R. v. Nolan
Date: 2018-12-19
Toronto Region
Ontario Court of Justice
Parties
Between:
Her Majesty the Queen
— and —
William Nolan
Court Information
Before: Justice L. Feldman
Heard on: June 19, 22, July 28, November 15, 2017, October 16, 2018
Reasons for Judgment released on: December 19, 2018
Counsel:
- D. Kennedy, L. Eplett — for the Crown
- D. Gosbee — for the accused William Nolan
FELDMAN J.:
Introduction
[1] William Nolan entered not guilty pleas to charges of Threaten Death, Intimidation, Obstruct Justice, Disobey Court Order and Criminal Harassment. Mr. Nolan was the estranged partner of the complainant, Lornah Mark, at the time of these occurrences. It is alleged Mr. Nolan sought to punish the complainant for her failure to be compliant with his wish to have unfettered access to his children. This included threats and intimidation in Family Court proceedings, in addition to an attempt to humiliate her by scattering numerous topless photographs of her performing oral sex on the windshields of parked cars and in the field next to the public school where she worked as a teacher. She believes the face in the photos is hers. The defendant is alleged to have done something strikingly similar in the recent past. It is also alleged that he coerced the complainant to change her testimony in court regarding custody of her children, as well as ignoring a court order to provide his tax returns.
The Evidence
The Background Narrative
[2] Mr. Nolan and Ms. Kim began a common law relationship in 2004. They have two boys, ages 10 and 11. Their first child was born in 2006. Mr. Nolan supported his family by gambling and selling marihuana, ultimately being arrested on drug trafficking charges when his son was 7 months old. In 2009, he was convicted and sentenced to 4 years. While he was in custody, the complainant lived with her parents and was able to obtain a teaching degree. She started teaching at Cornell Public School in 2012.
[3] Following the defendant's release in September 2012, the couple decided that the relationship was over. Ms. Kim told the court, however, that she wanted her children to have a relationship with their father and was open to Mr. Nolan seeing them whenever he asked. He did not see them too often and provided no child maintenance, although he would occasionally drop off items for them such as shoes and toys.
[4] Part of this narrative, as described by the complainant, includes conflict and animus on the defendant's part towards her. He held Ms. Kim responsible for limiting his relationship with his boys. The complainant recounted how he expressed this anger to her in the presence of her children on a number of occasions and rendered threats to her family leading to criminal charges.
[5] In the course of this proceeding, I admitted evidence of prior discreditable conduct with regard to a charge, ultimately withdrawn by the Crown, that on September 24, 2012, the defendant scattered nude photos of the complainant in the schoolyard where she worked, having threatened to do so, as well as admitting it to her subsequently. I ruled it uniquely similar to the subject criminal harassment allegations. It was admitted on a threshold basis ultimately to be weighed with other evidence in relation to issues of motive, identity and credibility.
[6] Mr. Nolan demanded that the complainant withdraw the criminal harassment charge, as he did a restraining order she obtained in Family Court following the earlier photo incident.
The Family Court Proceedings
(a) Intimidation and Utter Death Threats
[7] In 2012, Ms. Kim sought to obtain passports for her boys so that they all might travel together. Mr. Nolan would not sign off on this request, as a result of which the complainant applied to the Family Court for those documents. She was advised she would need full custody to effect that purpose without the father's consent. Having served the defendant, she made that application. She was unsure if Mr. Nolan would attend.
[8] The hearing took place on January 7, 2013, before Paulseth J., who was case managing the file and would be knowledgeable about the background circumstances. Ms. Kim expected to obtain full custody unopposed. She testified that she was sitting outside court when the defendant showed up unexpectedly. Both were acting on their own. Mr. Nolan sat across from her. She says she rebuked him for the unfairness of his using a nude photo of her that she had sent to him while he was in prison to flood her workplace with a facsimile for which he later apologized. Of significance, she testified that Mr. Nolan pressured her to drop the criminal charge and restraining order, not go into court and not go through with the custody application. She says he threatened to shoot her family if she were not compliant with his demands.
[9] Ms. Kim told the court that she was confused and made to feel some fear by this intimidation. But she was also concerned that if she sought full custody, he would be angry and pull back from having a relationship with his children that she felt was in their best interests. She says she was also afraid there might be more photo incidents. She alleges, as set out below, that that fear was realized.
[10] The defence denies that the accused threatened the complainant in the hallway of the courthouse and challenges the reliability of her testimony in this regard, but in my view, on this evidence, Ms. Kim's credibility is, rather, enhanced by an assessment of the defendant's behaviour during the course of the proceedings before Justice Paulseth. Given that behaviour, it is understandable that the complainant felt pressured into reversing her position on custody in court by Mr. Nolan's threats and intimidation, as was her decision, given the background circumstances, to balance any risk with her wish that the children have a relationship with their father.
[11] A review of the application transcript tends to bear this out. At the outset, Justice Paulseth suggested full custody for the complainant because of the couple's troubled relationship and the defendant's long absence from his children. Mr. Nolan, presuming to speak for Ms. Kim, who at the time had an ex parte order for custody, let the court know that there would be joint custody, a position at odds with the materials filed by Ms. Kim. When the judge said again that Ms. Kim had to have final custody, he responded, "no, no, no, no, no".
[12] When Justice Paulseth suggested he needed to attend an information session about access, the defendant told her, "and we want to resolve this, right here, right now, and go out the door so I can go see my sons". He was forceful in indicating impatience with the process and an intention to settle the issue on his terms. He told the court that "she agrees to joint custody". Ms. Kim was silent.
[13] When Justice Paulseth told the defendant she would not ever agree to joint custody for him, he prepared to walk out. Before doing so, he said to the complainant, "we're out of here, man. Come on". Tellingly, the judge told him not to boss her around. It is a reasonable inference, that in his rising anger he was overbearing, rude and intimidating both to the court and the complainant.
[14] Remaining for the moment, Mr. Nolan informed the judge that, "there's nobody…in this world that can keep me away from my son…". No one had suggested that. He informed the court that he would pick up his children from school every day. It appeared he was letting the judge know he would determine access. It must have been unsettling for the court and the complainant to be faced with the defendant's aggressive and controlling demeanour. In fact, Justice Paulseth had to assert herself and say to him, "Mr. Nolan, please do not try and intimidate her in front of the court". He insisted they had agreed on something "and now it's getting twisted around".
[15] When instructed, the defendant refused to sit down, telling the court he could not do so because he was angry and that he needed to start pacing, which he did. He explained that he had been in the penitentiary system for 5 years and wanted to be a custodial parent. The court explained that a schedule for access could be worked out.
[16] When the judge went on to discuss access details with the complainant, Mr. Nolan interrupted, saying, in part, to the court, "listen, listen, listen, listen…I'm not taking no pick them up at 3:00, drop them off at 6:00…It's going to be 24/7…". When the court made reference to Saturday access, the defendant rudely addressed the court, "…do you have an issue or something…Is there an issue – an issue here, girl?"
[17] The hostility and aggressive tone must have been disconcerting to Justice Paulseth. It is apparent that at this point a court officer was summoned. Mr. Nolan did not take well to this development. He said, "…why is this guy coming in here like this…like he's going to do something". When asked to calm down, he spoke directly to the officer, "I don't need to calm down. I'm just trying to talk to the judge and you come in behind my back and stand up here…I don't take good to authority, eh, Miss…just so you know that…You guys can't come in here like they're going to do me (ph) something. Go outside the courtroom."
[18] It must have been disturbing for Justice Paulseth to observe Mr. Nolan's persistent anger, aggression and seeming irrationality and to feel subject to his controlling manner. She attempted to calm the situation. She explained that the officer was not moving and that security is in all the courtrooms.
[19] Mr. Nolan would have none of it. He said, "It's the same bull…Get the fuck out of here, you hear me? Get the fuck out of here." When the officer asked the defendant if she were being threatened, Mr. Nolan did just that. He ignored the judge's entreaties as if she weren't there and went on, "I said get out of here. I'm dealing with my…fucking family matters. I don't need you in my face". Justice Paulseth directed that the court close. The accused ignored her and said, "Get out of my fucking face…fucking bullshit, man".
[20] The effect of Mr. Nolan's rage when the court had the temerity to not grant him what he demanded was to move Justice Paulseth to shut the proceedings down. The accused subsequently attacked the officer outside the courtroom causing him injury.
[21] In the defendant's absence, Justice Paulseth told the complainant that she could not agree to joint custody "with someone like that". Tellingly, Ms. Kim said, "It's not going to be good for me". I infer on this evidence that the complainant believed she would be asking for trouble were she not to step back from full custody. I infer, as well, that the court sensed that Ms. Kim's quiet reversal on custody was the product of coercion or fear.
[22] Mr. Gosbee, for the accused, submits that the complainant's evidence was unreliable. He makes reference to her family court affidavits, where she suggested minimal awareness of the defendant's criminal activity. I agree she likely minimized her knowledge. This weighs against her credibility. At the same time, I don't imagine that the controlling accused was too forthcoming to her on the details of his criminal life.
[23] As well, Mr. Gosbee points out that even after his client left the courtroom to take on the court officer, Ms. Kim failed to inform Justice Paulseth about the earlier threats when she had an opportunity to do so, as she failed to do later on when speaking to the police. I accept Ms. Kim's evidence that she was attempting a delicate balance between concern for her own safety and hope that her boys would have a relationship with their father with whom she felt they were safe. I also accept her evidence she did not want to get Mr. Nolan into further trouble. I am not persuaded that counsel's submissions indicate material unreliability in the complainant's testimony.
[24] Ms. Kim has been a responsible and devoted mother. On all the evidence, including the application affidavits, the most reasonable inference is that Ms. Kim attended Family Court expecting that her temporary custody order would become permanent with access in her discretion that she intended to permit liberally. Her meek acceptance of joint custody in court when the objective circumstances rendered that untenable, as Justice Paulseth well knew, permits the strong inference that Mr. Nolan gave the complainant her marching orders prior to the commencement of the proceedings in a manner consistent with the defendant's subsequent overbearing behaviour during the hearing. That behaviour, in my view, serves to enhance Ms. Kim's credibility with regard to her having succumbed to the defendant's demands as a result of threats and intimidation.
[25] I am satisfied beyond a reasonable doubt that the charges of Utter Death Threat and Intimidation have been made out. There will be findings of guilt.
(b) Obstruct Justice
[26] It is alleged that the accused wilfully dissuaded Ms. Kim by intimidation and threats from giving evidence in a judicial proceeding, contrary to Code s. 139(2). The wording of the section reads, in part, "wilfully attempts in any manner to obstruct, pervert or defeat the course of justice in a judicial proceeding". There is no doubt that Ms. Kim was able to give evidence in her affidavits. But this section contemplates the opportunity for a witness to give full and candid evidence free of outside pressure. I found that not to be the case in the proceeding before Justice Paulseth, where Ms. Kim agreed to joint custody and removal of a restraining order as a result of coercion. I agree with Ms. Eplett that the course of justice was affected by the defendant's actions prior to and during the proceedings. There will be a finding of guilt on this count.
(c) Disobey Court Order
[27] It is alleged that the defendant failed to provide copies of his tax returns and notices of assessment as ordered by the court. The Crown concedes it has not proven the essential elements of this allegation. That charge will be dismissed.
The Criminal Harassment Charge
[28] Ms. Kim testified that in the early morning of January 7, 2015, she received a text from her principal that there were bags full of photocopies of herself nude performing oral sex that, as in 2012, were scattered around the school yard and placed on the windshield of teachers' cars. She says the face in the photos looks like her, but is not sure. She recalls that the defendant had in the past threatened to photoshop her face getting 'gangbanged'.
[29] Of significance, the following words were typed on the photo: "This is your jr kg teacher, LORNAH KIM. This will keep happening as long as she's at TDSB. Find more of Lornah Kim www.dirty.com". Ms. Kim teaches grades 5 and 6. There is also a Lee Kim who teaches kindergarten. Teachers' names are listed on the school's website. Mr. Nolan would know the complainant's first name.
[30] There are some weaknesses in this allegation. The complainant can only say that the face in the photo looks like her. She does not teach kindergarten. She had not seen the accused since the Family Court proceeding. She has remarried. Mr. Nolan has a girlfriend. Nonetheless, there has remained tension over custody because Ms. Kim is in charge and Mr. Nolan is not.
[31] The history of conflict and intimidation by the defendant, the facial similarity in the photo and the specific use of the complainant's name tend to support a circumstantial inference that it was the accused who spread or arranged for the spread of the nude photos in the schoolyard. However, despite the unique nature of this cruel act, the evidence of identity here is insufficient without more to support a finding of guilt beyond a reasonable doubt.
[32] The Crown's burden of proof with regard to identity and related issues of motive and credibility will ultimately be determined in the weighing of this evidence together with that of the prior discreditable conduct. In this regard, Ms. Kim testified that in the course of a continuing dispute over custody in 2012, the defendant threatened to destroy her life by distributing nude photos of her at work. She had sent him a nude photo of her while he was incarcerated. Mr. Nolan followed through on his threat in September of that year. The complainant's name and the school's phone number were written on the nude photos. As noted earlier, she says he apologized to her a few months later in Family Court.
[33] Cheryl Vousden is the caretaker at the school and discovered the photos each time. In fact, in 2012, she confronted the man who was littering the school's lawn with the photos. She described him as 6 ft. tall, in his mid-twenties with a red beard, but was unable to identify him in a lineup. She recognized Ms. Kim's face in the photos.
[34] Mr. Gosbee submits that given Ms. Vousden's inability to identify the accused, I should be unsure who perpetrated this act, and in the result give no weight to this prior incident. I don't agree. The whole of this evidence provides a credible basis to infer motive and animus on the defendant's part. In this regard, I found the complainant's recounting of the defendant's unhappiness over his limited access and his intimidating behaviour to be given in a straightforward and unembellished manner that was not seriously challenged. I accept that Mr. Nolan was the sole individual with the motive to perpetrate this heartless act of personal destruction that is, in my view, uniquely similar in nature and modus to the callous act that is the subject of this proceeding. I will weigh it with other evidence in deciding whether the essential elements of the subject offence have been made out.
[35] Mindful of the weaknesses in the evidence regarding the 2015 school incident, I take into account the threats, intimidation and aggression exhibited by the defendant prior to and during the course of the Family Court proceedings, the continuing tensions over custody and access and the distinctly similar nature of the prior act that was so exceptionally unique to the personal circumstances of the parties and to the commission of the subject offence.
[36] This evidence is compelling in enhancing proof of identity in relation to the 2015 allegation. There is no one else but the defendant who had the motive to bring the complainant down and punish her for lack of compliance. There was no one else who had demonstrated this unrelenting degree of animus. On all the evidence, I am satisfied to the requisite standard that it was Mr. Nolan who perpetrated the spreading of the photos in the schoolyard in 2015 or arranged for their dissemination.
[37] There can be no doubt that the conduct exhibited here constituted criminal harassment. Such harassment has been described as a "tool of intimidation which is designed to instill a sense of fear in the recipient": R. v. George (2002), 2002 YKCA 2, 162 C.C.C. (3d) 337 (Y.T.C.A.). In R. v. Kosikar (1999), 138 C.C.C. (3d) 217, 94 O.R. (3d) 241 (Ont. C.A.), Goudge J.A. said, at para. 27, that the threatening conduct need not be repetitious and could consist of a single act if it left the complainant feeling harassed. He went on to describe a state of being harassed as "tormented, troubled, worried continually or chronically plagued, bedevilled and badgered". This would necessarily carry "the real future prospect of the continuing tormenting of the complainant". On the evidence, there was a real basis for Ms. Kim to be troubled and worried about what was next from the defendant.
[38] Mr. Nolan will be found guilty of criminal harassment.
Released: December 19, 2018
Signed: Justice L. Feldman