Court Information
Ontario Court of Justice
Date: 2016-03-22
Court File No.: Sioux Lookout, Ontario 155920 and 156041
Parties
Between:
Her Majesty the Queen
— AND —
Rejean Bureau
Before the Court
Justice Peter T. Bishop
Heard on: February 17, 2016 and March 1, 2016
Reasons for Judgment released on: April 12, 2016
Counsel
Peter Keen — Counsel for the Crown
Mark Van Wallegham — Counsel for the Defendant Rejean Bureau
Charges
Information 155920
[1] Rejean Bureau stands charged on Information 155920 that:
(a) on or about October 31, 2015 in the Town of Sioux Lookout did while his ability to operate a motor vehicle was impaired by alcohol did operate a motor vehicle contrary to Section 253(1)(a) of the Criminal Code; and
(b) on or about October 31, 2015 in the Town of Sioux Lookout in said region did without reasonable excuse, failed to comply with a demand made to him by Sergeant Simpson, a peace officer, to provide then or as soon thereafter as was practicable samples of his breath as in the opinion of a qualified technician where necessary to enable a proper analysis in order to determine the concentration, if any, of alcohol in his blood contrary to Section 254(5)(a) of the Criminal Code; and
(c) Rejean Bureau of Thunder Bay on or about the 31st day of October 2015, in the Town of Sioux Lookout in the said region being reckless as to whether Jennalea Landry is harassed did without lawful authority engage in threatening conduct directed at Nigel Daniels and Ryan Landry, thereby causing Jennalea Landry to reasonably, in all the circumstances, fear for the safety of Nigel Daniels and Ryan Landry contrary to Section 264(2)(d).
Information 156041
[2] Rejean Bureau stands charged on Information 156041:
(a) on or about December 1, 2015 at the Municipality of Sioux Lookout did being at large on his Recognizance entered into before a Justice and being bound to comply with a condition of that Recognizance directed by the said Justice fail without lawful excuse to comply with that condition to wit: do not contact or communicate in any way either directly or indirectly, by any physical, or electronic or other means, with the following: Jennalea Landry except for the purpose of making contact arrangements for, or having contact with, your child(ren) through mutually agreed upon third party contrary to Section 145(3) of the Criminal Code; and
(b) furthermore; that between April 1, 2015 and April 30, 2015 in the Municipality of Sioux Lookout in the said region did commit an assault on Jennalea Landry contrary to Section 266 of the Criminal Code.
Procedural History
[3] At the commencement of the trial on February 17, 2016 the Crown requested that Count 2 on Information 155920 be amended as follows:
(a) That Rejean Bureau of Thunder Bay between April 1, 2015 and December 1, 2015 in the Town of Sioux Lookout in the said region did criminally harass Jennalea Landry contrary to Section 264(1) of the Criminal Code.
[4] On February 17, 2016 the accused plead guilty to failing to provide a breath sample contrary to Section 254(5) of the Criminal Code and guilty to breaching his undertaking on December 1, 2015 by contacting Jennalea Landry contrary to Section 145 of the Criminal Code. The Crown withdrew the impaired driving charge contrary to Section 253(1)(a) of the Criminal Code.
[5] The accused plead not guilty to criminal harassment and the assault charge.
Evidence
Evidence of Sergeant Andrew Simpson
[6] Sergeant Simpson is a member of the Ontario Provincial Police and was advised through dispatch that there was someone chasing another vehicle at the Best Western Hotel on October 31, 2015.
[7] The Communications Centre advised that at 1:56 p.m. that the accused may have been driving a motor vehicle while impaired and there was a confrontation between three individuals. The officer arrived at the scene approximately twenty minutes later.
[8] There was no admission by the accused that he was driving a motor vehicle and he refused to provide a breath sample at the police station. He admitted to drinking three or four beers earlier in the day and no alcohol consumption after the altercation with two other individuals.
Evidence of Jennalea Landry
[9] Ms. Landry was the common-law partner of the accused for about ten years and they have two children together. She has another child by a previous relationship.
[10] On April 12, 2015 she was at work at the Recreation Centre and the accused came to her office and yelled at her and called her some obscene names. He pushed open the door and threw a half-full water bottle in her direction which hit the wall behind her. She moved her head so as to not be struck. This confrontation was over access.
[11] She related incidents when the parties were living together from 2009 to 2014 where there was some verbal and physical altercations between them; one involving a cell phone and another involving a set of car keys. She also related an incident around Christmas of 2014 because the accused wanted to fight with her father, her brother and her sister's boyfriend. She also stated that the accused was picked up by the London, Ontario police. The Court ruled that these incidents were too far removed from the current charges and much of what the complainant was saying was hearsay.
[12] Between April 1, 2015 and December 1, 2015 she visited Winnipeg and left the children in the care of the accused. She was concerned about whether or not the accused was drinking and sent her brother over to check on them in the accompaniment of the police. Nothing came of that incident.
[13] On October 30-31, 2015 the accused was to exercise access pursuant to the Court Order from Friday at 5:00 p.m. until Sunday at 5:00 p.m. He did not arrive in Sioux Lookout until Saturday morning and left messages from 9:00 a.m. to approximately 10:30 a.m. on that day. There were several voice messages and from her perspective he started out normally but began slurring his words and she assumed that he had been drinking. She stayed at her boyfriend's house overnight.
[14] She then returned to her own house on Saturday morning and was afraid that the accused would show up and cause a confrontation because in the past he had made threats to her family members. Once again this was related to her by other individuals and she had not actually heard or observed those confrontations.
[15] She did not answer the phone and was staying at Nigel Daniels' place. She repeated that at the beginning, at 9:00 a.m., his voice was fine, the speech was normal, but the last message was left at approximately 10:30 a.m. she did not want him coming to pick up the children as she has concluded that he had been drinking.
[16] She went home and asked her brother, Ryan Landry, and her current partner, Nigel Daniels, to go to the Recreation Centre to make sure that the accused was not there as one child was participating in gymnastics.
[17] Later on she then got a text message from Nigel Daniels saying that she didn't have to worry because the accused was dealing with the police.
[18] At that time she was at her mother's home and became scared and nervous.
Evidence in Cross Examination
[19] April 12, 2015 she reported the incident of the water bottle on November 5, 2015. She further told individuals that incident didn't happen.
[20] She identified the court orders of the Superior Court, one dated November 1, 2015 and the other dated June 11, 2015. She confirmed that when he called he simply wanted to see the children and it sounded like he was crying and she could not tell if he was intoxicated.
[21] She also stated that there were texts and emails between herself and the family and Police were in possession of some of them but they were not produced at trial.
[22] The complainant stated that the accused in December, 2014 lived in London, Ontario but was moving to Sioux Lookout, Ontario.
[23] She confirmed that the accused moved to Sioux Lookout in the fall of 2014 and exercised access from April, 2015 to the end of August, 2015. During that timeframe there was no assaults, no threats and there was contact with other issues with the complainant other than the children.
[24] She was adamant that she would refuse access by the accused with the children with any third party who is not family or friends and did not think she should have to make those arrangements or consent to those arrangements notwithstanding it was contemplated in both Superior Court custody orders and later on in the Recognizance.
[25] In December, 2015 she contacted the police because the accused was not supposed to contact her directly except for custody and access as the concern of the Superior Court was that both parents would ensure that the children are only in the care of substitute caregivers who have competent parenting skills. Neither parent shall allow the children to be in the presence of intoxicated persons.
Evidence of Constable Richard Cranton
[26] Constable Cranton is a Detective Constable with the Ontario Provincial Police.
[27] On July 23, 2015 the complainant's present partner received messages from the accused and this Officer spoke to both parties with a view to having everyone act responsibly.
[28] Constable Cranton confirmed that the complainant did not provide text messages that she had received from the accused but on August 4, 2015 this Officer spoke to the accused and warned him not to communicate with the complainant unless it was in relation to the children.
Evidence of Nigel Daniels
[29] Mr. Daniels is the current partner of the complainant and on October 31, 2015 he was outside cutting wood with the complainant's brother Ryan Landry.
[30] He received information from the complainant that she was concerned that the accused was intoxicated and wanted access to the children as he sounded drunk.
[31] The complainant and one child were at gymnastics.
[32] In mid-afternoon Mr. Daniels was driving past the Best Western Hotel with the complainant's brother, he spotted the accused's vehicle and was concerned that he was driving as the complainant thought that he had been drinking.
[33] Mr. Daniels called the police on his cellphone and suggested that the accused was drinking.
[34] He observed the accused walk from the Best Western Hotel he appeared to be unsteady on his feet and was walking towards his vehicle.
[35] The accused chased his vehicle on foot while they were in the vehicle and they turned on to the highway and into the Forest Inn parking lot and then did a u-turn and went back to the parking lot where they observed a cousin holding back with the accused.
[36] Mr. Daniels stated that the police asked him to get the license plate number which he did.
Evidence of Ryan Landry
[37] Ryan Landry is the brother of the complainant and related an incident where his sister called to advise that in May, 2015 that he should check on whether her children were okay at the accused's home.
[38] Mr. Landry attended at the accused's home to see if the children were okay and the accused told him that the children were okay, shut the door, and told him to call the police. It appeared to Mr. Landry that the accused had been drinking. He then received a text from the accused saying "come over and fight it out" and calling him some names like "pussy, faggot and baby fat".
[39] The accused did not know that Mr. Landry had called the police.
[40] The accused further sent some text messages to Mr. Landry indicating that his father was a child molester and that he was going to engage in some vulgar activities with Mr. Landry's partner.
[41] On October 31, 2015 his sister called him and asked that he go to gymnastics to see if the accused was there and was intoxicated.
[42] While coming back from cutting wood in the afternoon, he viewed the accused's vehicle while passing the Best Western and confronted the accused from within a vehicle and described him as having squinty eyes and a puffy face and he looked intoxicated.
[43] He and Nigel Daniels drove away with the accused chasing them on foot as far as the stop sign. They then returned as the dispatch asked to get a license plate number.
Cross Examination
[44] Mr. Landry admitted that he had no prior contact with Mr. Bureau except in May when asked by his sister to check on the accused when he was exercising access.
[45] Mr. Landry felt threatened by the accused with the offer to come back and fight but did not act on that.
Evidence of Rejean Bureau
[46] Mr. Bureau indicated that he went to see the complainant at the Recreation Centre last August to arrange access and discuss issues with respect to the children.
[47] He stated that he was crying during the water bottle incident as he felt he wasn't getting access. He threw the water bottle in a side-hand way bounced off the desk and the wall trying to aim for the garbage can.
[48] On October 31, 2015 he was to have access to go Trick or Treating but he couldn't get from Thunder Bay that evening and arrived late at the Best Western.
[49] He texted and left voice messages for the complainant but she responded by saying that he was not getting the children because he was late as he was not there on Friday pursuant to the Court Order.
[50] He was upset and left voice messages because he wanted to see his children.
[51] He picked up his friend and travelled down the road and decided to drink because access was being denied. By that time he had already given up on exercising access.
[52] He observed Nigel Daniels and Ryan Landry coming into the Best Western parking lot and he thought they were there to intimidate him.
[53] He jogged to the vehicle as his eyes were red and he was crying and wanted to see why they were there. After they left he went into the hotel and began drinking.
[54] He confirmed that there were arguments with the complainant often over him not being allowed to see the children. There were some good meetings and not all of the times did the conversations end up in an argument.
[55] He described the incidents from 2014 as both parties were drinking and he tried to take the cell phone away from the complainant.
[56] He was upset with Nigel Daniels, the complainant's current partner, as he had heard rumours about his bad character and behaviour and sent inappropriate emails to him.
Evidence in Cross Examination
[57] He confirmed that he sent obscene emails to Mr. Daniels as he was not ready to move on and the marriage break up as it only had been four months in the past.
[58] Ryan Landry had called the police during the May, 2015 visit and he drank after the police left when the children were asleep.
[59] He described that during the last year of his relationship with the complainant that they were arguing and drank together regularly.
[60] He confirmed that he was verbally volatile and told the complainant that her father looked at the daughters in the shower which turned out not to be true.
[61] He was of the view that her family hurt him and he would try and hurt them back.
[62] He stated that he threw the almost empty water bottle at the complainant as he wanted to show her how upset he was. He was upset about not being able to see the children and admitted that his voice was slightly raised.
Decision
Assault Charge
[63] Having heard all of the evidence, I am finding that the Crown has proven the assault charge beyond a reasonable doubt as the accused's actions constitute an assault pursuant to the definition found in Section 265.1(b).
[64] In these circumstances the accused's evidence was that he wanted to show the complainant how upset he was is quite gratuitous and a reasonable observer would already know that he was very upset within the context of this custody/access conflict situation. The accused's act of side-handing the water bottle in the direction of the complainant caused the complainant to believe reasonably that the accused intended to assault her and had the present ability to affect that purpose.
[65] A guilty verdict will enter there with respect to the assault charge.
Criminal Harassment Charge
[66] With respect to the Criminal Harassment charge I find that the Crown has not proven the case beyond a reasonable doubt for the following reasons:
This is a high conflict family matter which has been going on for a number of years.
The Crown candidly admitted that the occurrence that pushed this into criminal harassment was the incident on October 31, 2015 where the accused confronted the complainant's present partner and her brother in the parking lot of the Best Western Hotel. The Crown characterizes this as two concerned lawful citizens going about their business and are confronted by the accused. I am finding that that is not a fair, objective assessment of what really happened.
The mother denied access because of the accused's late arrival. There was no evidence that he had been drinking that evening or first thing the next morning. She simply denied access and took no efforts to accommodate the accused for the rest of the weekend as she should do. She took the position that because he did not arrive at 5:00 p.m. on the Friday she was therefore entitled to deny access the following day and the rest of the weekend.
She then enlisted her brother and current partner; where there has been conflict before, to go and check the recreation centre to see if he was there and had been drinking. She couched this in terms that she was afraid that the accused may attempt to exercise access at gymnastics when drinking and would cause a commotion.
The evidence that I accept is that the accused started drinking with a cousin after he was denied access. This is confirmed by the complainant when she stated that the phone messages at 9:30 a.m. seemed normal and it only escalated into slurred words with an assessment of drinking after the accused had been denied access. The presence of the complainant's present partner and brother, in mid-afternoon on Saturday, exacerbated the situation. The complainant could not determine whether he had been drinking at the time of the request or whether he was crying and simply in an emotional state. Mr. Daniels and her brother assumed that he had been drinking based on the complainant's conversation.
The complainant's evidence was aggressive and dismissive of the accused's right to exercise access pursuant to the Family Court Orders. She purportedly wanted to protect the children from a drinking father. In cross examination she admitted that there were during the relevant time period no assaults, no threats, and there was contact with other issues with her other than the children without incident.
The Family Court Orders are clear that both parties, in the past, had drinking problems and the Crown wished to focus on some of the incidents that happened during the marriage and immediately post-separation. These incidents have been explained and elaborated by the accused and the complainant and the other witnesses. Much of the complainant's evidence was hearsay, not direct knowledge and not admissible for the proof of the truth of what happened.
The complainant took an unreasonable position that the accused could not exercise access at a hotel; notwithstanding that he was living in Thunder Bay, nor eat restaurant food as that was unhealthy for the children. This is not a mindset that is conducive to resolving the custody access dispute.
With respect to the facts of this occurrence, there was no direct evidence from the complainant except that she received a call that the accused was dealing with the police and she need not worry. The actions of the accused were directed at Messrs. Daniels and Landry and there is no reasonable basis to conclude that those actions were directed at the complainant, nor any reasonable basis for her to fear for her safety or feel threatened.
In these circumstances, a not guilty verdict will issue with respect to the criminal harassment charge.
Released: April 12, 2016
Signed: Justice Peter T. Bishop