthy that she was formerly Rita Boyd, which was a married name and she changed her name in January of 2012 to McBride. Obviously the same name as Mark McBride.

She goes into work one day, working at Gilley's Tavern, I believe, in Kincardine and speaks to the payroll person and says that she has changed her name and produces a document proving that it is a formal name change, a document issued presumably by the Province of Ontario and that is that.

This person, the payroll clerk, knows the McBride family in the Village of Ripley and goes and speaks to them. They think about it. They are upset by it and they call the police. The police conduct an investigation. Ms McBride is arrested. She is held in custody. She has been in custody since that occurred. I believe the arrest was in May of 2012. There is a search warrant obtained and the police search her residence and find various things which indicate firstly, that Ms McBride has a continuing interest in Mark McBride and that she has planned extensively or at least contemplated marrying him, obviously that being a problem because Mr. McBride is already married.

Now having said all of that that is a brief snapshot of the chronological history of this matter and how we got to this point. The issues as I have already identified are firstly, were the actions of Ms McBride, post-2007 of a criminal nature, as they are contemplated in Section 264 of the Criminal Code. Corollary to that of course, but as part of the analysis that has to be gone into, is that Mr. and Mrs. McBride, Mark McBride and Donna McBride, knew very little of what was going on behind the scenes in terms of the preparations and the actions taken by Ms McBride, the accused in terms of preparing for a wedding. They did not know anything about that. The only thing they knew was that – and it was pure hearsay and village information if I can call it that, that Donna McBride said she understood that Ms McBride had purchased a wedding dress. And that is not challenged. She had in fact purchased a wedding dress and in fact had purchased it in 2006, which is an interesting timing issue.

Other than that, they only knew about certain specific things that had happened to them directly and then of course, the name change issue.

So that is important to reflect upon as we go through this process.

The Nature of Criminal Harassment

I will detail some more of those facts in just a moment, but before I do that it is probably useful to just take a moment to review the nature of the charge that we are dealing with because the facts of this case cannot be properly considered unless we appreciate the nature of the offence itself. The most useful statement of the offence, other than what is in the Criminal Code of course, is contained in the R. v. Kosikar, which is a decision of the Ontario Court of Appeal, reported at, [1999] O.J. No. 3569 and other citations. It is a decision from 1999 and in that decision and I will be referring to this later in these reasons, there were a number of things commented upon and the first one is – I will call it the single incident issue. And that is to say, given the right context, a single incident can properly ground a criminal harassment charge.

However, it is useful particularly to note in paragraphs 18 and 19, the following, and this is a decision of Mr. Justice Goudge and he is referencing the decision of Lamontagne. The citation is included in the quotation. The quotation at paragraph 18 is as follows:

"As Proulx, J.A. said in R. v. Lamontagne (1998), 129 C.C.C. (3d) 181, (Que. C.A.), s. 264(1) sets out the constituent elements of the offence which must be proven, whereas s. 264(2) describes the four types of prohibited conduct to which subsection (1) refers".

I will not burden counsel by reviewing subsection (2) in the various forms by way of quotation, but I would say that subsection (a) refers to repeatedly following somebody; subsection (b) refers to repeatedly communicating with somebody; subsection (c) talks about besetting or watching a dwelling house; and subsection (d) talks about engaging in threatening conduct directed at the other person or any member of their family.

Returning to the Kosikar decision and in particular paragraph 19, Justice Goudge goes on to say:

"I also agree with Proulx, J.A.'s adoption from R. v. Sillipp (1997) 1997 ABCA 346, 11 C.R. (5th) 71, (Alta. C.A.) of the following description of the five essential elements of the offence."

Five Essential Elements of Criminal Harassment

1. It must be established that the accused has engaged in the conduct set out in s. 264(2)(a), (b), (c), or (d) of the Criminal Code.

2. It must be established that the complainant was harassed;

3. It must be established that the accused who engaged in such conduct knew that the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassed;

4. It must be established that the conduct caused the complainant to fear for her safety or the safety of anyone known to her; and

5. It must be established that the complainant's fear was in all the circumstances reasonable.

One further comment I would make of a preliminary nature then, is the question of what harassment is understood to be. Counsel are very familiar with this because there is significant judicial commentary on what harassment means. But it is referred to very clearly in paragraph 25 of the Kosikar decision, which sets out the language we have all come to understand makes up harassment. The easiest way is simply to quote paragraph 25 as follows:

"Hence, I think this element of the offence requires the Crown to prove that as a consequence of the prohibited act, the complainant was in a state of being harassed or felt harassed in the sense of feeling, 'tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered'."

That is the language that is used to describe harassment and that has a history through various cases and has been adopted generally by the appellate courts saying that is the definition of harassment.

Factual Background: Current Events (2007 Forward)

So with that backdrop in mind, I will just give some further comments then about the facts on which this case is based. It is probably useful at the outset to talk about, what I will the current events. That is to say from 2007 forward. What we know is this, and the evidence does not seem to be contested in any substantive way. In other words, the facts are what they are. There is no credibility or reliability issues associated with these facts. I do not think that is the thrust of the defence.

What we know is that in September of 2007, Ms McBride, I will refer to her as Ms McBride, with that being her proper name at this point in time, called the McBride household speaking to Mark McBride and Donna McBride. In that conversation, effectively she said, I am back, I am interested and most tellingly, she said I would like to be a step-mother to your children or words to that effect. Of course there was no transcript involved and this is the memory of Mark McBride and Donna McBride.

Mr. McBride became angry and shut the conversation down and very clearly indicated to Ms McBride that he was having none of it. Donna McBride was very upset by that telephone call. But that is what happened. So that is in 2007.

The facts that I have received subsequent to 2007 as known by the McBride's are that on one occasion in the fall, I believe of 2011, Mark McBride thought he was being followed by Ms McBride. He was proceeding north out of the Village of Ripley. The McBride household is just on the north side of the village. Ms McBride, the accused lives in the Village of Ripley as well. It is important to note at this point, that the Village of Ripley is a community of about 800 people. That is the evidence I have. Being from the area generally, I think that is reasonably accurate. It might be off by a hundred people one way or the other, but the point is, it is a very small community. Essentially it is a bedroom community to Kincardine, with some rural agriculture elements as well. A small place.

Mr. McBride and Donna McBride live on the north side of the village. There are a number of roads going through the village. One of the main ones goes north, right past their home. Mr. McBride testified that on one occasion, he was proceeding north. He thought he was being followed by Ms McBride and this is in approximately 2011. He proceeds all the way up to, I believe it is Highway 9, where you turn left to go to Kincardine and you turn right to go to Walkerton, going to Burvie first. Mr. McBride, trying to test his premise turns right, to see if Ms McBride is going to follow him further. His evidence is that he was convinced that she was following him, but as he turned around at Burvie, he did not see her. So there is no good evidence that Ms McBride was following him on that occasion.

She may have, she may have not, but there is nothing of any weight to that evidence. And in any event, it could have been completely innocent in the sense that Ms McBride could have simply been going to Kincardine and turned left and that was that.

What it does of course speak to is the state of mind that Mr. McBride was in.

In addition, there were two other incidents, or pardon me, three other incidents. Two of them involve Donna McBride and they occurred in late 2011, early 2012. Donna McBride was walking with her children and on two occasions, she says was passed by Ms McBride and Ms McBride contrary to her ordinary actions, slowed down and waved at her. Donna McBride found this somewhat strange and disconcerting because in her evidence, in previous events where she has had contact with Ms McBride, Donna McBride has been ignored and there has been no glances, no gestures, no anything happening. In other words, she has been shut out. And here it appeared that Ms McBride, the accused, albeit not very significantly, was making some form of attempt to be hospitable and to engage with Donna McBride. So those two incidents existed and the sensitivities of Donna McBride were such that she was concerned about those things, because she was of the view that Rita McBride's actions were abnormal in the context in which they had occurred previously.

It is also useful to note at this point that the McBride family, Donna and Mark McBride had taken steps to street proof their children, if I can call it that. That is to say they were concerned about Rita McBride and this is through 2011 and 2012 and they spoke to their children about coming directly home from school or if they were stopped by Rita McBride, what homes to go into, what businesses to go into and they even went so far as to speak to people in the community about taking their children in to protect them from Rita McBride. Now these were actions they were taking out of an abundance of caution. There is no suggestion in the evidence that Rita McBride ever actually approached any of the children directly, but nevertheless again it speaks to the state of mind that Donna and Mark McBride were in.

There was also an incident which is not of great probative value, but to complete the narrative should be commented upon. And that is that Donna McBride took, I believe, her youngest child to St. Peter's Church in Goderich for her first communion program and she found to her surprise that Rita McBride was there. Now the evidence is not clear in terms of there being any particular reason why Ms McBride, the accused could not be there. Ms McBride's information as it is gleaned through the other aspects of this case is that she was from time to time attending St. Peter's Church and seeking some counseling from Brian MacDonald, who is a deacon in that church, I believe. And as a function of that, there is nothing advanced in the Crown's case that there is anything incorrect about Rita McBride being in the church on that particular occasion. But again, Donna McBride found this very disturbing and disconcerting and again it speaks to her state of mind.

Another specific incident however that is in play is that Mark McBride encountered Rita McBride at the Davidson Centre in Kincardine, again in the midwinter of 2012. He was approached by Rita McBride, but in fairness, this was in an entrance/exit area of the Davidson Centre and she may well have been there on other legitimate business, but it is hard to know. In any event there was brief conversation between them and Mr. McBride refused to engage with Rita McBride and moved on. But nevertheless it is clear that at that point in time, Rita McBride did try to engage Mark McBride in some conversation.

One further incident is that on one occasion and I believe this was in the fall of 2011, Mr. Mark McBride was outside his residence on a riding lawnmower cutting his grass. He sees the motor vehicle of Rita McBride proceeding north out of Ripley and going past his residence and continuing north. His evidence is that within about ten minutes, Rita McBride returned heading south and stopped her vehicle opposite his house and was gesturing to him to come over and talk to her. He was concerned that she would get out of the vehicle and approach him. He did not want that to happen, so he drove his lawnmower over to where Ms McBride was and they had a brief conversation to this effect. Ms McBride said that she had encountered in some fashion a motor vehicle accident or problem with a motor vehicle north of Ripley and she wanted to know the telephone number for Montgomery Motors in Kincardine so that that business could be called. I believe if I remember the evidence correctly, I learned that one of Ms McBride's children works at Montgomery Motors. It matters not. She wanted a telephone number. The reality is of course that Mr. McBride, Mark McBride thought this very odd. Firstly that she came back within ten minutes. Secondly that she stopped to talk to him. Thirdly, that she needed the phone number for Montgomery Motors. He fortunately had the number, I am not sure why or how, but he gave her the number and she left.

So that is an approach by Ms McBride. Nothing sinister about it in and of itself, but nevertheless an approach where she is attempting to engage with Mark McBride.

The final incident of course, involves the name change itself and it is not a direct incident between Rita McBride and Mark McBride or Donna McBride, but rather an incident wherein she, Rita McBride, decides that she wants to change her name from Boyd to McBride. Now obviously there is nothing accidental about that. She very specifically wanted to change it to McBride because she had, in her mind some connection with Mark McBride. There is a very logical explanation about that and there is an interview conducted by the police with Ms McBride that speaks to that, that I will be referring to in a moment.

Ms McBride, consciously decided to do that. She does that in January of 2012. I am not sure when she started doing it, but the paperwork if you will, came through in January of 2012. At some point in April with the order having been made in January 2012, why she is going in April to deal with the pay cheque, I am not sure. There is maybe a chronological issue there that hasn't been explained clearly, but the upshot is that she works at Gilley's Tavern, she goes in to get her pay cheque or to advise the payroll person that she needs to change the name of the pay cheques. So that person says that is interesting – I'm not quoting her, but that's effectively what she's saying and Ms McBride offers a copy. The payroll person may well have indeed asked for a copy of some documentation confirming it and Ms McBride produces a copy of the change of name order or declaration from the province.

The payroll clerk as it turns out is a friend of Mark and Donna McBride. She retains a copy of that form, presumably putting another copy into the file and she attends at the residence of Mark McBride and Donna McBride and tells them what she has learned and gives to them a copy of that document. I believe this occurred on or about the 8th of April and the McBride's, that is to say Donna and Mark McBride called the police some time later, perhaps two weeks later and spoke to Officer Kari Hyde about what had happened. Coincidentally or perhaps conveniently or perhaps logically, Officer Hyde was the officer who had been involved in the 2005 events.

In any event, with this information in the hands of Donna and Mark McBride, their concerns and elevated sense of fear, risk, was enhanced. They thought about it. They called the police. There was some discussion about how the police would deal with Ms McBride and ultimately Ms McBride was arrested on criminal harassment charges. And as I have indicated, there was a search warrant executed.

So those are the events that Donna McBride and Mark McBride knew about and they have to be interpreted in the context of all of the history that we are dealing with from 2000 forward.

Search Warrant Evidence

I will have to deal with that in a moment, but it is important because of the facts being key to aspects of the Section 264 case, that we then talk about the search warrant. The search warrant was executed and no issue was taken about the validity of the search warrant or indeed what was found and the trial of this case, which occupied the better part of three days, was to a large extent focused on what was found as a result of the execution of the search warrant. Without detailing the voluminous material that was acquired by the police, I will highlight a few things that were discovered. This is the apartment of Ms Rita McBride, in the Village of Ripley. I think she lived in the southeast corner of the village and the McBride family proper lived on the north side of the village, not very apart given the size of the village.

In Ms McBride's apartment, they found a wedding dress as I have already indicated, that was purchased by Ms McBride in 2006. They found paraphernalia associated with connections she had to Mark McBride. There was Montreal Canadiens material and memorabilia if I can call it that perhaps. And indeed in passing, I should comment that the evidence I had was that Rita McBride has a tattoo on her back dealing with the Montreal Canadiens. The assertion in the material is that this was the favorite hockey team of Mark McBride. There was also a pillow that had a t-shirt over the pillow that had a cut out picture of Mark McBride at the top of the pillow, which effectively acted as form of monument or replication of Mark McBride. There were various pieces of paper in terms of wedding invitations that were either about to be ordered or had been ordered or discussions about ordering had taken place. There were contact information and records associated with Ms McBride, Rita McBride trying to find appropriate locations for a wedding with the most recent one being focused on an outdoor wedding facility in the City of London. There were other issues associated with other possible wedding venues.

There was all of that and then there were a number of journals that were found. There were at least three journals and in those journals when you go through them and they were dealt with in painstaking detail in the evidence, a number of things emerged and they dealt with Ms McBride's religious inclinations, her Christian beliefs. There were also dream records in those journals. There was evidence of surveillance that had taken place on the Donna and Mark McBride residence. Surveillance as simple as driving by and noting what vehicles were in the driveway, whether the lights were on in the living room and matters of that nature. And those records went over a period of time from 2007 forward, but also prior to 2007. In the journals, there was also reference to various forms of planning about weddings and indeed when the weddings were to take place with July 21, 2012, I believe being the last projected date. There were a number of references to dramatic dreams that were taking place, with reference to future events that could be looked upon as a form of combination of religious imagery and the projected wishes of Ms McBride. All of these things were apparent in the journals and were of some concern when looked at in conjunction with the overall aspect of this matter.

In particular there was a chronology or timeframe of events that appears as part of Exhibit 27. The police have prepared a volume, two volumes in fact of some probably in excess of a thousand pages of various documents and things that have been copied out of the records, and on that timeframe, which appears at page 807 in the police volume four, which is for our purposes Exhibit 27, Ms McBride prepared a timeline which began in 1996 and this is information she has gleaned from various sources. But in 1996, she begins her timeline by saying, Mark married Donna. And then it goes on 1997, met Mark in October. Ashley and Sheldon born. I think Ashley and Sheldon are Ms Boyd's children, but I am not sure about that. Said I was going to marry him. So in her mind as she is creating this and it is difficult to know exactly when she created it, but it would appear to be possibly in 2011 maybe 2010, she creating this timeline, because it projects forward into the future as well as into the past. She is saying that she met Mark McBride in 1997. Mr. McBride's evidence as I understand it is that he first became aware of her in 2000 or 2001.

1998, she skips. In 1999, she makes a note, Madison born October the 7th, Madison being a child of Mark McBride and Donna McBride. In 2000, she says she moved to farm in April and then she says begin to understand Mark. In 2001, there is no statement. In 2002, Mark is my mailman. Asked Jesus to help me with Mark. Six years too early. Alicia in Grade 10-11. I don't know what that last reference means. I think Alicia is a child of Ms Boyd. I am not sure how that connects to this. In 2003, six years too early is 2009. Saw Mark at the Lucknow arena, December 3rd, very angry. So she acknowledges that she knows Mr. Mark McBride is very upset with her. In 2004, left Danny and kids, 15th year. I assume that Danny is Danny Boyd and she left him, left her children behind and I do not know what 15th year means. I can surmise that it means the 15th year of her marriage. She then says in her timeframe of events, visions start, dreams end in October. And there is a slash, and it goes on to say, saw Mercedes before she was born. Mercedes being another child of Mark McBride and Donna McBride. In 2005, she records Mercedes born May 21st. And then she goes onto say, Mercedes is flower girl between four and five years. I do not know what that means, but my interpretation of that is she is projecting forward to a wedding with Mark McBride and that Mercedes would be the flower girl when she is four or five years of age, which would take it into 2011, 2012.

In 2006, she makes a note, confirmation re: Mark. In 2007, probation ends in September. In 2008, Alicia in Grade 11, six years from "02" and then she has some dates recorded underneath that of September '08 to June '09. In 2009, she records January the 12th equals five years, six years from '03. In 2010, she says Mercedes is five years. July wedding. Seven years? Alicia is in Grade 12 when married? In 2011, July wedding or have baby (8 years). In 2012, now I am uncertain as to when she's preparing this. 2012, she says rapture of church? See nuke-missile or comet and then slash baby boy is in a diaper between 16 months and two years of age. And then she goes on to say something to this effect, seven year tribulation, 2013, possible rapture of the church. 2014, also a prophetic time re: Jesus's return. And then she goes forward all the way to 2017, New World order. Wants onto microchip, all people earth. And that is what that chronology says.

Now, I fully appreciate that Ms McBride is having dreams. She has a religious view of the way the world works and she is expressing that view through these entries and in her journal entries and that part of it is promoted by dreams she is recording. There is a large group of people out there who think that dreams are important and wish to express them and try to interpret them and there is nothing incorrect about that as far as it goes. If that is the way you wish to look at things. Having said that, the information that was discovered as a product of that search warrant, clearly indicates that Ms McBride had a continuing and very intensive interest in Mark McBride.

Lastly with reference to the search warrant, it should also be noted that there was at least one sympathy card that was discovered. It was addressed, but not sent apparently to Mark McBride and it suggested or intimated that Ms Rita McBride was expressing sympathy to Mark McBride with reference to the death of his spouse, Donna McBride, which is a prerequisite of Ms Rita McBride being able to marry Mark McBride.

Historical Background (2001-2005)

So those are the current events. It is important to note that there was a history behind this however, which needs to be recorded and that is from 2001 forward to 2005, Rita McBride was in a very intensive way pursuing Mr. Mark McBride. She did that in ways that were unsubtle and sometimes subtle. For example, she approached him on a number of occasions while he was in arenas. He worked as a maintenance manager of arenas in Lucknow and Ripley, I believe, to the point where she would approach him and he would rebuff her, but then on other occasions, she would simply be in the stands watching him as the day wound down and everybody was leaving, but she would be up in the stands watching him. On one occasion, Mark McBride was so upset by this, he called his wife. His wife came to the arena. Donna McBride's brother was in the arena as well. They had the brother with Mark McBride when he talked to Rita McBride, to try and convince her to go away and leave Mark McBride alone.

On other occasions, she went to the post office and met him at the post office. Mark McBride is a rural mail delivery person. He goes to the post office to pick up the mail. Rita McBride met him there. She actually asked him early on for a postal box on his route, so that she could – she offered some explanation that did not make any sense, but nevertheless it was obviously a subterfuge to have some kind of contact with Mark McBride.

On one occasion, Mark McBride opened a letter that was addressed to Rita McBride that had arrived in that post office box, probably improperly on his part, but nevertheless he did it and it had something to do with wedding invitations that had been ordered between Rita McBride and Mark McBride.

There were other more dramatic incidents. On one occasion, with Mark McBride and Donna McBride becoming increasingly concerned about Rita McBride's behaviour, they parked their vehicles away from their residence so that it would not be apparent that somebody was at home. Donna McBride was indeed at home. She was pregnant with one of her children at the time and Donna McBride, who testified, hears some noise outside and gets up and what does she see, but Rita McBride trying to look into the windows of the house. This is a house that is set back from the road. There are photographs that display this. It is set back from the road some hundred feet to hundred and fifty feet. So this could not have happened by accident. This was very specific and directed.

The culminating event was that Mark McBride came home and he had gotten into the habit of checking the house out to make sure that there was nobody in and around the house and on one evening he came home late from some event that he had been at and he hears some noise or gets drawn to check out behind the house and what does he find, he finds his ladder which was otherwise propped up against a laundry pole on the ground and he finds Rita McBride. The supposition being that Rita McBride had moved the ladder in an effort to look in the house in some fashion.

At that point, the police were contacted and as I have indicated, charges were laid with reference to criminal harassment and prowling at night.

So that is the backdrop which helps the Court to understand the import of the events post-2007.

Police Interview Evidence

I think then I can turn to another factual aspect of the case and then deal with the analysis. That is the interview by Detective Constable Dave Hackney involving Ms McBride. That interview taking place on the 10th day of May, 2012. The interview is an extensive interview. It lasted from 10:32 in the morning to 12:11 in the early afternoon. Officer Hackney conducted a very thorough interview. No issues were taken with reference to the voluntariness. And I should point out that there are no charter issues in this case.

A transcript has been prepared. I have watched the video and I have read the transcript and of course it has been referenced in detail in the submissions of counsel.

The part that I think is of concern and of course the entire interview colours all of this case, but the parts that are of greats concern begin at page 86. And this goes to the question of what to make of the name change, because that it seems to me is the linchpin of this case.

On page 86, there is a discussion about the name change, and Ms McBride says things about putting closure on her marriage to Danny. I am not being a Boyd anymore and matters of that nature. But if you look at line 21, Ms McBride says, "so that's why I took Mark's name." And then Officer Hackney says, "okay, so yeah you took Mark's name, that's a, that's a choice that you made." Ms McBride then says, "it is a choice, yeah and I wanted to tell him and I said no, because you know what, he'll find out."

Moving over to page 87, Hackney, "mhh hmm". McBride, "on his own."

The following pages go on to deal with the impact or the fallout from Mr. McBride finding out and then a discussion about the motives of Ms McBride with reference to the name change. And on page 88, she says at line 26 – Officer Hackney says at line 24, "is the motive behind the name change". Ms McBride says, "it's trying, I tried to be so honest with him."

Then on page 89, she goes on to say in answer to a question by Officer Hackney at line 4, "so this is a way of, mhh, of expressing your feelings towards him, by taking his name?" McBride, "Not so much feelings, as mhh, where I stand. This is what I believe and it's final".

At line 21 Officer Hackney says, "mhh, it's a choice." McBride says, "mhh hmm."

She goes on to repeat that on page 90 at line 21.

Then on page 92 through to 94, there are various statements that are of significance. At line 21, Officer Hackney says, "it's important that you are known as mhh, as Rita McBride?" McBride, "not – no important as mhh – the name is not important". Hackney, "no, it's, it's who it is that's important?" Page 93, "it tells – I want Mark to under – it tells Mark that this is Rita's decision and choice." Hackney, "mhh hmm, mhh hmm, okay. It tells him sort of…?" McBride, "where I stand." Hackney, "where you stand with him?" McBride, "without saying too much, without saying anything to him." Hackney, "mhh hmm, it, it…." McBride, "well open – and my choice what I've made, mhh hmm". Hackney, "which would be to be with him, if that – if that were, if things line up?" McBride, "well if the door opened." Hackney, "mhh hmm." McBride, "yeah. But it's not going to open then." Hackney, "and that's…?" McBride, "you don't, you don't force it open, a door open. They open." Hackney, "yeah." McBride, "doors open on their own." Hackney, "mhh hmm." McBride, "okay, you don't force a door open." Hackney, "that's your way of telling him?" McBride, "yeah, yeah, I'm here." Hackney, "mhh hmm, okay, mhh…." McBride, "I know I probably should have said something." Hackney, "mhh hmm". McBride, "at the time, no, he'll figure it out."

Those are the facts on which this case is based.

Legal Analysis

Application of the Kosikar Framework

As I have referenced already in looking at the Kosikar decision and as counsel know, Kosikar was a case involving a single incident. In that case, there was a history which was in a sense similar to this case, although the final actions by the offender in the Kosikar case was certainly more direct and of a more vivid nature. But essentially this was a long term history in Kosikar, where a waitress drew the attention of a customer who then decided to pay court to her. She wanted nothing to do with him. His behaviours over time became difficult and ultimately he was charged with a criminal offence and a period of time went by and nothing happened during a period of probation which was three years. However, subsequent to the probation, a letter was sent to this individual, this victim, and that letter reiterated his love for her and offered to save her for God and it contained explicit and aggressive sexual references. But that was the only point of contact.

He was arrested and charged with criminal harassment again and the issue in the case was whether or not a single contact could form the basis for a criminal harassment charge. Kosikar stands for the principle that a single event could indeed do that. In paragraph 26 of Kosikar, the Court of Appeal said the following:

"In summary, therefore, I conclude that neither the prescribed conduct in s. 264(2)(d), nor the consequence required of the complainant prevent a single act from founding a conviction. If the single incident is threatening conduct and if, in the circumstances, it causes the complainant to feel harassed, then these two elements of the offence are made out."

So in this case, it seems to me the question that has to be answered is whether or not looking at the facts as a whole, the single incident aspect of this case applies. By that, I mean to say when I look at the single incident, I am thinking in terms of the name change and the way in which the McBride's found out about the name change. Does that incident coupled with everything else make out the offence from the Crown's perspective?

As Justice Goudge indicated in paragraph 19 of the Kosikar decision, there is a protocol that can be followed to analyze these cases. And the first question is, has the Crown established that the accused is engaged in conduct set out in one of the subsections of the Criminal Code?

Analysis of Individual Counts

I can tell you that I do not believe firstly, that count number one has been satisfied and the Crown effectively conceded that in her argument. In other words, the proof that there was a following from place to place has not been satisfied.

That leaves counts two and three which assert that Rita Kathleen McBride repeatedly communicated directly with Donna McBride, thereby causing Donna McBride to reasonably in all of the circumstances fear for her safety. That is contrary to Section 264(2)(b). And with reference to count number three, that is a similar allegation with reference to repeatedly communicating with Mark McBride contrary to Section 264(2)(b) of the Criminal Code.

In support of that, the Crown of course has the two drive-by situations where Donna McBride is walking and she is waved at by Rita McBride and in support of that with reference to Mark McBride, there is the event, the lawnmower event I will call it, where there is this conversation coming back from some motor vehicle accident and there was the meeting at the Davidson Centre.

In terms of the criminal burden that is on the Crown to establish those facts beyond a reasonable doubt, in the sense that they satisfy the repeatedly communicating with an individual, I am not satisfied that the Crown has proven those facts in and of themselves, even taken in light of everything that has gone on, to satisfy the criminal burden that the Crown has to meet. So I find there is a reasonable doubt with reference to counts two and three.

Counts Four and Five: Threatening Conduct

Having said that, with reference to counts four and five, these are assertions by the Crown, that Mark McBride in count four and Donna McBride in count five are harassed in that Ms McBride engaged in threatening conduct directed at Mark McBride and also directed at Donna McBride, thereby causing those persons to reasonably in all of the circumstances, fear for their safety and the safety of a person known to them and this is contrary to Section 264(1)(2)(d) of the Criminal Code.

Element 1: Conduct Prescribed by Section 264(2)(d)

Now with reference to item number one, with reference to has the Crown satisfied that Ms Rita McBride engaged in conduct which meets that burden? I am satisfied that the Crown has satisfied this Court that the conduct of Ms McBride in changing her name and then taking it to her place of employment and effectively releasing it to the public, was behaviour that was conduct which is proscribed by subsection (d) of Section 264(2). I say that specifically and then I will have some further comments as I go through the balance of the analysis with reference to Section 264. Because firstly, Ms McBride did what she did knowingly.

There is no issue about that. She knew she was changing her name and she was consciously changing her name to the name of Mark McBride for whom she had great affection and interest.

That action on her part was something that was not innocuous. It was not something that was casual. It was very purposeful on her part. It has always been my understanding that people are free to take whatever name they choose to take. The only instances where they cannot change their name is when they do that for the purpose of committing some fraud or being or acting in a way in which a criminal event flows from that change of name.

Now this is not completely similar to that, but in this instance when Ms McBride chooses to change her name, she did not change it to Smith. She did not change it back to her maiden name. She did not change her name to some other name she might like which she picked out of a book. She consciously and specifically choose the name McBride. Which in the context of this case, is an action on her part which with everything that has happened – with the prior criminal harassment convictions, with the anger that she knew that Mr. McBride was experiencing, that she agrees in the transcript, I have not read this part, she knew how Mr. McBride would feel upon finding out about this name change, with the reality – and I will specifically comment upon this in the third consideration here, knowing that she is doing this and being wilfully blind or careless or reckless with reference to the impact it was going to have. Given the overall context, it seems to me that this act on her part knowing as she testified or states in her statement that Mr. McBride will find out about it and knowing that he will be upset and angry about it. When I look at all of that and put it all together, it seems to me that she has engaged in conduct which is of a threatening nature and is to be looked at in that regard.

Element 2: Harassment of Complainants

The next question becomes whether or not the complainants, that is to say Donna McBride and Mark McBride were harassed. When I go back to the definitions that I have referenced already concerning harassment, that is to say were Donna McBride and Mark McBride, tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered? I think that is eminently clear from two perspectives. One, they have been putting up with this since 2000 approximately, in one form or another. Their presentation in the witness stand demonstrated the impact this series of events has had upon them. Both Mark McBride and Donna McBride were in tears as they testified in this trial. There is the tormenting of them, which continually puts pressure upon them to change their way of life; to change the way they consider each other; to raise specters of concern on the part of Donna McBride about her personal well-being; to raise concerns on the part of Mark McBride with reference to his ability to protect his family; to the point where they had to make some, albeit minor adjustments to their living circumstances, changing the landscaping of their property to allow them to have a better view from their window to find out who is coming and going from their house; to be concerned about those types of things; to be concerned about their children's well-being and safety. All of that clearly tells me that this has been a continual process. It has been a ten year series of events, if not twelve year series of events. Mr. Mark McBride, I believe in his frustration on the witness stand, said this has been going on for ten years, how do I make it stop. I am not quoting him. I am paraphrasing him. It seems to me that they are bedeviled and badgered by Ms McBride's behaviours. And all of the descriptors that are included in the definition of criminal harassment have been made out.

This action on the part of Ms McBride has to be looked at in the context of everything that has gone on pre-2007 and post-2007 and it clearly is a form of criminal harassment.

Element 3: Knowledge or Recklessness

The next question is and I have addressed this in part already, and that is whether or not Ms Rita McBride knew that the complainants, Mark and Donna McBride were harassed as we have discussed or was reckless or wilfully blind as to whether they were going to be a harassed. And without dealing with issues that will arise under Section 672 if we get there, it clearly seems to me that Rita McBride was at best wilfully blind as to what this meant from Donna and Mark McBride's perspective and clearly it was reckless as to what that would do to them. She effectively ignored their feelings in the matter and said I am going to do what I am going to do, regardless of the consequences to these other people. And that is incorrect behaviour on her part.

Element 4: Fear for Safety

Now did they in fact fear for their safety or the safety of anyone known to them? I touched upon that already. Mark McBride was fearful of the health and safety of his family, specifically his wife. Both parties were fearful about their children and whether or not Rita McBride would take any specific actions with reference to their children and Donna McBride feared for her personal safety given the fact that she stood between Rita McBride and Mark McBride. So based upon the evidence I heard from them and the context in which all of this has emerged and the evidence from other persons in the case, it seems to me clearly that they feared for their safety and the safety of their family generally.

Element 5: Reasonableness of Fear

And then lastly, the question is, was that fear in all the circumstances reasonable? And in my view, that is something that is addressed in the R. v. Wisniewska, a decision by Mr. Justice Durno in the Superior Court of Justice. Wisniewska is W-I-S-N-I-E-W-S-K-A. It is reported at [2011] O.J. No. 5026. The Crown brought this case to the Court's attention and why the case is important is because it speaks to the question of what expectations are reasonable for a complainant victim in a situation similar to this to be concerned about. And Justice Durno is paragraph 38 in the Wisniewska decision, makes this statement:

"What is required in each case is a fact specific determination of whether the fear was reasonable. There is no requirement that the Crown establish threats of violence or actual violence. To import that requirement would ignore psychological safety and the objectives of the legislation. Neither does the section require the complainant to know what the accused is capable of doing. To import that element would be to preclude convictions where the offence is committed by a stranger. Indeed, the uncertainty as to what the harasser could do, in itself can often establish the fear component and its reasonableness. In addition, the past conduct of the accused and the past relationship between the parties can inform the assessment of the reasonableness of the fear even when that background evidence is not within the timeframe of the information or indictment."

And Justice Durno cites a number of cases in that paragraph. There is the R. v. Sousa [1995] O.J. No.1435, Kosikar decision, R. v. D.D. (2005), 203 C.C.C. (3d) 6 (Ont. C.A.) and R. v. Ryback (1996), 105 C.C.C. (3d) 240 (B.C. C.A.).

Justice Durno also addresses this issue in paragraph 56 in the second sentence. "It is the very uncertainty about what the harasser could do in the future that has the potential to form the basis for a conviction."

So in this case, there are a number of uncertainties in the minds of Donna and Mark McBride about what Rita McBride is capable of. They know in the past she has gone to their house, she has looked in the windows and she has prowled in their back yard in the middle of the night. They know that she has taken a completely undue interest and obsessive interest in Mark McBride.

They do not know anything about the wedding plans, other than there is a wedding dress that has been purchased. But even in the absence of that information about the wedding plans, what they know is that Rita McBride has been continually for a period in excess of ten years, pursuing Mark McBride and taking great interest in his life. And simply put, with Ms McBride having said in 2007 that she wanted to be a step-mother to Mr. McBride's children and with her changing the name in January of 2012 and with the other increasing contacts she had with Mark and Donna McBride, it seems to me that when I take a look at all of these circumstances with the lengthy history involved and taking into consideration the dicta that is set out in the Wisniewska decision, that the uncertainty about what Ms Rita McBride might do or might not do is clearly an aspect of what Donna and Mark McBride feared.

I am of the view that their fear was in all of the circumstances reasonable.

Conclusion

Now having said all of that and having reviewed those five principles related to Section 264, I am of the view that counts one, two and three should be dismissed as I have indicated already, but there should be findings of guilt, but I am not entering convictions, findings of guilt only with reference to counts four and five. These are my reasons.

Certificate of Transcript

FORM 2

Certificate of Transcript

Evidence Act, Subsection 5(2)

I, Melissa Curtis certify that this document is a true and accurate transcription of the recording of R. v. Rita McBride in the Ontario Court of Justice held at 207 Cayley Street, Walkerton, Ontario on November 15, 2012 taken from Recording No. 0311-207-CR1-20121115-094549-10 which has been certified in Form 1.

(Date) Melissa Curtis

ONTARIO COURT OF JUSTICE

TABLE OF CONTENTS

WITNESS	Exam. In-Ch.	Cr-Exam.	Re-Exam.
Reasons for Judgment	PAGE 1

EXHIBIT NO.	PAGE NO.

Transcript Ordered: November 15, 2012

Transcript Completed: December 12, 2012

Ordering Party Notified: December 12, 2012