R. v. Rampin-Lefebvre, 2015 ONSC 1630

COURT FILE NO.: CR-12-6782

DATE: 2015/03/13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Hugo Rampin-Lefebvre

Accused

Bruce Lee-Shanok, for the Crown

Dominique D. Smith, for the Accused

HEARD: January 5-7, 9, 12-14, 18-19 and 23, 2015

(at Ottawa)

REASONS FOR Decision

Hackland J.

Overview

1The accused is charged with two counts of criminal harassment contrary to s. 264(3) of the Criminal Code. One count refers to “repeatedly following” and one count to “repeatedly communicating with” the complainant, (his wife from whom he was separated at the material times) and thereby causing her to fear for her personal safety. There is also one count of breach of probation arising from the same conduct.

2The period referred to in the indictment is “between the 3rd day in June in the year 2012 and the 19th day of August in the year 2012”. There were a number of interactions and communications between the accused and the complainant during this period of eleven weeks which the Crown alleges caused the complainant to fear for her personal safety.

3The accused and the complainant met at a recovering narcotics abusers’ support group in the summer of 2008, began a relationship and married on September 5, 2009. They continued to live together for a two year period following their marriage and separated in August 2011. The separation, although initiated by the complainant, was amicable and agreed to by the accused. He helped the complainant and her friend, (the “roommate”) who had been living with them throughout the marriage, to relocate to an apartment building in the same area of the city. The accused and the complainant agreed that they would try and work on their relationship over the following year or so. The complainant said she explained to the accused at the time “I’m not ending the marriage…I’m giving you a year to work on yourself and prove to me you want this marriage.”

4As described in more detail below, by the late spring of 2012, about 8 months after separation, matters had evolved to the point where the complainant had determined that the separation was permanent and the marriage was over. By mid-March, she had formed a new relationship with a man she began living with and later married. For his part, the accused desperately wanted reconciliation and he embarked on a course of conduct designed to persuade or, as the Crown would have it, to intimidate the complainant into resuming their prior relationship. It is necessary to review the interactions between these two people, in the 11 week period covered in the indictment to determine whether the Crown has proven beyond a reasonable doubt that the accused engaged in harassing conduct by way of repeated unwanted communication or following the complainant and whether such conduct, if it occurred, impacted the complainant in such a way as to cause her to fear for her personal safety. The case law establishes that personal safety can also include her psychological well-being, see R. v. Gowing, [1994] O.J. No. 2743 (CA), at paras. 5-6.

5The accused testified in this trial. He denied wanting to reconcile or trying to persuade the complainant to do so. I reject this as I reject virtually all of the accused’s evidence, which was totally incredible. The accused responded to most questions with a speech. His answers were disingenuous and grandiose and often bizarre. When confronted with emails and text messages he had authored, he denied the plain meaning of his words. He admitted in response to a question from the Crown that his answers were designed to be tactical. Fortunately, much of the evidence was not in dispute. To the extent these charges depend on an assessment of the complainant’s reactions and feelings about to her interactions with the accused, I rely on the complainant’s own evidence. Her testimony seemed to me, to be credible and not exaggerated, although it was frequently vague on timing and other material aspects of the course of events.

Period of Cohabitation

6The Court heard, by way of background, considerable evidence about the relationship between the complainant and the accused while they were together prior to and during the time they lived together. This was not a happy marriage. The parties fought their addictions and they fought each other. They each experienced several relapses and there were a few ugly incidents in which the parties engaged in minor violence. The complainant punched the accused in the face while she was heavily intoxicated on a vacation in the Dominican Republic. She says the accused once punched her in the stomach but cannot recall the details and he once hip checked her out of bed onto the floor during an argument before they were married. The complainant said the accused “was unpleasant to be married to, angry and critical much of the time and she was walking on eggshells, never knowing what his moods would be.” The accused himself seemed to acknowledge responsibility for the marriage’s failure when he wrote in an email to the complainant (dated May 8, 2012)

I know I screwed up our marriage. When all accounts are settled, it was Hugo who strayed from the LORD, who damaged and crippled our marriage. I was a real A-hole, screaming at people in the house, tearing you down while you pushed hard and tried to hold us together in Faith. I take full responsibility for that. I know I screwed up, that’s (sic) it’s my fault.”

7This view of the accused as a difficult and unpredictable person was supported by the evidence of the roommate, a female friend of the complainant who knew them both from the narcotics recovery group. She particularity disliked the accused and was enormously frustrated by what she saw as the complainant’s back and forth attitude about continuing or re-starting her relationship with the accused after the separation and in the months leading up to the period of the indictment. She described the complainant’s relationship with the accused and with other men during this period as one of “complete confusion and chaos”. Indeed this together with the complainant’s intermittent drug abuse, were the principal reasons the roommate ultimately moved out of the complainant’s apartment in the spring of 2012.

The Nine Month Period Following Separation (September 2011 – May 2012)

8It is helpful to review the interactions of the accused and the complainant during the nine month period from when the accused and the complainant separated in late August 2011 to the end of May 2012, when the 11 week period covered by the indictment began.

9A few weeks after the separation, in early September 2011, the accused suffered a significant relapse and began using intravenous cocaine. Through the month of December, the accused completed a 28 day treatment program at Sobriety House. Before entering the treatment program, the complainant went over to the accused’s apartment on a number of occasions to offer support and helped him clean up and did laundry. During the treatment program, the accused called the complainant on a few occasions but there was minimal contact during that period.

10On Christmas Day 2011, the accused delivered a present to the complainant by leaving it at the home of the complainant’s sister where the complainant’s family normally spent Christmas. It was an expensive gift of tire rims for her vehicle. She called or texted the accused to thank him and this led to a rekindling of the relationship.

11From January 2012 until the end of May of that year, the complainant and the accused carried on an on-again-off-again type of relationship, often communicating with each other. However, they both dated other people and in the complainant’s case, in mid-March 2012, she began to see another man and they began living together.

12In late February of 2012, the complainant told the accused that she was ready to give the marriage another chance and sent an email to her friend to the same effect. The complainant testified that her intentions to reconcile lasted only a few days, however, it is not clear to what extent the accused was told of her changing intentions.

13There were frequent contacts between the parties in March of 2012. On one occasion, they had dinner together at a local restaurant and on another occasion, she spent the night at the accused’s residence. Later, in mid-March, the parties had dinner at Biagio’s restaurant and had sexual relations afterwards. This occurred around the same time that the complainant was beginning a relationship with the new man, which she did not initially disclose to the accused.

14On March 15, 2012, the accused instructed his solicitor send an offer to negotiate a separation agreement to the complainant. She peremptorily dismissed the letter saying “No, I do not agree to any of this.”

15On April 12, 2012, an incident occurred in which the police were involved. The accused had observed the complainant’s new boyfriend driving her car into the parking lot of her apartment building. Shortly after, the accused went to the door of the complainant’s apartment and knocked and asked to be let in. He, at first, declined to identify himself, but the persons inside the apartment (the complainant, her roommate and the new boyfriend) were aware that it was the accused. He demanded to speak to the complainant. He was not allowed entry and a brief but noisy scene developed. The roommate, who appeared to be particularly annoyed, called the police. The accused left before the police arrived. The complainant retreated to her bedroom during this incident and did not get involved in the discussion. She said that she was upset. She admitted to texting the accused after he left the building, saying: “I’ll talk to you tomorrow.” The complainant admitted that she had not advised the accused that she had begun a new relationship, the discovery of which appeared to explain the accused’s emotional upset and crying outside the apartment door. The police visited the accused’s home later that day to warn him not to attend again at the complainant’s residence. Both the complainant and the roommate had advised the police that they did not want charges laid. I accept the complainant’s evidence that she was upset by this incident as she did not know whether the accused was clean or intoxicated. Moreover, as the defence emphasized, she was in an awkward position with her new boyfriend who had never met the accused. She testified, “It was all very uncomfortable… I just wanted him to leave.” She said she was, “in anxiety mode”.

16The complainant was interviewed by the police on April 29, 2012, with respect to this incident, and significantly, she advised that she was not afraid of the accused.

17Voluntary interactions between the complainant and the accused continued in late April and into May of 2012. Shortly after the April 12 incident, the complainant and the accused sat on a patio at a Kelsey’s restaurant and the complainant consumed two glasses of wine. On May 6 and again on May 10, 2012, the accused attended the complainant’s apartment at her invitation, when the subject of discussion was “closure” on their relationship.

18On April 29, 2012, following his discussion with the complainant, detective Coyle telephoned the accused and told him that he was not to return to the complainant’s apartment.

19The complainant testified that following the April 12, 2012 incident, she changed her cell phone number to avoid further telephone contact with the accused. Unfortunately, this resulted in a number of the emails or text messages from the complainant to the accused, being lost. These messages were highly relevant to an understanding of the complainant’s feelings and state of mind.

20Surrounding the two “closure discussions” between the parties in early May 2012, there were a series of emails exchanged. The emails from the accused were long emotional diatribes which, in the Court’s view were attempts to make the complainant feel guilty about abandoning the relationship and to feel sorry for him in order to persuade her to reconcile. A good deal of the discussion in the accused’s emails appears to be religious based. For her part, the complainant believed the religious revival on the accused’s part to be contrived. The complainant responded to the accused’s May 8, 2012 email by saying, “I read your letter. I need time to reflect and write an answer. I’m very confused right now and scared.” He responded, “You have nothing to fear from me.” I am of the view that this type of dialogue referred to the complainant’s fear and anxiety about the break-up of the relationship and not a fear for her personal or physical well-being. This email exchange, from the complainant’s point of view, was also an effort to get certain items of furniture returned to her. The accused was not prepared to cooperate with this. I find that his lack of cooperation with respect to the furniture was both retaliation for the complainant’s refusal to discuss that subject with his lawyer and, more importantly, was a basis for forcing the continuing communications he sought.

21The complainant testified that she felt somewhat guilty about ending the relationship. Also, she testified that she did not want to anger the accused because she felt that would undermine her efforts to have him return her property. She said she was in the habit of sending the accused what she acknowledged were somewhat mixed messages, such as her comments in her May 25 email, “I love you still as a friend, just not romantically… I felt like I had to walk on eggsheles (sic) pretty much our entire marriage. Scared to piss you off and feeling trapped and unable to be free and be me. Those feelings are still there towards you… I apologize for my part in all this. I know I have sent mixed messages and have been all over the place. I’m trying to figure stuff out as I go here too… I hope you have a great weekend with God and other followers. Talk to you later!”

22The May email exchanges continued. The complainant’s responding emails were much shorter and to the point and focused on retrieving her property. For his part, the accused discussed his religious beliefs, his drug recovery issues and his pending court case ( in which he had been charged with firing his nail gun in the direction of a parking control officer while carrying out his job as a roofer). On May 29, 2012, the complainant responded concisely to a very lengthy email from the accused, “What about getting my stuff goof?” and shortly after, “I am in no rush. I thought you already had your sentencing? Does this mean you can still get jail time? Oh Hugo, I will pray for you for sure.” The accused responded, “Your heart is so big, you are beautiful.” And she replied, “I am sorry you are in your depression now… I am proud of you and all the changes you have made. You are an amazing man now… I am not trying to lead you on here at all because my feelings or thoughts have not changed unfortunately.”

The 11 Week Period of the Indictment (June 3 – August 19, 2012)

23On June 3, 2012, the complainant and a girlfriend were driving near her apartment, on route to a class reunion at a nearby hotel. The accused drove by in the opposite direction and, spotting the complainant, did a U-turn and pulled up beside the complainant’s vehicle and began to chat with the complainant’s friend. The complainant suggested to the accused that he follow them to the nearby hotel. In the hotel parking lot, the accused had a brief conversation with the complainant about their relationship while the friend went ahead into the hotel. The accused then drove away. The complainant was asked how she felt about this meeting. She said: “I do not 100% recall, I think I felt sorry for him.” She acknowledged the encounter was “a by chance run in for sure”.

24This relatively insignificant encounter on June 3 was followed by an email exchange later in the day. It began with the accused saying: “I saw you today at the hotel and you looked so beautiful, I am fucked for the next few days now.” After a number of additional paragraphs of pleading and religious references, he ends, “I love you, there’s fuck all I can do about it.” The complainant’s email response is significant. It reads in part:

O.k. now you really need to listen please. I have been nice cause it kills me that you are hurting but to be honest, it’s not working for me…. We have talked about things over and over again and I am sorry if you don’t get the answer that you are looking for but seriously I can’t do this anymore… LET IT GO. I am at the point where I feel I have to be mean in order for you to get this… you cannot follow me when I’m driving… NO more emails about us, no more anything about us. O.k. This is enough. At this point we cannot be friends or anything. I want my stuff. We can’t see each other to get it so I will have someone pick it up. This is done and all communication will be through lawyers only now for divorce purposes.”

25It would appear that this bluntly clear email from the complainant was effective in that there were no further communications from the accused, nor any other interactions, for over a month.

26Then, the complainant saw fit to email the accused on July 9, 2012 to protest the fact that her step-father had been unable to secure the accused’s cooperation in retrieving several items of furniture which the complainant wished to have. She said in part, “Are you going to give me my stuff or no? I have to know what action to take moving forward. Please be honest as to whether or not you are going to screw me here.” That email resulted in the accused taking offence and emailing in response, a lengthy incoherent diatribe ending with, “I love you, I always did, I always will. I’ll never do anything to harm you and you have no reason to fear me. Goodbye.”

27The next day, July 10, the accused is parked in a parking area near the complainant’s workplace. He sees her and her boyfriend drive by. He then drove after them and briefly pulled his vehicle alongside at a nearby intersection. The parties looked at each other and then both left in different directions.

28Later that day, July 10, the accused sent the complainant an email saying: “I was in the park when you drove by, crying over you, for you and your email nagged me all day long until I couldn’t hold it in. Now go buy a new bike and leave me alone.” The complainant responded the next day, July 11 with three further emails of her own; she concluded: “I am truly sorry about everything you are going through… I don’t know what you want from me I really don’t. I am slightly afraid of you and I feel that you do not respect me at all still. I have asked you not to follow me and you didn’t listen. Just like you, I get all messed up every time I see you or talk to you… I am truly sorry and if I could take away all your pain I would… I will leave you alone now sorry.” After several more emails, the last in the chain is from the complainant and states in part, “I have been thinking and please, please, please respect this. I cannot talk to you or see you. I don’t want to have to get a restraining order. This was my fault for contacting you and I apologize for that. It will not happen again I promise.”… “If you care at all about me, let me go and move on. And if I have to get a restraining order, that might put you in jail for breach or your conditions so for your sake too, respect this.”

29It would appear that there were further intermittent email or text message exchanges between the parties; although, as noted, the complainant acknowledged that a number of her emails had been lost. She conceded that several of her lost emails could be characterized as “conciliatory”.

30In particular, it would appear that in late July, 2012, the complainant sent an email to the accused saying in part, “I miss you.” She explained that this was sent when she was very drunk and she does not know why she sent it. This message from the complainant was responded to by a text from the accused dated July 30, 2012 in which he says in part, “It’s not cool… to give me hope, to send me a text like this and for me to learn of your plans to move in with another man. It breaks my heart over again, several times now it’s been done. Don’t you know how much I love you?”

31On August 16, 2012, the accused brought several items of furniture to the house of the complainant’s mother and dropped them on her doorstep. The complainant’s mother heard a loud bang and went to the front door and found the furniture on her steps. She did not communicate with the accused on that occasion. The complainant testified that she learned of this from her mother and was annoyed as she interpreted this as the accused having wrongly involved her family in their personal issues.

32On August 17, 2012, the complainant and her new partner were returning to their apartment building, only to be confronted by the accused at the entrance to the building. The accused had spotted them driving into the parking lot and had driven his car across the median and across a sidewalk and parked on a lawn adjoining the building and had then walked into the building. The complainant said that the accused had “chased” them into the building, which I accept as a fair description of this incident. Once inside, the accused introduced himself to the complainant’s partner who did not respond. The accused then asked the complainant if she had read his letter with the divorce proposal and she said that she had not. The complainant testified that the accused appeared disappointed, “his whole body sunk, he turned and walked out.”

33Later that day, a series of text messages were exchanged between the complainant and the accused. The accused suggested meeting to discuss a legal resolution and the complainant responded: “…my lawyer advised me to have absolutely no communication with you… don’t text me again… I want a divorce, I want my money and I want you to leave me alone”.

34By this time, the complainant had had enough and she contacted Detective Coyle who had been involved in the April 12 incident. The accused was arrested on the current charges some ten days later without any further intervening incidents.

Analysis

35The Court heard at length about the parties relationship prior to June 3, 2012, which is the date on or after which, for an 11 week period, the accused is alleged to have criminally harassed the complainant. The context is important. These two people were married and upon separation, in August 2011, had agreed on a trial separation to determine whether their relationship could be salvaged. This implied a certain level of ongoing interaction and communication. This is what occurred. Many of the interactions were stressful and some heated and emotional as one might expect in a marriage break-up. The accused generated a number of bizarre emails, essentially pleading for a reunion. The complainant read these and took them in stride. None of them were threatening. The communications and occasional interactions with the accused did place the complainant in an awkward position because she had embarked on another relationship and by late spring 2012, had decided against reconciliation. This situation caused her stress and anxiety.

36During this period, the get-togethers, the occasional intimacy, were all, broadly speaking, consensual in nature. Many of the contacts were initiated by the complainant. The accused had never threatened the complainant and indeed he was attempting in a very clumsy way to ingratiate himself with her. I conclude that the complainant’s predominate feelings towards the accused during this period was guilt, annoyance and frustration and a degree of anxiety resulting from the fact that from mid-March onward, she was involved in another relationship.

37The Crown relied on R. v. Cromwell, 2008 NSCA 60, [2008] NSCA 60, 266 N.S.R. (2d) 268, a case in which:

The accused claimed that the on-again, off-again nature of the relationship left him an honestly mistaken belief that the victim was open to reconciliation. In rejecting this argument, the trial judge held that the comments in the letters, their nature, and their tone allowed for only one conclusion: the accused knew that his repeated communications were harassing to her.

The Court noted at para. 41:

Individuals may feel a noble cause or justification for any actions that they may take. This does not necessarily excuse them from criminal liability. It would be difficult to conceive of a more appropriate circumstance in which the distinction can be made than a criminal harassment case. That is, one party's obsession towards the other culminates into an indifference or recklessness as to how the other feels. In the warped value system that has been embraced, the person hopes the other will eventually reciprocate. This gives rise to the unpredictability and dangers that the legislation seeks to avoid.

38It was not until June 4, 2012, that the complainant clearly and unequivocally told the accused, in the email referred to above that she wanted no further contact or communication with him other than through lawyers for the purpose of divorce. The accused in fact respected this and there was no further communication or interaction on his part for a period of 35 days. The previous day, June 3, the accused had what the complainant described as a chance meeting with her and a girlfriend. The complainant asked the accused to follow them to their nearby destination and a brief conversation ensued between the accused and the complainant in a hotel parking lot. The complainant did not suggest in her testimony that this brief interaction with the accused frightened her rather, she said, she felt sorry for him.

39Unfortunately, on July 9, the complainant began a further email exchange with the accused in relation to her goal of obtaining several items of furniture in the accused’s possession. This resulted in some unpleasant correspondence during the period July 9-11. The accused was not being cooperative about handing over the furniture and the complainant was evidently frustrated and annoyed. The accused’s emails were encumbered by bizarre rants and nonsensical and contradictory statements but were not threatening. My conclusion from the complainant’s evidence was that she was annoyed and exasperated, but not frightened.

40In my respectful opinion, the Court must not too hastily characterize the stress and anxiety arising from a marriage break-up and stressful negotiations as harassment, even if one or both parties feel harassed. Threats and intimidation are of course quite another matter however I do not find that that occurred here.

41During the month of July, the complainant acknowledged having sent several, what she described as, “conciliatory” emails or text messages to the accused, including one saying “I miss you”. She did not suggest this was done out of fear or intimidation but rather, she explained, she was trying to stay on his good side until she got her property back, or was feeling guilty or sorry for him or she was drunk at the time and simply can’t recall. Absent from her explanations was the suggestion she was afraid for her personal safety.

42The accused had several interactions with the complainant’s parents that upset her but I can find no evidence that he deliberately did anything significantly improper where her parents were concerned and certainly nothing that could constitute harassment of the complainant. On July 30, he handed over several pieces of furniture to the complainant’s mother and her husband who had come to pick up these items. This was apparently cordial. The accused handed the mother a letter to give to the complainant in which he had written out his proposal to resolve their property issues, among other things. Later that day, the mother handed this letter to the complainant, as the accused’s had requested. The complainant testified that she glanced at it and then told her boyfriend to shred it, which he did.

43On August 16, the complainant’s mother heard a loud band at her door, only to discover that someone had deposited several pieces of furniture belonging to her daughter on her doorstep. The accused admitted in evidence he had done this. He denied kicking or banging the door. The complainant testified that when she learned of this from her mother, she was very annoyed because the accused was involving her family and being rude to her mother. I see nothing in this incident that appeared designed to frighten or intimidate the complainant. The complainant’s reaction, understandably, was annoyance or anger.

44August 17 is a significant date in that it marks, in my view, the first real example of deliberate harassment. The accused, having spotted the complainant and her boyfriend heading into the parking lot of their apartment building, reversed direction, drove his truck over the median and the sidewalk, parked on the grass and raced into the building to confront the complainant and her boyfriend. He then introduced himself to the boyfriend, who simply walked away to the elevator. When the accused asked the complainant if she’d read the letter he’d given to her mother. She replied, “No, you need to leave.” He left immediately. What ensued later that evening was another text message exchange in which he tried to persuade the complainant to meet him for coffee to settle their legal affairs, “…mature talk…I’m sure we can be sensible and respectful.” She responded, “…don’t text me again… I want a divorce… I want my money and I want you to leave me alone.” This was the last communication from the accused. The complainant contacted the police later that day and the accused was arrested on Sept 7, 2012.

45In order to convict on the charges, the Court must be satisfied beyond a reasonable doubt that the accused’s conduct was harassing and caused the complainant to fear for her personal safety. In my view, the August 17 incident was the only incident of pure harassment.

46However, even on that date, the accused was attempting to discuss the divorce proposal he had set out in the letter given to the complainant’s mother and which unbeknownst to him, had never been read. His impulsive and uninvited visit to the apartment building aggravated and shocked the complainant and embarrassed her in front of her boyfriend. It also rekindled her anger at learning the previous day that he had dumped some of her furniture on her mother’s doorstep. I would not draw the inference that the complainant was in fear of her personal safety or well-being, as opposed to being very annoyed.

47However, the accused had never threatened the complainant nor, in my view, was he attempting to intimidate her. He was in considerable emotional distress himself. He was begging her to reengage with him and that served to frustrate, annoy and embarrass the complainant on several occasions. It brought unhappy memories of his conduct during the marriage. One wonders why a restraining order was not pursued.

48In any event, on all of the evidence I am left with a reasonable doubt as to whether the complainant was in fear of her personal safety. Moreover, the evidence about the accused repeatedly following the complainant from place to place did not rise beyond a suspicion that he was doing so and the repeated communications, for the most part, had an element of invitation or legitimate purpose (resolving the property issues) and I entertain a serious doubt that they constitute harassment, particularly in the absence of threats or intimidation.

49There will be a finding of Not Guilty on all 3 counts of the indictment.