Court File and Parties

Court: Ontario Court of Justice

Date: 2015-11-09

Court File No.: Central East 13-7293

Between:

Her Majesty the Queen

— AND —

William Hamilton Crook

Before: Justice C.M. Harpur

Heard on: March 24, March 31, April 16, May 28, May 29, June 2, June 10, June 16, June 30, August 19, September 30 & October 30, 2015

Reasons for Judgment released on: November 9, 2015

Counsel:

• C. Ross, for the Crown
• William Hamilton Crook, on his own behalf
• K. Jim, Amicus Curiae

Reasons for Judgment

HARPUR J.:

A. Overview

[1] Mr. Crook is charged with the criminal harassment of Lisa Aube, Brent Aube and Claude Aube between April 16 and December 16, 2013. The harassment is alleged to have taken the form of written communications to persons and organizations to the effect that Brent Aube ("Brent") had abducted the two children who resided with him, that Brent's wife Lisa Aube ("Lisa") was a witting party to the abduction and detention of these children and that Brent's brother Claude Aube ("Claude") was complicit in the abduction (the "Abduction Communications").

[2] The theory of the Crown's case is that (i) Mr. Crook became infatuated with Lisa when the two of them attended the same church in Mississauga in 2001; (ii) from Lisa's perspective, no relationship, romantic or otherwise, ever existed between Lisa and Mr. Crook in 2001 or at any time; (iii) in that year Lisa ceased to have any direct contact with Mr. Crook; (iv) in the ensuing years Lisa met, married and had two children with Brent; (v) on July 26, 2005, Lisa received from Mr. Crook an e-mail in which he stated his love for her and provided to her his phone number and e-mail address; (v) Lisa did not respond to the e-mail and, indeed forgot about it in her computer files; (vi) Mr. Crook harboured his infatuation for Lisa from 2005 until 2012/2013 and then, knowing of Lisa's marriage to Brent, of her residing with Brent and two children, and of the relationship between Brent and Claude, Mr. Crook embarked upon the Abduction Communications to persons who knew one or more of the three complainants and might take steps prejudicial to the bond between Lisa and Brent.

[3] To support its theory the Crown called the three complainants, several people alleged to have received the communications in question, representatives of the City of Mississauga and the Mississauga Central Library from which two of the written communications are alleged to have been sent and the investigating officer. Mr. Crook, who is self-represented, did not testify or call evidence.

[4] On November 7, 2014 I appointed Kenneth Jim to conduct the cross-examination of Lisa pursuant to s. 486.3 C.C. On the first day of trial, March 24, 2015, I concluded that Mr. Crook's position in respect of the legal issues to which a trial was likely to give rise would not be fully asserted or understood by me without the assistance of amicus curiae. I appointed Mr. Jim as amicus, in addition to his role pursuant to s. 486.3 C.C. In the course of the trial, Mr. Crook and/or Mr. Jim on behalf of Mr. Crook have conducted cross-examination of the Crown witnesses other than Lisa with the Crown's consent. Mr. Jim has also made submissions to me on evidentiary rulings as the trial proceeded and on the question of Mr. Crook's criminal liability at the conclusion of the trial.

[5] Prior to the commencement of trial, Mr. Crook himself drafted and filed an Ontario Court Charter application in unconventional form, citing Charter ss. 2(b), 7, 10(c), 11(d) and 13. Mr. Crook had drafted a Superior Court Notice of Application and Constitutional Issue seeking the same relief which was served on the provincial Crown and received by me in advance of trial. On June 29, 2015, in the course of the trial, Mr. Crook served and filed a further Ontario Court Charter application seeking financial compensation and citing Charter ss. 2(b), 5, 10(c), 11(b) and 11(d). In all of the Charter applications Mr. Crook seeks, or complains about the lack of, a DNA test of the children residing with Lisa and Brent and of Brent.

[6] At the outset of the trial on March 24, 2015 I ruled that the case would proceed by way of trial of the substantive issues initially and, should the offences be established by the Crown apart from Mr. Crook's Charter application and if Charter relief were still sought, a subsequent voir dire on any Charter issues. I regarded Mr. Crook's initial Charter application as, properly framed, an application for relief pursuant to ss. 24(1) or 24(2) of the Charter with the theoretical potential either to bring about a stay of the charges or an exclusion of evidence essential to proof by the Crown.

[7] On June 30, 2015, having heard the Crown's case on the substantive charges and no evidence being called by the defence, I provided brief oral reasons why, subject to the granting of potential relief under the Charter, I regarded the Crown as having proven the criminal harassment charges against Mr. Crook beyond reasonable doubt. I indicated I would provide more comprehensive written reasons subsequently.

[8] The Charter application was then addressed. Mr. Crook and the Crown called no evidence apart from that introduced at trial. I heard Mr. Crook's and counsels' oral submissions on October 30, 2015. I then dismissed the Charter applications and found Mr. Crook guilty of the three charges. These are my reasons for both of those dispositions.

B. Trial Issues

[9] The primary issue identified in the submissions of Ms. Ross, Mr. Crook and Mr. Jim is identity: has the Crown proven beyond a reasonable doubt that Mr. Crook is the person who sent, in chronological order, Exhibit 10b (September 17, 2012), Exhibit 1 (August 26, 2013), Exhibit 19 (September 1, 2013), Exhibit 2 (September 7, 2013), Exhibit 14 (September 7, 2013), Exhibit 3a (September 7, 2013), Exhibit 4 (September 22, 2013), Exhibit 5b (September 27, 2013), Exhibit 8 (October 28, 2013) and Exhibit 9 (December 9, 2013).

[10] On the basis of the similarity of style and subject matter of these communications and what the Crown says is proof that two of them - emails sent August 26, 2013 at 5:13 p.m. (Exhibit 1) and September 7, 2013 at 1:40 p.m. (Exhibit 2) to the Barrie Construction Association - were sent by Mr. Crook using computers at the Mississauga Central Library, Ms. Ross for the Crown submits that identity has been established. Mr. Crook's position is that none of the Abduction Communications has been proven to have been sent by him.

[11] Mr. Crook and, to a lesser extent, Mr. Jim, also question whether, regardless of the identity of the sender of the Abduction Communications, the Crown has proven that their sending amounts to criminal harassment of the three complainants. I shall address this latter issue first.

(i) Has the Crown Proven the Elements of Criminal Harassment

[12] On the authority of R. v. Sillipp (1997), 1997 ABCA 346, 120 C.C.C. (3d) 384 (O.C.A.), it was necessary in this case for the Crown to have established the following: (i) repeated communication with persons known to the Aubes; (ii) harassment of the Aubes as a result; (iii) knowledge or recklessness or willful blindness on the part of the sender of the communications as to whether the Aubes were harassed; (iv) a fear by each of the Aubes for their safety or the safety of persons known to them as a result of the harassment; and (v) the reasonableness of those fears.

[13] In my view each of these elements has been established.

[14] As to the repetitiveness of the communications, for the reasons subsequently set out under discussion of the identity issue, I have found that Mr. Crook was the sender of all of the Abduction Communications. Those communications were, accordingly, multiple. The persons to whom the communications were sent were either relatives of the complainants or persons with whom they dealt in their communities.

[15] As to whether each of the complainants was harassed, Lisa and Brent testified to their significantly elevated level of concern for their children and their family unit once they had been made aware by the police of the dissemination of the Abduction Communications. Claude testified to initial irritation and then to a growing sense of concern both in relation to his business reputation and in relation to Brent and Lisa and their children. In R. v. Kosikar (1999), 138 C.C.C. (3d) 217 (O.C.A.), the Ontario Court of Appeal memorably described harassment as "the sense of feeling tormented, troubled, worried continually or chronically plagued, bedevilled and badgered". The description of each of the complainants concerning their response to the Abduction Communications falls into one or more of the categories described in Kosikar.

[16] As to whether the sender of the Abduction Communications knew or was willfully blind as to whether sending them would harass, I have concluded that the Crown is entitled to rely upon the common sense inference that one who acts in a given manner intends the natural consequence of the act. This issue has given me some pause positing Mr. Crook as the sender. I gave oral reasons on June 30, 2015 indicating that, subject to Mr. Crook's Charter application, the Crown had proven the charges against him. I then regarded the "common sense inference" as clearly applying. On August 12, 2015 I received from psychiatrist Dr. Jeffrey Van Impe a report concerning Mr. Crook's mental health which I had ordered under the Mental Health Act, s. 22(1), on July 2, 2015. Dr. Van Impe's report includes the following opinion:

As stated above, I am of the opinion that Mr. Crook suffers from Delusional Disorder – Unspecified Type. His extensive involvement with Ms. Aube and her family would appear consistent with the Erotomanic Type of Delusional Disorder but in this condition the patient develops delusions that another person is in love with them. I found limited evidence during my interview of Mr. Crook to suggest that he actually believed Ms. Aube was in love with him around the time the offences occurred. I think it is more likely that Mr. Crook believed, or hoped, that Ms. Aube was unhappy in her marriage and that his involvement would result in her leaving her husband and perhaps entering into a relationship with him. Also, Mr. Crook appeared to have a fixed belief related to the biological parentage of the Aube's two children. This belief is certainly delusional in nature and has persisted in Mr. Crook's mind despite ample evidence to the contrary. Mr. Crook has maintained that a DNA test of the children is required but I question whether this would be sufficient as I have some concern that he would consider the results invalid and eventually begin questioning the impartiality of the lab conducting the test. I informed Mr. Crook quite clearly that I, and virtually everyone else associated with the case, believe that a DNA test is absurd and not required. My opinion fell on deaf ears.

Dr. Van Impe's report was made Exhibit 30 at trial, subject to submissions concerning its admissibility.

[17] On September 22, 2015, in the course of attempting to prepare these reasons, I wrote to Ms. Ross for the Crown and Mr. Jim as amicus expressing a concern about the issue of Mr. Crook's mens rea in light of Dr. Van Impe's report and inviting further submissions from them and from Mr. Crook. My communication read, in part, as follows:

My concern arises from Dr. Van Impe's report. In it he says that Mr. Crook acted under the delusions that (i) Brent is not the father of his and Lisa's children and (i) Lisa and he have potential for a future relationship. If I take the report into account as part of the trial record (I realize I deemed it inadmissible for the Charter voir dire per se), a question may arise as to Mr. Crook's mens rea in respect of some or all of the complainants. In particular, the requirement that the Crown prove that Mr. Crook intended to harass, or was willfully blind or reckless about harassing, Lisa, Brent and Claude Aube seems to require further scrutiny if considered in the light of Dr. Van Impe's opinion; does recklessness about disturbing another from a peace of mind thought to be "illegitimate" constitute harassment?

[18] On October 14, 2015 I received Ms. Ross's and Mr. Jim's written submissions on this issue (my communication and those of Ms. Ross and Mr. Jim have been made Exhibit 31 at trial). Both urged me not to take into account the opinion expressed by Dr. Van Impe concerning Mr. Crook's delusion in determining guilt and, in the alternative, submitted that the mens rea element of the offences was established by the Crown even if the opinion were considered. On October 30, 2015 Ms. Ross and Mr. Jim briefly expanded upon these submissions. In oral submissions on that date Mr. Crook urged me not to take Dr. Van Impe's opinion into account.

[19] I accept the submission of Mr. Crook, the Crown and amicus that Dr. Van Impe's opinion should be excluded in my consideration of Mr. Crook's state of mind, regarding him as the person who sent the Abduction Communications. The opinion was sought only after the Crown and Mr. Crook had closed their cases to assist me in the matter of sentencing. If the opinion is excluded, there is no impediment to an application of the common sense inference that Mr. Crook intended the consequences naturally flowing from sending the Abduction Communications.

[20] However, even if I were to take into account Dr. Van Impe's view that Mr. Crook was suffering from certain delusions at the time the Abduction Communications were sent, again assuming it was he who sent them, nonetheless I would regard the mens rea element of the offences as established, for two reasons. First, the delusions identified by Dr. Van Impe are limited to the belief that Lisa and Brent were not the parents of the children living with them and that Lisa might ultimately enter into a relationship with Mr. Crook. These delusions do not extend to a belief that the Aube children had been abducted, although the suggestion of abduction is either explicit or implicit in the Abduction Communications. Absent that feature as part of Mr. Crook's identified delusions, his references to abduction is an act naturally resulting in significant perturbation on the part of the Aubes and cannot be excused as part of any fixed and false set of beliefs.

[21] Second, Ms. Ross and Mr. Jim point out that Mr. Crook, if the sender, went to some lengths to disguise his identity, posing, for example, as a concerned parent of another child, as a police officer, and as a Toronto Star reporter. As Ms. Ross put it in Exhibit 31, "had he truly wanted to ensure the safety of abducted children, he could and should have marched into a police station or CAS office". Assuming Mr. Crook sent the Abduction Communications, his surreptitiousness in doing so would undercut the concern which I initially entertained that Mr. Crook was, from his delusional perspective, merely engaging in an exposure of the Aubes as wrongdoers. I accept from counsel's submissions that Mr. Crook, as sender, perceived that the sending of the Abduction Communications was wrong. Moreover, even if Mr. Crook were incapable of an appreciation of the culpability of each consequence of the sending of the Abduction Communications, so long as the Crown proves mental culpability in respect of the sending itself, mens rea is established: R. v. DeSousa, [1992] S.C.J. No. 77 (S.C.C.); R. v. Krushel, [2000] O.J. No. 302 (O.C.A.).

[22] As to fear for safety by the Aubes for themselves or others known to them, again, this component is met by the unchallenged evidence of the complainants of their ongoing disquiet. For many weeks they were facing the very serious allegations of child abduction and abetting child abduction from an unknown source. "Safety" is not defined in the Criminal Code but if one turns to the Oxford English Dictionary one finds, among others, the phrase "freedom from danger or risks". The purpose of the relevant subsections of s. 264 C.C. is to discourage repeated conduct by one person which causes material vexation to another. An interpretation of "safety" which gives effect to this purpose should not be restricted to freedom from physical harm. The sort of fear described by the complainants in this case, that is, of challenges to the family unit by way of everything from abduction of their children by the sender to intervention by state authorities which might become alarmed, is as significant in terms of vexation as fear of a threatened physical harm.

[23] As to the reasonableness of the complainant's fears, disruption of the family unit through interference in some form with the Aube's custody of their children would naturally give rise to material concerns in all of Lisa, Brent and Claude. No parent or uncle could dismiss these challenges as trivial.

[24] Thus, subject to the question of identity, all of the elements of criminal harassment are made out by the sending of the Abduction Communications, the inquiries and disquiet on the part of the third party recipients, the subsequent police involvement and the awareness by the complainants from both the third party recipients and the police that the Aube family nucleus was under attack.

(ii) Has the Crown Proven Identity

[25] The Crown submits that all of the Abduction Communications were sent by the same person. In support of this submission, Ms. Ross notes the following shared features: (i) their common theme that Brent or Brent and Lisa are not the parents of the children residing with them and that DNA testing is required to establish the true parentage; (ii) the word for word duplication of the texts of some of the Abduction Communications sent to different recipients (Exhibit 11 to Pastor Thiessen and Exhibit 6 to Pastor Goodman; Exhibit 19 to the Barrie Police Service and Exhibit 3a to a representative of the Barrie Construction Association); (iii) the targeting of recipients having some connection to or familiarity with the complainants and the encouragement to each of the recipients that they take steps to intervene in the alleged abduction of the Aube children; and (iv) the shared, unusual diction in some of the communications – "put in a headlock situation", for example, in Exhibit 11 to Pastor Thiessen and Exhibit 6 to Pastor Goodman.

[26] Having linked the Abduction Communications in this fashion, the Crown relies on the evidence of Dan Stevanov, Ron Kramer and Ryan Lim, of the City of Mississauga and the Mississauga Central Library, to track the mechanism for the sending of two of the Abduction Communications – Exhibit 1 dated August 26, 2013 at 5:13 p.m. and Exhibit 2 dated September 7, 2013 at 1:40 p.m. - to two computers on the same floor of the Mississauga Central Library. Mr. Lim testified to the use of those computers on the dates and times in question by someone using the registered Mississauga Central Library card of "Crook, W. Hamilton D.", a card associated in the records of the library with a particular telephone number and Mississauga address.

[27] The investigating officer in this case, Sergeant Thomas Sinclair, testified that the address in the library records is that indicated on the drivers licence of Mr. Crook, a copy of which was taken by the police at the time of his arrest. The telephone number is that of "Hamilton Construction", a business name registered by "Hamilton William Crook" according to a business name registration card also seized by the police from Mr. Crook at the time of his arrest. The telephone number is also the same number set out in the e-mail sent to Lisa by "Hamilton Crook" on July 26, 2005, Exhibit 7.

[28] The final step in the Crown's proof of identity was the evidence of John Moore, the Manager of Circulation of the Mississauga Central Library for approximately fifteen years and an employee of the library for thirty-five years. Mr. Moore confirmed that the library card used to send Exhibits 1 and 2 was registered to a "W. Hamilton D. Crook". He said that there was no report in the records of the library of the card having been lost or stolen. He said that use of a library computer by a library card holder requires not only use of the library card number but also a personal identification number ("pin") unique to the card holder and normally kept confidential by the card holder, as with a bank or credit card. Mr. Moore also said that the library's long-standing protocol is to require the presentation of identification by a prospective library user who is applying for a card and that he believed this to have occurred in the case of the applicant for the "W. Hamilton D. Crook" card. He acknowledged in the course of Mr. Crook's cross-examination that a customer's pin is kept on file in the library's records and is available to library personnel.

[29] In his submissions on the matter of identification, Mr. Jim submitted that the library procedures leading to a customer's acquisition and use of a library card on library computers was relatively insecure and that another person or persons might have obtained possession of both Mr. Crook's card and pin and thereby sent the Abduction Communications.

[30] I accept the Crown's circumstantial evidence, noted above, as establishing beyond reasonable doubt that the sender of the Abduction Communications was one person, not several. I accept as well from the City of Mississauga and Mississauga Central Library witnesses who testified that the person who sent Exhibits 1 and 2 from the Mississauga Central Library was a person in possession of the library card and pin of Mr. Crook. Mr. Crook did not testify at his trial and shed no light on the issue of whether one or more other people may have been using his library card and pin on August 26 and September 7, 2013 or of why they, like Mr. Crook in his Charter applications and cross-examinations in this prosecution, would have entertained concerns about the parentage of the Aube children and considered a DNA test appropriate. Left only with Mr. Moore's evidence that the original acquirer of the library card was a Hamilton Crook and the overwhelming circumstantial evidence that that Hamilton Crook and Mr. Crook are one and the same person, together with Mr. Moore's evidence that the library has no information to suggest that Mr. Crook's possession of the card has been interrupted, I am satisfied beyond reasonable doubt that Mr. Crook sent Exhibits 1 and 2 and, thus, the balance of the Abduction Communications.

C. Charter Issues

[31] As indicated earlier in these reasons, the Charter applications filed by Mr. Crook were unconventional in form and content. The Charter rights alleged to have been infringed are not clear. I accept Ms. Ross's submission that they are best characterized as a breach of Mr. Crook's right of freedom of expression (s. 2(b)), disclosure right (s. 7), right to a fair determination of the validity of his detention (s. 10(c)), and right against self-incrimination (s. 13).

[32] The trial record, agreed to apply to the Charter voir dire, does not disclose a breach of any of these rights.

[33] As to freedom of expression, having found, as I have, that the Crown has proven Mr. Crook's commission of the offences against Lisa, Brent and Claude set out in s. 264 C.C., Mr. Crook's only available route of attack in this regard is the constitutionality of that section in light of Charter s. 2(b). Leaving aside the issue of whether Mr. Crook provided appropriate notice of an application challenging constitutionality, the Ontario Court of Appeal has effectively eliminated this argument in Krushel, supra.

[34] The disclosure shortcomings alleged by Mr. Crook have to do with DNA testing of Brent and the children residing with him, employment records for Gail Harding, Claude's wife, and immigration records for a woman named "Jessica", Lisa's cousin who resides in the United States. I lack jurisdiction to require Brent or his children to provide DNA samples and the relevance of such samples and of the third party records sought by Mr. Crook has not been even remotely support it by the trial record. Mr. Crook has not been hampered in fully and fairly preparing and presenting his defence as a result of their absence.

[35] As to habeas corpus, the only information before me with respect to Mr. Crook's detention is that Mr. Crook was initially detained in custody, subsequently released pursuant to a bail hearing, again detained on the basis of alleged breaches of his surety recognizance and finally, released on consent of the Crown, his own recognizance and my bail order on September 10, 2015. I am aware of the procedure pursuant to which the second of Mr. Crook's releases was effected. I am not aware of any aspect of that release, nor have I any information concerning Mr. Crook's previous release or detention, which would support his position that his habeas corpus right has been denied.

[36] Finally, as to Mr. Crook's concern relating to self-incrimination, this appears to stem from my admonition to Mr. Crook at the outset of trial and at the conclusion of the Crown's case that, should he elect to testify, he would be subjected to cross-examination by the Crown. Mr. Crook regards this as a violation of his s. 13 right not to incriminate himself. This is an unfortunate misunderstanding by Mr. Crook of the law. If he has declined to give evidence in this proceeding by reason of his unwillingness to be cross-examined, that fact cannot be seen as giving rise to any Charter violation.

[37] A Charter application is a difficult legal proceeding and, given his lack of representation, Mr. Crook is not to be faulted for having struggled with the form by which he sought relief. Quite apart from the form of his applications, however, there is nothing in their substance which supports a violation of his Charter rights and thus gives rise to a Charter remedy awarding damages or preventing the findings of guilt.

[38] For these reasons, I find Mr. Crook guilty of the criminal harassment of the Aubes.

Released: November 9, 2015

Justice C.M. Harpur, O.C.J.