ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 109/10
DATE: 20120131

BETWEEN:

HER MAJESTY THE QUEEN Respondent
– and –
SUSAN KITCHEN Appellant

Elizabeth Stokes, for the Crown
Joseph Markin, for the Appellant

HEARD: January 10, 2012

TROTTER J.

REASONS FOR JUDGMENT

INTRODUCTION

[ 1 ] Ms. Kitchen appeals her conviction for criminal harassment after a trial presided over by the Honourable Mr. Justice John J. Ritchie of the Ontario Court of Justice.

[ 2 ] The appellant harassed the former wife of her partner by leaving her abusive and menacing voicemail messages, and by sending abusive emails to her, and to her employer. On July 13, 2010, after a trial that took place over the course of four days, Ritchie J. released a 19-page Judgment, finding Ms. Kitchen guilty.

[ 3 ] On behalf of Ms. Kitchen, Mr. Markin argues that the learned trial judge erred in refusing to grant an adjournment after the Crown advised the appellant and her agent that it would eventually be seeking to amend the Information to expand the time frame of the allegations. This, Mr. Markin submits, also revealed a reasonable apprehension of bias on the part of the learned trial judge. Secondly, Mr. Markin argues that the learned trial judge erred in finding that the actus reus of the offence had been proved beyond a reasonable doubt. For the reasons set out below, I reject both grounds of appeal.

ANALYSIS

[ 4 ] I need not set out a chronology of the facts. The Reasons for Judgment of the learned trial judge provide a comprehensive account of the evidence. I refer below only to those facts that are necessary to dispose of the grounds of appeal.

(a) The Adjournment Issue

[ 5 ] On the first day of trial, Ms. Kitchen appeared with an agent. The agent advised the Court that he was a “paralegal candidate” at the Law Society of Upper Canada. After making inquiries, the trial judge permitted the agent to represent Ms. Kitchen.

[ 6 ] The Crown (not Ms. Stokes) then advised the trial judge that, “when the evidence has unfolded”, she would be seeking an amendment of the Information pursuant to s. 601(3) of the Criminal Code. This involved expanding the time frame of the Information in order to include incidents that occurred a few months earlier than originally framed in the Information. Ms. Kitchen’s agent objected to the amendment and submitted to the trial judge that it changed the complexion of the entire case against his client. The agent acknowledged that disclosure had been made of some telephone calls that had been made by Ms. Kitchen prior to the original time frame in the Information, but indicated that he had planned to argue that those calls were inadmissible because they were irrelevant and prejudicial.

[ 7 ] As the trial judge pointed out during submissions, he was not going to make any decision concerning the amendment of the Information at that point. Indeed, he did not do so until the end of the case. At the conclusion of submissions on this point, the trial judge ruled:

There will be no adjournment. The charge here is criminal harassment. The Crown has given notice that the evidence will predate the charge by a few months. The defence was given notice of this evidence, and it certainly does not change the nature of the charge. It does not create any difficulty whatsoever for the defence. There is no prejudice at all. The trial will go ahead.

[ 8 ] The question of whether an adjournment should have been granted is intertwined with the merits of the amendment request. Accordingly, it is appropriate to say a few things about that aspect of the case as well. First of all, while it was courteous of the Crown to advise Ms. Kitchen and her agent that she would be seeking an amendment to the Information, it was not, strictly speaking, necessary for her to do so. In accordance with s. 603 of the Criminal Code, any proposed amendments to an Information must conform with the evidence adduced at trial. As s. 601(3) provides:

s. 601(3) Subject to this section, a court shall, at any stage of the proceedings, amend the indictment or count therein as may be necessary where it appears…..

(b) That the indictment or a count thereof

(i) fails to state or states defectively anything that is requisite to constitute the offence,

(ii) does not negative an exception that should be negative, and

(iii) is in any way defective in substance

And the matters to be alleged in the proposed amendment are disclosed by the evidence taken on the preliminary inquiry or on the trial.

[ 9 ] I wish to reiterate that the earlier phone calls made by Ms. Kitchen to the complainant had already been disclosed. As noted above, Ms. Kitchen’s agent argued that this made no difference to the adjournment application because the earlier phone calls were inadmissible. He was mistaken. Even without an amendment to the Information, this evidence would have been admissible and relevant to the issues of whether the complainant’s fear was reasonable (see R. v. Krushel (2000), 2000 NSCA 94, 147 C.C.C. (3d) 1 (Ont. C.A.), at p. 9) and whether the accused was reckless as to whether her conduct harassed the complainant, within the meaning of s. 264 of the Criminal Code (see R. v. Ryback (1996), 105 C.C.C. (3d) 240 (B.C.C.A.), at p. 246).

[ 10 ] It is also important to recognize that the trial did not conclude on the day that it commenced. Evidence was heard on the trial proper over the course of four days, between February 22, 2010 and July 6, 2010. [^1] I mention this chronology because, after the amendment issue was first raised, and Ms. Kitchen’s agent claimed prejudice at the apparent sudden change of events, any element of surprise (and I find there was none) would have evaporated with the passage of time. In other words, as it turned out, there was adequate time to respond to any perceived changes in the complexion of the case.

[ 11 ] As Mr. Markin recognized in his submissions during the appeal, the decisions of trial judges on routine matters of trial management (such as adjournments) are afforded considerable deference on appeal: see Darville v. The Queen (1956), 116 C.C.C. 113 (S.C.C.). But in appropriate cases, where a fair trial or the appearance of fairness is undermined by the failure to grant an adjournment, an appellate court may intervene: see R. v. Nichols (2001) 148 O.A.C. 344; R. v. McCallen (1999), 43 O.R. (3d) 56 (C.A.); and R. v. Hazout (2005), 199 C.C.C. (3d) 474 (Ont. C.A.). Mr. Markin argues that this is one of those cases and the trial judge’s refusal to grant an adjournment also disclosed a reasonable apprehension of bias.

[ 12 ] I fail to see how the learned trial judge’s refusal to grant an adjournment at the outset of the trial, at a point in time when he knew virtually nothing about the case, could even come close to giving rise to a reasonable apprehension of bias. I accept that, in some cases, a failure to grant an adjournment may result in unfairness to one of the parties. But any consequential unfairness need not necessarily involve apprehended bias. If the appellant is correct that this ruling gives rise to a reasonable apprehension of bias, then almost any adverse ruling during trial would similarly qualify.

[ 13 ] When an allegation of bias (whether real or apprehended) is made against a judge, it is a serious matter. It strikes at the heart of the judicial role. There is a well-recognized, strong presumption in Canada that judges are impartial: see R. v. R.D.S. (1997), 118 C.C.C. (3d) 353 (S.C.C.), at p. 392 and Peart v. Peel Regional Police Services Board (2006), 43 C.R. (6th) 175 (Ont. C.A.), at para. 39. In Kelly v. Palazzo (2008), 2008 ONCA 82, 89 O.R. (3d) 111 (C.A.), the Court considered an allegation of a reasonable apprehension of bias based on exchanges between counsel and the trial judge. In rejecting this ground of appeal, Doherty J.A., at p. 117, made the following observations:

It takes much more than a demonstration of judicial impatience with counsel or even downright rudeness to dispel the strong presumption of impartiality… Baseless allegations of bias or a reasonable apprehension of bias founded on a perceived slight or discourtesy that occurred during a trial will not assist the client’s cause and do a disservice to the administration of justice . [emphasis added]

These comments apply with equal force to the bias claim on this appeal.

[ 14 ] In this case, the reasonable observer, apprised of all of the circumstances, would have understood that the learned trial judge had postponed ruling on the requested amendment to the Information until a more appropriate time in the trial. He was required to do so by virtue of s. 603(3) of the Criminal Code. His refusal to grant an adjournment was predicated on this correct understanding of the law. It must be remembered that Ms. Kitchen already had disclosure of the earlier incidents upon which the Crown wished to rely. The agent’s objection to the admissibility of this evidence was based on a misunderstanding of settled law. A reasonable observer would not conclude that the trial judge was predisposed to decide the case on its merits one way or the other; instead, the reasonable observer, apprised of the effect of the applicable substantive law, would conclude that the trial judge refused to grant the adjournment because he was not satisfied that Ms. Kitchen would suffer any prejudice. Accordingly, the trial judge did not err in refusing the adjournment.

[ 15 ] In his thorough Reasons for Judgment, the learned trial judge returned to the application to amend the Information. He properly instructed himself on the applicability of s. 601(4) of the Criminal Code, which provides:

s. 601(4) The court shall, in considering whether or not an amendment should be made to the indictment or count in it, consider

( a ) the matters disclosed by the evidence taken on the preliminary inquiry;

( b ) the evidence taken on the trial, if any;

( c ) the circumstances of the case;

( d ) whether the accused has been misled or prejudiced in his defence by any variance, error or omission mentioned in subsection (2) or (3); and

( e ) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.

The trial judge’s conclusion that Ms. Kitchen was not prejudiced or misled was based on the evidence adduced at trial. As he noted, the defence relied upon these earlier events to somehow argue that the appellant’s subsequent conduct was justified and did not constitute harassment. In any event, the trial judge reached the following conclusion which demonstrates that Ms. Kitchen suffered no prejudice at all:

Even if my decision to amend the information were wrong, it makes no difference whether the timeframe in the Information is enlarged or not. The last two incidents took place during the timeframe specified in the original Information. In my opinion, the defendant’s conduct between October 29, 2008 and January 2, 2009 consisted of “repeated communicating with, either directly or indirectly, the other person or anyone known to them”, within the meaning of section 264 of the Criminal Code.

I can detect no error in this aspect of the trial judge’s analysis: see R. v. P.(M.B.) (1994), 89 C.C.C. (3d) 289 (S.C.C.).

[ 16 ] The trial judge’s decision not to grant an adjournment and the decision to permit the Information to be amended were free of error. This ground of appeal must fail.

(b) The Fault Issue

[ 17 ] Mr. Markin argues that the trial judge erred in finding that the Crown had established the requisite aspects of the actus reus for criminal harassment beyond a reasonable doubt. In particular, he focuses on the fact that, based on the pre-amended version of the Information, the evidence did not establish harassing conduct or that the complainant reasonably feared for her own safety.

[ 18 ] In general, it is clear from reviewing the trial judge’s lengthy and detailed Reasons for Judgment that he was well aware of all of the fault requirements of the offence of criminal harassment in s. 264 of the Criminal Code: see R. v. Kosikar (1999), 138 C.C.C. (3d) 217 (Ont. C.A.), at p. 222. More specifically, the trial judge addressed the areas that the appellant isolates for the purposes of this appeal. In particular, counsel for Ms. Kitchen argues that the trial judge erred in finding that the complainant’s reasonable fear was proved beyond a reasonable doubt. I disagree. The trial judge addressed this issue specifically in his Reasons in the following passage:

Did [the complainant] “reasonably, in all the circumstances, fear for her safety”, as required by section 264 of the Criminal Code? In my opinion, the answer is unquestionably yes. [The complainant] testified that “I was afraid all the time. She was told to have no contact, yet she persisted. Her letter to my manager was more harassment.” [The complainant] had received angry, abusive telephone calls in the middle of the night. She received hostile communications at her workplace, and allegations of a highly personal nature were sent to [the complainant’s] employer. Considered from an objective standpoint, [the complainant’s] fear was very reasonable.

[ 19 ] The trial judge reached a similar conclusion on the requisite mens rea for criminal harassment in the following passage:

The defence submitted that it was not proven that the defendant had the requisite mens rea. The submission is without merit. There is no substance or legitimacy to the defendant’s contention that she had a right to contact [the complainant] and that she had justification for ordering [the complainant] to “stay out of my neighbourhood and stay away from Wesley.” [The complainant] never attempted to contact the defendant or Wesley or to take any action whatsoever against them. The defendant had been warned by Sergeant Morris to stop harassing [the complainant] or she would face criminal charges. The defendant clearly knew that she was harassing [the complainant]. The defendant deliberately ignored the warning and deliberately pursued her campaign of harassment against [the complainant]. It is an easy matter to infer mens rea from the circumstances as revealed by the evidence.

[ 20 ] The trial judge’s conclusions were amply supported by the record before him. To a large extent, the appellant’s contentions are based on challenges to the credibility findings made by the trial judge. I can detect no error in the manner in which he approached the evidence of any of the witnesses at trial.

[ 21 ] Ms. Kitchen’s challenge to the trial judge’s findings concerning the actus reus is based on the assumption that the trial judge erred in amending the Information to accommodate a broader time frame. However, I have already concluded that there was no error in granting the Crown’s application under s. 601(3) of the Criminal Code. In any event (and as the trial judge found), even if the application to amend had been dismissed, the charge was still made out based on the narrower time frame (which included two events). This conclusion is supported by the case law. In R. v. Kosikar, supra, Goudge J.A. held at p. 222: “Hence, there can be no suggestion that in s. 264(2) Parliament intended to proscribe only repetitive conduct.” And as noted above, the incidents that preceded the original time frame of the Information were admissible to place the subsequent incidents in context for the purposes of proving the complainant’s reasonable fear and Ms. Kitchen’s state of mind in proceeding as she did.

[ 22 ] In conclusion, the trial judge made no error. This was a very straightforward case of criminal harassment. Ms. Kitchen’s conduct easily fell within the ambit of this offence as set out in s. 264 of the Criminal Code.

CONCLUSION

[ 23 ] For these reasons, the appeal from conviction is dismissed. And, while Ms. Kitchen initially appealed her sentence, this aspect of the appeal was abandoned during the hearing.

TROTTER J.

Released: January 31, 2012

COURT FILE NO.: 109/10
DATE: 20120131
ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN Respondent – and – SUSAN KITCHEN Appellant

REASONS FOR JUDGMENT TROTTER J.

Released: January 31, 2012

[^1]: The trial judge’s written Reasons for Judgment, are dated July 13, 2010. They were filed in court on July 13, 2010. Sentencing proceedings commenced shortly afterwards.