Court File and Parties
Court File No.: 1300480 Newmarket Date: 10 July, 2014 Ontario Court of Justice
Between: Her Majesty the Queen — and — Robert William Morton
Judgment
Heard: January 6, February 13, May 2, July 4, 2014 Judgment: July 10, 2014
Counsel:
- Mr. McCallion for the Crown
- Mr. Morton Self-Represented
- Ms. Shaw 486 Counsel
KENKEL J.:
Introduction
[1] Mr. Morton faces 7 charges alleging that he harassed his former spouse and then defied court orders by continuing to have contact with her.
[2] The seven charges cover three time periods. On September 26, 2012 it's alleged that Mr. Morton engaged in unwanted communication with his former spouse to the point of criminal harassment and thereby also breached the "keep the peace" term of an unrelated probation order. Following his release on those matters it's alleged that there was further contact on October 9th, 2012 which breached court no-contact orders and which included a threat towards the complainant that amounts to an obstruct justice. The remaining counts involve allegations of further prohibited contact from jail from October 18th to 25th via phone and on November 21, 2012 via letter.
[3] Mr. Morton represented himself at trial but was assisted by Ms. Shaw in the cross-examination of the complainant.
[4] At the conclusion of the evidence, the Crown advised they are not seeking conviction on the Obstruct charge. On the remaining counts, the court must determine:
The credibility of the witnesses pursuant to R. v. W.(D). where the defence has called evidence.
The scope of the accused's conduct up to and on September 26th and whether the Crown has proven that conduct amounts to criminal harassment?
Whether the Crown has proven that the further emails, phone calls and letter in October and November of 2012 were made and sent by the accused as alleged?
Criminal Harassment and Fail to Comply September 26, 2012
[5] Ms. Siebner has known the accused for 27 years. They were never legally married but have two children together. They separated in 2003 but have remained in contact up to July of 2012. Mr. Morton's Blackberry was in Ms. Siebner's name. After Mr. Morton was incarcerated in relation to an unrelated matter Ms. Siebner decided not to resume regular contact when he was released.
[6] Ms. Siebner testified that from September 21st to 25th of 2012 text messages and phonecalls from the accused became incessant and demanding. She told him she didn't want to be a part of his life any longer.
[7] Ms. Siebner identified the printout of over 400 text messages from June 30th 2012 to September 26, 2012 extracted from Mr. Morton's Blackberry as being an accurate record of their messages during that period. Mr. Morton agreed that the report was accurate with only a few exceptions. Considering Ms. Siebner's testimony and the fact that the record was extracted as a whole from Mr. Morton's phone by the York Regional Police, the verbal statements Mr. Morton made to police over the phone which were similar to the few messages he disputes, and the lack of any reason or mechanism for message alteration, I find the record is accurate. Mr. Morton is right though that the times in the report are UTC as indicated and must be adjusted to local time to conform to the evidence at trial.
[8] There is a gap in messages from July 19th to September 21st 2012. The messages resume with:
Sept 21 2012
257 Out – Ann Ann, I am close to having a nervous breakdown, I need to talk to you about all of this. I want to kill myself over what you have said to me.
258 Out – Ann If you don't tell me what is going on I will make a scene at the mall and have the cops kill me …
266 Out – Ann … I need to figure this out before I do something stupid. Please text me back.
267 Out – Ann I have lost everything now. I have nothing to lose now …
Sept 22 2012
268 Out – Ann Can you please say goodbye to Willow for me. I hope she doesn't cry too long after I am gone. I was hoping to see her before I die.
269 Out – Ann Please Ann talk to me. I will just show up at your work tomorrow.
Sept 23 2012
278 Out – Ann … I will apologize for my rude and disturbing texts yesterday
295 Out – Ann What no comment? Is it too soon to ask you to unblock me?
296 In – Ann Yup and Yup
Sept 24 2012
316 Out – Ann Well either you haven't read the emails yet or you have and are in shock and can't believe what I have said
317 In – Ann Haven't had time don't push me please
322 Out – Ann Well did you at least read the emails
323 In – Ann Yes and I don't appreciate you trying to hack my emails again! … Now leave me alone for a bit.
Sept 26 2012
405 Out – Ann OK WTF is going on? You know ignoring me just pissed me off. So please just talk to me before I do something stupid tonight.
409 In – Ann … this is why I'm pissed off. Show up and I will call the police.
411 In – Ann … I do not want to talk to you for a few days. You promised me 24 hrs and I didn't get it so back off.
412 Out – Ann Yes you got 24 hrs. You either talk to me or I will make the biggest scene in mall history.
413 Out – Ann My download will be done in 10 min then I will head into town
415 Out – Ann I am on my way now …
416 Out – Ann … Please say goodbye to the kids for me …
418 Out – Ann Ann, please stop the lies and the game. I don't want to die this way
[9] The content of the messages escalated to the point on September 26th where he threatened to kill himself. He also sent a text message saying he would come to the mall where she worked and make a scene. Ms. Siebner was worried that he would attend the mall and worried for her employment there and her safety. In further texts he told her that ignoring his messages won't make him go away. She did not respond to the numerous texts but she did call police.
[10] Constable Buchanan attended the mall and spoke to Ms. Siebner at work. While there he witnessed multiple phonecalls (12 to 20) on her cellphone and her work phone. He answered both phones and identified himself as a police officer and the caller hung up or spoke briefly but then continued to call. When speaking with the officer the accused questioned whether he was a real police officer or mall security.
[11] Mr. Morton told the officer he was going to come to the mall and "cause more damage than anyone has ever seen". He also said that the York Regional Police would need an ERU emergency response unit to deal with him. Constable Buchanan noted that Mr. Morton became more aggressive as their conversation went on.
[12] Sgt. Lampert also spoke with Mr. Morton at the complainant's workplace at the mall. Mr. Morton told the Sergeant that he was going to come to the mall and also go to the complainant's home where she lived with her parents. Given the increase in the severity of the threats, the Sergeant arranged for uniform officers to attend in Bradford where the accused resides to try to locate him.
[13] Constable Vingerhoets drove to Bradford and noticed a male walking Southbound on Highway 11 Yonge Street towards Newmarket in the general direction of the mall in question. He stopped the man and recognized him as Mr. Morton. When police approached, Mr. Morton threw his hands up in the air and tossed his cellphone into the ditch. Police retrieved the Blackberry.
[14] Mr. Morton submits that the communication to September 26th is not out of the normal for two persons in a relationship and does not amount to Criminal Harassment. He testified that he thought he was talking to mall security when he phoned Ms. Siebner's workplace and the person he was speaking to repeatedly hung up on him. He describes the person as rude and ignorant. Mr. Morton testified that he told police he had a gun but says it was a ploy to see if they would come to his location.
[15] Considering Mr. Morton's state of mind on the 26th as shown in his references to suicide in his text messages and his statements to the same effect to the police that he was coming to the mall despite their intervention, I find his recollection of that day is unreliable. The officers were acting in a professional capacity and manner, their evidence is consistent with the text message record and the external evidence of Ms. Siebner. I find the evidence of the Crown witnesses to be credible and reliable.
[16] Mr. Morton's repeated unwanted contact and the escalation of the messages to the point where he threatened to come to Ms. Siebner's place of employment at the mall and engage in a suicidal confrontation caused Ms. Siebner reasonably to fear for her safety and the safety of those around her. The content and tone of the communication between them show Mr. Morton was aware of the harassing effect of his messages.
Fail to Comply x 2 – October 9, 2012
[17] Shortly after Mr. Morton's release on the Criminal Harassment charge, Ms. Siebner complained to police that she was receiving emails she believed were from the accused using gmail accounts under false names. Mr. Morton was cautioned in that regard on October 4th, 2012.
[18] Ms. Siebner received an email October 9th from Nancy Toth using a gmail account. She doesn't know a Nancy Toth but the contents of the email told her it was from the accused.
I know that I hurt you. I am very, very sorry for that. I don't know 100% what I did to deserve the silent treatment … Can you please at least talk to me …. I am not asking to get back together. I am just looking to resolve the issue like adult by talking. …
[19] The topic and contents of the messages were the same as many of the text messages she'd received from Mr. Morton prior to his arrest.
[20] On October 9th Ms. Siebner received an email from Saara Wilson using a gmail account. The email said that she's Mr. Morton's appeal lawyer for an unrelated matter and asked about arranging contact between the accused and his daughter. The email directs Ms. Siebner to reply by email only and not to phone the lawyer. Ms. Siebner met with Ms. Wilson who is a lawyer in this area and she learned that Ms. Wilson did not send that email.
[21] On October 11th Ms. Siebner received an email from a Steve Til at a gmail account. He wrote that he is a counsellor for "CMHA Candian Mental Health" (Sic). He said he was the counsellor for Mr. Morton and asked her to contact him in relation to Mr. Morton seeing his daughter. Ms. Siebner contacted CMHA and was told that there was no counsellor past or present by the name of Steve Til.
[22] One email dated October 9th was sent by the accused to a mutual friend. That person then forwarded the email to Ms. Siebner. The email stated:
Stop your bullshit or these go public. I don't want this to get messy as I have nothing else to lose This can all stop now and talk like normal adults or I can drop the gloves and send out all the pictures I have. It's up to you now. I already said I was dropping the email stuff … I told you I don't want anyone else to get hurt.
[23] That email was accompanied by an intimate photo that Mr. Morton had taken of Ms. Siebner during their relationship.
[24] Mr. Morton agreed he was subject to the no contact term as alleged and further bound by a probation to keep the peace, but he denied sending any emails under false names. He admitted sending the email which came from his email address "Towtruckguy" but he testified that the email was meant only for the friend he sent it to.
[25] Mr. Morton's testimony regarding the email sent using his own address is not credible. There's no reason why he would say those things to his friend and it makes no sense that he would threaten the friend with an attached intimate photo of Ms. Siebner with promises to drop the gloves and send out more. Considering all of the evidence including Mr. Morton's prior messages and contact, the contents of the emails and the specific content directed at Ms. Siebner I find that Mr. Morton intended the October 9th photo email to be forwarded to her via their mutual friend.
[26] Given the content of the other emails sent from fictitious gmail accounts directly to Ms. Siebner, and the context of the prior messages and contact from Mr. Morton to that point, it's not reasonably possible that they could have been authored by anyone other than Mr. Morton.
Disobey Court Order – October 18-25 2012
[27] After being re-arrested in relation to charges of failing to comply, Mr. Morton was subject to a s. 516(2) no contact order while in custody. Ms. Siebner testified that from October 18th to November 4th, 2012 Mr. Morton made 7 collect calls from jail to her home and work numbers. She documented the time and date of each call. In the brief calls the accused asked for her help as the police were lying and he also asked to see his daughter. Ms. Siebner testified that she recognized his voice and hung up on all of the calls.
[28] Mr. Morton testified that he did not make any of the calls received by Ms. Siebner. He also pointed out in submissions that the Crown did not provide any log or phone record from the detention centre's account to show that the calls were in fact made.
[29] I agree with the accused that if there were phone records from the detention centre that logged all outgoing calls in relation to specific inmates at particular dates and times that would have been very helpful. There's no evidence before me though that such records are kept and so I'm unable to draw any inference in that regard.
[30] Ms. Siebner's log of the collect calls from jail was very precise. She provided a factual accounting of each very brief incident and related a few brief words said but she noted that she hung up each time upon recognizing the accused's voice. She did not complain of any threats by Mr. Morton and there's no evidence of embellishment.
[31] Considering the whole of the evidence including the consistent pattern of unwanted communication to that point from Mr. Morton and the repeated theme of wanting to see his daughter as echoed in the calls, I find Ms. Siebner's evidence credible. I do not find Mr. Morton's evidence credible nor does it or any other evidence leave a reasonable doubt.
Fail to Comply – November 21, 2012
[32] In November of 2012 Ms. Siebner received letters addressed to her son and daughter from "Bob Morton CECC" sent by the accused from the Central East Correctional Centre. The envelope addressed to her son contained a letter Ms. Siebner testified was meant for her. That letter includes the following:
Hi. Please read this to the end before you do anything with it. First off I am extremely sorry for what has happened. This is a big misunderstanding … I feel real awful for what I have done. I wish I could turn back time and start this all over. All I can do is ask for your forgiveness … I know I have lost you and the kids … Please don't report this.
[33] Mr. Morton admitted writing and mailing the letters to his son and daughter. He didn't dispute that he wrote the third letter but he testified that he didn't intend to send it and he thinks that a jail guard found it during a search and mailed it along with the other two. In cross-examination Mr. Morton gave a different account. He remembered mailing it but testified that he sent it to their mutual friend and not to Ms. Siebner. Further, he testified that the letter referred to his relationship with the friend and not Ms. Siebner.
[34] Mr. Morton's testimony on this point is internally inconsistent. It's illogical as the contents including the references to their children and the specific request at the end of the email not to report the letter can only refer to Ms. Siebner as she was the subject of the no contact provisions in the various court orders. Mr. Morton could not explain why he would ask the recipient not to report the letter if it were not Ms. Siebner. "I have no idea why I wrote that". Mr. Morton's testimony on this point was inconsistent, illogical and incredible. It was contradicted by the credible evidence of Ms. Siebner. Her testimony was supported by the envelope and letter filed as Exhibit 7. The communication via letter was a further breach of the s. 516 non-communication order.
Conclusion
[35] The charge of obstructing justice in Count 2 is dismissed.
[36] With respect to the remaining counts I can find no credible evidence that leaves a doubt. I find that the Crown has proved each count beyond a reasonable doubt and there will be a finding of guilt on counts 1, 3, 4, 5, 6, and 7.
Released: July 10, 2014
Signed: Justice Joseph F. Kenkel