Court File and Parties

COURT FILE NO.: SCA 97/15 DATE: 20170403 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – FELIX LINHARES Appellant

Counsel: Robert Wright for the Respondent David North for the Appellant

HEARD: October 20, 2016

On appeal from the findings of guilt entered by Justice Diane I. Oleskiw of the Ontario Court of Justice on August 6, 2015

MacDonnell, J.:

[1] On January 19, 2015, the Appellant appeared before the Ontario Court of Justice in Toronto and was arraigned on an information charging that:

(i) on or about the 14th day of April, 2014, at the City of Toronto, he repeatedly followed Lara Hoshowski from place to place, thereby causing Lara Hoshowski reasonably, in all the circumstances, to fear for her safety; and

(ii) on or about the 14th day of April, 2014, at the City of Toronto, without lawful excuse, he disobeyed the order made by Justice Paisley in the Superior Court of Justice to not come within 500 metres of Lara Hoshowski at any time for any purpose.

[2] The Crown elected to proceed by way of summary conviction and the Appellant pleaded not guilty to both counts.

[3] The Appellant and the complainant separated in November 2012 after 14 years of marriage. There was considerable acrimony in the aftermath of the separation. On October 18, 2013 Justice Paisley made an order that required, among other things, that “neither party shall attend within 500 meters of the other” except to facilitate access to the children of the marriage. As initially framed, the case for the Crown on both counts was based on an incident that was alleged to have occurred on April 14, 2014. In the course of her testimony, the complainant testified that the incident actually occurred on April 15, 2014. She also described two additional occasions on which, she alleged, the Appellant was within 500 metres of her, contrary to Justice Paisley’s order. Those additional incidents were said to have occurred on February 28 and March 28, 2014. At the conclusion of the complainant’s testimony, on consent, both counts were amended to allege a time frame of ‘between February 28, 2014 and April 15, 2014’.

[4] On August 6, 2015, the trial judge found the Appellant guilty as charged on both counts.

[5] The appellant appeals from conviction only.

I. The Evidence at Trial

[6] The sole witness called by the Crown was the complainant. The Appellant did not testify, but he did call one witness, a person who had made a video recording of the area in which the February 28 incident was said to have occurred.

[7] In brief, the complainant’s allegations in relation to the three incidents underlying the charges before the court were as follows. She testified:

(i) that on February 28, 2014 the Appellant was sitting inside his car in a small shopping plaza about 300 metres from the complainant’s residence;

(ii) that on March 28, 2014 the Appellant was sitting inside his car about 100 steps from where the complainant was picking up the couple’s children after school;

(iii) that on April 15, 2014 the Appellant parked his car on a side street along the route that the complainant normally took to work and waited for her to drive by.

[8] With respect to the February 28 incident, the complainant conceded that she never actually saw the Appellant in the plaza. What she saw, rather, was a motor vehicle that she believed to be his. In the end, the trial judge was not satisfied that that the Crown had proved that the Appellant was present in the plaza as alleged by the complainant.

[9] With respect to the March 28 and the April 15 incidents, the complainant testified that the Appellant knew the route that she would regularly take on her way to work and that he was aware of her routine for picking up the children from school. She testified that on both of these occasions she came upon the Appellant sitting in his parked car. On both occasions she took photographs of him driving away after she became aware of his presence. The photographs were entered into evidence at trial. The trial judge accepted the evidence of the complainant in relation to these two incidents and found that the Appellant was within 500 metres of her on both occasions. Further, she inferred from the Appellant’s awareness of the complainant’s routine that on both dates he knew that the complainant would be within 500 metres of where he parked.

[10] In addition to the complainant’s evidence in relation to the three incidents described above, the Crown was permitted to elicit an extensive litany of other allegations of abusive or intimidating conduct to which the complainant was subjected in the time period following the separation of the parties in November 2012. With respect to that conduct, the complainant either expressly alleged that the Appellant was responsible, implied that he was responsible, or suggested that he could have been responsible. That evidence included the following:

(i) The complainant testified that on Christmas Eve 2012, about a month after the separation, there was an altercation in the family home in the course of which the Appellant stripped off her clothes and threw her out of the house.

(ii) The complainant testified that in January 2013 the Appellant moved out of the marital home and into a condominium. However, she testified, “he would be back at the house every single night [and] during this time [he] would ask me to pull down my pants, would tell me he wanted….” Before the complainant could finish that sentence, the Appellant’s counsel objected on the basis that “all these allegations that she’s going to be going into were tried before Justice McLeod and [he] was acquitted of all of those charges in October of 2013”. Crown counsel responded that because the Appellant was charged with criminal harassment, the complainant’s testimony about the matters of which the Appellant was acquitted was admissible as part of the narrative and to show the complainant’s state of mind. The trial judge agreed that “the narrative of the marital relationship is relevant to an understanding of the offences before the court”, and stated that while she did not want to hear the details of the incidents underlying the charges of which the Appellant was acquitted, “that doesn’t mean I don’t hear the narrative of the relationship, even as of December 24, 2012…”

(iii) The complainant then took issue with the validity of the objection raised by the Appellant’s counsel. She asserted that the conduct she had been describing was not the subject of the charges of which the Appellant was acquitted. Without a resolution of that question, the complainant was permitted to continue as she had before the objection: she testified that in January and February 2014 “there were ongoing daily issues of him asking me to pull my pants down where I was, calling me a whore, engaging consistently in matters looking for conflict, telling me that he’s going to tell my children what I do, what I did, that I went and screwed somebody…”

(iv) At some point in 2013, after the Appellant had moved out of the marital home, the complainant decided to have renovations done in anticipation of listing the property for sale. While the renovations were occurring, the complainant and the children were living in a rented house in Etobicoke. However, the children would go to the marital home after school each day and wait to be picked up by the complainant. The complainant testified that on three occasions, she found that the locks had been changed.

(v) The complainant testified that at some point prior to March 2014 “my lawyer contacted me and informed me that she received a fax that morning containing copies of… emails I had written to two other lawyers asking for their advice on domestic matters”. She testified that the lawyer had also received postings that she (the complainant) had made to an online divorce forum. The complainant asserted that the Appellant was responsible for the fax to the lawyer, that he had obtained the material contained in it by hacking into her computer, and that he had done this in order to discredit her with her lawyer. She testified that after receiving the fax, her lawyer terminated the retainer.

(vi) The complainant testified that between January and April 2014 not only was her email account hacked but so too were her Facebook account and her bank account. She asserted, with respect to all of this, that the Appellant had been “spending money on getting people to hack into other people’s accounts”. She provided no basis for that assertion.

(vii) The complainant testified that as part of the financial disclosure in the ongoing family court proceedings she came to believe that the Appellant had made a purchase at a ‘spy gear’ store. She testified that she went to that store shortly after March 29, 2014 and spoke to the owners. She testified that they told her that they knew the appellant, that he had been a customer for about two years, and that his most recent visit had been ‘about a week or two’ earlier. She testified that when she asked what they had sold the Appellant, she was told that he was looking at tracking devices and that he had purchased something to track phone calls.

(viii) The complainant asserted, without an explanation of her basis, that the Appellant had material on his computer about “how to hack your wife’s bank account” and that he had material on his son’s computer about “how to accuse your spouse of child abuse”.

(ix) In the context of an assertion that the appellant “was actually spying on people, buying spy things, spending money on getting people to hack into other people’s accounts, faxing things to lawyers…”, the complainant testified that “I show up at my house, a board has been ripped off the window. Somebody’s gone into the house. I show up the next week to the house, somebody had broken into the shed…” She said that someone had cut the water pipe. “The newest thing is somebody is calling the building inspector and city on me. So every single week I get a notice… [It’s] constant nickeling at me, constant trying to do something to me”.

II. The Trial Judge’s Reasons

[11] The only specific reference made by the trial judge to any of the multiple allegations of prior misconduct occurred at the beginning of her reasons. She stated:

[Ms Hoshowski] said that [Mr. Linhares] was controlling and abusive during the marriage. The family home was at 32 Saunders Avenue… She testified that even after the accused rented a condominium, in January of 2013, he would come back to 32 Saunders Avenue every night to sleep on the floor to make it clear that it was his house and he could do what he wanted.

In the time leading up to the time frame of the information, Ms Hoshowski described her relationship with the accused as tumultuous and abusive. She described being harassed by someone. Her emails and many of her accounts were hacked and the locks were changed at 52 Saunders Avenue. Ms Hoshowski suspected the accused to be behind these acts but she was unable to prove it was him. The third time she found the locks changed at 32 Saunders she found the accused inside the home.

[12] After noting that in October 2013 the complainant had obtained a second Family Court order prohibiting the Appellant from being within 500 metres of her, the trial judge stated:

Ms Hoshowski testified that she was completely fearful of the accused because he made it very clear in their whole relationship that he did not believe in divorce, and that he would spend the rest of his life doing whatever he needed to do to make her life miserable and that he did not care what happened to him as a result. I have no reason to disbelieve that she was afraid of Mr. Linhares.

[13] The trial judge then addressed the specific allegations of the complainant with respect to February 28, March 28 and April 15, 2014. As I have said, the trial judge was not satisfied that the allegation in relation to February 28 had been established. She was, however, satisfied that the allegations in relation to March 28 and April 15 had been proved. Having made those findings, she turned to whether the elements of criminal harassment had been made out. In that respect, she was concerned as to whether two incidents were sufficient to establish that the Appellant had “repeatedly” followed the complainant from place to place. She resolved that question as follows:

Our Court of Appeal determined in R. v. Ohenhen, [2005] O.J. No. 4072 that the term “repeatedly” means more than once but not necessarily more than twice. Importantly, the court held that provided the conduct occurs more than once, the actus reus can be made out. It is a question of fact for the trial judge in each case whether there has been repeated conduct. The approach is a contextual one. The trial judge must consider the conduct that is a subject of the charge against the background of the relationship and/or history between the complainant and the accused.

As I indicated, I am satisfied that Mr. Linhares was within 500 metres of Ms Hoshowski on two occasions, that is on March 28 and April 15, 2015, given: One, his knowledge of her routines and routes; Two, his knowledge that she did not want to be anywhere near him, which I infer not only from her evidence but also from his knowledge of Justice Paisley’s Order as a party present at the proceedings; and Three, the history of their relationship, particularly after separation. I find that he indeed “repeatedly followed” Ms Hoshowski and that his conduct indeed caused Ms Hoshowski reasonably to fear for her safety. [emphasis added] [1]

[14] With respect to the charge of disobeying a court order, the trial judge stated:

I am also satisfied that Mr. Linhares’ conduct on these two occasions constitutes the offence of disobeying a court order contrary to section 127 of the Criminal Code. Mr. Linhares knew about the existence of Justice Paisley’s order and a condition that he not be within 500 metres of Ms Hoshowski. Ms Hoshowski testified that he was present and he is listed as one of the parties present when the order was made. Mr. Linhares has not offered any reasonable excuse for his conduct. Accordingly, there will be findings of guilt on both charges.

III. The Grounds of Appeal

[15] The Appellant concedes that some of the evidence that the complainant gave concerning prior misconduct on his part was admissible for limited purposes, such as to explain why the complainant was fearful of him. However, he submits that “in fact the bulk of such evidence was gratuitous, irrelevant and overwhelmingly prejudicial”. More importantly, he submits, “apart from a single…ruling wherein she stated that certain evidence could be led for the purpose of advancing the narrative the trial judge thereafter failed to properly delineate how the remaining and extensive evidence of misconduct was to be used”. Further, the Appellant submits, “the trial judge’s reference to the ‘history of the relationship’ as a factor supporting her finding [of] guilty suggests that she used the impugned evidence for a purpose beyond mere ‘narrative’ or ‘state of mind’.”

[16] The Respondent submits that there was no error in the admission of the evidence of the Appellant’s prior misconduct nor in the use that the trial judge made of that evidence. The Respondent submits that “the evidence was presumptively admissible to prove that the complainant’s fear was reasonable, and to assess the intent or recklessness of the Appellant”, and that “the trial judge used this evidence only for the relevant issues – there is nothing to suggest that the evidence of prior conduct led to any form of reasoning prejudice. Rather, the trial judge reviewed the evidence of the history of conduct prior to finding that the complainant was afraid of Mr. Linhares, and in finding that the conduct met the definition of repeatedly following and caused her to reasonably fear for her safety. These are the appropriate uses of this evidence”. Further, the Respondent submits, “this was a judge alone trial. The trial judge was alive to the appropriate uses of the evidence”, and “there is no indication in the Reasons for Judgment that the trial judge misused this evidence in any way.”

IV. Discussion

[17] It is common ground that in a criminal harassment prosecution, “the history of the relationship between [the parties] is relevant in terms of providing background and context for a proper consideration of the charges before the court”: R. v. D.D. (2005), 203 C.C.C. (3d) 6 (Ont. C.A.), at paragraph 20. Evidence of a defendant’s prior conduct toward the complainant may be admitted as going to the state of mind of the complainant during the time period covered by the indictment and to whether the complainant’s fear for her safety was reasonable in all of the circumstances: R. v. Krushel (1999), 142 C.C.C. (3d) 1 (Ont. C.A.), at paragraphs 16-17. It may also be admitted to provide a context within which to assess “whether the conduct of the [defendant] was of such a nature that he knew that the conduct would cause the complainant to be fearful or that he was reckless as to whether or not she was fearful, an essential element of the offence of criminal harassment. Such evidence would also provide the necessary context in which to consider whether her fear was objectively justifiable”: D.D., at paragraph 16. The evidence is not admissible, however, to show merely that the defendant was the kind of person who was likely to have committed the offence.

[18] Relying on those principles, the Crown adduced a substantial body of evidence alleging misconduct by the Appellant prior to the time period covered by the indictment. Some of that evidence concerned conduct that the complainant herself saw and heard; some of it concerned conduct that she heard about from others. The principles that make evidence of prior conduct admissible in a criminal harassment prosecution do not carve out an exception to the rule against hearsay. If the truth of an allegation of prior misconduct is relied on, the allegation must be supported by admissible evidence. Assuming without deciding that what the complainant was told by others was admissible not only for the non-hearsay purpose of establishing the complainant’s state of mind, i.e., that she was afraid of the Appellant, but also to establish that her fear was reasonable, it was not admissible to prove that the Appellant actually did what others alleged that he did.

[19] The Appellant’s central complaint is that the trial judge failed to explain how she dealt with the multiple allegations of prior misconduct made by the complainant. The trial judge never made findings in relation to the majority of those allegations. The only ones that were mentioned in her reasons were the allegations of email hacking and changing the locks on the doors to 52 Saunders – she said that the complainant “suspected the accused to be behind these acts but she was unable to prove it was him“. She made no reference to any of the other allegations of prior misconduct. As I have said, some of those other allegations were based squarely on hearsay. For example, apart from what the complainant was told by others there was no evidence that the Appellant had faxed the complainant’s emails to her Family Court lawyer, or that from the time of the separation he had been a regular visitor to and customer of a spy gear store, or that he had expressed interest in acquiring tracking devices from the spy gear store. The latter allegation was of particular concern because it related to the very time period when the Appellant was alleged to have been ‘repeatedly following’ the complainant from place to place. Because the trial judge never mentioned this evidence at all, the use, if any, that was made of it cannot be determined.

[20] Further, the trial judge never specifically identified the issues to which she considered the evidence of prior conduct to be relevant. The only time relevance was addressed during the trial was near the beginning of the complainant’s testimony when counsel for the Appellant objected to the Crown leading evidence of conduct of which the Appellant had been acquitted. In that regard, the trial judge stated “the narrative of the marital relationship is relevant to understanding the offences before the court”. There was no elaboration as to what issues the narrative of the relationship could shed light on, and a fortiori no indication of any limitations on the use to which the narrative could be put. At the outset of her reasons for judgment, the trial judge implicitly held that the history was relevant to the complainant’s state of mind, to establish that she was fearful of the Appellant, but there was no indication, express or implicit, that it was only relevant for that purpose.

[21] In a judge alone trial, a judge is not required to instruct herself in the same manner as she would instruct a jury. She is presumed to know the law: R. v. Burns, [1994] 1 S.C.R. 656 at pp. 664-65. The mere fact that the trial judge did not advert to the limitations on the use that could be made of the evidence of the Appellant’s prior conduct does not necessarily give rise to an inference that the evidence was misused. However, the failure to address those limitations in this case became important when the trial judge turned to whether the elements of criminal harassment had been proved.

[22] The trial judge was concerned as to whether the Appellant’s conduct on March 28 and April 15 was sufficient to establish that he had “repeatedly” followed the complainant from place to place. After reviewing the reasons of the Court of Appeal in R. v. Ohenhen, supra, she correctly concluded that the approach is contextual and that “the trial judge must consider the conduct that is a subject of the charge against the background of the relationship and/or history between the complainant and the accused.” Applying that approach, she concluded that in light of (i) the Appellant’s knowledge of the complainant’s routines and routes, (ii) his knowledge that the complainant did not want to be anywhere near him, and (iii) “the history of their relationship, particularly after separation”, the Appellant had repeatedly followed the complainant, causing her reasonably to fear for her safety. [emphasis added]

[23] The ‘history of the relationship’ in this case consisted almost entirely of the complainant’s allegations of prior discreditable conduct on the part of the Appellant. The failure to make findings in relation to the majority of those allegations left the Appellant with no way to know which of them were relied on to establish an essential element of the offence charged. Because the trial judge never adverted to the limited use that could be made of the evidence of prior misconduct, it cannot be determined whether the evidence was used only for proper purposes. And because the trial judge never elaborated on what ‘the history of the relationship’ encompassed, there is no way to be satisfied that she did not include in that history the allegations that were based on hearsay evidence. As I stated earlier, I am prepared to assume that what the complainant heard from others was admissible to establish both that she feared for her safety and that her fear was reasonable. It was not admissible, however, to establish what the Appellant’s prior conduct actually was. That is, it was not admissible to establish “the history of the relationship” for the purpose of the analysis contemplated in Ohenhen. Whatever evidence was relied upon for that purpose had to be admissible for its truth.

[24] An accused must not be left in doubt as to why he was convicted and must have a meaningful opportunity to pursue the avenues of appeal open to him. Where the path taken by the trial judge through the evidence is not apparent, “or there are difficult issues of law that need to be confronted but which the trial judge has circumnavigated without explanation”, an appeal court may find itself unable to give effect to the statutory right of appeal: R. v. Sheppard, 2002 SCC 26, at paragraph 46. Where the reasons for judgment leave an appellate court unable to meaningfully exercise appellate review, the conviction cannot stand: R. v. Lagace (2003), 181 C.C.C. (3d) 12 (Ont. C.A.), at paragraph 31.

[25] The failure of the trial judge to make findings of fact in relation to the extensive evidence of prior discreditable conduct led by the Crown and to explain the use that she made of that evidence leaves the basis upon which an essential element of the offence was found to be established unclear, and leaves this court unable to meaningfully review whether the use of that evidence was restricted to the limited purposes for which it was admissible. Accordingly, the conviction for criminal harassment cannot stand.

[26] I reach a different conclusion with respect to the conviction for disobeying a court order. In the end, there was really no dispute that the Appellant was where the complainant alleged that he was on both March 28 and April 15 and that it was within 500 metres of her. The only live issue was knowledge. The trial judge gave reasons for her finding that knowledge had been proved, and those findings were made on the basis of evidence unrelated to the Appellant’s prior misconduct. Accordingly, I would not interfere with the conviction for disobeying a court order.

V. Disposition

[27] For the foregoing reasons, the conviction for criminal harassment is set aside and a new trial is ordered. The appeal from conviction for disobeying a court order is dismissed.

[28] The sentence imposed on the criminal harassment charge – a suspended sentence with three years probation – was made concurrent to an identical sentence for the charge of disobeying a court order. The latter sentence stands. In light of that, the Crown may wish to consider whether it is in the interests of justice to proceed with a new trial.

MacDonnell, J.

Released: April 3, 2017

[1] I suspect that this paragraph has been mis-punctuated, and that a period, rather than a comma, is meant to follow “April 15, 2015” and that a comma, rather than a period, is meant to follow “separation”.