ONTARIO COURT OF JUSTICE
DATE: October 3, 2022
COURT FILE No.: 18-3451
BETWEEN:
HIS MAJESTY THE KING
— AND —
DUSTIN FAHEY
Before Justice Robert S. Gee
Heard on April 12 and 20, June 1, and August 16, 2022
Reasons for Judgment released on October 3, 2022
Counsel: Russell Durward................................................................................. counsel for the Crown Joy Nneji............................................................................................................ for the accused
Gee J.:
INTRODUCTION
[1] The accused, Dustin Fahey and the complainant, Andrea Randell were in a domestic relationship that began in 2009. They married in 2014, however, the relationship broke down resulting in them separating in 2017 and divorcing in 2018. During the course of their relationship, the accused and the complainant had two children, a son and a daughter who at the time of the trial were 11 and 8 years old respectively.
[2] As a result of allegations made by Ms. Randell surrounding incidents that occurred after their separation, the accused is facing five charges. The first incident, from which two charges resulted, is from August 20, 2018, where it is alleged, the accused threatened and unlawfully confined Ms. Randell. A third charge relates to the period from October 3 to 23, 2018 where it is alleged the accused criminally harassed Ms. Randell. The remaining two charges relate specifically to October 23, 2018, where it is alleged the accused again unlawfully confined Andrea Randell and in addition, committed an assault on her mother, Jeanette Randell.
[3] This case has a long, convoluted and torturous history. Much of that history is not relevant for the purpose of these reasons as it occurred prior to my involvement with the matter. My first involvement with the matter was for the commencement of the trial on April 12, 2022. In the style of cause above, it would appear as if the trial of this matter took four days. That is not the case. The evidence in the matter was heard only on two days, that being April 20 and August 16, 2022.
[4] The matter was scheduled for an in-person trial to start April 12, 2022. On that day, the accused attended as required, but defence counsel did not. When contact was made with her that day, she indicated she hadn’t had contact with her client for some time. She stated she was not sure if he would be attending for trial so she did not attend from Barrie where she is located, to Brantford where the trial was being held. The matter was then set to proceed on April 20, 2022. The bulk of the Crown’s case was heard on that day, and the matter was adjourned to be completed on June 1, 2022. Again, the matter did not proceed that day either. That morning, defence counsel emailed the Crown and advised she was not feeling well and would not be able to attend for trial in Brantford. August 16, 2022, was then selected to complete the matter.
[5] I mention this because at times it may have appeared that I was frustrated with the defence based on the continual stops and starts to the case. If it appeared that way, it is because I was frustrated. It should not have taken four years for this matter to be completed, even with an intervening pandemic, nor should the trial of this matter have had these stops and starts. It should have commenced April 12, 2022 as scheduled, and been completed that day.
[6] I mention this now because, as the balance of theses reasons will show, I will be making findings of guilt against Mr. Fahey in relation to two of the five charges. I want to assure him and everyone, that my findings on all the charges were based solely on my assessment of the evidence. Any frustrations I may have felt in how the matter unfolded, played no part in my decision.
THE EVIDENCE
[7] Four witnesses testified in this matter. The Crown called three; Andrea Randell, Jeanette Randell and Officer Lucinda Bignell. Mr. Fahey testified as well.
[8] The first incident is from August 20, 2018. At this point in their relationship, the accused and Ms. Randell were separated, but still sharing the same house. The house they had been living in during their marriage was owned by Ms. Randell’s parents. The accused at this time resided in the house full time. Ms. Randell stayed there too but it seems less frequently. She would also at times stay at her parents’ house given the state of her relationship with the accused.
[9] By the date of this incident, it was clear to Ms. Randell the marriage was over. She had gone as far having letters and paperwork from her lawyer sent to the accused to begin to formalize their separation. The accused, it was apparent was having a difficult time accepting this. On this day the accused had texted Ms. Randell while she was at work and asked her to come to the house that evening so they could discuss their situation.
[10] Ms. Randell agreed. After getting off work she picked up their daughter and went to the house. Once she was able to get their daughter to bed at about 8:00 pm, she went to the living room where Mr. Fahey was to have the conversation with him. From Ms. Randell’s perspective it was clear Mr. Fahey was still having difficulty accepting their relationship was over. She stated he was asking things like how they could work on their relationship and he was unwilling to accept that she felt the relationship could not be salvaged and they needed to resolve the issues that come from a marriage breakdown. She had told him he could have a couple months to get things sorted out before he would need to move out of the house, and as well that that they needed to come together to amicably resolve their issues and formalize a separation agreement.
[11] She indicated he was unwilling to accept this and the conversation kept going in circles for a hours, with nothing being resolved. He wasn’t getting the answers from her that he wanted and he started to become very angry. He was raising his voice and was unwilling to listen to her. As such she eventually stated since he was not able to have a discussion in a calm manner, she was going to bed.
[12] Ms. Randell stated when she indicated she was going to bed, he responded that she was not, and they were going to continue until the matters were resolved. She stated it was now getting close to 11:00 pm and she had work in the morning and told him since he could not discus this amicably, she was going to end the conversation for the night.
[13] At this point she got up from where she was sitting in the living room and went to the kitchen. Mr. Fahey followed her and repeated to her that he would not let her go to bed until they had resolved all their issues. Her response was that he was being very aggressive and was angry and that she just wanted to go to bed.
[14] At this point he continued to come toward her and backed her up until she was up against the kitchen counter. He continued to tell her you're not leaving and you're not going to bed. He then stated that “we are continuing this discussion and the only way it is going to end is if you leave here in a body bag.” While saying this to her he was standing over her with his fists clenched.
[15] Ms. Randell told him he was scaring her and to please stop and reminded him their daughter was close by. She also told him that she no longer felt safe so was going to get their daughter and take her to her parents’ house for the night. He told her he wasn’t going to let her leave and she wasn’t taking their daughter. During this exchange, she had moved toward the side door off of the kitchen to leave and Mr. Fahey used his body to block her exit. He had done this earlier during the arguing too, according to Ms. Randell. Whenever she would try to move to get out of his presence, he would move to block her and tell her she couldn't leave until they had resolved things.
[16] At this time Ms. Randell reached for her phone in her back pocket. She got her phone and said she was calling the police. He was yelling so much by this point she pushed the emergency button on her phone and connected with an operator. When he saw this, he took out his own phone and also phoned the police, so “they could hear my side of it too.”
[17] At this point Mr. Fahey backed up, as Ms. Randell was on the line with the police. When he did, she ran to the bathroom. The operator asked if she could get out and she then left the bathroom and ran down the hall and outside to wait for the police.
[18] The police came and ended up removing Mr. Fahey from the home for the night. Ms. Randell phoned her mother who came and stayed with her and her daughter at the house. The next morning, she and her daughter left and from then on she stayed at her parents’ house, while Mr. Fahey, moved back into their residence.
[19] According to Ms. Randell, from this point on, Mr. Fahey started to call and text her non-stop. He would also contact her parents and would contact her workplace. He would make demands and tell her things like she had 60 seconds to call him back. She eventually stopped responding and at one point Mr. Fahey phoned the police on her and had them conduct a wellness check on her because she wasn’t responding to him. She also went as far as advising her work about him in case he were to show up there.
[20] October 3, 2018 was Ms. Randell’s mother, Jeanette’s birthday. Mr. Fahey was still residing in the home owned by Ms. Randell’s parents and they had been trying to have him leave, but he would not. He would also demand that any time any of them wanted to come over, they had to give him 24 hours notice.
[21] On this date Ms. Randell notified him that her and her parents and the children would be coming by. Her father was going to cut the lawn as Mr. Fahey wasn’t doing any of the maintenance for the house. Since she had told him they were coming, she assumed Mr. Fahey would not be home. To her dismay though, he was home. They all stayed outside and her father was cutting the lawn in the backyard. Instead of staying in the house and letting Ms. Randell and the others do what was need, Mr. Fahey came outside and started videotaping them. He was also yelling at them, telling them they should not be on the property and shouting obscenities in front of the children. She asked him to go inside and not engage in this behaviour in front of the children but he would not, he stayed outside and continued to make a scene.
[22] As a result. Ms. Randell contacted the police. The neighbours heard the commotion and came out and ended up taking the children into a neighbouring house to get them away from the incident. When the police arrived, Ms. Randell informed the officer how Mr. Fahey had acted that day and also advised he had been repeatedly contacting her and would not leave her alone.
[23] Officer Bignell testified she had attend in response to Ms. Randell’s call that day. She ended up speaking to Mr. Fahey. She testified throughout their conversation he was very rude and extremely condescending to her. He kept asking if she was a Sergeant and would ask her to repeat herself. Notwithstanding Mr. Fahey’s attitude, she told him that Ms. Randell did not want him to continue to contact her. She told him to stop contacting her and if he were to continue, she made sure he understood he could be charged with criminal harassment.
[24] The final incident occurred October 23, 2018. It again occurred at the house owned by Ms. Randell’s parents but still occupied by Mr. Fahey. On this date Ms. Randell needed to attend the house to retrieve some of her things and some things for the children. She again advised him beforehand she was coming and he again was at the house when she arrived. She arrived with her mother Jeanette as she was not comfortable attending alone. When she got there, she told her mother to wait in the car for her. She went into the house and was immediately confronted by Mr. Fahey, once again saying she should not be there and once again videotaping her.
[25] She went into the house and told him she wasn’t there to talk but to just get some items and leave. He followed her throughout the house yelling at her and berating her. She went into their bedroom to get some documents she needed for work. He again would block her exit from the bedroom and wouldn't let her out until she showed him the documents. She then went into the basement storage room to retrieve items for the children. He again told her she could not leave and blocked her exit. She stated she was eventually able to get around him. When she did, she ran through the living room, jumped over the coffee table and out to the car. She got in the car but Mr. Fahey ran out, stood behind the car and wouldn't move. He was yelling still, and the neighbours again came outside as a result of the commotion. The neighbours started yelling at him to move out of the way which he eventually did and they left.
[26] Jeanette Randell testified that she attended the house that day with her daughter to retrieve some things. She stayed in the car while her daughter went into the house to get what she came for. At some point while waiting in the car, she heard someone yelling. She looked and saw it was Mr. Fahey who was outside now, yelling at her and coming toward the car. She became concerned for her safety and grabbed the keys to the car and jumped out. Mr. Fahey continued to approach her and was waving his arms at her all the while yelling for someone to call the police as she was trespassing.
[27] Jeanette then retreated to the house of a neighbour who was outside and saw what was happening. Eventually she returned to the car and was there when Andrea came back. She also testified Mr. Fahey stood behind the car and would not let them leave. Although he was yelling and frightening her, at no time did Mr. Fahey come into physical contact with Jeanette.
[28] A number of recorded messages sent by Mr. Fahey to Andrea Randell were played during the trial. As well, a series of text messages between them were also made exhibits. Standing alone, both the recorded messages, and the texts were fairly benign. They were not overtly threatening or overly aggressive. They referenced mostly issues about the marriage breakdown and the children. Andrea Randell was asked about this. She stated this was Mr. Fahey’s pattern. It was his way of manipulating her. He would be loud, aggressive, and threatening in person, then would later tone it down and seem like he wanted to resolve things more rationally. According to her, he would do this to manipulate her into continuing to have contact with him, but things would never get resolved and would always fall back into the same pattern of aggressive and threatening behaviour when in person.
[29] Mr. Fahey also as noted, testified. He did not deny any of the evidence provided by any of the witnesses. He claimed sometime over the past two to four years, he had been in two car accidents that have left him with memory deficits. He claims to have no recollection of any of the events from 2018 that are the subject of the charges. He claims he has no memory of repeatedly contacting Ms. Randell nor does he have any memory of Officer Bignell warning him to stop. He even claims he has no memory of Andrea Randell. As well, he could not recall sending any of the text messages or making any of the recorded calls. In cross examination his professed lack of memory got even worse. When being cross examined he claimed his memory was so bad he could not even recall what he had testified to in chief earlier in the day, nor could he remember things he said in cross examination just moments before. As such, he was unable to give any evidence the addressed the events that took place in 2018 for which he was on trial.
ANALYSIS
[30] Since both the complainant and accused testified, a credibility assessment in accordance with the framework set out by the Supreme Court in R. v. W.D., [1991] 1 S.C.R. 742, would in the usual case have to be undertaken. However, this is not the usual case. Even though Mr. Fahey testified, as noted earlier he claimed no memory of the events and did not offer any testimony about the events leading to the charges he faces. As such, there is nothing substantive in his evidence for me to assess. Even if I wholly believe his claim of lack of memory, it doesn’t provide a defence or pathway to acquittal. His evidence, simply does not address the issues.
[31] For what it is worth though, I do not believe Mr. Fahey’s memory is as poor as he claims. There were some tell-tale signs in his testimony that led me to believe he is feigning the extent of his memory loss. I am not saying he does not have any deficits as a result of his accidents, but I find they are not as significant as he claimed at trial.
[32] The impression he tried to leave, especially in cross examination, is that his mind was a veritable blank slate, constantly being wiped clean of memories continually, as they are made. There were a number of aspects of his testimony that belie this fact. For instance when testifying, he had no problem remembering the following; that he had been in not one but two accidents, that he is being treated for his health issues, that he sees a doctor on a regular basis, that he is on seven or eight medications, he takes his medications daily, he's been taking them for the past four years, that he sees his doctor at the Grand River Hospital, that he owns a cell phone that does not take pictures, that he's changed his number several times, that he has misplaced his wallet twice this year and that he's living currently with his parents.
[33] However, the biggest giveaway that he remembers more than he let on was revealed in his examination in chief. When asked if he remembered repeatedly contacting Ms. Randell, he said he didn’t and when discussing the text messages, he gave the following testimony:
“I was just trying to, like, figure out, like, all this family law stuff, you know? Especially, like, going through, like the first accident. Like all she wanted to do was, like fight and everything like that you know like, what was it, I think I forget which day it was but, I had needles put into my head and stuff like that and then the first day I came home, she just gives me, like a lawyer document basically like trying to take my kids and stuff, or our kids.”
[34] It is clear from this testimony that not only does he remember who Andrea Randell is, he also remembers this period of time and what they were going through. As such, when he claims he has no memory of these events, I find he's not being truthful.
[35] In order to convict though, I still must be satisfied by the evidence I do accept, that the Crown has proven the charges beyond a reasonable doubt. In this regard, I accept and believe the evidence of Andrea Randell. I find she testified honestly and calmly. Her answers were responsive to the questions asked, she did not embellish or overstate her version and I found her to be genuine. She never wavered in her testimony about the actions of Mr. Fahey and her evidence was internally and externally consistent, and consistent with the evidence of the other witnesses. As such, I accept her evidence and believe her about the incidents, how they unfolded and what Mr. Fahey did.
[36] I also accept the evidence of the other Crown witnesses, that being Jeanette Randell and Officer Bignell. Jeanette Randell testified in a straightforward manner, she described the incidents she observed I find in an accurate manner. Her evidence was consistent throughout and was not shaken by cross examination. I find she was being truthful and honest in her testimony. As well, Officer Bignell I find was truthful and gave an accurate account of her encounter with the accused. She was an independent witness in that until October 3, 2018, when she was dispatched to the incident at the house, she had never met Mr. Fahey before. I accept her evidence.
[37] Accepting the evidence of these witnesses though does not necessarily lead to convictions. I still must ask if their evidence proves the charges beyond a reasonable doubt. Counsel for Mr. Fahey argued that his demonstrated lack of memory of the incidents at the time of trial, should lead to a finding that he lacked the intention or the mens rea necessary to support findings of guilt. His lack of memory at the time of trial though in no way speaks to his intention at the time of the incidents. Even if I had accepted that his memory is lacking now about what happened in 2018, which I don’t, what is germane to this inquiry is his intentions at the time of the incidents. The defence also argued his memory was lacking to the same extent in 2018 as it was at trial and that as well, should somehow lead me to conclude he lacked the intention required to commit the offences. Again, to be clear, for the reasons already stated, I don’t believe Mr. Fahey’s memory is as lacking as he testified to at trial. Additionally, evidence of his mental state at the time of these incidents can be found in the text messages and voicemails brought out at trial. More of this will be discussed below, but suffice to say, an analysis of these put to rest any claim he lacked the mental capacity to commit the offences.
[38] Addressing first the incident from August 20, 2018, two charges were laid out of this incident, threatening and unlawful confinement of Andrea Randell. As noted, I am satisfied the incident occurred as Ms. Randell described. I accept that as their discussion about their issues dragged on, it didn’t get close to resolving. When Ms. Randell tried to end the conversation, Mr. Fahey became upset, he backed Ms. Randell up into the kitchen against the counter, got into her personal space and used his size and proximity to intimidate her. As he did so, he told her the only way the conversation was going to end was with her “leaving in a body bag.”
[39] In this context, I am more than satisfied beyond a reasonable doubt that the words and physical behaviour used by Mr. Fahey was meant to intimidate and frighten Ms. Randell and constituted a threat to cause her death or serious bodily harm. As such, a finding of guilt will be made on this charge.
[40] In relation to the charge of unlawful confinement, the evidence was not so clear. Ms. Randell testified that Mr. Fahey would use his body to block her and preventing her from leaving the kitchen area during the encounter. However, the evidence was she did move from the living room where the argument started, to the kitchen on her own, she also eventually was able to get out her phone to call the police and then move from the kitchen to the bathroom. From the bathroom she was later able to run outside. The amount of time her movements were said to be restricted by Mr. Fahey is unclear. Given these uncertainties, I find the Crown has not proven this charge beyond a reasonable doubt and as such, it will be dismissed.
[41] Turning to the criminal harassment charge, I am also satisfied beyond a reasonable doubt the Crown has proven this charge. The prohibited conduct used to support the charge is based on repeated communication with Andrea Randell by Mr. Fahey from October 3 to 23, 2018. Officer Bignell spoke to Mr. Fahey and told him on the evening of October 3, 2018, to stop communicating with her and that if he continued to contact her, he faced the potential of being charged with criminal harassment.
[42] This warning though seemed to have little effect. As noted, the communication from Mr. Fahey to Ms. Randell continued after this date, primarily through him texting her. A reading of these texts in isolation, does not reveal anything overtly threatening. However, these texts and messages cannot be isolated from the overall context of their relationship at the time. This warning was given after the in person incidents from August 20, 2018, where Mr. Fahey threatened Ms. Randell and October 3, 2018, where he videotaped Andrea Randell and her parents, yelled obscenities at them and, generally caused such a scene in front of the children that again police were called to deal with his behaviour. It is in this context that the effect of the continued communication must be assessed.
[43] Andrea Randell testified this was Mr. Fahey’s pattern. He would behave in person in inappropriate ways, would be argumentative, yell and generally be frightening, and then later be calmer and more relaxed to the point where she would hope he had gained some insight into his behaviour. Inevitably though, he would revert back to the type of behaviour displayed in person that is the subject matter of this case.
[44] In this context, given the way he had threatened her previously, the way he behaved on October 3, 2018, and the relentless nature of the communications after being warned to stopped, I am satisfied that the expression from Ms. Randell that she was fearful in these circumstances, is genuine. I am also satisfied that Mr. Fahey knew his continued contact would cause Ms. Randell fear or he was reckless as to whether it would.
[45] As noted, the texts themselves, are not overtly threatening in tone. However, they do at times display a pattern of manipulative behaviour as described by Ms. Randell and are, simply relentless. For instance, he is warned to stop contacting her on October 3, 2018. On October 6, 2018, his texts to her start again and continue nearly daily to and including October 23, 2018. During this 18 day period, he texted her 114 times. Some days he was more prolific than others. On October 12, he texted her 12 times. On October 14, he texted her 31 times. On October 15 he texted her 16 times and, on October 20, he texted her 28 times. Most of these texts to her went unanswered.
[46] As stated, the messages are not overtly threatening. Most are directed at issues concerning the children and their separation. However, a number can be described as manipulative and containing veiled threats. For example, on October 8, 2018, he tells her “You have 24 hours to respond or I will proceed without further notice to you.”
[47] On October 9, 2018, he tells he “You have the power to make it stop.” On October 11, he says “Do you want to settle everything or go all the way?” On October 12, he texts “This is not an interrogation. I have asked you hundreds of questions that you have not answered.”
[48] Then on October 14, 2018, he texted Ms. Randell the following:
I'm not waiting anymore for you to bring the kids home. I am letting you know if I don’t hear from you before 3 pm I will be hiring a private investigator to conduct an investigation and I will also look into filing criminal charges against you and your parents for collusion and nuisance which I will let the crown attorneys prosecute you which is an indictable offence and carries a 2 year prison sentence.
I will also look into filing charges against you for child abuse on a psychological level and will consult with a psychologist to ask their opinion to see what type of harm that you're subjecting them to because we have 50/50 and I haven’t acquiesced anything with the children and I'm protesting this.
This is not a threat this is just a simple formal notice that I'm entitled under Federal and provincial lot (sic) to do this because its in the best interests of the children so its very simple just let the children come home and guess what then all of this will go away
[49] Then later the same day after a number of other texts to her he says, “I will withdraw my claim f (sic) you call me and we come to a reasonable understanding.”
[50] On October 20, 2018, he texts to tell he is going to call her employer to discuss the termination of his benefits. Then later the same day he texts again saying “I’ll ask the police to see (sic) they want to investigate or we can explore private prosecution and see what a justice of the peace thinks about how you signed an oath saying no malice and then terminate benefits knowing of my horrible accident.”
[51] Other more manipulative examples are the following. October 14, he texts asking “Would you like to attend mass with me today?” Then later on October 14, “God bless you hun.” Both of these texts came after he had threatened to have criminal charges filed against her and her parents earlier in the same day.
[52] Then on October 20, 2018, he tells her “May God bless you and I pray for you during this time.” This text was sent by Mr. Fahey about 18 mins before he told her he was going to contact her employer.
[53] Then finally on October 21, 2018, the texts her “You have been served. I look forward to hearing from you or your counsel.” Then some 16 mins later he texts her again saying simply “Love you”
[54] To support a conviction, the law does not require the prohibited conduct to be overtly threatening. The persistence and relentless nature of the conduct in the face of warnings and lack of response from the victim can suffice. Justice Hill set out this principle in R. v. Kellner, [2018] O.J. No. 2097 at par 74 as follows:
While Mr. McCulligh is correct that the appellant's communications were not overtly threatening on their face, their number and their persistence in the face of the intended recipient not responding to those communications, and the unsuccessful efforts by the authorities to stop the one-way communication, would nevertheless lead any reasonable or ordinary person to fear for their safety and well-being from an individual reasonably viewed to be unstable and unpredictable. This conclusion of the trial judge is not called into question by the appellant's note stating that if the complainant texted back that the appellant was "unwanted", the appellant would not respond. As a reader of that communication, a reasonable person in the complainant's circumstances, would have no real confidence that obsessive behaviour on the appellant's part would so easily terminate.
[55] When these messages are placed in the context of the overall relationship and history between the accused and Andrea Randell, I am satisfied beyond a reasonable doubt the Crown has made out the charge. Notwithstanding the communications were not overtly threatening by nature, I find it reasonable in the circumstances that Ms. Randell would fear for her safety. The sheer volume of them being sent, the fact that Mr. Fahey did not seem to be deterred after being warned by the police and, the unstable and unpredictable manner in which he had been behaving when in the presence of Andrea Randell’s and others, can lead to no other conclusion.
[56] I also find that Mr. Fahey was aware that his conduct in these circumstances was causing Ms. Randell to fear for her safety. Even if he didn’t, he should have been, so was reckless as to whether his behaviour was having this effect. Viewed in the context of the relationship as a whole, any reasonable person would, after being warned by the police to stop communications realize to continue to do so in the manner Mr. Fahey did, would cause fear in the recipient of the messages.
[57] The defence argued that given his accident and injuries suffered from it, he lacked the mental capacity to first, remember being warned by the police to stop communications and second, that given his mental deficits from the accident, he did not realize his behaviour would have such an effect on Ms. Randell.
[58] The problem with this line of reasoning, is that the text messages themselves, made contemporaneously with the incidents in question, demonstrate clearly that Mr. Fahey was more than capable of understanding and appreciating the effect of his actions. Some of the texts made mention of his accident, his injuries, and his treatments. But a review of the messages in their entirety, clearly and without a doubt demonstrate that Mr. Fahey was oriented to time and place, understood the issues between him and Ms. Randell, was capable of remembering and relating events that were happening at the time and was not suffering from any condition that would deprive him of an ability to understand how his actions would affect Ms. Randell.
[59] It is for these reasons, I find that the Crown has proven the criminal harassment charge beyond a reasonable doubt.
[60] That leaves the two charges related to the incident at the house on October 23, 2018, being the unlawful confinement of Andrea Randell and the assault on Jeanette Randell. I find the Crown has failed to prove either of these charges.
[61] In relation to the unlawful confinement charge, again I find the evidence of this is too unclear. Andrea Randell stated she was in the house alone with Mr. Fahey for some time and, while so, they argued and he would again use his body to block her from leaving or moving about the house. Again, the timing of this is unclear. Jeanette Randell testified that Mr. Fahey was outside for what seemed like a significant period of time while Andrea Randell was inside. Andrea Randell’s testimony on this time period about when Mr. Fahey would have been outside, is silent. As such it is difficult to reconcile Mr. Fahey being outside the house for a significant period and Andrea Randell being unlawfully confined inside. As such I am not satisfied beyond a reasonable doubt that the evidence can support this charge and it will be dismissed.
[62] The assault on Jeanette Randell I find has also not been proven. Since there was no allegation of any actual application of force by Mr. Fahey to Jeanette Randell, the Crown would have to prove that he threatened by act or gesture to apply force. While this encounter between Jeanette Randell and Mr. Fahey was no doubt frightening for her, I find the evidence falls short of proving he attempted or threatened to apply force. Mr. Fahey was acting the fool it seems at the time, waving his arms and yelling for someone to call the police claiming the Randell’s were trespassing, however I am not satisfied that he tried to apply force to her or even threatened to in the circumstances. As such this charge will also be dismissed.
CONCLUSION
[63] For the reasons cited above, I find of the five charges Mr. Fahey was facing, the Crown has proven Mr. Fahey guilty of two of them. Findings of guilt will be made on the charges of threatening Andrea Randell on August 20, 2018, and criminally harassing her from October 3 to 23, 2018. The other three charges, the two counts of unlawful confinement and the assault of Jeanette Randell were not proven and will be dismissed.
Released: October 3, 2022 Signed: Justice Robert S. Gee