COURT FILE NO.: 18-6233

DATE: 20201126

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

SHAYNE MCCAFFREY Appellant

Moiz Karimjee, for the Respondent

Paolo Giancaterino, for the Appellant

HEARD: November 18, 2020

REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL

Aitken J.

Nature of the Proceedings

[1] The Appellant, Shayne McCaffrey, appeals his conviction and sentence for breach of an undertaking not to communicate, directly or indirectly, with the mother of his two children. On August 27, 2018, the Appellant was convicted of one count of breach of undertaking and was given a suspended sentence and six months probation.

[2] The Appellant advanced three grounds of appeal: (1) that the trial judge erred in finding that the Crown had met its burden of proving mens rea beyond a reasonable doubt; (2) that the trial judge erred in refusing to apply the legal principle of de minimis non curat lex; and (3) that the trial judge erred in his determination that a discharge, absolute or conditional, was not appropriate in this case.

[3] For reasons that follow, I dismiss the appeal as to conviction and sentence.

Evidence

[4] The Appellant and the Complainant, Samantha Mausz, were in a relationship between 2012 and 2016. They had two children together. The police were involved with the couple and, on August 21, 2017, criminal charges were laid against the Appellant relating to domestic assault. The Children’s Aid Society also became involved and advised the Complainant that the Appellant was not to be alone with the children – evidence tendered merely to indicate what the Complainant understood at the time.

[5] On August 21, 2017, the Appellant signed an Undertaking Given to an Officer in Charge that required him “to abstain from communicating directly or indirectly with Samantha Mausz, Lila McCaffrey, and Sarah McCaffrey … except in accordance with the following conditions: access to your children at the discretion of the Children’s Aid Society or pursuant to a Family Court Order which postdates this offence.”

[6] The Appellant brought an application seeking access to the children. Both the Appellant and the Complainant were represented by counsel at the hearing. On October 20, 2017, Summers J. signed a temporary order in Family Court that read as follows:

1. On an interim basis, the Applicant father shall have access to the children, Sarah McCaffrey (D.o.b. April 22, 2013) and Lila McCaffrey (D.o.b. April 8, 2016) as follows:

a. Commencing Saturday October 21, 2017 from 9 am until 5:00 pm on Sunday October 22, 2017 Applicant father shall have Sarah in his care for access and every second weekend thereafter pending further court order.

b. Alternate Wednesday prior to his non-access weekends, the Applicant father shall have Sarah in his care from 4:00 pm until 7:00 pm

c. From 2:00 pm until 5:00 pm on these days where Sarah is in the care of the father he shall also have access to Lila

d. All access shall be supervised by Ann and Jack McCaffrey, the paternal grandparents and shall take place at their home. Jack and Ann McCaffrey will provide transportation to facilitate access as arranged by father.

e. If the parties are unable to agree on costs, the father shall have 10 days to make his cost submissions. The mother shall then have 10 days to respond with the father having further 5 day right of reply. Submissions not to exceed 2 pages exchange of offers and bills of costs.

[7] Clearly this order, which would have been prepared by counsel, was not a work of art in terms of wording or formatting. I say this only to point out to family lawyers how incredibly important it is for them to very carefully draft agreements and court orders so as not to leave room for any misunderstandings or ambiguities – particularly where criminal liability can attach to a party’s alleged breach of the agreement or court order.

[8] The following timeline was provided in an extraction report relating to the Complainant’s cellular phone.

[9] On December 3, 2017, at 10:41, a FaceTime call was placed from the Appellant’s number to the Complainant’s number. It was not answered. There was no evidence as to the person who placed that call and, appropriately, the trial judge did not speculate as to who placed the call. At the time, the Appellant was with his daughter, Sarah, and his parents. When the Complainant saw the missed call, she contacted her lawyer for advice. According to the Complainant, her lawyer advised her to return the call.

[10] On December 3, 2017, at 10:57, the Complainant placed a FaceTime call to the Appellant’s number. It was not answered.

[11] On December 3, 2017, at 11:01, a FaceTime call was placed from the Appellant’s number to the Complainant’s number. There was no evidence as to who placed the call but when the Complainant answered the call, the Appellant was on the screen, speaking to her. The call lasted 4:50 minutes. For part of the call, the Appellant and the Complainant spoke. For the rest of the call, the Complainant attempted to speak with Sarah.

[12] On December 4, 2017, at 12:33, the Complainant “pocket dialed” the Appellant’s number by mistake, through FaceTime. At the time, both children were in her care. The Appellant did not answer the call.

[13] On December 4, 2017, at 12:34, a FaceTime call was placed from the Appellant’s number to the Complainant’s number. The Complainant answered. The call lasted 5:53 minutes. The Appellant was on the call with the Complainant and was visible on a video of a portion of the call.

Legal Principles

[14] The standard of review applicable to questions that arise on appeal was set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. The standard of review on pure questions of law is one of correctness. The standard of review for findings of fact is such that they cannot be reversed unless the trial judge has made a palpable and overriding error. The standard of review for questions of mixed fact and law is more nuanced. Where the issue on appeal involves the trial judge’s interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error unless it is clear that the trial judge made some extricable error in principle with respect to the application of a legal standard to the facts, in which case the error may amount to an error of law subject to a standard of correctness.

[15] As stated in R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 10:

A succinct description of the overall approach appears in R. v. Burke, 1996 CanLII 229 (SCC), [1996] 1 S.C.R. 474, at para. 4, where this Court stated that “it is only where the Court has considered all of the evidence before the trier of fact and determined that a conviction cannot be reasonably supported by that evidence that the court can ... overturn the trial court’s verdict”.

Analysis of the Trial Judge’s Decision

First Ground of Appeal: Mens Rea of the Offence

[16] The Appellant admitted that he was bound by an undertaking not to have any communication, direct or indirect, with Samantha Mausz except access to his children at the discretion of the Children’s Aid Society or pursuant to a Family Court order which post-dated the offence with which he was charged on August 21, 2017.

[17] The trial judge found that the Family Court order did not allow communication between the Appellant and the Complainant. In making that finding, the trial judge did not refer to the term in the Family Court order to the effect that the paternal grandparents would provide the transportation to facilitate access as arranged by the father. It is arguable that these italicized words opened the door for some communication between the Appellant and Complainant for the very limited purpose of confirming pick-up and drop-off times and locales for the purpose of access. These words are ambiguous at best. It was the role of the trial judge, in the context of all of the evidence, to determine their meaning. His conclusion that the terms of the Family Court order did not allow any communication, direct or indirect, between the Appellant and the Complainant was one possible, reasonable, interpretation. It is not the role of an appellate court to replace a trial judge’s finding of fact with its own finding of fact when the trial judge’s finding can reasonably be supported on the evidence. In any event, the only evidence at trial was that none of the communication between the Appellant and the Complainant in the two FaceTime calls in question related to access or transportation issues.

[18] The trial judge found that, despite the lack of direct evidence as to who initiated the two calls in question on the Appellant’s phone as a result of the defence not calling evidence in this regard, there was uncontested evidence in the form of an extraction report to the effect that the FaceTime calls to the Complainant came from the Appellant’s cellular number. As well, there was uncontested evidence that the Appellant’s face was on the screen while he was communicating with the Complainant. The Complainant testified to this effect and there was a brief video tendered at trial showing the Appellant speaking to the Complainant on one of the FaceTime calls. The trial judge accepted this evidence and found that the actus reus of the offence had been made out. On appeal, the Appellant did not challenge this finding.

[19] In regard to mens rea, the trial judge stated: “[t]he mens rea requires that [the Appellant] had knowingly communicated with the complainant knowing that he was bound by a bail undertaking to not do so.” At this stage of his analysis, the trial judge made a finding that the Appellant had placed the FaceTime calls in question to the Appellant and he had done so intentionally. There was ample evidence to support these inferences. The trial judge concluded that, since the Appellant had intentionally called the Complainant and had communicated with her, and since the Appellant knew that he was bound by a bail undertaking to not do so, he was guilty of the offence of breach of his undertaking.

[20] At trial, defence counsel argued that the Appellant should not be convicted of breach of his undertaking when his only intention was to see if the children were alright. The trial judge quite rightly pointed out that there was no evidence to support the inference that that was why the Appellant was communicating with the Complainant and, in any event, that reason for communicating with the Complainant would not have provided a lawful excuse.

[21] The trial judge did not have the benefit of R. v. Zora, 2020 SCC 14, 388 C.C.C. (3d) 1, when he was dealing with the Appellant’s case. In Zora, the Supreme Court reviewed in great detail the mens rea required for a conviction for breach of a condition of bail. The Supreme Court concluded that a subjective mens rea is required for the offence of failure to comply with an undertaking. At para. 109, Martin J. set out the following requirements for proof of the requisite mens rea:

Therefore, subjective mens rea under s. 145(3) can be satisfied where the following elements are proven by the Crown:

1. The accused had knowledge of the conditions of their bail order, or they were willfully blind to those conditions; and

2. The accused knowingly failed to act according to their bail conditions, meaning that they knew of the circumstances requiring them to comply with the conditions of their order, or they were willfully blind to those circumstances, and failed to comply with their conditions despite that knowledge; or

The accused recklessly failed to act according to their bail conditions, meaning that the accused perceived a substantial and unjustified risk that their conduct would likely fail to comply with their bail conditions and persisted in this conduct.

[22] In regard to the first component of the required subjective mens rea, Martin J. drew a distinction between the accused knowing or being willfully blind to the conditions of their release and the accused knowing the legal consequences or the scope of the conditions. The Crown must only prove the former (para. 112). In other words, while subjective mens rea means that an accused person who has an honest but mistaken belief about the conditions of their bail order cannot be found liable, this does not mean that an accused must know and understand the legal scope or effect of a condition. Any mistake as to what the law requires to meet a condition is a mistake of law that does not negate mens rea (paras. 114-115).

[23] Martin J. went on to say that the second component of the required subjective mens rea can be met “by showing that the accused acted knowingly or recklessly in breaching their condition. Knowledge in this second component means that the accused must be aware of, or be willfully blind to, the factual circumstances requiring them to act (or refrain from acting) to comply with their conditions at the time of breach.” (para. 116) “Recklessness requires the accused persons be aware of the risk of not complying with their condition and proceed in the face of that risk …” (para. 117).

[24] Here, defence counsel acknowledged to the trial judge that the Appellant had been aware that he was bound by an undertaking not to have any communication, direct or indirect, with Samantha Mausz except access to his children at the discretion of the Children’s Aid Society or pursuant to a Family Court order which post-dated the offence with which he was charged on August 21, 2017. This met the first component of subjective mens rea. The Appellant’s counsel on appeal took no issue with this and focused on the second component of subjective mens rea, arguing that the Crown had failed to prove beyond a reasonable doubt that the Appellant had acted knowingly or recklessly in breaching his condition. More specifically, defence counsel argued that the Crown had failed to prove that the Appellant was aware that his communicating with the Complainant on December 3, 2017, while he was exercising access rights, would be a breach of his undertaking, or in the alternative, that the Appellant was reckless as to whether it would be a breach, particularly when there was a term in the Family Court order that could be interpreted as allowing him to communicate with the Complainant to arrange transportation for access visits.

[25] This argument is not persuasive. First, there was no air of reality to this defence. There is no evidence that the conversations between the Appellant and the Complainant related in any respect to access or transportation for access visits. Second, the argument does not apply to the communications on December 4, 2017 when the children were in the care of the Complainant. Third, there is a common-sense inference that a sane and sober person normally intends the natural and probable consequences of his voluntary actions. It was reasonable for the trial judge to infer that, by calling the Complainant’s cellular number, the Appellant intended to communicate with her. Fourth, any thoughts on the Appellant’s part that communicating with the Complainant as he did would be permissible under the terms of the undertaking and Family Court order would have been a mistake of law – not an honest, but mistaken belief on a factual issue.

[26] The trial judge found as a fact that the Appellant intentionally called the Complainant at her cellular number. This led to the reasonable inference, inherent in the trial judge’s decision, that the Appellant intended to communicate with the Complainant despite his knowledge that communicating with the Complainant directly or indirectly was prohibited by the terms of his undertaking. This met the second component of subjective mens rea.

Second Ground of Appeal: De Minimis non Curat Lex

[27] Although defence counsel at trial advanced the argument of de minimis non curat lex, he failed to provide the trial judge with any jurisprudence in support. As a result, the discussion of this principle during submissions at trial was brief.

[28] There is no clear appellate authority in Canada for the use of the common law defence of de minimis non curat lex to acquit an accused when the actus reus and mens rea of an offence have been proven beyond a reasonable doubt. The principle holds that if the conduct which is the foundation of the offence is a mere trifle which, if continued in practice, would weigh little or nothing on the public interest, it might properly be overlooked (R. v. Kubassek (2004), 2004 CanLII 7571 (ON CA), O.A.C. 339, [2004] O.J. No. 3483, per Catzman J.A., at para. 19, quoting from early English law).

[29] In R. v. Murdock (2003), 2003 CanLII 4306 (ON CA), 173 O.A.C. 171, [2003] O.J. No. 2470, at para. 29, Doherty, J.A. described the principle as follows: “[t]he ‘de minimis’ defence at common law operated to prevent the conviction of those whose conduct, while falling within the four corners of the penal provision, were so trivial as to pose no risk to the public interest”.

[30] In R. v. Ferreira, 2014 ONCJ 21, at para. 26, ODonnell J., while acknowledging that the principle of de minimis non curat lex will necessarily be of narrow ambit, went on to apply it and acquit a man who had committed a very minor assault on a woman with whom he was in a domestic relationship.

[31] In R v. Arsenault, 2018 ONCJ 224, Bliss J. was faced with circumstances somewhat similar to those in this case. Mr. Arsenault had been ordered ex parte not to contact or communicate directly or indirectly with his former partner except through a third party to arrange access to the children. In one of his communications with that third party, Mr. Arsenault stated: “Yeah you should tell Beverly that I pose no threat to her and now I have a restraining order and what’s going on this weekend …” In the context of all of the text messages between Mr. Arsenault and the third party dealing with access (many of which the third party failed to answer), and in light of all the circumstances, including the fact that Mr. Arsenault had no criminal record and no history of violence, Bliss J. dismissed the breach charge against him on the basis of de minimis non curat lex.

[32] It was well within the discretion afforded to the trial judge in this case to determine whether it was appropriate to allow the common law defence of de minimis non curat lex. The trial judge concluded that it was not – a reasonable decision in all the circumstances. First, communicating with the Complainant for four or five minutes at a time was not a trivial matter. This was not a case where only a few words were uttered and then the communication ended. Second, there was no evidence that the communication arose from any sense of urgency, fear, or concern. Third, the Appellant stood charged with two counts of domestic assault. In this context, it was very important that the terms of the Appellant’s interim release, namely that he not communicate directly or indirectly with the Complainant, be enforced. The trial judge was well able to take judicial notice of how rampant domestic violence is in our community, particularly against women, and the need for the courts to enforce measures to ensure the safety of complainants pending trial. Clearly, there is a public interest to do so. Thus, it was reasonable for the trial judge to conclude that the basic requirements for the use of the common law defence of de minimis non curat lex were not present in this case.

Third Ground of Appeal: Sentence

[33] The Crown was seeking a short, sharp, period of incarceration followed by a probationary period. The defence was seeking an absolute discharge. The trial judge imposed a suspended sentence with six months’ probation. On appeal, the Appellant argues that the trial judge should have granted an absolute or conditional discharge.

[34] Sentencing is a matter within the discretion of a trial judge, based on the principles enunciated in the Criminal Code, R.S.C. 1985, c. C-46 and on the parameters set by our higher courts. Sentencing is a nuanced exercise. There is rarely just one sentence that would meet the requirements of a fit and just sentence in all of the circumstances of a particular case.

[35] The sentencing judge noted that the communication between the Appellant and the Complainant occurred during calls that the Appellant made in response to missed calls he received from the Complainant. The purpose of at least the first call appeared to be to allow the Complainant to communicate with their daughter, who was in the Appellant’s care at the time. The trial judge took into account that nothing untoward happened during the communications. He acknowledged that, at the time, the Appellant was a first offender. The trial judge confirmed that he had given thought to granting a discharge and recognized a strong argument could be made to support one. Ultimately, however, he concluded that such a sentence would not be adequate in the circumstances of the case.

[36] The condition of no contact in the undertaking was explicitly to protect the Complainant from any communication with the Appellant. In the trial judge’s view, the public interest in protecting complainants in cases where domestic assault allegations have been raised meant that a discharge would not have been an appropriate sentence. The trial judge’s sentence was well within the parameters of what would be a fit and just sentence in the circumstances of this case. He made no error of law in the course of sentencing. Contrary to the Appellant’s assertion, the sentence imposed by the trial judge took rehabilitative objectives into account. It is not the role of an appellate court to engage in re-weighing the various factors taken into account by a trial judge upon sentencing and to replace the trial judge’s reasonable exercise of discretion with its own.

Disposition

[37] For these reasons, the appeal is dismissed.

Aitken J.

Released: November 26, 2020

COURT FILE NO.: 18-6233

DATE: 20201126

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Respondent

– and –

SHAYNE MCCAFFREY Appellant

REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL

Aitken J.

Released: November 26, 2020