ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-12-101

DATE: 2014/01/17

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ANDRE TAILLEFER

Respondent

Elaine Evans, counsel for the Crown

Geraldine Castle-Trudel, counsel for the Respondent

HEARD: October 8, 2013
Application granted in part: October 24, 2013
Reasons for Judgment released: January 17, 2014

REASONS FOR JUDGMENT ON AN APPLICATION

TO ADMIT EVIDENCE OF OTHER DISCREDITABLE CONDUCT

PELLETIER, J.

[1] Andre Taillefer is charged with criminal harassment in connection with the events of January to April 2008 and January to May 2012. The charges relate to a series of letters sent by Mr. Taillefer to Jeanne Verrier at a time when Mr. Taillefer was in jail in Ottawa, both in 2008 and 2012.

[2] More specifically, Mr. Taillefer is charged that knowing that Ms. Verrier was harassed, or being reckless as to whether she was harassed, he caused her to reasonably fear for her safety by repeatedly communicating with her through letters, contrary to section 264(2)(b) of the Criminal Code (count 1).

[3] Further, he is charged that knowing that Ms. Verrier was harassed or being reckless as to whether she was harassed, he caused her to reasonably fear for her safety by engaging in threatening conduct, contrary to section 264(2)(d) of the Criminal Code (count 2).

[4] Both charges relate to both time frames in 2008 and 2012.

[5] The Crown brings the present Application in order to adduce evidence of three other events involving Mr. Taillefer and other individuals. The proposed evidence of other discreditable conduct relates to convictions for sexual assault in 2001, being unlawfully in a dwelling house in 2008, and charges of threatening, break and enter and unlawfully being in a dwelling house in 2011.

[6] The trial on the present charges was held October 1, 3 and 4, 2013. The present Application was presented on October 8, 2013. On October 24, 2014, the Application was granted in part with Reasons for Judgment to follow. Final submissions on the merits were made December 5, 2013. On December 20, 2013, Mr. Taillefer was found guilty on both charges.

[7] The following are the Reasons for Judgment on the Application to admit evidence of other discreditable conduct concerning the events of 2001, 2008 and 2011.

[8] The present charges relate to a series of 101 letters sent by Mr. Taillefer to Ms. Verrier; 43 in 2008 and 58 in 2012.

[9] Mr. Taillefer met Ms. Verrier in January 1998 during the ice storm that immobilized many communities in Eastern Ontario. Mr. Taillefer was temporarily living with his uncle, André Brunet. Mr. Brunet, an active member of his local church and deacon of the Notre Dame Parish in Alexandria, was also acquainted with Ms. Verrier as she had been enrolled in adult education programs operated, in part, by Mr. Brunet’s spouse, Hilda.

[10] Ms. Verrier had fled an abusive relationship in Kapuskasing and had taken up residency in Alexandria. Ms. Verrier had also been a guest of the Brunets’ during the ice storm, where she met Mr. Taillefer.

[11] Their original acquaintance was uneventful. In 2001, Mr. Taillefer was sentenced to a 5 year jail term, in addition to 3 years of pre-trial custody, for the rape of an elderly woman in Alexandria. The Crown suggests that Mr. Taillefer’s 2001 conviction on those facts is relevant as it relates to Ms. Verrier’s fears resulting from the series of letters she would receive from Mr. Taillefer several years later. The Crown also suggests that the events surrounding the 2001 conviction are relevant as they relate to Mr. Taillefer’s state of mind when the series of letters were sent to Ms. Verrier in 2008 and 2012. During her testimony at trial, Ms. Verrier stated that she was aware of Mr. Taillefer’s 2001 conviction, for what she described as “the rape of the elderly lady”. Her evidence was that upon Mr. Taillefer’s release, on other charges in 2008 and again in 2012, she feared he might attack or rape her. The 2001 conviction relates to an incident in 2000. Mr. Taillefer pleaded guilty to sexual assault.

[12] The victim was 76 years old. Late at night, as the victim lay sleeping, her husband in another room, she discovered Mr. Taillefer in her home. He told her he had been sent by God to replace her son who had died the previous year. The victim was subjected to forced vaginal and attempted anal and oral sex. She was severely injured. Mr. Taillefer fled the scene as the victim had told him that she had called the police, although the phone had been torn from her hands during the struggle and was actually disconnected.

[13] In the Crown’s view, there would exist an unreasonable factual vacuum in the present trial record if both the facts relating to the 2001 conviction and Ms. Verrier’s awareness of those facts were excluded from the analysis of the merits of the present charges.

[14] The Crown further suggests that Mr. Taillefer’s 2008 conviction for being unlawfully in a dwelling house is similarly relevant. The 2008 conviction relates to Mr. Taillefer’s uninvited attendance in a woman’s home in Alexandria and his remaining there for some time, engaging the occupant in conversation.

[15] It was during his remand in pre-trial custody on this charge that Mr. Taillefer sent the first series of letters to Ms. Verrier in 2008.

[16] Finally, the Crown brings the present application to admit as evidence of other discreditable conduct the events giving rise to the 2011 convictions for break and enter, being unlawfully in a dwelling house and threats. Those convictions relate to a June 2011 episode during which Mr. Taillefer entered unannounced and uninvited into the residence of a 61 year old woman who lived alone in Alexandria. Mr. Taillefer spent three hours at the home of the victim, speaking with her and asking her whether she wanted to go for a drink. The victim felt uncomfortable and afraid.

[17] After three hours, the victim’s son arrived and found the situation to be peculiar. Mr. Taillefer was asked to leave, which he did. Two days later, as the victim was leaving her house to walk her dog, she discovered Mr. Taillefer at her door. He walked into the victim’s home and asked her if she wanted a beer. The victim had been told by a friend, between Mr. Taillefer’s two visits that he had raped someone before and that she should stay away from him. He was told to leave. Mr. Taillefer became angry and said to the victim that she must have heard a lot of gossip about him. He raised his voice saying “I’m going to get after you” and left. Mr. Taillefer also made threats to other residents of Alexandria with whom he spoke in the same time frame.

[18] On September 19th, 2011, Mr. Taillefer received a 21 month jail sentence, in addition to three months pre-trial custody. He was serving that sentence when the second series of letters were sent to Ms. Verrier in 2012.

[19] The Crown suggests that the 2011 events are relevant to the issue of Mr. Taillefer’s state of mind during the 2012 period of letter writing, arguing more specifically that Mr. Taillefer has to have been aware of the reaction that Ms. Verrier would have to the letters he was sending to her, given their content and his past.

[20] As stated, Ms. Verrier received a total of 101 letters in 2008, and in 2012.

[21] The letters in 2008 were initially inoffensive. Mr. Taillefer was in custody. Ms. Verrier was offering her services on a voluntary basis to the St. Vincent de Paul Society, a lay catholic organization which provides a variety of community based services to those in need. Mr. Brunet was the president of the Alexandria chapter.

[22] Ms. Verrier accepted, through Mr. Brunet, to receive letters from Mr. Taillefer, while he was in custody, as a measure of support and comfort. The letters in 2008 rapidly took on a personal and eventually sexually explicit tone. In 2008, Ms. Verrier was 68. Mr. Taillefer was 41. She wrote to Mr. Taillefer in April 2008 in order for him to stop sending letters. He had alluded to his imminent release in the spring of 2008 and this had caused Ms. Verrier to be fearful. The letters did stop and Mr. Taillefer was released in April 2008. There were no developments of any significance between 2008 and 2011 when Mr. Taillefer returned to custody and in 2012 began writing a second series of letters to Ms. Verrier which took on the same tone as the 2008 letters. The letters were sexually explicit and described the relationship Mr. Taillefer and Ms. Verrier would have upon his release.

[23] One such series of letters came to Mr. Brunet’s attention and the local police were notified in the spring of 2012. No prior complaints had been made to the authorities.

[24] It is in the context of Mr. Taillefer’s 2001, 2008 and 2011 convictions for offenses against middle aged or elderly women that the Crown brings the present application to admit evidence of those offences. The relevance is said to be Mr. Taillefer’s motives and the reasonableness of Ms. Verrier’s fears in relation to the 2001 events, known by Ms. Verrier, the issue of mens rea in relation to the 2008 presence of Mr. Taillefer in the victim’s home, and again Mr. Taillefer’s state of mind and awareness of his background and reputation in Alexandria demonstrated by the events of 2011.

[25] The defence argues that the relevance of any prior events giving rise to the three convictions is tenuous at best and that the events resulting in the present charges can be examined and assessed independently without the risk of prejudice flowing from Mr. Taillefer’s prior criminal history.

[26] The law concerning similar fact evidence and evidence of other discreditable conduct can be summarized as follows:

Evidence of other discreditable conduct, that is misdeeds not covered by the charge before the Court, is presumptively inadmissible as tending to show no more than the nature of the accused’s character, which is not on trial. R. v. Handy 2002 SCC 56, [2002] S.C.J. no. 57 at para. 31 per Binnie J.; Makin v. Att. Gen. for New South Wales [1894] A.c. 57 (P.C.) at p. 65 per Lord Herschell L.C.; D.P.P.v. Boardman [1975] A.C. 421 at p.453 per Lord Hailsham.

[27] Such evidence may however become admissible if it satisfied two criteria. Firstly, that it is relevant to an issue in the trial, and secondly that its probative value outweighs its potentially prejudicial effect. Sweiter v. The Queen 1982 23 (SCC), [1982] 1 S.C.R. 949 at p. 953 per McIntyre, J.; R. v. Handy, supra, at para 55; R v. B(F.F.) 1993 167 (SCC), [1993] S.C.J. No. 21, at paras. 71-72, per Iacobucci, J.; R.v. B.(C.R.) 1990 142 (SCC), [1990] SCJ. No. 31 at para 24 per McLachlin, J.

[28] Prejudice is measured in terms of moral prejudice (that the accused is a bad person deserving of punishment in any event) and reasoning prejudice (that the proposed evidence is disputed, and that the time and effort required to establish the disputed facts could reasonably create a distraction so great that the value of the evidence diminishes accordingly). R. v. Handy, supra, at paras 139 and 144; R. v. L.B. 1997 3187 (ON CA), [1997] O.J. No. 3042 (O.C.A.) at para. 50 per Charron, J.;R. v. Arp 1998 769 (SCC), [1998] 3 S.C.R. 339 at para 40 per Cory J.

[29] Prejudice is also measured by assessing how discreditable the other discreditable evidence is, the potential to result in an interference of guilt based only on bad character, the extent of which it may confuse the issues and the accused’s ability to respond to such evidence. R. v. L.B. 1997 3187 (ON CA), [1997] O.J. No. 3042 (Ont. C.A.) at paras 22-24 per Charron, J.A.

[30] The extent to which other discreditable conduct is admissible will therefore necessarily begin with an assessment of the issue at trial that the proposed evidence is said to address. R. v. Handy, supra, at paras 70-74; R. v. B (C.R.), supra, at para 31; R. v. Arp, supra, at para 38; R. v. Lepage 1995 123 (SCC), [1995] 1 S.C.R. 654 at para 35.

[31] Evidence of other discreditable conduct has been admitted on the issues of narrative in connection with the nature of the relationship between an accused and the deceased, motive and intent, particularly when the parties are previously well acquainted or in some form of relationship. R. v. Litchfield (1994) 1993 44 (SCC), 86 C.C.C. (3d) 97 (S.C.C.) at p. 116 per Iacobucci, J.; R. v. S.B. [1996] O.J. No. 1187 (Ont. Ct. (Gen. Div.)) at paras 30, 34-46 per Hill, J.; R. v. Jackson (1980) 1980 2945 (ON CA), 57 C.C.C. (2d) 154 (Ont. C.A.) at p. 167; R. v. D.S.F. 1999 3704 (ON CA), [1999] O.J. No. 688 (Ont. .C.A.) at para 20-25, per O’Connor J.A.; R. v. Polimac [2006] O.J. No. 4757 (S.C.O.) at para 39 per Wein J.; Rex v. Barbour (1938) 1938 29 (SCC), 71 C.C.C. 1 (S.C.C.) at p. 31 per Hudson, J.

[32] As the analysis moves away from “similar fact evidence” in the traditional sense towards “evidence of other discreditable conduct”, the issue of the admissibility of the evidence is resolved by placing greater emphasis on the specific relevance of the evidence to an area of dispute in the trial than it is by drawing comparisons between the proposed evidence and the circumstances of the offence being tried. That said, the relevance of the proposed evidence will necessarily be determined by examining whether it is connected in some way to an issue at trial, the proximity of time, place, and the persons involved, the frequency and the particular circumstances. R. v. Handy, supra, para 82.

[33] I have concluded that the events of 2001 and 2011 are relevant and admissible as evidence of other discreditable conduct. The 2001 conviction and the facts surrounding that conviction are of major influence in relation to the fears expressed by Ms. Verrier in connection with the letters she received from Mr. Taillefer, both in 2008 and 2012. Mr. Taillefer’s history, as known by Ms. Verrier and specifically mentioned by her during her testimony cannot be disassociated from the present analysis of the current charges without an unnecessary void being created. The events of 2001 are a matter of record based upon Mr. Taillefer’s guilty plea. The facts are succinct and do not require great analysis or debate. The events of 2001 are certainly of a greater moral reprehensibility than the allegations currently, however can be examined by the Court dispassionately with a view to extrapolating only the validity of Ms. Verrier’s stated fears, and Mr. Taillefer’s state of mind without engaging in the prohibited reasoning based solely on character or propensity. In a proceeding without jury, the Court instructs itself as it would a jury in avoiding the potential tendency to use the proposed evidence of other discreditable conduct as evidence of the subject’s character alone.

[34] The relevance being established and the informative aspects of the evidence outweighing the potential risks of prejudice, the evidence is admissible.

[35] Similarly, the 2011 events are instructive on the issue of Mr. Taillefer’s state of mind during the 2012 time frame in question. On the present charges, the Crown must establish that Mr. Taillefer knew of the reasonable fears his conduct was evoking in Ms. Verrier, or that he was reckless as to whether his conduct would have that affect. The 2011 events and more specifically Mr. Taillefer’s comments to the victim of the 2011 offenses that she must be aware of what was said about him in the community, establishes the relevance of those events on the issue of Mr. Taillefer’s level of consciousness and the natural results of his conduct vis-à-vis Ms. Verrier. The Court is similarly of the view that the probity of this evidence outweighs the harm it can cause to the fair trial process based on the temporal and factual connection to the present charges.

[36] I am not persuaded that the 2008 events bear sufficient relevance to the present charges to be admissible as evidence of other discreditable conduct. The 2008 events are more in the nature of nuisance than harassment. The conduct, while peculiar, is not instructive on either the reasonableness of Ms. Verrier’s fears, there being no evidence of her being aware of the reasons for Mr. Taillefer’s incarceration in 2008, nor on the issue of Mr. Taillefer’s state of mind, on the limited facts revealed by the 2008 proceedings. The mere fact that Mr. Taillefer was in custody in 2008 is admissible as simple narrative without any further inferences on conclusions drawn from that fact alone.

[37] In the circumstances, the evidence of the 2001 and 2011 convictions registered against Mr. Taillefer is admitted in the present proceedings. The events of 2001 are admissible on the issues of Mr. Taillefer’s state of mind and the reasonableness of Ms. Verrier’s fears concerning Mr. Taillefer’s conduct in 2008 and 2012 as alleged in the two charges presently.

[38] The evidence of the events surrounding the 2011 convictions is admissible as it relates to Mr. Taillefer’s state of mind concerning the present charges in connection with the 2012 allegations. The Application is therefore granted on the terms specified.

Justice Robert Pelletier

Released: January 17, 2014

COURT FILE NO.: CR-12-101

DATE: 2014/01/17

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ANDRE TAILLEFER

REASONS FOR JUDGMENT ON AN APPLICATION TO ADMIT EVIDENCE OF OTHER DISCREDITABLE CONDUCT

Justice Robert Pelletier

Released: January 17, 2014