Ontario Court of Justice
CITATION: R. v. Harper, 2021 ONCJ 11
DATE: 2021 01 06
COURT FILE No.: 20-15000623
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
Darrell William Harper
Before Justice Michael Block
Heard on November 5,6, 2020
Reasons for Judgment released on January 6, 2021
Catherine Mullaly............................................................................... counsel for the Crown
Alana Page......................................... counsel for the Defendant Darrell William Harper
Block J.
Introduction
Darrel Harper is charged with the criminal harassment of Dayna Harper between May 26, 2019 and January 27, 2020, contrary to s. 264(3) of the Criminal Code. Dayna Harper was the sole witness at trial. She gave evidence under the name Dayna Cranson. Some evidence was introduced by way of two agreed statements of fact (ASF), Exhibit 1 and Exhibit 4.
Though the time period referenced in the information is broad, both Crown and defence share the view that criminal harassment alleged was not composed of multiple acts, but one act on January 25, 2020. It is common ground that the applicable Criminal Code provision is clause “c”, emphasized below.
264 (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.
(2) The conduct mentioned in subsection (1) consists of
o (a) repeatedly following from place to place the other person or anyone known to them;
o (b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;
o (c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or
o (d) engaging in threatening conduct directed at the other person or any member of their family.
Issues
- The Crown adduced in evidence printed copies of Mr Harper’s personal emails which feature both his order, and the subsequent shipment of a “3G GPS Tracker TKSTAR” tracking device. These emails were obtained by Ms Cranson during her search of Mr Harper’s email account after an incident near her home on January 25, 2020. Mr Harper argues that these emails were acquired as a result of a violation of his right to be free from unreasonable search and seizure pursuant to s.8 of the Charter and should be excluded from the evidence pursuant to s. 24(2) of the Charter. Mr Harper also argues that his guilt is not the only reasonable conclusion consistent with the totality of the evidence.
The Evidence
On January 25, 2020 Ms Dayna Cranson was in the vicinity of her home on Davenport Road near the intersection with Symington Avenue when a masked man suddenly appeared and assaulted the male friend with whom she was walking. Ms. Cranson immediately suspected that the assailant was her ex-husband, the defendant Mr Darrell Harper. She thought that the build of the assailant was that of Mr Harper. The two had a fraught break-up and Ms. Cranson believed that the defendant was obsessed with her.
Ms. Cranson immediately entered her nearby parked vehicle and reconnoitered the area in search of Mr Harper. She soon spotted him in the neighbourhood, unmasked. She then reported the matter to the police.
Ms Cranson was puzzled that Mr Harper apparently knew that she resided in the vicinity of the assault. She had taken care not to reveal her address to the defendant since the end of their relationship approximately one year before. Ms Cranson then accessed the defendant’s email account. In it she found emails dated May 26, 2019 confirming the purchase and shipment to Mr Harper of a tracking device described as a “3G GPS Tracker TKSTAR”. Ms Cranson printed these emails and took them to the police on January 27, 2020. These are collectively marked as Exhibit “A” in this proceeding.
The discovery of the above-noted emails prompted an immediate inspection of the vehicle by Ms Cranson and her male friend. The inspection revealed a tracking device hidden near one of the wheels on her vehicle. This device was referenced in the ASF marked as Exhibit 1. In the ASF the parties agreed that the device was a “black TKStar GPS device”, that no fingerprints could be obtained from it and a forensic examination provided nothing of evidentiary value. This device itself was entered into evidence as Exhibit 2.
The police took no action whatsoever in procuring the impugned emails that are the focus of the s. 8 application by Mr. Harper. They never accessed Mr Harper’s email account. They did not counsel or direct Ms. Cranson to access them. They never accessed Mr Harper’s computer. They were ignorant of the existence of the emails until they were given to them by the complainant. They were simply the passive recipients of the printed copies. The police included this material in the disclosure package prepared for the Crown and ultimately disclosed to the defence. Ms. Cranson accessed and referred to the emails in question on her mobile telephone during her testimony. In my view this unusual feature of her evidence illustrated both her active role in the search and seizure of this evidence and the very limited role the police played in transmitting the fruit of Ms. Cranson’s efforts to the Crown as proposed evidence at trial.
Ms. Cranson set up this email account for Mr Harper before the two had separated. Until their separation the couple shared the email account. Ms Cranson knew the password and, it transpired, Mr Harper had not changed it since the separation. She told the court that she had not previously accessed this email account since the couple broke up. She did not feel comfortable doing so as it had become Mr Harper’s personal account. She had since created her own new email account. It was clear, at least in this portion of her testimony, that the complainant regarded the old, shared marital email account as Mr Harper’s personal, private domain. In her contemporaneous statement to the police, she referred to the email account in question as that of her “ex”.
As her testimony progressed, Ms. Cranson, a highly motivated witness, demonstrated awareness that Mr Harper’s reasonable expectation of privacy was a legal issue of importance at trial. She attempted to walk back her earlier admission concerning the private nature of Mr Harper’s email account. Nevertheless, she agreed that after the couple separated Mr Harper never gave her permission to access his email account, nor did he ever imply that she had his consent to do so.
A screenshot of a driver’s license issued on September 12, 2019 to a Marcel Mendez with an address of 1867 Davenport Rd, Toronto was marked as Exhibit 3. This address is in the immediate vicinity of the incident at the heart of this trial. An ASF, marked as Exhibit 4, established that the complainant uploaded this screenshot to her password-protected cloud on December 15, 2019. This was almost a year after Ms Cranson and Mr Harper split up. The evidence established that the defendant accessed and saved the image the next day.
While I was not impressed with the argumentative quality of Ms Cranson’s evidence in cross-examination, particularly as it related to the private nature of Mr Harper’s email account, I find that she was a credible witness. Indeed, the factual content of her testimony was essentially unchallenged.
The complainant’s identification of Mr Harper as the January 25, 2020 assailant of her companion appears to be uncontroversial. While identification is not conceded, Ms Cranson was not cross-examined on this issue, nor was it addressed in argument. I conclude that the reliability of the complainant’s evidence of the identity of the attacker as her husband of many years it is unchallenged by the defendant. I accept this evidence.
Ms Cranson’s testimony regarding how the attack on her male companion unfolded was also unchallenged in cross-examination and was not addressed in argument. I conclude that the reliability of this evidence is also unquestioned. I also accept this evidence.
Another component of the evidence that was unchallenged was Ms Cranson’s stated fear of the defendant. She indicated in chief that she was terrified by Mr Harper’s conduct on January 25, 2020. She appeared to be genuinely shocked and frightened when presented with Exhibit 3 in cross-examination and she became aware for the first time that the defendant had accessed private items she had saved to the cloud. I accept that she was terrified by the January 25, 2020 encounter with Mr Harper.
Charter Discussion: Did Mr Harper have a reasonable expectation of privacy in the emails printed by the complainant ?
- In R v Marakah, 2017 SCC 59, para. 11, the Supreme Court confirmed the analysis which must guide trial courts in their determination of whether a reasonable expectation of privacy exists in the subject matter of a particular search.
What was the subject matter of the alleged search?
Did the claimant have a direct interest in the subject matter?
Did the claimant have a subjective expectation of privacy in the subject matter?
If so, was the claimant’s subjective expectation of privacy objectively reasonable?
The subject matter of the search and seizure was not Mr Harper’s personal computer, but the Amazon order and confirmation of a GPS tracking device contained in his email history. Although this Court did not hear evidence from Mr Harper, I must conclude on the evidence that he had a direct interest in his personal emails and that he acted in a way that suggests he assumed that his personal communications, including the purchase of a tracking device for potentially dubious purposes, would not be subject of scrutiny by other persons . The case law is dispositive on the issue of whether an ex-spouse can waive their former partner’s personal expectation of privacy. See R v Reeves, 2018 SCC 56, [2018] S.C.J. no. 56, para. 37. It must by now considered trite law that a spouse, and by obvious extension an ex-spouse, has no authority to waive a reasonable expectation of privacy on behalf of a former spouse.
I find that he had a reasonable expectation of privacy in his email account that was not significantly diminished by his failure to change the password after the account ceased to be used by Ms. Cranson.
Did a search and seizure within the meaning of s. 8 take place ?
In my view the crux of the matter in the Charter controversy in the instant case is whether the Charter is engaged at all. The Supreme Court held in R v Dyment (1988) @ S.C.R. 417 at p. 431 that “the essence of a search under s. 8 is the taking of a thing from a person by a public authority without that person’s consent. (emphasis added).
In Reeves, supra at para. 46, the Supreme Court acknowledged that “the issue of whether s. 8 of the Charter is engaged when a private citizen offers information or an item to the police in which another person may have a reasonable expectation of privacy does not arise in this case . . . the issue of whether s. 8 is engaged when a citizen voluntarily brings an item to the police remains for another day. “
In addition to Reeves, the decisions of the Supreme Court in R v. Cole, 2012 SCC 53, [2012] S.C.J. no. 53 and R v Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, concern the active involvement of the police at some point in the search and seizure of the impugned evidence. They do not concern searches by citizen volunteers in which the police play no active role.
Writing for the Court in R v Orlandis-Hapsburgo, 2017 ONCA 649, para 34, Doherty J.A. remarked:
“I have considerable difficulty with the submission that s. 8 is engaged if the police look at information in which an accused has a legitimate privacy interest, even if that information is brought to the police by an independent third party acting on its own initiative. On that approach, s. 8 would be engaged if a "whistleblower" took confidential documents belonging to her employer to the police to demonstrate the employer's criminal activity. Must the police refuse to look at the documents to avoid violating the employer's s. 8 rights? As Duarte teaches, it is one thing to say that Canadian values dictate that the state's power to decide when and how it will intrude upon personal privacy must be carefully circumscribed, and quite another to say that an individual's private information is cloaked in the protection of s. 8 no matter how that information comes to the police.”
In R v Buhay, 2003 SCC 30, [2003] 1 SCR 631, a full panel of the Supreme Court considered a search by private security guards of a bus depot storage locker from which emanated a strong odor of marijuana. Justice Arbour wrote for the unanimous Court that s. 8 of the Charter was not engaged when the security guards searched the locker. They were not acting as agents of the police when they carried out their search, nor did they become agents as a result of their subsequent cooperation with the police.
In my view s. 8 is not engaged by the manner in which the evidence of the impugned emails came before this court.
Charter s. 24 (2) Discussion
In the event that I am wrong in my determination that Ms Cranson’s seizure of the emails did not engage the Charter, the finding that Mr Harper had a reasonable expectation of privacy in the evidence concerned compels the conclusion that a breach of s. 8 occurred.
It is highly likely that the police would have obtained a warrant to search Mr Harper’s email account for evidence of a GPS tracker purchase had one be sought. This observation is relevant to the calculation of the extent to which Mr Harper’s right to be free from unreasonable search and seizure was violated by the passive reception of the impugned emails by the police.
In Reeves, supra, at para. 30, the Supreme Court emphasized that the seizure of the computer may well involve more heightened privacy interests than the mere seizure of documents. “When police seize a computer, they not only deprive individuals of control over intimate data in which they have a reasonable expectation of privacy, they also ensure that such data remains preserved and thus subject to potential future state inspection.” (italicization in the original). In the case before me Ms Cranson never accessed the defendant’s computer and the police never conducted any search of the defendant’s computer or his email account. In consideration of the first Grant category, whatever state intrusion into Mr Harper’s Charter protected reasonable expectation of privacy that did take place was limited to the receipt of a few pages of emails restricted to one issue.
Since the warrantless passive police reception of the fruit of a civilian search has not yet been the subject of binding appellate disapproval, the Crown is entitled to rely on the good faith of the police in respect of the calculation of the second Grant category, the magnitude of the state transgression.
Finally, the emails are real evidence, highly relevant to the integrity of the truth-seeking process, and favouring admission under the third Grant category,.
In my view all three Grant categories favour the admission of the evidence. Exhibit “A” will now be marked as trial Exhibit 5.
The Gravamen of the Offence
Counsel for the defendant contends that Exhibit 3, the screenshot of the driver’s license featuring the photograph of Mr Munoz, would have given Mr Harper the location of Ms Cranson’s residence without the use of the tracking device found on her vehicle. If so, it is argued, the Crown would not have satisfied the test in Villaroman and proved beyond reasonable doubt the form of criminal harassment said to be contemplated in the information, the use of the tracking device.
I reject this analysis. The means by which the defendant gained knowledge of the complainant’s whereabouts or residence is not the gravamen of the offence described in the information. The gravamen of the alleged offence is that Mr Harper continuously watched the location of the incident for the appearance of the complainant or beset the complainant by attacking her companion in her immediate presence.
The sole evidentiary relevance of both the hidden GPS tracker and Mr Harper’s illicit capture of the complainant‘s uploaded photographs is that they are compelling evidence of the defendant’s prolonged sinister focus on Ms Cranson. I accept the powerful circumstantial evidence that the device ordered by Mr Harper from Amazon in May 2019 is the tracking device with the same name found on Ms Cranson’s vehicle on January 25, 2020. This fact is evidence of the lengthy duration of his intention to harass his ex-spouse.
There was no evidence that the Exhibit 3 screenshot displayed Ms Cranson’s residential address and no evidence that the man whose driver's license is featured therein was the man attacked by Mr Harper. Any link between Ms Cranson and Exhibit 3 is speculation unsupported by evidence. However, the fact that the defendant violated Ms Cranson’s privacy by accessing this screenshot is some evidence of both his continued preoccupation and his intention to personally confront her some six weeks before the incident of January 25, 2020.
The hidden placement of the GPS tracker indicates that it was intended to be used surreptitiously. The defendant didn’t call attention to his access to the driver's license depicted in Exhibit 3. Neither of these acts were meant to be discovered. They were means of facilitating contact with Ms Cranson for the purpose of harassment, not acts meant to inspire fear. The evidence is clear that Ms Cranson did not know of the existence of the tracking device until after the attack on her companion. She was unaware that defendant accessed her stored computer files until her cross-examination at trial.
The purpose of criminal harassment is to cause an impact on the victim through the acts contemplated in s. 264(2). It is self-evident that these unlawful goals cannot be achieved without the acts being made obvious to the target.
Definition of “watch or beset”
The phrase "watching or besetting" is not defined in the Criminal Code.
In R. v. Eltom, 2010 ONSC 4001, Justice Trotter, as he then was, considered the interpretation of "watching or besetting" contrary to section 264(2)(c) of the Code. He held that the use of the conjunction “or” indicates that the phrase is intended to be interpreted disjunctively. Justice Trotter also adopted, in para. 13, the conclusion that: “watching is passive in nature and besetting is active. Watching is continually observing for a purpose and besetting has a physical element of approaching and, with respect to another person, importuning or seeking to argue with that person.”
In this case Justice Trotter, sitting as a summary conviction appeal court, was considering the failure of the trial judge to evaluate the conduct of an appellant who attended the mall where the complainant was working on a number of occasions. There is no indication that he intended to restrict the meaning of ”beset “to exclude an “approach” that resulted in the immediate, unprovoked assault on the complainant’s companion.
The definition of “besetting” as an approach combined with “importuning or seeking to argue with a person” owes much to the multitude of civil contempt cases concerning picket lines and demonstrations at abortion clinics. In this regard see Everywoman’s Health Care Centre Society (1988) v Bridges (1993), 1993 CanLII 1276 (BC SC), 109 D.L.R. (4th) 345 (B.C.S.C.) at para 26.
Watt J.A., in his definitive Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Thomson Reuters Canada, 2015) at p. 772, includes the following definition:
To beset a place means to be present at or near it in a troubling way.
To watch a place means to observe it with continuous attention.
Dictionary definitions of “beset” encompass assault. The current on-line edition of Merriam-Webster defines “beset” as “trouble, harass” and “to set upon, assail”. Vocabulary.com defines “beset” as “assail or attack on all sides”. The current on-line edition of the Oxford Advanced Learner’s Dictionary defines “beset” as “to affect someone in an unpleasant or harmful way”.
Mr Harper may well have waited in proximity to the location of the incident. As this attack took place before the present pandemic, his use of a mask suggests that he prepared for the attack in advance. But there is no evidence that he observed the location of the impending confrontation “with continuous attention.” There is no evidence that he watched Ms Cranson continuously on January 25, 2020 for the purpose of harassing her.
There is no authority for the proposition that the use of a GPS tracking device fits within the definition of “watching and besetting”. The plain language of the phrase would seem incompatible with electronic tracking standing alone. The advent of this technology was, no doubt, unanticipated at the time the section was framed. In my view “watching” contemplated in subsection 264(2)(c) requires the obvious, continuous physical presence of the harasser for the purpose of harassing the targeted person, not surreptitious surveillance unknown to the victim at the time of its occurrence.
The least that can be said about Mr Harper’s sudden attack is that, in the words of Justice Watt, it was an approach “in a troubling way”. In my view the word “besetting” contemplates the defendant’s actions in this matter. There may be few cases where offenders under this section openly state their criminal intention to harass. That intention is typically demonstrated by their actions. An unprovoked attack on the complainant’s companion in her immediate presence may be an unusual means of deliberately harassing a person but there can be no question that it powerfully communicates an intention to instill fear. Mr Harper obviously meant to send Ms Cranson a unmistakable message that he found her behaviour, including her association with another man, unacceptable.
Similarly, it cannot be reasonably maintained that the attacker in this instance did not know that their ex-spouse would have been harassed by his conduct.
Ms Cranson was clearly very frightened by the attack on her companion and by the discovery of the tracking device on her vehicle. It is entirely reasonable for the complainant to fear Mr Harper as a result of his surprise attack upon her companion in her presence and in close proximity to a residence she sought to keep secret from the defendant.
I find beyond a reasonable doubt that Mr Harper beset Ms Cranson by attacking her companion on Davenport Road near the intersection with Symington on January 25, 2020 and that he caused her to reasonably fear for her safety as a result.
Signed: Justice M Block
January 6, 2021