COURT FILE NO.: CR-17-0076

DATE: 2019-02-07

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

E. Hellinga, for the Crown

• and -

PATRICK WILLIAM DEWEY

F. Thatcher, for the Defendant

Accused

HEARD: October 16, 17, 18, 22 and 24, 2018 at Kenora, Ontario

Mr. Justice J.S. Fregeau

REASONS FOR JUDGMENT

INTRODUCTION

[1] The accused has pleaded not guilty to seven counts on the indictment as follows:

Count 1: between the 26^th^ day of September 2016 and the 7^th^ day of December in the year 2016 at the Municipality of Sioux Lookout in the District of Kenora in the said Region, knowing that Detective Constable Nicholas Rhone is harassed or being reckless as to whether Nicholas Rhone is harassed did without lawful authority engage in threatening conduct directed at Detective Constable Nicholas Rhone and police officers in general thereby causing Detective Constable Nicholas Rhone to reasonably, in all the circumstances, fear for his safety and the safety of other Sioux Lookout police officers, who are persons known to Detective Constable Nicholas Rhone, contrary to Section 264(2)(d) of the Criminal Code of Canada.

Count 2: on or about the 15^th^ day of December, 2016 at the Municipality of Sioux Lookout in the said Region knowing that Crystal Hudson is harassed or being reckless as to whether Crystal Hudson is harassed, did without lawful authority repeatedly communicate with Marie Hudson, a person known to Crystal Hudson either directly or indirectly, thereby causing Crystal Hudson to reasonably, in all circumstances, fear for her safety, contrary to Section 264(2)(b) of the Criminal Code of Canada.

Count 3: on or about the 29^th^ day of December 2016 at the Municipality of Sioux Lookout in the said Region knowing that Crystal Hudson is harassed or being reckless as to whether Crystal Hudson is harassed did without lawful authority repeatedly communicate with Kendra Hudson, a person known to Crystal Hudson, either directly or indirectly thereby causing Crystal Hudson to reasonably, in all circumstances, fear for her safety, contrary to Section 264(2)(b) of the Criminal Code of Canada.

Count 4: on or about the 16^th^ day of February 2017 at the Municipality of Sioux Lookout in the said Region knowing that Crystal Hudson is harassed or being reckless as to whether Crystal Hudson is harassed did without lawful authority repeatedly communicate with Ralph Johnson a person known to Crystal Hudson, either directly or indirectly thereby causing Crystal Hudson to reasonably, in all circumstances, fear for her safety contrary to Section 264(2)(b) of the Criminal Code of Canada.

Count 5: on or about the 16^th^ day of February 2017 at the Municipality of Sioux Lookout in the said Region, knowing that Kendra Hudson is harassed or being reckless as to whether Kendra Hudson is harassed did without lawful authority repeatedly communicate with Ralph Johnson a person known to Kendra Hudson either directly or indirectly thereby causing Kendra Hudson to reasonably, in all circumstances, fear for her safety contrary to Section 264(2)(b) of the Criminal Code of Canada.

Count 6: on or about the 16^th^ day of February 2017 at the Municipality of Sioux Lookout in the said Region, did without lawful excuse disobey the lawful order made by Judge P. T. Bishop on the 4^th^ day of January, 2017 to, abstain from communicating directly or indirectly with any person named in the order, namely Crystal Hudson, contrary to Section 127 of the Criminal Code of Canada.

Count 7: on or about the 16^th^ day of February 2017 at the Municipality of Sioux Lookout in the said Region, did without lawful excuse disobey the lawful order may be Judge P.T. Bishop on the 4^th^ day of January 2017 to, abstain from communicating directly or indirectly with any person named in this order, namely Kendra Hudson, contrary to Section 127 of the Criminal Code of Canada.

Summary of the Evidence

The Case for the Crown

Detective Constable Natalia Gauthier

[2] D/C Gauthier has worked at the Sioux Lookout detachment of the Ontario Provincial Police since 2008. She has been familiar with the accused and Crystal Hudson since approximately 2010. D/C Gauthier testified that her review of the OPP records management system informed her that the accused had a history of approximately 38 convictions for various offences involving Crystal Hudson, the majority for breaching court orders. No details or dates were provided.

[3] On December 15, 2016, D/C Gauthier spoke with Crystal Hudson in response to a complaint that her mother, Marie Hudson, had received a letter from the accused. D/C Gauthier was advised by Crystal Hudson that she had not read the letter, but that her mother had advised her of the contents.

[4] Marie Hudson provided the undated letter and an envelope addressed to her to D/C Gauthier. The return address on the envelope was Patrick Dewey, 430 River Drive, Kenora, Ontario, P9N 1KS. The envelope was postmarked December 14, 2016. D/C Gauthier identified this return address as the address of the Kenora District Jail.

[5] D/C Gauthier obtained statements from Marie Hudson and Crystal Hudson. D/C Gauthier learned that Crystal Hudson feared the accused and that Marie Hudson feared for the safety of her daughter, Crystal Hudson, and Crystal Hudson’s daughter, Sarah Hudson. Sarah Hudson is the biological child of Crystal Hudson and the accused.

[6] D/C Gauthier testified that she observed Crystal Hudson to be upset, visibly shaking and crying when speaking to her about the letter received by her mother. An Ontario Court of Justice Final Order dated October 25, 2016, which prohibited the accused from contacting or communicating with Crystal Hudson, was in effect at this time.

[7] On January 2, 2017, D/C Gauthier again met with Crystal Hudson in response to another complaint made by her to the OPP. Crystal Hudson was in receipt of a letter addressed to her daughter Kendra Hudson which she had not opened. The unopened letter/envelope was given to D/C Gauthier by Crystal Hudson. It had the same return address as noted above and was postmarked December 21, 2016. D/C Gauthier opened the envelope and found it to contain a four page handwritten letter.

[8] D/C Gauthier observed Crystal Hudson to be upset when she gave the letter to the officer. D/C Hudson took a statement from Kendra Hudson on January 21, 2017, three weeks later. The officer observed Kendra Hudson to be “very quiet” and “frustrated” at this time about having received a letter from the accused after both her mother and grandmother had previously received letters. Kendra Hudson advised D/C Gauthier that she had blocked the accused on Facebook at some point in the past because she had received unwanted messages from him.

[9] On February 17, 2017, D/C Gauthier was once again contacted by Crystal Hudson, who advised the officer that her uncle, Ralph Johnson, had received a letter from the accused. Apparently Marie Hudson had advised Crystal Hudson of the contents of this letter.

[10] D/C Gauthier was provided with an undated, handwritten letter and envelope addressed to Ralph Johnson, Nishnawbe Friendship Centre, Sioux Lookout, with the same return address as the previous letters.

[11] The letter had been given to Ralph Johnson by somebody from the Friendship Centre. D/C Gauthier took a statement from Ralph Johnson. D/C Gauthier observed Ralph Johnson to have been upset, angry and concerned for the safety of Crystal Hudson and Kendra Hudson.

[12] As this letter included references to Kendra Hudson, D/C Gauthier also spoke with her. Kendra Hudson had been told of the contents of the letter as they pertained to her and expressed her disgust about those references and anger that the accused continued to bother members of her family. Kendra Hudson also advised D/C Gauthier that she was worried about her safety and the safety of her mother and other family members.

[13] On cross examination, D/C Gauthier was referred to the December 2016 letter addressed to Marie Hudson. She agreed that she had not attempted to confirm that the accused was the author of that letter. The officer further agreed that nothing in the letter to Marie Hudson asked Marie Hudson to communicate in any way with either Crystal Hudson or Kendra Hudson.

[14] D/C Gauthier also conceded that the letter addressed to Ralph Johnson did not contain any request that he or anyone contact Crystal Hudson or Kendra Hudson or pass on any information to either of them.

[15] D/C Gauthier was next referred to the letter postmarked December 21, 2016, and addressed to Kendra Hudson. She confirmed that neither Kendra Hudson nor Crystal Hudson had read the letter. The officer also confirmed that Kendra Hudson was residing with her mother Crystal Hudson at the time the letter was received.

Crystal Hudson

[16] Crystal Hudson is the mother of Sarah, Brandon and Kendra Hudson, 11, 17 and 21 years old respectively. Crystal Hudson has known the accused since 2004. They had an on/off relationship subsequent to 2004, including a one week period of cohabitation in 2006. Crystal Hudson confirmed that the accused is the father of Sarah Hudson. Their relationship ended in 2010.

[17] Crystal Hudson testified that she has had both friendly and unfriendly encounters with the accused over the years and that she has called the police on him and been to court in respect of him on numerous occasions. Crystal Hudson testified that she generally called the police in regard to the accused because he would not leave her alone when she asked him to do so or because he would hang around and continually return to her residence against her wish.

[18] Crystal Hudson testified that when she heard from or of the accused as a result of letters or messages he sent Kendra Hudson or Marie Hudson she would get very upset, feel shaky and be unable to work. Crystal Hudson changed her phone number on multiple occasions and installed “door jammers” at her home as a result of the accused’s unwanted contacts with her and her family.

[19] Crystal Hudson testified that the accused had apparently sent a letter to her at her place of employment in December 2016, which she found “upsetting”. This letter was not put into evidence. Crystal Hudson testified that this and other contacts from the accused cause her to worry about the safety of herself and her two daughters. Crystal Hudson testified that she went as far as creating notes as to where she wanted her children to go if anything happened to her. She further counselled her children to do their best in school because she may not be around to care for them. Crystal Hudson testified that she is constantly concerned about being either hurt or killed by the accused. She testified that she is always worried and always fearful for her children.

[20] Crystal Hudson testified that she was once again upset when she received the letter addressed to Kendra Hudson, although neither she nor Kendra Hudson opened this letter. Crystal Hudson next testified about the letters received by her mother, Marie Hudson, and her uncle, Ralph Johnson. Crystal Hudson testified that she is very close with her mother and that they speak daily. She is not close with Ralph Johnson and they speak infrequently and only casually.

[21] On cross examination, Crystal Hudson testified that she read parts of the letter addressed to Kendra and that her mother told her “a little bit” about the contents of the letter she had received.

Kendra Hudson

[22] Kendra Hudson testified that she was not really acquainted with the accused other than as a past dating partner of her mother. She testified that the accused stalked and harassed her mother after their relationship ended and that he continued to do so even after her mother obtained a restraining order against him.

[23] Kendra Hudson testified that the overall situation makes her feel angry and frustrated and that she just wants it to stop for her mother and their family. She testified that the accused had contact with her “over Facebook”, but that she could not recall when or what was said. Kendra Hudson testified that the accused also showed up at Tim Hortons when she was employed there between 2014 and 2017, apparently asking her if it was “OK” for him to apply for a job there. She was not “OK” with this and so advised her employer.

[24] Kendra Hudson testified about the letter addressed to her. She did not read the letter but was angry to have received it because she did not want to be involved “in this whole situation that my mom’s been dealing with for years.” Kendra Hudson read the letter received by Ralph Johnson. She testified that this letter included comments to the effect that “the spirits” say that the author of the letter and her were meant to be married and have children together. She was “really angry”, frustrated and disgusted by the contents of the letter. After having seen this letter, she was worried for her safety and the safety of her family members.

[25] On cross examination, Kendra Hudson confirmed that she did not read the letter addressed to her but that she had read the letter addressed to Ralph Johnson. She agreed that the latter did not contain any message directly to her and that it did not ask her to do anything.

Marie Hudson

[26] Marie Hudson testified that she is close with her daughter Crystal Hudson and that they speak often. She does not know the accused well. Marie Hudson testified that Crystal Hudson’s relationship with the accused had not been a good one and that it ended about 10 years ago.

[27] Marie Hudson testified about “the letter”. It was not clear if she was referring to the letter addressed to her at her workplace, Tikinagan Child and Family Services (“Tikinagan”), or the one addressed to Ralph Johnson. In any event, the letter made her feel “scared, worried” because “he doesn’t talk like a normal person. It’s like somebody that’s not all there.” She testified that she was scared that the accused might do something to her daughter or grandchildren “out of anger or disappointment or rejection.”

[28] Marie Hudson has worked at Tikinagan for 27 years and was “sure” that the accused knew she worked there. She recalled the accused attending at the Tikinagan offices, “a few years (ago) at least.” Marie Hudson spoke with the accused on that occasion. She testified that he told her that he wanted to talk to someone. She told the accused he could talk to an intake worker and proceeded to call one for him. Marie Hudson testified that the accused left without talking to a worker.

[29] Marie Hudson expressed a general concern about the accused returning to Sioux Lookout and harming her daughter or grandchildren “out of anger, frustration.”

[30] On cross examination, Marie Hudson confirmed that the accused did not ask her anything about her family when he attended the Tikinagan offices. She also confirmed that the letter that was addressed to her did not ask her to pass on any information to any person.

Ralph Johnson

[31] Ralph Johnson is a traditional Indigenous teacher and has operated a Natural Healing Program on Rainy Lake, Ont. for over 30 years. He otherwise resides in Sioux lookout.

[32] Ralph Johnson recalled receiving the letter addressed to him at the Friendship Centre in Sioux Lookout. He was concerned about the contents of the letter because it referred to the author having a relationship with and “intentions toward” Kendra Hudson. He showed the letter to his wife and to Marie Hudson and then referred it to the police.

[33] Ralph Johnson first recalled meeting the accused at Tim Hortons in Sioux Lookout in the fall of 2016. He testified that the accused was acting strangely and rambling about a robbery in progress at the Dollar store in Sioux Lookout as well as personal issues. Ralph Johnson found this to be odd because the accused was a stranger to him and there was no robbery occurring at the time. The accused gave no indication to Ralph Johnson that he was aware of Ralph Johnson’s connection to either Crystal or Marie Hudson.

[34] On cross examination, Ralph Johnson agreed that the contents of the letter he received did not contain any indication that the author intended to act on the dreams referred to therein. His recollection was that the letter did not ask that he show it to anyone or contact anyone.

[35] Ralph Johnson testified that when he was talking to the accused at Tim Hortons in the fall of 2016, he advised the accused that he ran a healing program and that he could contact him or attend the program at any time. He took the letter addressed to him as a “cry for help.”

Constable Pierre Nicholas Rhone

[36] Constable Rhone has been with the Sioux Lookout detachment of the OPP since 2013. On November 11, 2013, he was an assisting officer in regard to a complaint made by Crystal Hudson about the accused. The officer did not have any interaction with the accused on that date, however he checked police records and familiarized himself with the history of what he referred to as “domestic conflict” between Crystal Hudson and the accused.

[37] On January 13, 2016, Constable Rhone and other officers coming on shift that day were cautioned that the accused had been involved in several incidents over the previous several days and that officers were to “be on the lookout and use extra caution.”

[38] At 7:09 pm that day, Constable Rhone overheard a dispatch report that the accused was causing a disturbance at the local hospital. The officers and others attended at the hospital and observed the emergency room being evacuated because the accused, clad only in boxer shorts, had barricaded himself in the vestibule and was yelling and swearing. The accused was subdued and arrested. Constable Rhone learned that the accused had attended the hospital that day seeking mental health treatment and had become frustrated because he had had to wait. Constable Rhone inferred that the accused was initially upset prior to attending the hospital because he had been unable to speak with Crystal Hudson earlier that day.

[39] On August 3, 2016, Constable Rhone testified at a Family Court hearing in which Crystal Hudson was seeking a restraining order against the accused. At that time, based on his review of the history between the accused and Crystal Hudson and on a 2010 behavioural sciences risk assessment which suggested that there was a high risk of the accused being violent toward Crystal Hudson, Constable Rhone testified that the accused was a “significant risk” to Crystal Hudson.

[40] On August 3, 2016, the Ontario Court of Justice issued a Temporary Restraining Order prohibiting the accused from contacting or communicating with Crystal Hudson.

[41] On September 1, 2016, Constable Rhone was on patrol in Sioux Lookout and encountered the accused walking in an alley. Constable Rhone testified that he advised the accused that he “needed to immediately contact the family court in order to…find out what was going on.” Constable Rhone further advised the accused that he was not to contact or go near Crystal Hudson “or his daughter.”

[42] On October 11, 2016, the accused was in custody for allegedly breaching a “no contact” order in regard to Crystal Hudson. Due to uncertainty as to whether the accused had actually been served with a copy of the August 3, 2016, Order, Constable Rhone, at the request of the Crown Attorney, formally served the accused with a copy of the August 3, 2016, Order and explained the terms of this order to him.

[43] On December 6, 2016, at approximately 2:00 pm, Constable Rhone attended the Sioux Lookout hospital in response to the accused causing a disturbance. The accused was taken into custody and lodged at the OPP detachment. Constable Rhone testified that he attempted to “de-escalate” the accused in the detachment cells. Constable Rhone further testified that the accused, “clearly agitated” stated that he was “going to deal with it like they do in Iraq…and that he had people that could deal with it for him.”

[44] Constable Rhone asked the accused if he was threatening Crystal Hudson. Constable Rhone testified that the accused replied, “well no I’m not threatening them I’m threatening you” or “you guys”, which the officer took as a reference to the police. The officer testified that the accused went on to state that he had “people that can do things” and to talk about “pepper spraying the police.” Constable Rhone then left the cell area.

[45] As a result of his knowledge of the accused’s background in relation to Crystal Hudson and what he perceived to be an escalation in his behaviour, Constable Rhone testified that he was, at this time, seriously concerned and fearful that the accused would cause harm either to police officers or Crystal Hudson.

[46] On December 7, 2016, Constable Rhone was present when the accused was brought to bail court in Dryden. The accused caused a disturbance in open court and was taken back to the cell area at the direction of the presiding Justice of the Peace. Constable Rhone testified that the accused was highly agitated, yelling at him, kicking the cells doors, staring at him and saying something about what was going to happen to the police when he got out.

[47] On December 8, 2016, Constable Rhone reviewed the recent occurrences involving the accused together with what he referred to as “the totality of the circumstances.” The latter included an email dated October 3, 2016, which he testified was a “detachment wide email” sent out pertaining to the accused. Attached to this email was a “Man Cave Storage Wars” posting of a 30.06 rifle for sale and a response apparently by the accused in which he states, “I don’t have a gun license, but I will take it. We have a lot of pigs running around in my town of Sioux Lookout and I ran out of bacon.”

[48] On December 9, 2016, Constable Rhone had a conversation with Detective Constable Gail Fenalin about the accused. D/C Fenalin apparently advised Constable Rhone of an incident approximately one month earlier in which the accused was alleged to have stated that his father had taught him that “it was better to use a knife to kill someone than a gun because it was quieter.” The evidence failed to establish when this statement was allegedly made or to whom.

[49] As a result of this background and what he perceived to be the “very significant escalating…behaviour” of the accused, Constable Rhone concluded that he had reasonable and probable grounds to charge the accused with criminal harassment in relation to him and other Sioux Lookout police officers.

[50] On cross examination, Constable Rhone acknowledged that the accused had not been charged with any offence as a result of the Man Cave posting referred to above. The officer agreed that the accused had explicitly stated in his posting that he did not have a license to buy a gun, but maintained that he interpreted the posting as indicating that the accused was “actively intending to acquire a weapon.” Constable Rhone testified that this posting was one factor in a “constellation of factors” that led him to conclude that he had reasonable and probable grounds to lay the criminal harassment charge.

[51] Constable Rhone agreed that he had no knowledge of the accused physically assaulting Crystal Hudson during the time that he had been stationed in Sioux Lookout. He also agreed that he did not, when he came upon the accused on the street on September 1, 2016, specifically mention to the accused that there was a restraining order in place against him in regard Crystal Hudson. The officer conceded that he had no knowledge that the accused had been served with the August 3, 2016, Restraining Order, or that he was aware of the Order, prior to him serving it on the accused on October 11, 2016.

[52] Constable Rhone testified on cross examination that the accused acknowledged that he was threatening the police and not Crystal Hudson on December 6, 2016, and that the content of the threat included that he had people that could do things for him like pepper spraying the police in their cars. The officer confirmed that the accused had not threatened him or the police on January 13, 2016, September 1, October 11, October 12, 2016.

The Positions of the Parties

The Crown

[53] The Crown submits that they must prove the following factors beyond a reasonable doubt to establish the offence of criminal harassment:

1. That the accused engaged in the conduct set out in s. 264(2)(b) or (d) of the Criminal Code;

2. That the complainant was harassed;

3. That the accused who engaged in the conduct knew the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassed;

4. That the conduct caused the complainant to fear for her safety; and

5. That the complainant’s fear was, in all the circumstances, reasonable.

[54] The Crown submits that the court is required to take into account evidence of the entire context and the history of the relationship between the accused and Crystal Hudson in determining if the offences have been made out.

Count 1

[55] This count alleges that the accused criminally harassed Constable Rhone between September 26, 2016, and December 7, 2016. Soon after he began to work out of the Sioux Lookout OPP detachment in 2007, Constable Rhone was involved in an incident involving the accused and in which Crystal Hudson was the complainant. His review of the police records in relation to the accused informed him that the accused had been named in “dozens and dozens” of occurrences in which Crystal Hudson had been the complainant.

[56] The Crown submits that on January 13, 2016, Constable Rhone received general information during a pre-shift briefing that the accused’s behaviour toward Crystal Hudson had been escalating in recent days and that the accused had been combative with the police. Later on the same day, Constable Rhone attended the Sioux Lookout hospital in response to a complaint about the accused. The Crown submits that Constable Rhone described the accused’s behaviour that day as being threatening to the police. The accused had to be tasered to be subdued.

[57] The Crown submits that Constable Rhone next encountered the accused on December 6, 2016, at which time the accused was in custody at the Sioux Lookout courthouse and causing a disturbance. The Crown submits that the accused verbally threatened Constable Rhone or the police in general that day and that Constable Rhone was reasonably fearful that the accused would cause harm to Crystal Hudson and/or to police officers, given his knowledge of all background circumstances.

[58] The Crown submits that on December 7, 2016, while in bail court in Dryden the accused again caused a disturbance. Constable Rhone attended the cell area to talk to the accused. The Crown submits that the accused kicked the cell door, stared at the officer and stated, “What do you think is going to happen to you when I get out.”

[59] The Crown submits that Constable Rhone was also privy to the inter-office email dated October 3, 2016, in which the Crown submits the accused expressed an intention to purchase a firearm and harm Sioux Lookout police officers. This email was also sent by the Sioux Lookout OPP to Detective Constable Disher of the Justice Officials Protection and Investigation Section. The Crown submits that this is an indication that the accused was seen as a threat generally by the Sioux Lookout OPP.

[60] The Crown submits that all of the above establishes that the accused did engage in threatening conduct toward Constable Rhone and police officers in general and that such conduct caused Constable Rhone to reasonably fear for his safety and for the safety of other Sioux Lookout police officers.

[61] The Crown submits that the entire history of the accused’s conduct must be taken into account when assessing the reasonableness of Constable Rhone’s fear. The Crown submits that this includes;

1. The accused’s history of harassing Crystal Hudson for years;

2. The accused’s combative behaviour at the hospital on January 13, 2016;

3. The accused’s threats to pepper spray the police and to deal with them like they do in Iran or Iraq, together with his threatening behaviour and all other comments made by the accused on December 6 and 7, 2016; and

4. The October 2016 Man Cave posting in which the accused expressed an interest in acquiring a firearm accompanied by a reference to “pigs” in Sioux Lookout.

Count 2

[62] Count 2 alleges that the accused criminally harassed Crystal Hudson on December 15, 2016, by repeatedly communicating with her mother, Marie Hudson.

[63] Crystal Hudson called police that day because her mother had received a letter, apparently sent by the accused from the Kenora District Jail. Crystal Hudson had not read the letter but had been advised of the general contents by her mother. The Crown submits that Crystal Hudson was upset, shaking and crying as a result of her mother having received this letter.

[64] The letter did not ask Marie Hudson to pass on any information to Crystal Hudson. The Crown submits that it is reasonable to infer that Marie Hudson would share the fact of the letter with her daughter, given the closeness of their relationship.

[65] The Crown submits that the accused had previously communicated with Marie Hudson in the fall of 2016. The Crown submits that the accused attended at Tikinagan, knowing that Marie Hudson worked there, and spoke to Marie Hudson, asking to “speak to someone”. The Crown acknowledges that the accused did not make any direct utterances about Crystal Hudson or any other members of her family on that date. The Crown submits, however, that this attendance by the accused at Marie Hudson’s place of employment and his talking to her that day, represents a “communication” with her within the meaning of s. 264(2)(b) of the Code.

[66] The Crown submits that the contact with Marie Hudson at her place of employment and the December 15, 2016, letter to Marie Hudson establish repeated communications with Marie Hudson, sufficient for a conviction on Count 2.

Count 3

[67] Count 3 alleges that the accused criminally harassed Crystal Hudson on December 29, 2016, by repeatedly communicating with her daughter, Kendra Hudson.

[68] Crystal Hudson reported to D/C Gauthier that a letter arrived at her home addressed to Kendra Hudson, who lived with her at the time. The Crown submits that Crystal Hudson became worried and upset upon the receipt of this letter as the accused was now reaching out to her children. The Crown submits that Kendra Hudson received the letter and became angry and frustrated.

[69] The Crown submits that Kendra Hudson provided evidence of previous occasions when the accused allegedly communicated with her. These included messages to her on Facebook apparently from the accused and his attendance at Tim Hortons while she was working there. On this latter occasion, the Crown submits that the accused communicated with Kendra, inquiring if she objected to him applying for a job at the donut shop.

[70] The Crown submits that the Facebook messages, the accused’s speaking with Kendra Hudson at Tim Hortons and the December 29, 2016, letter to Kendra Hudson are sufficient to establish that the accused repeatedly communicated with Kendra Hudson, as alleged in Count 3.

Count 4

[71] Count 4 alleges that the accused criminally harassed Crystal Hudson on February 16, 2017, by repeatedly communicating with her uncle, Ralph Johnson.

[72] The Crown submits that the basis for this charge is the February 2017 letter the accused sent to Ralph Johnson, addressed to the Nishnawbe Friendship Centre in Sioux Lookout and delivered to Ralph Johnson. The Crown submits that the accused’s meeting with Ralph Johnson at the Tim Hortons in Sioux Lookout on an earlier occasion was also a communication with Ralph Johnson by the accused.

[73] Ralph Johnson found the contents of the letter disturbing. He interpreted the contents of the letter as an indication that the accused wanted to marry Kendra Hudson and have children with her. As a result, Ralph Johnson advised Marie Hudson of the contents of the letter. The Crown submits that Crystal Hudson and Kendra Hudson were then advised of the contents of the letter to Ralph Johnson. The Crown submits that Crystal Hudson became upset because the accused was once again reaching out to her daughter.

[74] The Crown submits that the contact between the accused and Ralph Johnson in the fall of 2016 at Tim Hortons and the February 2017 letter from the accused to Ralph Johnson establish that the accused repeatedly communicated with Ralph Johnson, as required in s. 264(2)(b) of the Code.

[75] The Crown conceded that there is no evidence to suggest that the accused sought out Ralph Johnson at Tim Hortons, as opposed to this being an incidental meeting between the two of them.

Count 5

[76] Count 5 alleges that the accused criminally harassed Kendra Hudson on February 16, 2017, by repeatedly communicating with Ralph Johnson.

[77] The Crown submits that the accused’s contact with Ralph Johnson in the fall of 2016 at Tim Hortons followed by his February 2017 letter to Ralph Johnson, as referred to above, also provides the actus reas of this offence as against Kendra Hudson.

[78] The Crown submits that Kendra Hudson testified that she became fearful for herself and for the safety of her family upon learning of the contents of this letter. The Crown further submits that the accused knew or ought to have known that Kendra Hudson would learn of the contents of the letter to Ralph Johnson.

[79] Addressing counts 2, 3 and 4, the Crown submits that the evidence clearly establishes that the accused’s actions caused Crystal Hudson to fear for her safety and that her fear was reasonable in all the circumstances.

[80] The Crown submits that any relationship between the accused and Crystal Hudson ended in 2010. Due to the unwanted actions of the accused in the years following the end of the relationship, Crystal Hudson changed her telephone number numerous times and installed some type of “door jammers” on the doors to her home. The Crown submits that the evidence establishes that the actions of the accused caused Crystal Hudson to be constantly worried about her safety and the safety of her children.

[81] The Crown submits that the mens rea requirement of criminal harassment is met if the Crown establishes that the accused intended to engage in the prohibited conduct knowing the complainant would be harassed or if he was wilfully blind or reckless as to whether the complainant would be harassed.

[82] The Crown submits that at the time of the alleged offences charged in counts 2, 3, 4 and 5, an Ontario Court of Justice Restraining Order was in place prohibiting the accused from contacting or communicating with Crystal Hudson and that the accused had been served with and was aware of the terms of the order.

Count 6 and Count 7

[83] These counts allege that the accused disobeyed the January 4, 2017, Non-Communication Order of Bishop J. of the Ontario Court of Justice by communicating with both Crystal Hudson and Kendra Hudson by way of his February 16, 2017, letter to Ralph Johnson.

[84] The Crown submits that the February 16, 2017, letter to Ralph Johnson was an indirect communication with both Crystal Hudson and Kendra Hudson in contravention of this Order.

[85] At trial, the defence conceded that the January 4, 2017, Non-Communication Order was in place on February 16, 2017, that it required the accused to abstain from communicating directly or indirectly with Crystal Hudson and Kendra Hudson and that the accused was aware of the terms of the order.

[86] The Crown submits that the accused knew or ought to have known that the contents of his February 16, 2017, letter to Ralph Johnson would be communicated to both Crystal Hudson and Kendra Hudson, despite the fact that the letter did not request that Ralph Johnson contact either of them.

[87] The Crown suggests that the court can infer that the accused knew of the relationship between Ralph Johnson, Crystal Hudson and Kendra Hudson because the letter specifically refers to both Kendra Hudson and Crystal Hudson.

The Accused

Count 1

[88] The accused submits that the evidence of Constable Rhone should be weighed very carefully by the court because a large part of it consisted of inadmissible hearsay and unqualified opinions.

[89] The accused submits that Constable Rhone’s evidence that he reviewed police records as to the accused’s background and found “dozens and dozens” of previous incidents between the accused and Crystal Hudson should be disregarded. It is submitted that Constable Rhone had no personal knowledge of these incidents and that there was no detail of these alleged incidents provided to the court which would enable the court to assess the incidents in the context of count 1.

[90] The accused takes issue with the suggestion that the Facebook posting in relation to the firearm be interpreted as an indication that the accused intended to obtain a firearm and to use it against the Sioux Lookout OPP. The accused submits that Constable Rhone acknowledged that the accused has no record for firearm offences or for threatening to use firearms in respect of anyone. The accused submits that it is equally reasonable to infer from this posting that the accused was simply voicing his general unhappiness with the Sioux Lookout OPP without an intention to act.

[91] In regard to count 1, the accused submits that the Crown is required to prove that the alleged threat or threats must amount to a tool of intimidation designed to instill a sense of fear in the recipient. The accused acknowledges that the posting was inappropriate but submits that it was not a threat, that no threatening charge was laid because of the posting and that it cannot be the basis for a charge of criminal harassment against the police.

[92] The accused submits that the only evidence proffered in regard to this count in addition to the Facebook posting is that of various statements made by the accused while in custody on December 6 and 7, 2016. The accused has never been charged with threatening in relation to any of these statement.

[93] The accused submits that any member of Canadian society is lawfully entitled to get angry and upset, mouth off at authority figures and say stupid things. The accused submits that this is what the evidence establishes occurred and that it is short of what is required to convict under s. 264(2)(d) of the Code.

Count 2

[94] The accused submits that the actus reas of this offence has not been made out. The accused submits that the only contacts the Crown suggests that the accused had with Marie Hudson were his attending at her place of employment and talking with her and the letter of December 15, 2016.

[95] The accused submits that the contact between the accused and Marie Hudson at the Tikinagan office was not a “communication” within the meaning of s. 264(2)(b) of the Code. The accused submits that Marie Hudson’s evidence was that the accused spoke with her and simply asked to “speak to someone” without any comments or discussions about Crystal Hudson or any other family members.

[96] The defence submits that the accused’s contact with Marie Hudson on this occasion could simply have been a random encounter with her when he attended at her place of employment for a legitimate purpose. In support of this submission, the accused submits that there is no evidence to suggest that the accused focused on Marie Hudson on this date or that he sought her out to the exclusion of other employees.

[97] The accused further submits that the December 15, 2016, letter to Marie Hudson is nothing more than unfocussed and scattered ramblings, with references to Marie Hudson as “mom” and seeking her assistance in getting the accused out of custody. The accused submits that this letter is not a “communication” within the meaning of s. 264(2)(b) of the Code.

Count 3

[98] The accused submits that Kendra Hudson provided no evidence whatsoever as to when the accused allegedly messaged her on Facebook. The accused submits that if the date of this alleged communication is unknown it cannot be relied upon in support of this count.

[99] The accused submits that the evidence of Kendra Hudson also fails to establish when the accused attended at the Sioux Lookout Tim Hortons and spoke with her. The accused further submits that the evidence establishes that on this occasion his communication with Kendra Hudson was limited to asking her if she would be opposed to him applying for a job at Tim Hortons, without any inquiries about Crystal Hudson, Sarah Hudson or Kendra Hudson herself.

[100] The accused submits that this can be interpreted to have been a courtesy on the part of the accused and that this court can infer that if Kendra Hudson did object he would not apply. The accused submits that there is no evidence that he did in fact apply for a job at Tim Hortons.

[101] The accused submits that the letter received by Kendra Hudson was rambling, disjointed, devoid of any form of threat and absent any request that Kendra Hudson pass on any of its contents or anything at all to Crystal Hudson. The accused further submits that this letter was not opened by either Crystal Hudson or Kendra Hudson such that any apparent fear of Crystal Hudson as a result of Kendra Hudson simply receiving this letter was unreasonable.

Count 4 and Count 5

[102] The accused submits that the letter received by Ralph Johnson on February 16, 2017, which forms the basis of these counts, is in a different category than the letters which form the basis for the charges set out in counts 2 and 3.

[103] The accused submits that it is open to this court to infer that the accused contacted Mr. Johnson in Mr. Johnson’s capacity as a traditional Anishinaabe teacher and in response to Mr. Johnson’s invitation that he was open to do so. The accused submits that Mr. Johnson acknowledged suggesting to the accused that he could contact him in the future when the two of them met at Tim Hortons the previous fall.

[104] In support of this submission, the accused submits that there is no evidence that the encounter between him and Mr. Johnson’s at Tim Hortons was anything other than an accidental, incidental meeting of the two. It is further submitted that, during this meeting, there was no discussion whatsoever about Crystal Hudson or any members of her family.

[105] The accused submits that his meeting with Ralph Johnson in the fall of 2016 cannot be considered a “communication” within the meaning of s. 264(2)(b) of the Code. In turn, the accused submits that the Crown has not established that he repeatedly communicated with Ralph Johnson, as required for counts 4 and 5.

Count 6 and Count 7

[106] The accused submits that the Crown must prove beyond a reasonable doubt that the accused communicated, either directly or indirectly, with Crystal Hudson and Kendra Hudson, in order to obtain a conviction on these counts. The accused submits that the Crown’s case on both of these counts is based only on the February 16, 2017, letter to Ralph Johnson and that this letter, in and of itself, is insufficient proof of indirect communication.

Discussion

[107] Section 264 of the Criminal Code establishes the offence of criminal harassment. Section 264(1) of the Code sets out the constituent elements of the offence which the Crown must prove beyond a reasonable doubt. Section 264(2) of the Code describes the four types of prohibited conduct to which subsection (1) refers and which must also been proven beyond a reasonable doubt.

[108] Pursuant to ss. 264(1) and (2) of the Code, the five essential elements of the offence that must be proven beyond a reasonable doubt are:

1. That the accused engaged in the conduct set out in s. 264(2)(b) or (d) of the Code;

2. That the complainant was harassed;

3. That the accused who engaged in the conduct knew that the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassed;

4. That the conduct caused the complainant to fear for her/his safety or the safety of persons known to the complainant; and

5. That the complainant’s fear was, in all the circumstances, reasonable.

[109] In Count 1, the accused is charged with the criminal harassment of Constable Rhone and other Sioux Lookout police officers by engaging in threatening conduct directed at Constable Rhone and police officers in general, contrary to s. 264(2)(d) of the Criminal Code.

[110] In R. v. Kosikar, 1999 CarswellOnt 2955 (Ont. C.A.), at para. 22, the Ontario Court of Appeal held that s. 264 of the Code simply requires that the threatening conduct cause the complainant to be harassed. The threatening contact can be constituted by a single act provided it carries as a consequence that the complainant is in a state of being harassed.

[111] In R. v. Sim, 2017 ONCA 856, the Ontario Court of Appeal reiterated their earlier endorsement, found in R. v. Burns, 2008 ONCA 6, of an objective standard for determining the actus reus of harassment by engaging in threatening conduct. At para 16, the court stated:

To establish harassment under s. 264(2)(d) of the Criminal Code, the Crown had to establish that the appellant engaged in “threatening conduct”. We accept the definition of threatening conduct given in R. v. George, 2002 YKCA 2 at para. 39 that, in order to meet the objectives of s. 264, the threatening conduct must amount to a “tool of intimidation which is designed to instill a sense of fear in the recipient”. The impugned conduct is to be viewed objectively, with due consideration for the circumstances in which they took place, and with regards to the effects those acts had on the recipient.

[112] In Kosikar, the Ontario Court of Appeal also provided guidance on the meaning of the word “harassed” s. 264(2) of the Criminal Code. At para. 25 the Court stated as follows:

I think this element of the offence requires the Crown to prove that as a consequence of the prohibited act the complainant was in a state of being harassed or felt harassed in the sense of feeling “tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered”.

[113] In R. v. Ohenhen, 2005 CarswellOnt 4631 (Ont. C.A.), the Ontario Court of Appeal considered the meaning of the term “repeatedly communicate” in s. 264(2)(b) of the Criminal Code. At para. 31, the Court stated the following:

The dictionary definitions of the words “repeat” and “repeated”, from which the adverbial form “repeatedly” is derived, lead me to conclude that conduct which occurs more than once can, depending on the circumstances of the case, constitute “repeated” conduct or conduct which is “repeatedly” done and the section is met…”repeatedly” obviously means more than once but not necessarily more than twice.

[114] At para. 32, the Court emphasized that the actus reus of s. 264(2)(b) of the Code can be made out if the conduct occurs more than once and that:

It will be a question of fact for the trier in each case whether there has been repeated conduct. The approach is a contextual one. The trier will consider the conduct that is the subject of the charge against the background of the relationship and/or history between the complainant and the accused. It is in this context that a determination will be made as to whether there has been repeated communication. On the facts of this case, it was clear that neither of the communications could be characterized as innocuous or accidental. In the context in which they were made, these two communications would be sufficient to constitute “repeatedly” communicating as set out in s. 264(2)(b). (Emphasis mine).

[115] In Ohenhen, at para. 33, the Court, in discussing the use of standard jury charge terms for this section of the Criminal Code, cautioned trial judges as follows:

It seems to me that defining repeatedly as being more than one communication is not always appropriate. In some cases, the jury will have to consider the context in which the communications were made, the intent of the accused and possibly other factors to determine whether the communications were repeatedly made or were innocuous or accidental. Perhaps a more appropriate instruction would be to advise the jury that communication that occurs more than once can constitute repeated communications depending on the context and circumstances in which they were made. (Emphasis mine).

[116] My conclusion from this brief review of the case law is that each instance of the conduct of the accused which the Crown relies upon to establish repeated communications must be accompanied by the required mens rea. In other words, at the time the accused allegedly engaged in each of the communications, it must be proven that the accused knew that the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassed.

Count 1

[117] In this count, the accused is charged with harassing Constable Rhone between September 26, 2016, and December 7, 2016, by engaging in threatening conduct toward him and police officers in general. The threatening conduct relied upon by the Crown in support of this charge includes the following:

1. The conduct and words of the accused directed toward Constable Rhone when the accused was in custody and in a holding cell on December 6 and 7, 2016. This included the accused stating that he would deal with his situation like they do in Iran or Iraq, that he had people who could deal with it for him, that he or someone would pepper spray the police, the accused’s confirmation that he was threatening “you guys”, meaning the police, together with the accused kicking the cell doors and staring at Constable Rhone;

2. The attachment to the inter-office email of October 3, 2016, in which the accused had responded to an online ad for a rifle by stating that “I don’t have a gun license but I will take it. We have a lot of pigs running around in …Sioux Lookout and I ran out of bacon”; and

3. D/C Fenalin’s advising Constable Rhone about a recent utterance of the accused that it was better to use a knife to kill someone than a gun.

[118] These specific comments or actions have to be considered together with Constable Rhone’s general knowledge of the background of the accused in the context of his relationship with Crystal Hudson. That background includes the fact that Constable Rhone had no direct knowledge of the accused physically assaulting Crystal Hudson or anyone else and that the accused had no record for weapons offences.

[119] I am not satisfied that the actions and words of the accused, taken collectively and considered in the context of Constable Rhone’s direct and indirect knowledge of the accused’s background behaviour, constitute “threatening conduct” within the meaning of s. 264(2)(d) of the Code.

[120] As set out in Sim, the impugned conduct is to be viewed objectively, with consideration for the context and with regard to the effect those acts had on Constable Rhone. The conduct must amount to a “tool of intimidation designed to instill a sense of fear in the recipient”.

[121] I accept the submissions of the accused that the rantings and actions of the accused while in custody on December 6 and 7, 2016, are consistent with an unstable person being incarcerated and acting out in frustration as opposed to being seen as intimidating conduct designed to instill fear in Constable Rhone. I certainly did not get the impression that Constable Rhone was either intimidated by or fearful of the accused on this or any other occasion.

[122] The accused’s response to the online ad for a rifle was also not threatening conduct directed at Constable Rhone or the Sioux Lookout OPP. Neither Constable Rhone nor the Sioux Lookout OPP were intended recipients of the accused’s response to the Man Cave ad, nor can it be said that the accused’s response was designed to instill fear in Constable Rhone or the Sioux Lookout OPP.

[123] I am also not satisfied that Constable Rhone was in fact harassed by the actions of the accused. This element of the offence requires the Crown to prove beyond a reasonable doubt that as a consequence of the actions of the accused, Constable Rhone was in a state of being harassed or felt harassed in the sense of feeling tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered. Whatever impact the actions of the accused had on Constable Rhone, an experienced police officer, I am not persuaded they came close to this standard.

[124] The accused is found not guilty on Count 1.

Count 2

[125] In this count, the accused is charged with criminally harassing Crystal Hudson on December 15, 2016, by repeatedly communicating with her mother, Marie Hudson. The Crown relies on two alleged communications between the accused and Marie Hudson in support of this charge. The first is the accused’s attendance at Marie Hudson’s place of employment at some point in the past. The second is the letter from the accused mailed to Marie Hudson and received by her on or about December 15, 2016.

[126] The Crown has suggested that the accused’s meeting with Marie Hudson at the Tikinagan offices in Sioux Lookout occurred in the fall of 2016 and is one of two repeated communications with her within the meaning of s. 264(2)(b) of the Code. I have two difficulties with this submission.

[127] First, Marie Hudson did not testify that this contact occurred in the fall of 2016. What Marie Hudson said was that the accused came to her workplace “a few years (ago) at least”. It is obvious that Marie Hudson did not know when this was. It cannot be inferred that it was in the fall of 2016.

[128] Second, Marie Hudson testified that during this attendance the accused did not appear to search her out specifically, did not mention Crystal Hudson or any other family members and in fact indicated that he wanted to “talk to someone” within the office. Given the fact that this contact occurred at least a few years ago and given that it could quite possibly have been an innocuous or accidental encounter by the accused with Marie Hudson, I am not able to conclude beyond a reasonable doubt that, at the time of the contact, the accused had the required mens rea. As a result, it has not been proven beyond a reasonable doubt that this communication was one of two repeated communications alleged in Count 2.

[129] That leaves only the December 16, 2016, letter from the accused to Marie Hudson as the basis for this charge. As single communication cannot be repeated communication within the meaning of s. 264(2)(b) of the Criminal Code, the accused must be found not guilty on Count 2.

Count 3

[130] In this count, the accused is charged with criminally harassing Crystal Hudson on December 29, 2016, by repeatedly communicating with her daughter, Kendra Hudson. The Crown relies on three alleged communications between the accused and Kendra Hudson in support of this charge. The first is past Facebook messages to Kendra Hudson from the accused. The second is the communication by the accused with Kendra Hudson at Tim Hortons in Sioux Lookout. The third is the letter from the accused addressed to Kendra Hudson at her mother’s Sioux Lookout home.

[131] Kendra Hudson could not recall anything about the alleged Facebook communications from the accused, including when they occurred, how many messages there were or what the content of the messages was. Given this complete absence of any information about this alleged communication the Crown has failed to prove that it was accompanied by the necessary mens rea.

[132] Kendra Hudson was also unable to date the alleged communication by the accused with her at Tim Hortons. At its best her evidence was that she worked at Tim Hortons between 2014 and 2017. The Crown submits that the contact must have therefore occurred within that time period. Kendra Hudson also candidly acknowledged that the accused only asked her if she objected to him applying for a job at Tim Hortons. There is no evidence that the accused said or did anything else.

[133] Coupled with an inability to date this contact, the Crown is unable to eliminate the possibility that the accused’s communication with Kendra Hudson on this occasion was innocent and in fact for the purpose enunciated by the accused. As noted by the Ontario Court of Appeal in Ohenhen, at para. 33, defining repeatedly as simply being more than one communication is not always appropriate. The trier of fact must consider the context in which the communications were made, the intent of the accused and possibly other factors to determine whether the communications were repeatedly made within the meaning of s. 264(2)(b) of the Code or were innocuous.

[134] Given the specific context of this communication between the accused and Kendra Hudson, I am not satisfied that it is a “communication” coming within the meaning of “repeated communications” in s. 264(2)(b) of the Criminal Code.

[135] Absent the alleged Facebook and Tim Hortons communications proposed by the Crown in support of Count 3, the court is left with only a single alleged communication on this count, namely the letter to Kendra Hudson. A single communication cannot be repeated communications. The accused is found not guilty on Count 3.

Count 4 and Count 5

[136] In counts 4 and 5, the accused is charged with criminally harassing Crystal Hudson and Kendra Hudson, respectively, on February 16, 2017, by repeatedly communicating with Ralph Johnson.

[137] The alleged repeated communications by the accused with Ralph Johnson relied on by the Crown in support of these two counts are the meeting between the accused and Ralph Johnson at the Sioux Lookout Tim Hortons in the fall of 2016 and the letter Ralph Johnson received from the accused on or about February 16, 2017.

[138] In the fall of 2016, Ralph Johnson was at the local Tim Hortons when he was approached by the accused. Ralph Johnson thought the accused was acting strangely and rambling on about a robbery in progress downtown. The accused gave no indication to Ralph Johnson that he was aware of any connection between Ralph Johnson and either Crystal Hudson or Marie Hudson.

[139] The Crown concedes that there is no evidence to suggest that the accused sought out Ralph Johnson at Tim Hortons. Once again, the Crown is unable to eliminate the very real possibility that this encounter between the accused and Ralph Johnson was nothing more than an innocuous, coincidental meeting when the two of them went for coffee. I find that this was not a communication between the accused and Ralph Johnson within the meaning of s. 264(2)(b) of the Criminal Code because the necessary mens rea has not been established.

[140] The only other alleged communication between the accused and Ralph Johnson is the letter from the accused to Ralph Johnson. As a single communication is insufficient to establish repeated communications, the accused is found not guilty on counts 4 and 5.

Count 6 and Count 7

[141] These counts charge the accused with disobeying the January 4, 2017, Non-Communication Order of Bishop J. on February 16, 2017, by communicating indirectly with Crystal Hudson and Kendra Hudson, respectively. The alleged indirect communication with both Crystal Hudson and Kendra Hudson is the February 16, 2017, letter from the accused to Ralph Johnson.

[142] The subject order required the accused to “abstain from communicating directly or indirectly with Crystal Hudson and Kendra Hudson.” The accused has conceded that this order was in place on February 16, 2017, and that he was aware of its terms.

[143] My review of this letter confirms that it includes the following:

1. The accused asks Ralph Johnson if he knows Marie Hudson;

2. That the spirits chose the accused to marry Marie Hudson’s granddaughter Kendra Hudson;

3. Miscellaneous references to Kendra Hudson; and

4. The accused inquiring of Ralph Johnson if he “can talk to her (Kendra Hudson) I’m too shy.”

[144] The Crown is required to prove beyond a reasonable doubt that the accused intended to communicate indirectly with Crystal Hudson and/or Kendra Hudson when he sent this letter to Ralph Johnson. The ordinary dictionary meaning of “communicate” is to impart or transmit something, such as information, from one person to another. As an indirect communication is alleged in these counts, the Crown is required to prove beyond a reasonable doubt that the accused, when he sent the letter to Ralph Johnson, intended to impart information to Crystal Hudson and/or Kendra Hudson through Ralph Johnson.

[145] The contents of this letter did in fact ask Ralph Johnson to contact Kendra Hudson on behalf of the accused when it asked if Ralph Johnson could talk to Kendra Hudson on behalf of the author. The accused did not testify and there is no evidence suggesting any other interpretation. I am satisfied beyond a reasonable doubt that the accused intended that Ralph Johnson talk to or communicate with Kendra Hudson on his behalf. I find that this was an indirect communication with Kendra Hudson and a violation of the January 4, 2017 Non-Communication Order. The accused is found guilty on count 7.

[146] In this letter the accused does make references to his “ex” but he does not name Crystal Hudson nor does he make any request for Ralph Johnson to speak to or contact his “ex” on his behalf.

[147] In my opinion, the evidence cannot support the inference that the accused knew of the relationship between Ralph Johnson and Crystal Hudson such that he knew or ought to have known that the contents of this letter would be communicated to Crystal Hudson by Ralph Johnson. The Crown must prove beyond a reasonable doubt that the accused intended, when he wrote the letter to Ralph Johnson, to have Ralph Johnson impart or convey information to Crystal Hudson on his behalf. The Crown has not done so.

[148] The accused is found not guilty on count 6.

The Hon. Mr. Justice J.S. Fregeau

Released: February 7, 2019