ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-13-231-AP

DATE: 20140618

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JAMES DEARY

Respondent

K. Hull, for the Crown

R. Morhan, for the Respondent in Appeal

HEARD: June 9, 2014

On Appeal of the Judgment of The Honourable Mr. Justice J.J. Douglas
dated November 20, 2013

HEALEY J.

Nature of the Appeal

[1] This is the Crown’s appeal against acquittal on a charge of criminal harassment under s. 264 of the Criminal Code of Canada.

[2] The Crown argued to two bases for the appeal:

i. The trial judge excluded evidence highly relevant to the issue of reasonable fear, and then wrongly held that the complainant’s fear was not reasonable; and

ii. The trial judge ignored or misapprehended evidence which clearly supported a finding of both recklessness and reasonable fear, leading to an unreasonable verdict.

[3] Section 264 of the Criminal Code provides as follows:

264.(1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (ii) that causes the other person reasonably, in all of the circumstances, to fear for their safety or the safety of anyone know to them.

(ii) the conduct mentioned in subsection (i) consists of:

(a) repeatedly following from place to place the other person or anyone known to them;

(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;

(c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or

(d) engaging in threatening conduct directed at the other person or any member of their family.

The Facts

[4] The parties are largely in agreement on the evidence presented by the complainant at trial, as summarized in the Crown’s factum as follows:

[5] The complainant, Melissa Gianone was a former employee of the respondent. She left his employ on bad terms in 2010 because he provided a poor reference for her when she applied for another job. After she left, the respondent called her on numerous occasions, leaving messages in which he told her that he missed her. If she answered, she usually hung up on him, or if on occasion she spoke to him, it was to tell him to leave her alone. She did not return calls. He called in total between 20 and 30 times, until she was forced to change her phone number. The respondent also waited for her outside her residence, and left gifts for her at the home of her parents, including alcohol, scarves, and a necklace. The gifts continued even after she had changed her phone number. She eventually complained to the police, who warned the respondent not to have any further contact with her. One or two of the calls came after the police warning, which was the point at which she changed her telephone number. She threw out any of the presents that he gave her.

[6] On March 27, 2013, the complainant was working at Lone Star restaurant in the City of Barrie. On that day the respondent attended the restaurant and asked whether the complainant was working. Once seated, he tried to engage her attention. When he smiled and waved, she ignored him. When he tried to talk to her, she walked by. She felt very uncomfortable. When the respondent was ready to leave, she waited at the request of her manager until the respondent had left. She left by the back door and walked to her car. As she did so, the respondent sped toward her in his vehicle in the parking lot of the restaurant. She jumped into her car and locked the door. At that point the respondent got out of his vehicle and came towards her and smiled and waved. She was scared, and left quickly.

[7] He followed in his vehicle, and she became sufficiently scared that she called her boyfriend on her cell phone, holding the phone up to her ear. She testified that this action would have been visible to the respondent who was right behind her. As she turned left onto Bryne Drive, the respondent ceased following her.

[8] The respondent gave a statement to police that was tendered by the Crown at trial. The respondent described Melissa as having worked as a labourer for him for two or three years. After she left, he dropped off her pay, and she swore at him. He acknowledged calling and texting her, but said she stopped responding. The next thing he knew a police officer came to his work and told him to stay away from Melissa, and to stop phoning or texting her. He continued to leave presents. On March 27, 2013 he attended the restaurant for lunch and testified he recognized Melissa there. He told police it had been three years, and he was sure that she had cooled down by then. He tried to say hello to her and got no response. He acknowledged asking the waitress if she would speak to Melissa for him. The respondent said that when he left the restaurant he waited outside for Melissa. He acknowledged that he got out of his truck and approached her, at which point she shut the door. He indicated that it was his intention to talk and to apologize. When she drove off he drove off also, and stated that he was not paying attention to her car, he had just wanted to talk to her. He acknowledged in his statement that he had made a mistake, and acknowledged that he had been told three years before not to contact her. He said “that’s fine, it’s over”.

[9] In his Reasons for Judgment the trial judge found that there had been no overt threat. He also found, in spite of the presents, that all had been well for three years prior to the contact on March 27, 2013. He described the encounter at the restaurant as “innocuous”.

[10] He described the respondent as driving up to the complainant’s car, getting out and then taking no further action when she retreated. The trial judge rejected the respondent’s explanation that he had decided to wait, and found that he drove away and returned to the parking lot to talk to the complainant. He also found that the respondent was legitimately returning to his work site when he followed the complainant from the restaurant. He made no mention of the fact that the complainant had a cell phone to her ear within sight of the respondent when he turned away from her. The trial judge also found that the police had cautioned the respondent about further contact and that the respondent continued to send presents thereafter. He found that the respondent should have known when he walked out of the restaurant that the complainant did not want to have contact with him, “yet he waited outside to speak to her”. The trial judge nonetheless found he had a reasonable doubt on the issue of recklessness. He accepted that the complainant was concerned but found that her concern was not reasonable. He referred to her reaction on March 27, 2013 as a “first reaction”.

[11] The trial judge then went on to find that the complainant had a concern sufficiently reasonable to require the Court to place the respondent on a peace bond for a period of two years.

Exclusion of Evidence Relevant to Reasonable Fear

[12] In the course of trial, defence counsel objected to the questioning of the complainant with respect to the content of telephone calls placed by the respondent to her in the time period prior to the incident date of March 27, 2013. The trial judge ruled that the Crown was prohibited from doing so because the content of the telephone calls had not been previously disclosed beyond describing them as “harassing”, and because the Crown was prohibited from calling evidence of bad character to avoid propensity reasoning.

[13] The ruling of the trial judge was that the Crown was permitted to elicit evidence regarding the prior telephone calls made by the respondent only to the extent of the time frame over which they were made, and the number of calls made, but was prohibited from calling evidence that provided detail or elaboration of the complainant’s feeling that the phone calls were “harassing”.

[14] In excluding that evidence, I find that the trial judge made two errors.

[15] First, the law is clear that prior conduct in the context of a charge of criminal harassment, unlike any other charge, is presumptively admissible. The previous interactions between the respondent and complainant that set the backdrop for the charge must out of necessity be heard and evaluated to assess the reasonableness of the fear, and the intent or recklessness of the accused: R. v. Krushel 2000 3780 (ON CA), [2000] O.J. No. 302 (O.C.A.) at para. 17; R. v. Kosikar 1999 3775 (ON CA), [1999] O.J. No. 3569 (O.C.A.) at para 27; R. v. Kordrostami 2000 5670 (ON CA), [2000] O.J. No. 613 (O.C.A.) at paras. 12-15; R. v. Sanchez [2012] B.C.J. No. 2418 (B.C.C.A.) at para. 78; R. v. Ryback 1996 1833 (BC CA), [1996] B.C.J. No. 285 (B.C.C.A.) at paras. 32-34; and R. v. D.D. 2005 42472 (ON CA), [2005] O.J. No. 4904 at para. 16.

[16] The ultimate result of the error is highlighted at page 65 of the transcript of the Reasons for Judgment of the trial judge, where, referring to the final encounter between the respondent and complainant at the restaurant, he wrote:

Even in the context of the undisclosed and unexplained, and clearly not understood events that had happened three years ago, I see no basis to raise this innocuous encounter to the level of criminality.

[17] Ultimately, the judge excluded relevant evidence going to one of the elements of the offence, being the reasonableness of the complainant’s fear, and then diminished the significance of the event on March 27, 2013, calling it “innocuous” because of events that he characterized as “undisclosed”, “unexplained” and “clearly not understood”.

[18] If the trial judge was correct that the respondent was disadvantaged by the incomplete disclosure by the Crown of the contents of the telephone conversations, the second error made was his exclusion of the evidence. The trial judge did not consider a remedy to correct this deficit prior to imposing the extraordinary remedy of prohibiting the Crown from calling the evidence. The Ontario Court of Appeal confirmed in R. v. Spackman, 2012 ONCA 905, [2012] O.J. No. 6127 (O.C.A.) at para. 143 that evidentiary exclusion is reserved for those cases in which the usual remedy (an adjournment and disclosure order) would not be adequate or where exclusion was necessary to maintain the integrity of the justice system. There is no suggestion in the transcript that such a course of action was considered prior to the ruling excluding the evidence.

Unreasonable Verdict

[19] A verdict is unreasonable where the trial judge draws an inference or makes a finding that is:

i) Plainly contradicted by the very evidence from which it is drawn or upon which it has been made to rest; or

ii) Demonstrably incompatible with evidence that is neither contradicted by other evidence nor rejected by the trial judge: R. v. Li, 2013 ONCA 81; (2013) 296 C.C.C. (3d) 408 at para. 123, and cases cited therein.

[20] Even though the trial judge did not hear from the complainant as to the content of the calls or text messages that may have formed the basis for a reasonable fear, and which may have informed him regarding the respondent’s recklessness, he accepted the following facts:

a) In the months after the complainant left her job, the respondent called or texted up to 30 times;

b) He also attended her residence uninvited and unwanted;

c) He left presents for her at her parents’ home;

d) She went to the police over this conduct;

e) The conduct continued;

f) She changed her phone number;

g) The calls stopped but the presents continued in spite of the police warning;

h) The respondent attended the complainant’s place of work and sat there watching her, and tried to make contact with her;

i) The respondent would have known inside the restaurant that contact was not welcome;

j) The respondent decided to wait for the complainant outside and approached her again, trying to make contact; and

k) The complainant was in fact fearful for her safety.

[21] With the greatest of respect to the trial judge, these findings make an acquittal unreasonable. The elements of the offence are made out. The respondent engaged in repeated communication, direct and indirect, with the complainant over a period of years. He did so even after being cautioned by the police. He knew or should have known that his entreaties were unwelcome. He gifts and texts and messages went unanswered. The complainant contacted the police because she felt threatened and fearful. She changed her phone number for the same reason. Entering her place of work, the respondent watched her and inquired about her. He attempted to make contact with her. She testified as to her ongoing discomfort during that event. He approached her in his vehicle and got out and smiled and waved. When she believed him to be following her out of the parking lot, she telephoned her boyfriend.

[22] These events can lead to no other conclusion but that the complainant felt “tormented”, “troubled” and “bedeviled” such that she was “harassed” as described in the terms set out R. v. Sillipp (1997), 1997 ABCA 346, 120 C.C.C. (3d) 384 (Alt. C.A.) In order to appreciate the impact of the restaurant visit, the earlier factual context must be looked at to appreciate why the complainant could come to such feelings, and why the respondent knew that the complainant was harassed or was reckless as to that effect of his conduct. Given all that had preceded it, it is illogical to refer to the occasion as an innocuous encounter.

[23] Given that the respondent had not been earlier deterred by the complainant’s words, her avoidance or police interaction, it was subjectively reasonable for her to fear for her safety, and objectively reasonable on the evidence to find that the respondent’s actions caused fear and torment. The facts as found by the trial judge lead logically to the conclusion that the respondent knew that he was harassing the complainant, or was reckless as to the harassing effect of his conduct.

[24] Although the facts as found support a conviction, given the legal error made by the trial judge in excluding relevant evidence, and without the respondent being permitted to cross-examine on any such evidence that the Crown may lead at a new trial, I am of the view that a conviction should not be substituted without opportunity for the entirety of the relevant evidence to be before the Court. Accordingly, the appeal is granted and the matter remitted back to the Ontario Court of Justice for trial.

[25] This Court orders:

1. The acquittal is set aside.

2. The peace bond is quashed.

3. The respondent shall surrender to the Barrie Police Services within 48 hours of the release of this decision, or a warrant for his arrest shall issue.

HEALEY J.

Released: June 18, 2014