ONTARIO COURT OF JUSTICE DATE: 2021·01·27 NEWMARKET
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
E.T.
JUDGMENT
Evidence and Submissions Heard: January 8, 2021. Delivered: January 27, 2021.
Counsel: Ms. Nicole Murphy..................................................................................... counsel for the Crown Mr. Yogesh Gupta............................................................................... counsel for the defendant
KENKEL J.:
Introduction
[1] The complainant met ET through an online dating site. They had a brief relationship for two or three months then ET moved into her house that she shared with two daughters. As she got to know Mr. T better, the complainant saw that he had a controlling and aggressive nature. One evening while she was getting bandages after surgery, she received a frantic call from her daughter’s friend. She rushed home to find her two daughters crying across the street, having fled the house in their pajamas. Her daughters told her what happened, and the complainant told Mr. T to leave their house.
[2] The complainant spoke to the police and then later sent a text message telling ET not to come to her house and not to speak with her. He replied with one text message saying he wouldn’t contact her. On Friday, May 24, 2019 ET sent the complainant a text with two heart emojis. She immediately sent back a text message “Don’t contact me”. She followed that with a message “Please do not come back to the house …. Or else the police will be contacted.” Over the next few days, she received over 180 unwanted phone calls and over 60 text messages. She received “non-stop” calls at her workplace. She was reprimanded on several occasions about those calls. The continued unwanted contact made the complainant feel unsafe both at home and at work. Her memory of his aggressive behaviour combined with a refusal to leave her alone caused her to fear for her own safety and the safety of her daughters.
[3] In cross-examination, the defence challenged certain details in the complainant’s account, but in final submissions the defence agreed the Crown had proved the complainant was subjectively fearful for her safety as a result of the continued unwanted contact. The central issue for decision is whether the Crown has proved beyond a reasonable doubt that the complainant’s fear was objectively reasonable.
The Relationship
[4] The complainant is a single mother raising two daughters on her own. She works as a dental office manager. When she met ET he was unemployed. He told her he was the part owner of the house he was living in, but she later learned he rented a room there. ET moved in with the complainant a few weeks prior to the incident that caused her to end the relationship.
[5] The complainant found he was a very aggressive driver to the point where at times she was scared to be in the car with him. There were confrontations with other drivers as a result of his driving or his anger at how other people were driving. She tried to help him find employment as she thought that might be the issue that was making him angry.
[6] He also showed anger in the home. One of the complainant’s daughters has a disability. One evening when the complainant took a little longer saying good night to her, ET was angry when she returned to their room. He told her it was “crazy” and an absurd amount of time to spend with a child. It shouldn’t take that long to say good night. He hit the wall, then went to the basement slamming doors. In cross-examination she said he was “very angry and very aggressive” and his reaction woke up her older daughter.
[7] In cross-examination she was asked why she didn’t mention ET’s pounding the walls the night of the incident involving her daughters when she first spoke to the police. She explained that on that evening the police asked her about the incident involving her daughters which was the subject of a different police investigation. She said she wasn’t asked about prior events at that time.
[8] The complainant found ET was controlling in other ways beyond the argument involving the time she spent with her youngest daughter. For example, on the final day of their relationship they went to the mall. She was going to buy her daughter a cellphone. Although she was the one paying for the phone, ET kept trying to control the discussion. He became upset with her and told her to let him deal with it.
[9] In cross-examination it was suggested that ET was not being controlling but merely helping her with the purchase as she might not be familiar with phones. It was not explained why it was suggested that she might not be familiar with phone contracts or why ET thought he had some special knowledge in that regard. If the question was prompted by outdated assumptions about gender, that was immediately set straight by her answer – prior to working in the dental office she’d worked with Bell for 5 years and that was part of her job. She was the one with the expertise as she’d worked with the very company they were dealing with, but to avoid another argument she let ET handle her purchase.
The Incident and the Breakup
[10] After the difficulties with the cellphone purchase at the mall, the complainant left with ET and her daughter. They eventually picked up her older daughter. When they got home, she told both daughters to “stay away from the situation” with ET until she returned. She knew he was in a bad mood, but she hadn’t figured out what to do about their relationship. She told ET that the situation could not continue with his mood swings and she was worried about letting him back in the house. He told her he was just a little aggravated and that he’d just go in the house and go to bed. He promised everything would be fine.
[11] The complainant went to Shoppers Drug Mart to buy bandages as she’d just had surgery. After she left, ET called her asking her when she would be home. She found that odd as ET knew where she was going, and the store was only 10 minutes away.
[12] After she left the store, she saw that there were 7 missed calls from her oldest daughter’s friend. She spoke to the friend who was “hysterical”. She learned that her daughters had fled the home. She rushed back. When she arrived, she saw both daughters across the street in their pajamas. Her daughters told her what had happened.
[13] She went inside the home and found ET upstairs in the bedroom in his clothes and wearing his jacket but appearing to be asleep on the bed. She woke him up. He said, “What did I do? … I don’t know what I’ve done”. She told him to leave but he objected saying he had nowhere to go. She wanted him out of the house and away from the children, so she insisted, and he left.
[14] Later that evening the complainant sent ET text messages telling him not to call her. He agreed via text, but hours later sent several texts including messages that referred to the incident in the home when she was at Shoppers.
[15] The defence objected to the complainant describing the information relayed to her by her daughters on hearsay grounds. The Crown submitted that the evidence was part of the narrative as to the breakup. The evidence was disallowed on that ground as the fact of the breakup was not an issue. That ruling was early in the complainant’s testimony and was not subsequently revisited.
[16] Having now heard all of the evidence, it is plain that the Crown was not leading the evidence for a hearsay purpose so it would not have engaged that rule. The evidence wasn’t admissible for the purpose indicated, but on reflection it may have been admissible on other grounds that didn’t engage the prohibition against leading prejudicial evidence of other bad conduct. If the Crown’s ultimate purpose was to lead evidence relevant to the complainant’s subjective fear of the accused and the objective reasonableness of that belief, then the evidence may have been admissible. The Crown did not pursue that path to admissibility and the court did not hear that evidence, so it plays no role in this trial. I mention this simply to explain that the brief ruling on admissibility at the time the evidence was tendered was a finding in that context, and not a determination that on the whole of the evidence the testimony could not have been admissible once the issues at trial were identified.
Contact Post Breakup
[17] In the early morning hours of Friday, May 24, 2019 the complainant made it plain to ET via text that she did not want any contact from him. “Don’t contact me. Do not come back to the house. Or else the police will be contacted.” He received and acknowledged those messages “Sure”.
[18] Four and a half hours after the last message, ET started texting the complainant. It began with a heart emoji. Two hours later he asked to speak to her. Three messages later he said “huge misunderstanding. I was drunk. I thought it was you. Please we mean much more than this. I love you”.
[19] ET continued sending messages even though the complainant did not reply. He persisted and sent dozens of messages over four days. There were no threats in the messages, but ET ignored her plain direction. He also said he wanted to speak with her about the police being involved. The complainant’s evidence on this point was consistent with the record of her text messages marked as Exhibit #1.
[20] When she returned to work on Monday, ET started repeatedly calling the dental office. She spoke with him once and told him not to call or she would contact the police. She hung up the phone and he called right back. She saw his number displayed repeatedly as he continued calling. She advised her co-workers of the situation. At times the calls were constant, one after another. She was told several times that the calls were tying up the office lines and if they didn’t stop, she would lose her job. She realized that she didn’t have peace at home and didn’t have peace at her workplace. After the work calls started, her colleagues walked her to her car at the end of the day for safety.
[21] ET also called her on her cellphone. She told police in her statement that there were over 180 calls and 60 text messages. She copied and saved the text messages as directed by police. In cross-examination she agreed that at the time she did not think to take a screen shot of the 180 “missed calls” message displayed on her cellphone. Her explanation was credible as a witness is not necessarily expected to think about collecting evidence for trial and there is no evidence the police asked her to do that.
[22] After the breakup, the complainant did answer one call from ET that was from a different number. He called her from a hotel. He told her that he needed help and he was going to kill himself. He said he’d stopped drinking and was “going through detox” with seizures. She stayed on the phone with him until the paramedics arrived. She denied that this contact showed she still wanted a relationship with him. Although she was upset with him, she stayed on the line as a matter of life and death as “any human being with any form of morals would do”.
Criminal Harassment s 264
[23] The term “harassment” has not been defined in the Criminal Code. The Court of Appeal has held that it is not enough that the unwanted conduct is annoying. To amount to a criminal offence, the Crown must prove that the conduct “tormented, troubled, worried continually or chronically, plagued, bedevilled and badgered the complainant” – R v Province, 2019 ONCA 638 at para 122, citing Kosikar at para 24.
[24] To prove criminal harassment, the Crown must prove each of the following five elements of the offence:
i. the accused engaged in threatening conduct directed at the complainant or a member of the complainant's family; ii. the complainant was harassed; iii. the accused knew or was reckless or wilfully blind as to whether the complainant was harassed; iv. the conduct caused the complainant to fear for her or his safety or the safety of someone she or he knew; and v. the complainant's fear was, in all the circumstances, reasonable.
See: R v Kosikar, [1999] OJ No 3569 (CA) leave refused [1999] SCCA No 549.
[25] The Crown is not required to prove that the threatening conduct was repeated over a particular period of time. In some cases a single threatening act may constitute criminal harassment. The conduct itself need not be directly threatening or harassing, the test is whether it reasonably caused the complainant to be harassed. The ultimate test is an objective one, with due consideration for the circumstances in which the threatening conduct took place and its effect on the complainant: Province at paras 121-123. The relevant circumstances typically include the history and nature of the relationship between the parties, the personal characteristics of the complainant, whether there were explicit directions to the accused to leave the complainant alone, and the duration of the harassment – R v Wisniewska, 2011 ONSC 6452 at para 37.
[26] A concern for safety is not limited to a concern about physical harm. A complainant’s fear may include concern about her psychological and emotional security. That includes a state of uncertainty as to what a person is capable of, what his or her intentions might be, or what consequences might follow. Psychological violence is the primary evil the criminal harassment provisions seek to prevent and punish. See: Wisniewska at para 36.
[27] The past conduct of the accused and evidence of the past relationship between the parties can inform the assessment of whether a complainant’s fear is objectively reasonable, even if that past conduct is not within the offence dates alleged in the charge – Wisniewska at para 38. The complainant’s reaction to the harassment can be relevant in assessing the reasonableness of the fear, but it is not necessary to show that the complainant suffered ill health or a major disruption in their life to engage the protection of s 264 – Wisniewska at paras 39-41.
Analysis
[28] The complainant was a credible witness. She gave responsive answers in examination-in-chief and in cross-examination. She was candid about things that she didn’t remember including dates and times. When challenged on particular points such as how she determined the number of calls ET made to her cellphone, or her reason for staying on the line with him that one night until paramedics arrived, she provided reasonable and logical explanations. Her description of the start of their relationship including the fact that they initially intended to get married, and her action in responding to his request for help during a threatened suicide attempt despite his harassment, show that she maintains a balanced view of their relationship despite the incident that led to their breakup and his subsequent behaviour. Her testimony is consistent with the external evidence of phone text messages marked as Exhibit #1.
[29] The repeated unwanted personal calls, work calls and texts sent a significant message to the complainant – ET was not going to let their relationship end and he would continue to intervene in her life and assert control regardless of her wishes. While the text messages weren’t directly threatening, they were constant. The combination of all of the calls and the text messages against her wishes expressed multiple times was harassment that was relentless. As the complainant said in cross-examination, “I don’t think anyone should have to live like that”.
[30] As a result of the harassment, the complainant was afraid that ET would show up at her work or at her home and that fear was reasonable in the circumstances. The relentless contact made her conclude that “he will never let go until everything is ended”. She’d seen the small things that had caused him to become very angry in the past and she feared what he would do now that she was refusing to continue their relationship against his wishes. As she explained in cross-examination, the fact that he told her he was close by contributed to her worry for her safety. ET told her he was sleeping in his car in a parking lot near her home. The hotel he called from was also near her home.
[31] While the text messages weren’t directly threatening, they were constant. I disagree with the defence that the fact that they didn’t continue throughout the night detracts from their impact. The fact that ET slept at times is unremarkable. The combination of the text messages and all of the calls amounted to harassment.
[32] In response to her fear, the complainant had the locks changed in her home. A new phone was put in as they required a land line for her youngest daughter. ET had control of an alarm system with a camera that he’d put in her house with Rogers, but that company would not let her remove the system as it wasn’t in her name. It was difficult making arrangements with ET’s lawyer and the York Regional Police to get the authorization to remove it. At her workplace she had co-workers walk with her to her car each evening. At home she made sure that if any one of them had to leave the home they would do so together as a group in case ET was waiting nearby.
[33] Mr. ET knew that the complainant did not want any contact with him. That message was explicit from the outset and consistent thereafter. He decided not to comply with that request and instead he bombarded her with text messages and phone calls to her cellphone and her workplace. It’s plain he did not do so out of any affection for her. Included in the contact was the message that he was nearby. Such conduct and interference with every aspect of her life is completely inconsistent with any genuine respect for the complainant or her well being. The Crown has proved that the only reasonable inference from the evidence as a whole, is that ET knew that his relentless conduct would instill fear in the complainant. That was plainly his purpose as it was the only logical outcome. In the alternative, he knew that such fear was likely, and he persisted with that conduct despite that risk.
[34] While the text messages weren’t directly threatening, the accused’s conduct caused the complainant to fear for her safety. Safety in this case is not restricted to her concern about physical harm but includes her psychological and emotional security. The complainant’s evidence on this point was logical and consistent with the steps she took at work and at home to address her concerns.
[35] The Crown has proved that the complainant’s fear for her safety was reasonable in all of the circumstances. The complainant’s knowledge of ET’s past anger over much smaller issues and his reactions as a result, his controlling nature both before the incident and afterwards as shown in the texts and calls, his indication that he was staying nearby her home and his refusal to leave her alone despite repeated requests all reasonably provide ample objective support for the complainant’s subjective fear.
Conclusion
[36] I can find no evidence that reasonably could lead a doubt on the count alleged. I find the Crown has proved the charge beyond a reasonable doubt.
Delivered: 27 January, 2021. Justice Joseph F. Kenkel