Citation R. v. Thornton 2017 ONSC 5428
Court File No. CR-16-018-00AP
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
LARRY THORNTON
REASONS FOR JUDGMENT
REASONS FOR SENTENCE
BEFORE THE HONOURABLE JUSTICE R.D. CORNELL
on June 27th, 2017
at Parry Sound, Ontario.
APPEARANCES:
W. Beatty Counsel for the Crown
R. Johannesson Counsel for Mr. Thornton
CITATION R. v. Thornton 2017 ONSC 5428
TUESDAY, JUNE 27, 2017
REASONS FOR JUDGMENT
CORNELL, J: (Orally)
Introduction:
This is an appeal from one conviction of criminal harassment and two counts of breach of undertaking. In accordance with the reasons that follow, the appeal is allowed.
Background:
Borrowing from the overview of the facts as set out in the appellant’s factum, and bearing in mind it was acknowledged by Crown counsel at the beginning of these proceedings that there is no real dispute about the facts, I will provide the background from the appellant’s overview as follows:
This case is about two middle-aged people divorced for almost twenty years, whose mutual loathing tended toward openly hostile. Ms. Carnegie and Mr. Thornton were married in 1990, separated in 1997 and divorced in 1999. They ended their relationship to the extent they could, but were obliged to deal with each other as the parents of B.J. and Miranda, and grandparents of Isaac.
During a passage of time, Ms. Carnegie and Mr. Thornton could barely bring themselves to be civil to each other, even for the sake of their beloved grandchild, Isaac, and their troubled and sick daughter, Miranda.
In the lead-up to Christmas 2014 through the holidays, and into January 2015, Ms. Carnegie and Mr. Thornton were dealing with difficult family issues. Miranda was mentally ill, and out of control. The Canadian Mental Health Association was involved in Miranda’s care. The Children’s Aid Society was involved with Isaac’s care. The CAS and the CMHA were urging Ms. Carnegie and Mr. Thornton to get along for the sake of Miranda and Isaac.
Ms. Carnegie and Mr. Thornton were communicating by text messaging on their respective cell phones. An exchange of texts began on December 17th, 2014. For two days they sniped, then for two days they rested. On the fifth day, he alleged slander; she told him to, “Grow up and get a life.”
On December 23rd, Miranda assaulted Ms. Carnegie. Miranda spent Christmas and New Year’s Eve in jail at Central North. Ms. Carnegie was caring for Isaac, and Mr. Thornton was trying to see him, but Ms. Carnegie was not answering his messages. The police tried to mediate the situation. Miranda got out of jail on January 8th, 2015, and Mr. Thornton took over her care. Ms. Carnegie, though, would not allow either Miranda or Mr. Thornton to see Isaac. The CAS and CMHA continued trying to smooth the family conflict.
Emotions ran high, and on January 21st, Mr. Thornton was charged with criminal harassment of Ms. Carnegie. He was released on an undertaking, including a condition that he, “Abstain from going to 6 Burritt Street, Apartment 3”, which was Ms. Carnegie’s residence, and not to communicate with her.
On January 21st and 26th, he left items on the landing in the hallway outside Apartment 3, and on January 27th, he sent a text message to Ms. Carnegie asking her to wish their son a happy birthday.
On January 29th, Mr. Thornton was charged with breaching his release twice, by attending 6 Burritt Street to drop of gifts, and once by sending a text message.
At trial, Mr. Thornton plead guilty to breaching the condition not to communicate with Ms. Carnegie, by sending a text message on January 26th, 2015. He plead not guilty to criminal harassment and the two remaining counts of breach of undertaking.
Issue: Criminal Harassment.
The appellant agrees that there are five requirements in order to obtain a conviction for criminal harassment. In particular, the appellant acknowledges that the complainant expressed that she had a fear of the appellant. The issue that is taken by the appellant is whether or not the complainant’s fear was reasonable in the circumstances. In other words, did the trial judge properly apply the objective test that it required by the fifth requirement.
Analysis.
In her decision, the trial judge states at page 15, line 25 as follows,
“And I accept the evidence of Ms. Carnegie that she had real fear and at the end of the testimony she did respond as follows, so Ms. Carnegie had a response at the end of her cross examinations – this is at page 119 of the transcripts: ‘I wasn’t happy to find out that people have to know that I’m afraid, especially him.’
There are some words in between, and I am carrying on further on that page 119, also said: ‘I don’t think it is smart to tell a bully that you’re afraid of them, because it’s going to get worse.’”
This is only point in the decision where the trial judge deals with the objective test mandated by the fifth requirement.
The Crown argues that the finding of “real fear” on the part of the complainant is enough to satisfy the objective test. It is not. There was no evidence offered by the Crown about any misconduct by the accused.
This issue was addressed in R. v. Linhares, 2017 ONSC 1975, at paragraph 18 where the court pointed out that in that case the Crown adduced a substantial body of evidence alleging misconduct by the appellant prior to the time period covered by the indictment. The Court goes on to note that some of that evidence concerned conduct that the complainant herself saw and heard; some of it concerned conduct that she heard about from others.
In paragraph 20 of Linhares, the court states as follows:
“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, expressed or implicit, that it was only relevant for that purpose.”
In this particular case, not only does the trial judge not explain how the narrative is to be applied, she cannot do so because there was no evidence lead of prior misconduct, and no evidence of the marital narrative whatsoever.
In view of this, there is simply no basis to make a determination about whether the complainant’s fear was reasonable in the circumstances. Accordingly, this constitutes a palpable and over-riding error that must be corrected on this appeal.
Issue: Breach of Undertaking.
Did the appellant breach his undertaking not to go to 6 Burritt Street, Apartment 3? In the view of the Crown, this question must be answered in the affirmative as a result of the appellant’s attendance to drop off a pamphlet on January 26th, and to drop off gifts for his son and grandson on January 28th.
Analysis:
It is acknowledged by all parties that the complainant’s apartment is on the third floor of this building. In order to access the apartment, it is necessary to climb some stairs and to cross the third-floor landing which provides access to Apartment 3 by way of a door between the hallway and the apartment.
In addressing this issue, the trial judge found at page 10, line 27 as follows:
“The landing on the third floor ‘serves no other purpose but to allow people...entry into Apartment 3...’ He did not enter her apartment, but the reality is that he was not to be at her place of residence, and by being in the landing area, was steps away, that he was on an order not to be there and being steps outside her residence, the only way into this apartment, to me, would constitute being at her residence.”
Faced with this factual background, the trial judge made an overriding palpable error in making that finding for the following reason.
The terms of an undertaking must be clear. Here, the undertaking referred only to Apartment 3. It did not contain any prohibition which is customarily found, not to be at a particular person’s residence, place of employment, place of worship, place of education, or not to be within one hundred metres of such premises. This undertaking was quite specific. It said he could not attend at Apartment number 3. Not to put too fine a point on it, but there was no prohibition from going to the building, or going to a common area such as a landing. There was no evidence put before me that the landing was part of Apartment 3. There was no lease produced during the course of the trial to indicate that the “demised premises” that would constitute Apartment 3 included the landing area. There was no evidence that the complainant had exclusive possession of the landing, or was required to maintain it. To bring the issue into some focus, I suggest that if someone were to be injured on the landing, there would be no finding of liability on the part of the complainant, because the landing does not form part of her apartment. That example indicates the difficulty with the position that the Crown has taken.
An undertaking, like an order to support a finding of contempt must be clear and precise. No finding of contempt can be made unless the order itself is very specific and quite certain. In this case, to a layperson such as the appellant, a literal reading of the undertaking simply prohibited him from going to Apartment 3.
This was not a case where the appellant was up to some mischief by attempting to be coy with the circumstances by leaving a bag of garbage or animal feces on the landing. Rather, he attended for a valid purpose, to drop off a pamphlet from the Canadian Mental Health Association, and to drop off gifts for their son and grandson.
If any further evidence of the problem with the wording of the undertaking needs to be found, it can be done so on the fact that after the appellant was arrested and released on January 29th, the police officer understood the problem that had been created by the original language of the original undertaking, and released the appellant on a new undertaking which specifically provided that the appellant was not to go the 6 Burritt Street. This is clear evidence of the lack of precision that existed with the initial undertaking. In any event, if there is a benefit of a doubt to be given, it must go to the accused person.
Conclusion:
The appeal is allowed and a new trial is ordered. In light of the concerns that I have raised about the breach of undertaking charges, the Crown may wish to consider whether it is in the interests of justice to retry those charges.
The appellant also seeks leave to appeal sentence and to have a new sentence imposed. This is necessary in connection with his plea of guilty to the one breach of undertaking where he received a sentence of 30 days concurrent.
THE COURT: Someone is going to have to help me with the ancillary orders here, because in the transcript that I am reading at page 48, the bottom, the Court says, ‘“Yes, yes, and there’s also – there will also be a D-N-A order that can be taken today. Officer Nicksie (ph) there is a D-N-A order and in addition, there will always be – is it 5 years Section 110 weapons prohibition order, Mr. Beatty.” Mr. Beatty, “Yes, thank you.” Court, “Section 110 5 years weapon prohibition order, victim surcharge,”’ but there’s no specificity what that applied to. And that....
MR. BEATTY: The D-N-A, Your Honour, if I could just interject.
THE COURT: Yes.
MR. BEATTY: That applies to the Section 145.
THE COURT: Pardon me?
MR. BEATTY: The D-N-A order will apply to the....
THE COURT: Is that a primary under criminal harassment?
MR. BEATTY: It’s a – it’s a – no.
THE COURT: Primary presumptive?
MR. BEATTY: No. The 145 is the breach. It is a enumerated secondary offence, and that’s – that’s why I believe she’s ordering it. In terms of the D-N-A with respect to criminal harassment, I think that’s the same boat. I think it’s still a....
THE COURT: Well, we just had an education program on this, so let me see what it says. One thing they made...
MR. BEATTY: Yes, 2-6 – 2-6....
THE COURT: ...one thing they made clear to us is that that type of order is not proper. That it is incumbent on the Crown to say I am seeking a D-N-A order as a – in connection with such-and-such charge as a primary compulsory. I am seeking a D-N-A under primary presumptive, or enumerated secondary offences. It is incumbent on the Crown to make that specification, and that the Court make the order for each and every count, and that did not happen here, so I have no idea what the order is. And we were told that where situations like that arise, that the D-N-A order will not be enforced.
MR. BEATTY: Okay, so Section 145 is an enumerated secondary offence, so that’s your breach. Section 264....
THE COURT: Okay, let me get there. Sorry, which section are we dealing with?
MR. BEATTY: Section 145, Your Honour. The breach recognizance.
THE COURT: I have – okay. So, it’s an enumerated secondary offence.
MR. BEATTY: And so is criminal harassment.
THE COURT: Well, I am allowing that appeal, so that’s not standing. I am just...
MR. BEATTY: Yeah.
THE COURT: ...trying to figure out what to do with the sentence I am dealing with on his – the charge he plead guilty to. 145, so that is 145(2)
MR. BEATTY: I think that for the D-N-A purposes, as long as it’s 145, Your Honour, I think...
THE COURT: Yes, it is just....
MR. BEATTY: ...that’s the....
THE COURT: It is listed as an enumerated secondary offence.
MR. BEATTY: Right.
THE COURT: So, it then is discretionary. So, are you asking for D-N-A on the breach that he plead guilty to?
MR. BEATTY: Yes, Your Honour.
...SUBMISSIONS ON SENTENCE...
REASONS FOR SENTENCE
CORNELL, J: (Orally)
On the conviction for which he plead guilty for the breach of undertaking, I grant leave and I impose a suspended sentence and one year probation. The terms and conditions are that he keep the peace and be of good behavior, and that he have no contact with Nora Carnegie, direct or indirect, and I also exercise my discretion to order that a D-N-A sample be taken.
THE COURT: Is there anything else that I need to address?
MR. BEATTY: I don’t think so, Your Honour. I think....
THE COURT: Just a moment to confer with the client, that’s all.
MS. JOHANNESSON: Thank you, Your Honour, just the mechanics of D-N-A.
THE COURT: All right, yes. Well that can be sorted out.
MS. JOHANNESSON: Yes.
THE COURT: He will have to wait and there will be a paper for the clerk to prepare. And Mr. Beatty, have I overlooked anything?
MR. BEATTY: I think, no, I think you’re – you’ve got it, Your Honour.
THE COURT: I’ve covered everything?
THE COURT: Oh yes, thank you. Yeah, so there is a victim surcharge here of $200. What time was given here in the original one? Was there time? I can’t see anything quickly here, where there’s any discussion of victim surcharge. Is he asking for time?
MS. JOHANNESSON: Yes, for 6 months please, Your Honour.
THE COURT: Mr. Beatty?
MR. BEATTY: Are you sure it’s $200, Your Honour? Crown proceeded summarily.
THE COURT: Oh it’s in, sorry, I’m so used to Superior Court. What is it in Provincial Court?
MR. BEATTY: I think it’s just $100.
MS. JOHANNESSON: $100.
THE COURT: $100?
MR. BEATTY: Yes.
THE COURT: Okay, so it’s $100. Do you want to talk to him about that?
MS. JOHANNESSON: Yes. He – that can be paid...
THE COURT: You can manage the hundred?
MS. JOHANNESSON: ...within 30 days.
MR. THORNTON: Yes, Your Honour.
THE COURT: Okay. All right. So I will allow no time for payment, that will just be paid, then. Thanks Mr. Beatty for clearing that up. I will just take a moment to endorse the indictment, or the notice of appeal, in this case. There is no indictment. Now just to prevent history from repeating itself, in this probation order, do you want me to say not to have any contact, direct or indirect with – and I’ll put the person’s name in – or to be within, you know, 50 metres of her place of residence, place of work?
MR. BEATTY: That’s fine, Your Honour. Thank you.
THE COURT: And you said it is Nora Carnegie.
MR. BEATTY: That’s correct. I think it’s on the face of the information, Your Honour.
THE COURT: Yeah, I am looking at the appeal book here, so, I just want to make sure I get the spelling right. Does that present any problems for your client?
MS. JOHANNESSON: No, Your Honour.
THE COURT: All right. So, I have endorsed the back of the appeal book as follows:
In accordance with oral reasons rendered, the appeal is allowed. The criminal harassment and two counts of breach of undertaking are remitted for a new trial. Leave to appeal the sentence for the one count of a breach of undertaking to which the appellant pleaded guilty is granted. On that charge, the accused is sentenced to a suspended sentence and 12 months’ probation with the following terms:
Keep the peace and be of good behavior.
Not to have any contact, direct or indirect, with Nora Carnegie, or to be within 50 metres of her place of residence or employment.
D-N-A order to issue, such order to be valid until enforced.
MR. BEATTY: Sorry, Your Honour, did you want a time for the reporting for probation?
THE COURT: Yes, people are asking me for that now, so it is report within 2 days. Is that the practice here?
MR. BEATTY: Yeah, that’s normal.
THE COURT: Okay, that’s fine. Thank you.
MR. BEATTY: Okay.
THE COURT: Yeah. Okay, so I have added a number 3 to the terms of the probation, report to a probation officer within 2 days, and then D-N-A order to issue, such order to be valid until enforced.
MATTER ADJOURNED
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))
Evidence Act
I, Tricia Rudy, C.C.R., A.C.T. certify that this document is a true and accurate transcript of the recording of R. v. Thornton in the Ontario Court of Justice, held at Parry Sound, Ontario, on June 27, 2017 taken from Recording 3011-CrtRm1-133832/17 which has been certified in Form 1.
(Date) (Signature of authorized person)
Transcript Order Received: June 29, 2017
Transcript Completed: July 8, 2017
For judicial review
Notified Ordering Party: July 18, 2017
NOTE: Photostat or Electronic copies of this transcript
are not certified and have not been paid for unless
they bear an original signature in blue, contrary to Ontario Regulation 91/14
Administration of Justice Act, May 2014.