Court File and Parties

Court File No.: 2032/19 Date: 2021-03-02 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Respondent And: Kelly W. Morrison, Appellant

Counsel: Aniko Coughlan, for the Crown Kenneth S. Marley, for the Appellant

Heard: December 2, 2020 Justice: R. Raikes

Endorsement

1On January 15, 2019, the defendant was convicted by Justice D. Austin of the Ontario Court of Justice of criminal harassment contrary to s. 264(2) of the Criminal Code and possession of property under $5,000 that he knew to be stolen contrary to s. 355(b) of the Code. The defendant appeals both conviction and sentence.

2The defendant raises the following grounds of appeal with respect to conviction:

1. The trial judge failed to consider an essential element of the offence of criminal harassment – whether the defendant knew the complainant was being harassed or was reckless as to whether she was being harassed;
2. The trial judge erred in her application of the W.D. analysis in that, a. She incorrectly found that the complainant identified underwear found by police in the defendant’s drawer. In cross-examination, the complainant acknowledged that the underwear only appeared to be the same or similar to that which she possessed; and b. She erred in her wholesale acceptance of the testimony of the complainant and her finding that that evidence was corroborated by the testimony of her husband. There were material differences in their testimony that ought to have given the trial judge pause in her assessment of the credibility and reliability of their evidence.

3With respect to sentence, the defendant submits that the trial judge erred in law by failing to consider alternatives to incarceration.

Facts

4At the time of the alleged incidents, the complainant, Ms. Scott, resided with her husband, three daughters and two dogs in their home located on Michigan Line in Wyoming, Ontario. The defendant and complainant are rural neighbours. Their properties abut. They front on the same road. The distance between their laneways is roughly 120 meters. They have been neighbours for approximately 17 years.

5The defendant also has three daughters although they reside with their mother post-separation. The defendant and his spouse separated before the incidents giving rise to the charges herein. Before separation, the two families were good neighbours. They would help each other out as neighbours do. Each occasionally came over to the other’s for fires in their backyards. The children knew and played together; in fact, one of the defendant’s daughters was best friends with the complainant’s middle child.

6The defendant and complainant’s husband worked for the same employer years earlier for roughly five years. They did not work together. They did not have a social relationship beyond being neighbours as described above.

7After he separated from his spouse and two years before the incidents in question, the defendant sent texts to the complainant that culminated in a suggestion that they have an affair. She disclosed the defendant’s overture to her husband and blocked the defendant on her phone at her husband’s suggestion. She heard nothing further from the defendant in this vein after she blocked him.

8The complainant denied ever having a sexual relationship with the defendant. She testified that she had never been in his bedroom. She had been in his house only to use the bathroom during a campfire. To her knowledge, the defendant had never been in her bedroom.

9In late July, early August 2017, the complainant’s husband was cutting the grass when he came across a pair of his wife’s white underwear lying on the bank of the ditch 2-3 feet from the road. He was puzzled as to how it got there and brought it into the house to show the complainant. They had a new puppy and they thought perhaps the puppy had taken the underwear outside.

10A second pair of the complainant’s lingerie, a pair of cheetah print underwear, was found a week or two after the first pair. The complainant testified that she found the underwear in the late afternoon when she went to the mailbox by the road to get their mail. The underwear was on a tree on their property close to the road.

11The complainant’s husband testified that he and his wife went for a walk along the road after dinner. On their back home, they found the cheetah print underwear under some branches on the ground near evergreens close to the road. The trees were 3-4 feet from the road and roughly 80-100 feet from their house.

12Thus, there were discrepancies between their two accounts regarding discovery of the cheetah underwear including who found the underwear, who was present, and where it was – on the ground or on the tree.

13The complainant was understandably concerned. She wondered whether someone had been in their house. Her lingerie was kept by her in a separate drawer in their bedroom. She had not worn either pair of underwear in a long time. The complainant’s husband was not concerned. He did not believe that anyone had broken into their home. He told her that she was crazy and that it was probably the dog.

14The complainant testified that a couple of days after the cheetah underwear was found, she went for a walk with her husband and their three daughters. When they came back, she saw a nude coloured bra with black lace on its back hanging on a branch of a tree at the front of their property. The bra was 3-4 feet off the ground. She recognized the bra as hers. It was one she no longer wore because she had lost weight. It was normally kept in the same lingerie drawer.

15Mr. Scott did not testify with respect to finding that item in the tree.

16On October 20, 2017, Mr. Scott received two text messages from the defendant. He deleted the first message but testified that the message was to the effect that he should mind his own business and pay more attention to who his wife was sleeping with. He understood the reference to “minding his own business” to refer to a conversation he had had earlier that day with a friend who knew the defendant. In that conversation he mentioned that the defendant’s hydro was turned off.

17He received a second text the same day which he kept. It was marked as an exhibit. In the text, the defendant wrote: “And if people are going to talk, which is you, I rather have a wiring problem than a wife everyone knows she blows everyone but you.” The complainant’s husband did not respond. He thought the defendant was trying to get under his skin or goad him into reacting.

18The next morning, Mr. Scott drove their eldest daughter into town for driver’s education. He did not observe any lingerie. However, he returned home and when he left to go to work at approximately 9:30 a.m., he saw a pair of his wife’s underwear tied to the top of their mailbox and a bra hanging from a branch of a tree on their property near the road, roughly five feet off the ground. He put both items in a bag. His wife was at work.

19Mr. Scott immediately felt chagrinned for downplaying his wife’s concerns that someone had been in their home. He knew that a dog could not have tied the underwear to the mail box nor put the bra at that height in the tree. He suspected the defendant given the texts received the previous day. Mrs. Scott learned of her husband’s find from her daughter. They called the OPP when she got home from work.

20The OPP obtained a search warrant to search the defendant’s home. Three pair of ladies’ underwear were found and seized from a drawer in his bedroom dresser. Ms. Scott was shown photographs of the underwear and identified two pair as hers.

21Forensic analysis was done of the underwear she identified that was seized from his bedroom as well as the bra found by Mr. Scott on the tree on October 21, 2017. A match to the defendant’s DNA profile was found on the bra from the tree. Matches were found to the DNA profiles of both complainant and defendant on a pair of underwear found in his bedroom dresser.

22The defendant testified that he and the complainant had a sexual relationship prior to these incidents. She left a pair of her underwear on the floor of his bedroom after one of their encounters, and he put it in his dresser drawer. His DNA on the bra and panties must have happened during their sexual relations. He denied removing her lingerie from her bedroom dresser and any involvement in putting her lingerie on the mailbox, tree, or the Scott’s property.

23The complainant denied any sexual activity with the defendant in her testimony and the trial judge accepted her evidence on that point.

24I will now deal with the grounds of appeal from the conviction.

Failure to Consider Essential Element of Offence of Harassment

25The constituent elements of criminal harassment are:

1. The defendant did the conduct complained of;
2. The defendant had no lawful authority to do what he did;
3. That conduct harassed the complainant;
4. The defendant knew that his conduct harassed the complainant or the defendant knew there was a risk that his conduct harassed the complainant and he was reckless or wilfully blind as to whether it did so;
5. The defendant’s conduct caused the complainant to fear for her safety; and
6. The complainant’s fear was reasonable in the circumstances.

26The focus of this ground of appeal rests on the fourth element above. This element is the mental element of the offence: the defendant’s knowledge of the effect of his conduct on the victim. This element may be satisfied by proof beyond a reasonable doubt of actual knowledge, recklessness or wilful blindness on the part of the accused: R. v. Krushel, 2000 ONCA 3780, (2000), 31 C.R. (5th) 295, 142 C.C.C. (3d) 1 (Ont. C.A.); leave to appeal refused (2002), 307 N.R. 200 n (S.C.C.).

27Did the trial judge consider that element in her analysis?

28I do not agree that the trial judge failed to consider the mental element of the offence in her analysis. She expressly referred to the mental element of the offence at page 4 of her reasons. She found that the placement of Ms. Scott’s undergarments outside in the manner described by Mr. and Ms. Scott “is clearly threatening conduct in the sense of being a tool of intimidation aimed at instilling fear, in particular, at Mrs. Scott” (Italics added). She found there was animus directed at the Scotts by the defendant.

29The trial judge also found that:

“The act of displaying someone’s underwear is a sexual public humiliation for the female target of such conduct. That is consistent with the message of sexual humiliation that was contained in the message [sent to Mr. Scott by the defendant on October 20, 2017]. I found the content of the message consistent with the actions of putting the underwear on public display.”

30Clearly, the trial judge was of the view that placing her bra on the tree in her front yard was a deliberate act by the defendant aimed at intimidating or humiliating her and/or her husband. She found that by placing the complainant’s lingerie on public display in their front yard he intended to harass or intimidate the complainant. It follows logically that he knew his conduct harassed the complainant. That was its purpose. There is no suggestion that the act was done accidentally or as a joke in these circumstances. The mental element of the offence was considered and determined.

W.D. Issues

a. Identification of Underwear

31As indicated above, the defendant submits that the complainant’s identification of the underwear found in a dresser in his bedroom is inadequate because police only showed her a picture of the underwear found and she agreed in cross-examination that it appeared to be similar to what she owned.

32In her examination in-chief, Ms. Scott testified that she was not able to identify any other missing lingerie until police showed her a picture of three different pair of underwear that they found during the search of the defendant’s bedroom. She testified: “…and I could identify two of the three to be mine.”

33In cross-examination, the following exchange occurred:

Q. …did you actually see that underwear? Did the police actually bring that underwear to you or just a photograph of it? A. It was just a photograph. Q. Okay, So, it’s similar underwear to what you were missing. Is that correct? A. That’s correct.

34Mr. Marley submits that the trial judge found incorrectly that Ms. Scott specifically identified the underwear found in the drawer from the police search. Ms. Scott did not do so. It was clear from the above quoted cross-examination that she did not specifically identify the underwear. Because she was never shown the actual items, she could not identify them. That gives rise to a failing in identification that ought to have raised a reasonable doubt. Further, that evidence undermines the trial judge’s assessment of the defendant’s explanation for his DNA on the two items tested.

35The concerns raised by defence counsel as to identification of the underwear do not amount to a misapprehension of the evidence or a concern that might justify allowing this appeal. The trial judge was entitled to accept the evidence of the complainant and she did. Having done so, the presence of the DNA on one pair of underwear in the defendant’s drawer, one of two pairs the complainant said were hers and then agreed they were similar, amounts to adequate identification to support the comments made by the trial judge.

36Once the trial judge found that no affair had taken place, her rejection of the defendant’s explanation for the underwear in his drawer was inevitable. Her finding that no sexual relationship occurred is a finding of fact that was open to her on the evidence and is entitled to deference: R. v. W.H., 2013 SCC 22 at paras. 30-34; R. v. Magno, 2015 ONCA 111, at paras. 72-73.

37The finding that, although the defendant expressed sexual interest in Ms. Scott, no sexual relationship happened completely undercuts the defendant’s explanation for how his DNA came to be on the two items of lingerie tested including her underwear found in his drawer. The trial judge was entitled to reject his explanation on that basis alone.

38The defendant did not dispute that one of the pairs of underwear found in a drawer in his bedroom belonged to Ms. Scott. Her DNA on the item was confirmed by forensic testing. If there was no sexual activity between them, how did that item come to be in his home? How did his DNA get on that item and the bra found hanging from a tree in the Scott’s front yard? The finding made by the trial judge was the only one that could reasonably be drawn on the evidence.

39The reference by the trial judge to the presence of a second pair of Ms. Scott’s underwear in his drawer was unnecessary and does not alter the appropriateness of the analysis that she undertook nor the final outcome of that analysis. Having found no sexual relations ever took place, the defendant’s explanation for his possession of Ms. Scott’s underwear and the presence of his DNA on her lingerie does not raise a reasonable doubt. The identification made by Ms. Scott and her testimony in cross-examination above similarly do not affect the conclusion reached by the trial judge.

b. Corroboration by Mr. Scott

40In her reasons, the trial judge indicated:

“The evidence of Jeffrey Scott I found also to be firm, consistent and clear in corroborating Mrs. Scott's evidence about the events that occurred on and leading up to the 21st of October. I found a compelling ring of truth in the evidence of those two witnesses. For example, Mr. Scott's candid expression that his feeling was that his wife was overreacting to these events, the second and third time that they occurred and that by the 21st of October, he was then apologetic for dismissing her earlier concerns.

Neither of these two witnesses appeared to have any axe to grind or any animus against Mr. Morrison.”

41It was submitted by Mr. Marley that the trial judge failed to recognize that there were material differences in the evidence of Mr. and Ms. Scott, differences that ought to have caused her to find the evidence of both to be less credible and reliable.

42As indicated above, there were differences in the evidence of Mr. and Ms. Scott with respect to the events leading up to October 21. However, there was also significant overlap in their evidence. The trial judge did not suggest that there were no differences. Rather, she simply recognized that there was corroboration between their two accounts of events. The trial judge’s findings of credibility are entitled to significant deference. There is no basis to interfere with her findings of credibility and reliability for Mr. and Ms. Scott in this case.

Sentence

43Except where a sentencing judge has made an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentencing unless it is demonstrably unfit: R. v. Lacasse, 2015 SCC 64, at para. 11.

44The defendant was sentenced to 60 days of incarceration to be served on weekends so as to permit him to continue to work as a trucker, and three years of probation.

45At sentencing, the defendant asked for a conditional sentence. Defence counsel on this appeal submits that the range of sentence runs from a conditional sentence to immediate incarceration. He argues that alternatives to a jail sentence were not considered which is an error of law. Deference is not owed to the sentencing judge in these circumstances.

46The trial judge took note of the following in her decision:

1. The defendant had a good work history and was valued by his employer;
2. He lost income by having to sell his rig and his inability to cross the border which was likely to be an ongoing consequence of his conviction;
3. He had personal and family support;
4. He was a suitable candidate for community supervision;
5. Because of the terms of bail conditions, he had not been able to reside in his home since these charges were brought; and
6. He had a dated criminal record that included a charge of threatening.

47At page 12, Justice Austin wrote:

“In this court's view, a period of 60 days jail served on an intermittent basis is the balanced approach in my view, taking into account the aggravating the mitigating circumstances. In my view, a period of actual jail is justified in this case but a period that does not prevent Mr Morrison from maintaining his employment and it does not risk taking that away from him. “

48The trial judge’s conclusion that “a period of actual jail is justified in this case…” implies that she considered lesser alternatives. Certainly, a non-custodial option was the basis of the defendant’s submissions. I agree that she could have stated more clearly that she had considered and rejected lesser non-custodial sentences. The sentence imposed is well within the range of reasonable sentences in these circumstances. There is no basis to interfere with the sentence imposed.

Conclusion

49For the reasons set out above, the defendant’s appeal is dismissed.