ONTARIO

SUPERIOR COURT OF JUSTICE

PEMBROKE COURT FILE NO.: 14-1241-AP
DATE: August 6, 2015

B E T W E E N:

HER MAJESTY THE QUEEN

Anya Kortenaar, for the Appellant Her Majesty the Queen

Appellant

• and -

ANDREW HILDABRANDT

Self-Represented Respondent

Respondent

HEARD: August 4, 2015

REASONS FOR DECISION

McNamara, R.S.J.

1This is an appeal by the Crown from the acquittal of the respondent, Andrew Hildabrandt, of one count of criminal harassment contrary to section 264(2)(b) of the Criminal Code of Canada and eight counts of breach of undertaking contrary to section 145(5)(b) of the Criminal Code of Canada by the Honourable Justice R.G. Selkirk of the Ontario Court of Justice on December 11, 2014.

2This being a Crown appeal of an acquittal, it can only be on a question of law. To be successful the Crown must satisfy this appellate court that, but for the error of law, the verdict would not necessarily have been the same.

Background Facts

3Andrew Hildabrandt and Kari O’Brien married in September of 2009 and separated in October of 2012. They have a biological son, William, who was born January 13, 2011.

4The parties agreed to minutes of settlement in family court proceedings on March 8, 2013. Those minutes were in force on the date of the offences. The minutes established, amongst other things, that there was to be no verbal or written communication between the parties unless they both consented in writing or through counsel, and communication for their child was to take place through the use of a communication book which would travel with the child.

5The custody arrangement for William was “week-about”. Because Ms. O’Brien worked, Mr. Hildabrandt provided care for William while Ms. O’Brien was at work during her week with William.

6On May 3, 2014 Mr. Hildabrandt was arrested for criminal harassment for sending faxes to Ms. O’Brien’s work. He was placed on an undertaking to an officer in charge that on the printed form indicated he was to abstain from communicating directly or indirectly with Ms. O’Brien.

7On May 26, 2014 Mr. Hildabrandt wrote in the communication book. The communication book was passed to Ms. O’Brien at William’s exchange the next day. Mr. Hildabrandt wrote in the communication book several more times. Ms. O’Brien only wrote in the communication book once.

8In addition Mr. Hildabrandt managed the website for the Calvin United Church, a church that Ms. O’Brien attended. He wrote a public entry on that website that mentioned Ms. O’Brien by name.

9Ms. O’Brien e-mailed the communication book entries and website post to Constable Graveline of the OPP as she received them. In August of 2014 officers from the OPP arrested Mr. Hildabrandt. He was charged with one count of criminal harassment (encompassing the communication book entries and the website post) and eight counts of breach of undertaking (for the communication book entries).

Position of the Crown on Appeal

10With relation to the count of criminal harassment, the Crown submits that the trial judge made an error of law by relying on the absence of any prior consistent statement of fear to disbelieve the complainant. They submit that the complainant had not been cross-examined by defence counsel on “recent fabrication” (the absence of any prior consistent statements). As such they submit they were prohibited from leading into evidence any prior consistent statements by the victim about her state of fear.

11With relation to the acquittals on the counts of breach of undertaking, the Crown’s submission is that the trial judge made an error of law in concluding the respondent did not have the required mens rea.

Analysis

12I start with the count of criminal harassment. The trial judge did find that the evidence did not satisfy him that the complainant had a fear or that her fear was reasonable. I reject, however, the Crown’s submission that the trial judge’s primary reason was the absence of prior consistent statements.

13At page 4 of his reasons the learned trial judge states as follows:

“With respect to the criminal harassment, I agree that the Crown has established evidence of all of the essential elements except for whether or not there was a reasonable fear. I do not believe there was one. The complainant has never said to anyone, to my knowledge, until today that she had a fear. She made no complaints of such fear to Constable Graveline throughout the summer of 2014. She simply sent off a photocopy of the communication without any complaint at all. She made no request for the police to tell the accused to stop. There’s no statement or expression of fear. She expressed no worries at any time. She testified that she was worried for her safety and that of William’s, yet she continues up to today’s date and will again tomorrow, see the accused twice a day in the parking lot and continue to allow the accused to provide care for William. This is inconsistent with any reasonable fear that Mr. Hildabrandt might have caused her or towards William.”

14It is true that the trial judge did say that there was no evidence, of which he was aware, that the complainant said to anyone that she was in fear. He also, however, had asked Constable Graveline specifically whether other than the e-mails and attachments that had been filed in evidence, he had received any other communication from Ms. O’Brien. He responded that he had not. Justice Selkirk also referenced, importantly, the custodial and care arrangements in place for William as well as the pick up and drop off arrangements. Defence counsel had spent some time cross-examining Ms. O’Brien about those arrangements and the fact she had not brought an application in family court to vary the arrangements. That, in my view, is what led Justice Selkirk to state those arrangements were inconsistent with the allegation that the complainant feared Hildabrandt.

15Finally and most importantly to his credibility finding on the fear issue, Justice Selkirk, an experienced trial judge, heard the complainant testify in chief and be cross-examined and had the opportunity to observe her in the witness box giving her evidence.

16In his decision he correctly states the law and then applied the facts as he found them to that law. It was open to him to come to the conclusion he did. I do not accept, reading the evidence and his reasons as a whole, that his primary reason for rejecting the complainant’s fear was that it was a recent fabrication. He was not satisfied beyond a reasonable doubt that that element of the offence had been made out on the evidence as a whole.

17I turn now to the counts of breach of undertaking.

18The Crown concedes that one of the elements of that offence is that the accused had the requisite mens rea, which is to say the accused knowingly and voluntarily performed or failed to perform the act or omission which constitutes the actus reus of the offence. The trial judge, after correctly stating the mens rea requirement, found that having heard the parties testify and be cross-examined, he believed the respondent when he testified he thought the prohibition in the undertaking dealt with faxes and the like, but did not apply to the communication book that had gone back and forth between the parties for some time relating to the child. He indicates in his reasons at page 1 as follows:

“Mr. Hildabrandt simply continued to use the book as he had done in the past. The complainant made no complaint to the accused or anyone else about his use of the communication book. If it was alright with the complainant to pass the book back and forth and to write in it, then it is reasonable for Mr. Hildabrandt to believe it was permitted for him to do so.”

19On the evidence he heard and for the reasons given by the trial judge, it was open to him to come to the conclusion that the accused did not knowingly breach the condition nor was he wilfully blind. The finding that Mr. Hildabrandt had an honest belief that he was not in breach while using the communication book is entitled to deference. It is common ground that considerable deference should be afforded a trial judge in his or her findings of fact and proper inferences to be drawn from those facts.

20In all the circumstances, the appeal is dismissed.

Mr. Justice James McNamara

DATE RELEASED: August 6, 2015

PEMBROKE COURT FILE NO.: 14-1241-AP