ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 07-15912
DATE: 20120314

B E T W E E N:

HER MAJESTY THE QUEEN Respondent

Riad Tallim for Her Majesty the Queen

• and -

ANDREW HILDEBRANDT Appellant

Andrew Hildebrandt on his own behalf

HEARD: November 9, 2011

REASONS FOR JUDGMENT

Madam Justice J.A. Blishen

Introduction

[ 1 ] Mr. Andrew Hildebrandt appeals his October 30, 2009 conviction and April 30, 2010 sentence for criminal harassment, contrary to s. 264 of the Criminal Code of Canada , R.S.C. 1985, c. C-46 (the “ Code ” ) .

[ 2 ] In his Notice of Appeal, Mr. Hildebrandt lists 19 grounds of appeal as follows:

“1. The Crown asked an improper question of the accused by seeking the accused to speculate in order to formulate an answer;

2. The judge erred in requiring the accused to answer the speculative question;

3. The judge erred in failing to permit an adequate opportunity for the accused to consider his position following the judge’s finding that the answer to the question posed was necessary;

4. The judge erred in demonstrating frustration toward the accused for being unable to understand how to answer a speculative question posed by the Crown;

5. The judge erred in later using an answer to a speculative question – an answer that is not a truth or could ever be a truth – to become part of his decision;

6. The Crown was requested to provide the electronic versions of the information received as the dates of the emails sent to the Ottawa Police Service correspond to dates that the complainant had been at with her Family Law lawyer. The Crown has failed to provide evidence and limited the cross examination of the complainant thus impeding the accused’s ability to provide the court full answer and defence – perhaps the one right of an accused that might be absolute;

7. The Crown was requested to provide the cellular phone records of the complainant with details of the calls made by her before, during and after the charge period to show the court the number of times and when the complainant contacted the accused – they were never provided;

8. The Crown was requested to provide the home phone records of the complainant / her parents with details of the calls made before, during and after the charge period to show the court the number of times and when the complainant contacted the accused – they were never provided;

9. The judge failed to remain impartial and failed to consider an important piece of evidence as to the disclosure of personal information of the accused and the complainant;

10. The judge erred in the factual account of events surrounding the December 24, 2005 altercation between the accused and the complainant by stating the accused was the forceful and insistent party where the complainant confirmed in testimony that she was that party;

11. The judge erred in recognizing the true value of animus displayed and written by the complainant in comparison to how the accused demonstrated no animus towards the complainant. The possibility of an escalation towards violence was only present in the complainant;

12. The judge erred in not recognizing that the numerous comments made by the complainant through testimony and her own written commentary are another form of the emotional abuse as had been endured by the accused in the three year relationship with the complainant and that such comments also meet a threshold test of sexual harassment and discrimination;

13. The judge demonstrated a bias towards mothers by not respecting the accused’s right and requirement to attempt to be an active parent to the then infant Christopher;

14. The judge erred in finding that the complainant was fearful of an abduction of Christopher subsequent to the May 23, 2007 Family Court order of Justice Aitken. There was is no fact or evidence to support that finding and later at sentencing the judge advised that the accused made no overt threat;

15. The judge erred in finding the accused made demands of the complainant as the abundance of evidence placed by the Crown shows no “demands” made by the accused;

16. The Charter rights of the accused were violated in that Section 11(d) places onus upon the Crown and the judge to ensure a fair and public hearing by an independent and impartial tribunal and that the notion that the accused is presumed innocent is a truth;

17. The judge erred in not respecting the religious beliefs of the accused or the complainant who both stated they were Christian – followers of Christ – and its meaning as would be considered in all the circumstances;

18. The judge erred in not respecting that the complainant’s records were deliberately incomplete – essentially only providing the evidence of the text messages received – and that action itself would not be the mark of a credible “historian” as found by the judge;

19. The sentence imposed is not supported by case law as the Crown and the judge were unable to provide even one case that came close to matching the particulars of this case – repeated communication by an accused without animus , without anger, without vulgarity, without threat and without violence but where the complainant had demonstrated animus , anger, vulgarity. The Ministry of the Attorney General requires probation orders are supported by case law as can be found on their website. ”

[ 3 ] The 19 grounds can be grouped under the following headings, as suggested by the Crown:

1. Conduct of the trial: paras. 1-5 of the Notice ;

2. Non-disclosure of ‘electronic versions’ of emails copied and disclosed and phone records of the complainant: paras. 6-8 of the Notice ;

3. Misapprehension of the evidence and judicial bias: paras. 9-13 and 16-18 of the Notice ;

4. Error in law: paras. 14 and 15 of the Notice ; and

5. Sentence imposed: para. 19 of the Notice .

Facts

[ 4 ] The Appellant, Andrew Hildebrandt and the Complainant, Heather Booth, were in an on-again off-again relationship from approximately January 2003 to December, 2005.

[ 5 ] In September 2005, Heather Booth became aware she was pregnant and advised the Appellant who did not accept he was the father of the child. Nevertheless, the parties began to reside together on December 11, 2005 in a home rented by Mr. Hildebrandt from Ms. Booth’s parents.

[ 6 ] On December 24, 2005, after an altercation between Mr. Hildebrandt and Ms. Booth, Ms. Booth called the police and reported an assault. Mr. Hildebrandt left the home and an investigation ensued. Mr. Hildebrandt was charged with assault contrary to s. 266 of the Code and on February 18, 2006, entered a guilty plea. He was found guilty and was sentenced to a conditional discharge and 12 months probation. One of the conditions of the probation order was no contact with Heather Booth, except with her revocable consent. He was also to attend and complete an anger management program.

[ 7 ] On May 7, 2006, Ms. Booth gave birth to Christopher Liam Booth and Mr. Hildebrandt was informed. On August 24, 2006, the court found Mr. Hildebrandt to be Christopher’s father.

[ 8 ] In August 2006, Ms. Booth made arrangements with Mr. Hildebrandt’s probation officer for limited contact with Mr. Hildebrandt. She was concerned about the baby’s health and wanted family medical history from Mr. Hildebrandt. The consent for contact was revoked by Ms. Booth via the probation officer after four or five days.

[ 9 ] The probation order expired on February 17, 2007. The next day, Mr. Hildebrandt began efforts to communicate with Ms. Booth. At that time, she and the child were in Florida with her parents where they remained until the end of March, 2007.

[ 10 ] Between March 2007 and May 31, 2007, Mr. Hildebrandt contacted Ms. Booth by numerous and continual: e-mails, text messages, telephone calls, telephone messages and messages communicated through acquaintances, friends and family members of Ms. Booth. Ms. Booth also communicated with Mr. Hildebrandt from time to time.

[ 11 ] At trial, the Crown argued that Mr. Hildebrandt embarked on a course of conduct towards Ms. Booth that constituted criminal harassment. The defence argued that Mr. Hildebrandt’s conduct, in contacting Ms. Booth, was for legitimate purposes mandated by his role as the father of the child and was neither threatening, harassing nor improper.

[ 12 ] On October 30, 2009, after a five day trial, Mr. Hildebrandt was found guilty of criminal harassment contrary to s. 264 of the Code . On April 30, 2010, he received a suspended sentence and three years probation.

[ 13 ] I was not provided with a transcript of the Reasons for Sentence nor the specific details of the sentence on this appeal.

Right of Appeal

[ 14 ] Section 813 of the Code provides the authority for an appeal from a summary convictions as follows:

813. Except where otherwise provided by law,

( a ) the defendant in proceedings under this Part may appeal to the appeal court

(i) from a conviction or order made against him,

(ii) against a sentence passed on him,

[ 15 ] Pursuant to s. 822(1) of the Code :

822(1). Where an appeal is taken under section 813 in respect of any conviction, acquittal, sentence, verdict or order, sections 683 to 689, with the exception of subsections 683(3) and 686(5), apply, with such modifications as the circumstances require.

[ 16 ] The combined effect of these two provisions is that s. 686(1) governs the powers of the appellate judge in a summary conviction appeal. Section 686(1) states:

686(1). On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

( a ) may allow the appeal where it is of the opinion that

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

(iii) on any ground there was a miscarriage of justice;

( b ) may dismiss the appeal where

(i) the court is of the opinion that the appellant, although he was not properly convicted on a count or part of the indictment, was properly convicted on another count or part of the indictment,

(ii) the appeal is not decided in favour of the appellant on any ground mentioned in paragraph ( a ),

(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph ( a )(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred, or

(iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby;

686(2). Where a court of appeal allows an appeal under paragraph (1)( a ), it shall quash the conviction and

( a ) direct a judgment or verdict of acquittal to be entered; or

( b ) order a new trial.

686(3). Where a court of appeal dismisses an appeal under subparagraph (1)( b )(i), it may substitute the verdict that in its opinion should have been found and

( a ) affirm the sentence passed by the trial court; or

( b ) impose a sentence that is warranted in law or remit the matter to the trial court and direct the trial court to impose a sentence that is warranted in law.

Law and Analysis

1. Conduct of the Trial

[ 17 ] The Appellant takes issue with the Crown being permitted to ask a “speculative question”; the trial judge not allowing him time to formulate a response; and the trial judge taking into consideration the answer to the question.

[ 18 ] Although not identified in his pleadings, in oral submissions Mr. Hildebrandt identified the Crown’s speculative question and his responses as follows:

Q – What did Heather need to do to stop you from sending all of these emails, text messages? What more did she have to do?

A – I’m sorry, I’m – I’ve lost your reference. To what...

The Court: What more did she need to ...

Mr. Hildebrandt : No, I und... – I ...

The Court : Just a second. What more did she need to do to get you to stop writing her? Was there anything that could have been done?

Mr. Hildebrandt : Well, I understan... – I understand the question. I’m...

The Court : Well, then, answer the question.

Mr . Hildebrandt: I’m sorry

A – The answer is... You see, the answer is the ans... – is an answer, you know? I mean, I asked to be part of my son’s life; I wanted to be there for him. And that was – that’s why I’m having trouble. She’d have to answer my question and – with answers about what I was asking about, and – and – and that’s ... You know, you asked me, ‘What would she have to do?’ Well, that’s what she would’ve had to do.

Ms. Dobec : Q – She would’ve had to have given you contact with Christopher

A – Yeah, like...

Q – ...given you information.

A – Well, I had contact with Christopher, and – and I had some...I had some contact with Christoper, and it was taken away and given back and taken away, and, you know, it was just ongoing...

Just share information and try...I – I don’t want to be confused, to think that we would be working together, so – as all parents might be that are separated now. But, who knows? But, I mean, you asked the question, ‘What would she have to do?’ That’s what she – she needed to do.

Q – Was give you what you wanted.

(Transcript, February 11, 2009, page 169, line 26 to page 170, line 30)

[ 19 ] In his Reasons for Judgment, the trial judge, in discussing the criteria for criminal harassment, deals with the issue of lawful authority. Mr. Hildebrandt argued the contact he had with Ms. Booth was with lawful authority. The trial judge refers to the questions and answers noted above as well as Mr. Hildebrandt’s expansion on that response provided to the Court on May 13, 2009 as follows:

Q – So, she’s sending a message to you that she doesn’t want you in their lives. Correct?

A – She’s sending a message to me that she’s choosing that I cannot be my son’s father. (Further answer) That she can choose that I’m not his father and has made that clear.

Q – And your message back is: I don’t care what you want, this what I’m going to do?

A – Hey, I’m sorry. I’m his father. I’m not – It’s not about what she wants or doesn’t want. It’s I’m going to be there for him, and that’s what I’ve been doing.

Q – So, if she doesn’t want contact with you, it doesn’t matter, you’re going to contact her anyway/

A – If it’s about at that time, yes.

(Transcript, May 13, 2009, page 75, line 22 and following)

[ 20 ] I find the question posed on February 11, 2009 not speculative. It was a specific question directed at Mr. Hildebrandt’s argued defence of lawful authority. Further, I note that Mr. Hildebrandt was assisted at all times during the trial by experienced amicus, who raised no objection to the questions or the answers.

2. Non Disclosure

[ 21 ] Mr. Hildebrandt alleges the Crown’s failure to provide requested electronic versions of emails from the Complainant along with her cellular phone and home phone records impeded his ability to make full answer and defence and to demonstrate the number of times the Complainant called him.

[ 22 ] The Appellant does not articulate in his grounds for appeal nor in his oral submissions, the relevance of this information and how it would have assisted his defence on the criminal harassment charge. It was acknowledged by Ms. Booth in her testimony that she did at times respond to the numerous emails and text messages sent by Mr. Hildebrandt. She testified that she did so hoping that reply would satisfy his demand for information. The trial judge takes this into consideration in his Reasons for Judgment noting the following at page 16 of his Reasons:

The complainant acknowledged that she did, at times, respond to the flood of e-mails and text messages that the accused inundated her with. She testified that she did so in hopes that a reply would satisfy his demand for information, before the contact could escalate. It never did.

(Reasons for Judgment, page 16, lines10 - 16)

[ 23 ] The cross examination of Ms. Booth by Mr. Hildebrandt’s amicus took place over a two day period and at no time was any issue raised regarding incomplete disclosure. Mr. Hildebrandt argued that he brought this disclosure problem to the trial judge’s attention after the trial but prior to the judgment being released. There is no evidence as to the nature of this discussion nor any transcript of any motion or concern being expressed on the record regarding non-disclosure. Further, I note that at the end of the Crown’s case, Mr. Hildebrandt’s amicus brought a motion for a directed verdict and no concern was raised regarding deficient or incomplete disclosure.

[ 24 ] It is unclear why Mr. Hildebrandt would not be able to obtain his own phone records showing communication between Ms. Booth, her parents and himself. Although there was no evidence in this regard, Mr. Hildebrandt argued on the appeal that he was unable to get incoming phone numbers from Telus.

[ 25 ] Given there was no argument with respect to non-disclosure at trial and the relevance of the information with respect to Mr. Hildebrandt’s defence is unclear, I do not find this a legitimate ground of appeal.

3. Misapprehension of the Evidence and Judicial Bias

[ 26 ] In paragraphs 9 – 13 and 16 – 18 of his Notice of Appeal, Mr. Hildebrandt makes allegations of judicial incompetence and bias. Among the numerous allegations of bias, Mr. Hildebrandt argues the trial judge:

1. failed to recognize the true value of animus displayed and written by the Complainant which demonstrated that the possibility of violence was only present in the Complaint;

2. failed to recognize that the numerous comments made by the Complainant were a form of emotional abuse as had been endured by him in the relationship;

3. demonstrated a bias towards mothers;

4. did not respect the religious beliefs of the accused or the Complainant; and

5. erred in a factual account of events surrounding the December 24, 2005 altercation.

[ 27 ] It was clear throughout Mr. Hildebrandt’s Notice of Appeal, Factum and oral submissions that he steadfastly disagreed with the Court’s decision. He did not articulate in any detail based on the record how or why the trial judge misapprehended or misunderstood the evidence and was biased against him.

[ 28 ] As noted above, in a case such as this an appeal may be allowed where:

1. The verdict is unreasonable or cannot be supported by the evidence;

2. The judgment is erroneous on a question or law; or

3. Where there is a miscarriage of justice.

Factual Error

[ 29 ] The one specific argument made by Mr. Hildebrandt as to a misapprehension of the evidence is regarding the findings of the trial judge as to what occurred on December 24, 2005 resulting in the assault charge against Mr. Hildebrandt. The trial judge found that:

The assault occurred when the accused insisted on entering the residence against the wishes of the complainant, and once inside he committed the assault.

(Reasons for Judgment, page 4 , lines 7-11)

[ 30 ] Based on a review of the evidence, I find a misapprehension of the evidence and an error of fact on the part of the trial judge. Both parties testified it was Ms. Booth who pushed her way into the home and not Mr. Hildebrandt. However, there is no dispute that after the altercation in the home, Mr. Hildebrandt was charged and found guilty of assaulting Ms. Booth. Therefore, I find this factual error minor, not suggestive of judicial bias and not capable of rendering the verdict unreasonable. The mistake made by the trial judge was not with respect to a material aspect of the evidence and did not play an essential part in the reasoning process resulting in a conviction. Therefore, I do not find a miscarriage of justice.

Judicial Bias

[ 31 ] The suggestion of judicial bias is extremely serious. The test for a reasonable apprehension of bias is outlined in detail by the Supreme Court of Canada in R. v. S. (R.D.) (1997), 1997 324 (SCC) , 118 C.C.C. (3d) 353. In R. v. Camardi [2008] O.J. 3562 (O.S.C.J.) , the Court considers the test outlined in R. v. S. (R.D.) , supra , and states as follows at paras. 25-28:

25 The test for reasonable apprehension of bias is canvassed in detail by the Supreme Court of Canada in R. v. S. (R.D.) (1997), 1997 324 (SCC) , 118 C.C.C. (3d) 353. The apprehension has to be a reasonable one, held by reasonable and right minded persons, applying themselves to the question on appropriate information. The court must consider what conclusion an informed person would draw, viewing the matter in a reasonable and practical way and after having given the matter sufficient thought: would he or she conclude that the trial judge more likely than not would not decide the case fairly, whether due to conscious or unconscious factors?

26 There must be convincing evidence to support a finding of a reasonable apprehension of bias. The threshold for the finding of real or perceived bias is high. Judges are presumed, by virtue of their oaths of office, to act impartially and accordingly there must be a real likelihood of bias and not just a suspicion.

27 Impartiality is, of course, central to the administration of justice. It has often been repeated that justice must not only be done, but it must be seen to be done. Respect for the justice system depends on the appearance of fairness and impartiality to the reasonable and informed observer. Moreover, the right to a fair and impartial trial is guaranteed by section 11(d) of the Charter .

28 Impartiality has been described as a state of mind in which the adjudicator is disinterested in the outcome and is open to persuasion by the evidence and by the submissions made by or on behalf of the parties. Bias, on the other hand, is a state of mind that is in some way predisposed to a particular result or that is closed with regard to a particular issue: R. v. S (R.D.), supra, at page 25.

[ 32 ] In this case, the trial was conducted over a number of days. Mr. Hildebrandt was afforded the assistance of experienced amicus. In reviewing Mr. Hildebrandt’s testimony, it is to be noted that he testified over two days, went on at length, was often verbose, and the Court’s intervention was minimal.

[ 33 ] Having carefully reviewed the trial judge’s Reasons for Judgment, I find the Court took into consideration the relevant evidence pertinent to the issues of concern raised by the Appellant, in particular, the issues raised on appeal regarding the conduct of the trial and non-disclosure. His reasons are balanced and fair. The high threshold to support a finding of real or perceived bias has not been met.

4. Error in Law

[ 34 ] The Appellant alleges that the trial judge erred with respect to the application of the law on the elements of the offence.

[ 35 ] In his Reasons for Judgment, the trial judge outlines in detail the definition of the offence, its elements, the burden of proof and makes findings regarding credibility. He states at page 6 of the Reasons for Judgment:

This case turns on the definition of the offence and its various elements, the criminal burden of proof, the credibility of the witnesses.

[ 36 ] The trial judge then goes on to instruct himself with respect to:

1. The principles in R. v. W. D. , (see p. 6 – Reasons for Judgment);

2. The provisions of s. 264 of the Criminal Code , (see p. 7 – Reasons for Judgment);

3. The applicable principles of law set out in R. v. Kosikar , R. v. Krushel , R. v. Kordrostami and R. v. Sillip , (see p. 8 – Reasons for Judgment); and

4. Section 20(5) of the Children’s Law Reform Act (see p. 13 – Reasons for Judgment).

[ 37 ] The trial judge’s reasons are detailed, comprehensive, thorough and fair. They cover the evidence, the law and apply the law to the evidence. The trial judge quotes at length from the transcript of the trial in making findings of fact and applying them to the necessary criteria for a finding of criminal harassment. He further assesses the credibility of both the Appellant and Ms. Booth and makes findings in that regard in his Reasons for Judgment.

[ 38 ] The findings of credibility of a trial judge are entitled to deference. This is not a case where the trial judge failed to resolve contradictory testimony on a key issue.

[ 39 ] In conclusion, I find the trial judge provided sufficient reasons. He provided a comprehensive outline of how he was going to deal with the evidence. He then applied the law and arrived at conclusions based on the evidence and the law. The trial judge was mindful of the dynamic between the parties when assessing credibility of the principle witnesses. Based on all the evidence, there was no error in his rejection of the Appellant’s testimony. The Reasons were more than adequate for meaningful appellate review in explaining why Mr. Hildebrandt was convicted, thus providing public accountability. See R. v. Sheppard 2002 SCC 26 () , [2002] S.C.J. No. 30 and R. v. R.E.M . 2008 SCC 51 () , [2008] S.C.J. No. 52.

Conclusion as to Appeal from Conviction

[ 40 ] Having considered Mr. Hildebrandt’s 18 grounds of appeal summarized above, I do not find the verdict unreasonable nor do I find it unsupported by the evidence. Further, I do not find the trial judge erred in law nor was there a miscarriage of justice. Therefore the appeal against conviction is dismissed.

5. Sentence

[ 41 ] Mr. Hildebrandt argues the imposition of a suspended sentence and three years probation was not supported by the jurisprudence given that his repeated communication with Ms. Booth was “without animus ” and without threat of violence. As previously noted, there was no transcript of the sentencing hearing provided to the Court.

[ 42 ] A variation in sentence should only be made if the appeal court is convinced it is not fit in the sense that the sentence is clearly unreasonable. The Court must determine if the sentencing judge applied wrong principles or if the sentence was clearly excessive or inadequate. See R. v. Shropshire , 1995 47 (SCC) , [1995] 4 S.C.R. 227, 102 C.C.C. (3d) 193. Further, the Appellate court should only intervene where the sentence imposed by the trial judge is a substantial, marked departure from the sentences customarily imposed for similar offenders committing similar crimes. See R. v. M . (C.A.) , 1996 230 (SCC) , [1996] 1 S.C.R. 500, 105 C.C.C. (3d) 327.

[ 43 ] I cannot find the trial judge applied incorrect principles nor that the sentence was clearly excessive from the normal range of sentences under like circumstances. No evidence was provided and no argument was made addressing these principles. Therefore, the appeal from sentence is dismissed.

Blishen J.

Released: March 14, 2012

COURT FILE NO.: 07-15912
DATE: 20120314

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent – and – ANDREW HILDEBRANDT Appellant REASONS FOR JUDGMENT BLISHEN J.

Released: March 14, 2012