COURT FILE NO.: CR-20-10000059-00AP
DATE: 20210616
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RICHARD SPEE
Appellant
Peter van den Bergh, for the Crown
Breana Vandebeek, for the Appellant
HEARD: May 26, 2021
allen j.
REASONS FOR JUDGMENT
(On A Summary Conviction Appeal)
THE CHARGES
[1] The complainants, Colin and Joanna Pitkin, moved to 14 Lessard Ave. in the summer of 2011. The accused, Richard Spee, lived in the home immediately to the east of the Pitkin’s home. He had grown up in the neighbourhood and lived in the home at 10 Lessard Ave. since 1998.
[2] On July 21, 2015, Mr. Spee, age 53 years at the time, was charged with two counts of assault with a weapon after allegedly throwing apples at Mr. Pitkin and his then three-year-old daughter Elise. He was also charged with criminally harassing Mr. and Ms. Pitkin and their daughter.
[3] Mr. Spee was tried on September 25–27, 2017 before Justice Boivin of the Ontario Court of Justice. Justice Boivin found him guilty on one count of assault with a weapon, against Mr. Pitkin and two counts of criminal harassment, against both Mr. Pitkin and Ms. Pitkin. He was acquitted of the charges against the daughter. On March 16, 2018, Mr. Spee was sentenced to a suspended sentence and two years of probation. Mr. Spee appeals both his convictions and sentence.
FACTUAL BACKGROUND
Previous Incidents
[4] This matter boils down to a dispute between neighbours which extended over four years and peaked with the incident on July 21, 2015.
[5] The Pitkins allege Mr. Spee acted in threatening ways that caused them to fear the safety of themselves and their daughter. They lost the enjoyment of their home and neighbourhood. They had to curb their activities outside their home in their yard and around the neighbourhood to avoid him.
[6] There is a history of incidents and encounters that predate July 2015 that form the contextual narrative behind the charges Mr. Spee faced.
[7] Mr. Pitkin and Mr. Spee first met in June 2011. He attended 14 Lessard with a contractor to do some pre-purchase measurements. This required the contractor to momentarily enter Mr. Spee’s driveway. When he returned to the front of 14 Lessard Mr. Spee exited his home, entered his car, drove up the driveway, then exited his car and began shouting at the contractor, swearing at him and calling him “retarded”. Mr. Spee threatened to call the police for the contractor trespassing on his property.
[8] The Pitkins had their next encounter with Mr. Spee in August 2011. They were having some work done on their basement and they placed a disposal bin on their front lawn. The Pitkins heard a loud knock on their door. Mr. Pitkin’s evidence was that Mr. Spee put a camera in his face and shouted and swore at him. Mr. Spee claimed the contractor damaged his car and threatened to call the police and sue them.
[9] The Pitkins attempted to address that issue with Mr. Spee and offered to pay for any damage. Mr. Spee continued to shout and said his car had been dented. The damage involved a dent to the right rear quarter panel of the vehicle. Mr. Spee would not allow Mr. Pitkin to go over to the vehicle for Mr. Spee to show him the damage. Mr. Spee just continued to shout for them to stay off his property. The police attended and told the Pitkins that they could not determine the cause of any damage to the vehicle, whether or not it was pre-existing. The vehicle was towed away and was written off by the insurer.
[10] The renovations proceeded over the four months. Mr. Spee continued to yell and swear at the Pitkins. He persisted in filming the work crew. He would also film Mr. Pitkin driving out of his driveway and, on one occasion, when he was walking his dogs. On another occasion, Mr. Spee appeared to be filming into the Pitkins’ backyard when the daughter was playing there.
[11] Mr. Spee contended, regarding the encounter with the Pitkins in August 2011 about damage to his car, that he behaved calmly. But he then admitted he could have been agitated. He then admitted he was agitated, but he did not yell. Then he testified that he was probably loud. Then he said that he could not recall yelling. Then he testified that maybe he was yelling.
[12] In September 2011, the Pitkins obtained a right of entry permit from the City of Toronto to allow them access to Mr. Spee’s driveway for repairs to be done to the parging on the east wall of their home. The police had to be called to prevent the Appellant from interfering with the contractors. When the police came, Mr. Spee yelled profanities at them. Ms. Pitkin came outside and heard Mr. Spee shouting, “fucking off my property ... you have no fucking right to be here.” Then he yelled at Ms. Pitkin: “I’ll have you fucking disbarred”. Ms. Pitkin is an intellectual property lawyer.
[13] Mr. Spee testified that during that incident he saw two men taking measurements near his house. His evidence was that he simply walked out and asked, “Can I help you?’ He claimed he was not angry; he just wondered why the two men did not answer him and just passed by him.
[14] Mr. Spee denied paying any attention to the Pitkins four-month home renovation project. He denied harassing the workers.
[15] The Pitkins also assert that the damage to the parging on the east side of their house was caused by Mr. Spee deliberately piling snow against their home such that it formed a five to six-foot wall of snow packed against the wall.
[16] Mr. Spee denied piling snow against the Pitkins wall. But he did indicate there had been a similar incident with the previous owners of 14 Lessard and that the police had attended because of this and he ultimately removed the snow on that occasion.
[17] The Pitkins spoke to other neighbours about problems with Mr. Spee. They witnessed an incident involving Mr. Spee and another neighbour on their street. In 2015, Mr. Pitkin witnessed his neighbour, Frank Schiegl, who lived to the west of the Pitkins, with blood on his face. Mr. Pitkin came to understand that Mr. Spee had struck Mr. Schiegl in the face with a bag of groceries. The police arrived and Mr. Pitkin saw Mr. Spee shouting angrily. He saw the entire police car moving and shaking once Mr. Spee was placed inside the car.
[18] The Pitkins saw the violence towards Mr. Schiegl as a turning point. They had at first resolved to ignore Mr. Spee. But now that they knew Mr. Spee had physically hurt Mr. Schiegl, they became afraid for their safety and the safety of their children. (By 2015, they had a second child.). Mr. Pitkin travelled for his work and at this time his wife was on maternity leave. Ms. Pitkin and the children would be left alone while he was away. Ms. Pitkin began to fear going into their backyard with the children. She began to stay inside the house.
[19] The Pitkins had an apple tree in their backyard. Apples would fall from their tree into their backyard and that of Mr. Spee. That enraged Mr. Spee and he made that known to the Pitkins. The apple throwing escalated over the period from 2012 to 2015.
[20] Mr. Spee would throw apples into the Pitkins’ yard, into their daughter’s wading pool and onto their porch. Eventually, he began to throw the apples at the Pitkin house and a rear window. On July 15, 2015, Mr. Spee threw apples at Mr. Pitkin and near the daughter. As he threw apples, he was shouting and swearing. The daughter was taken into the house to avoid getting hit and being exposed to profanity. Ms. Pitkin called 911. This is what led up to the incident on July 21, 2015.
The Incident before the Court
[21] Around 9:00 a.m. on July 21, 2015, the Pitkins’ car was parked in the backyard. They were preparing to go to the cottage and Mr. Pitkin was standing on a ladder securing a cargo bin to the top of the car. The daughter came out back and asked her father to pick an apple for her. Mr. Pitkin heard Mr. Spee exit his back door. Mr. Pitkin then saw Mr. Spee, from about 10 to 12 feet away, throw several apples over the fence, one of which landed at the daughter’s feet.
[22] Mr. Pitkin shouted, “Hey, stop throwing apples. My daughter’s out here.” Mr. Pitkin stated that at that point Mr. Spee “explodes”, angrily ranting, swearing and dropping “f-bombs”. Mr. Pitkin yelled at the daughter to go inside. Mr. Spee continued to throw apples. One struck Mr. Pitkin’s leg and another, his back.
[23] While this was happening, Ms. Pitkin was in the kitchen located at the back of their home where a window faces the backyard. When she heard yelling, she looked out witnessed Mr. Spee yelling angrily and being verbally abusive. Ms. Pitkin saw him throwing apples over the fence hitting the car and Mr. Pitkin’s back. She testified that it looked as though Mr. Spee was aiming at her husband. She went outside and brought the daughter in. Ms. Pitkin again called 911. She stated that after her husband spoke to Mr. Spee, he “just sort of ramped up the verbal abuse” and increased the velocity of the apples he threw. Mr. Spee then entered his home and came back out with a video camera.
[24] Monika Schiegl, Frank Schiegl’s wife, testified that on July 21st she heard Mr. Spee yelling and using profanities such as “fucking maggots” “assholes”, a lot of use of the word “fucking.” She testified that after she heard Mr. Spee yelling on July 21st, she phoned her husband and told him, “I think Richard’s kind of went off again.”
[25] The Pitkins’ evidence is that from their first encounter with Mr. Spee, he became aggressive, verbally abusive and threatening. He seemed like he was looking for a confrontation. They describe Mr. Spee as a large and intimidating man.
[26] Mr Spee denied intimidating or harassing the Pitkins. He testified that the Pitkins were interfering with his use and enjoyment of his property. He denied swearing at the Pitkins or assaulting Mr. Pitkin on July 21st. He denied throwing apples onto or at the Pitkins’ property. He testified that he would just place apples over the fence at the base of the tree in the Pitkins’ yard.
BASIS OF THE APPEAL
[27] Mr. Spee seeks to appeal against: (a) his convictions upon grounds involving questions of law alone; (b) his convictions upon grounds involving a question of fact alone or a question of mixed law and fact; (c) and his sentence.
[28] Mr. Spee submits that: (a) the trial judge misapprehended the evidence; (b) the verdict is unreasonable; and (c) the trial judge erred in refusing to impose a conditional discharge given the circumstances of the offence and the offender.
[29] Mr. Spee also seeks the following relief: (a) that the convictions be quashed and acquittals entered; (b) in the alternative, that the convictions be quashed and a new trial ordered; or (c) in the further alternative, that leave to appeal sentence be granted and a conditional discharge substituted.
THE TRIAL DECISION
[30] The trial judge wrote a comprehensive decision. He gave ample space to each of the witnesses who testified. Mr. and Ms. Pitkin and Ms. Schiegl testified for the Crown. The trial judge did an incisive evaluation of each witness’s evidence and arrived at conclusions about their testimonies in the context of all the evidence. He neatly summarized his findings of fact in paragraphs 70, 78 and 85 of his decision.
[31] The trial judge decided he did not believe Mr. Spee’s version of his relationship with the Pitkins and of what occurred on July 21st. He concluded that Mr. Spee’s evidence lacked credibility and reliability. He found his evidence was frequently contradictory and internally inconsistent.
[32] Over ten pages of his decision, the trial judge pointed to areas of Mr. Spee’s evidence that he found ridiculous and absurd. The trial judge found that on many occasions in his testimony, within minutes, Mr. Spee would change his evidence from minute to minute.
[33] For instance, regarding the incident when Mr. Spee arrived at the Pitkins’ door to complain about the damage to his car, his evidence vacillated from denying yelling at the Pitkins, to saying he did not recall if he yelled, to saying he probably had a loud voice. About that incident, Mr. Spee first said he did not know who the complainants were and, for all he knew, they may have broken into the house. And yet he was going to them to complain about damage to his car.
[34] The trial judge found it particularly absurd when asked whether he was bigger than Mr. Pitkin, that Mr. Spee acknowledged he was 300 pounds. He would not concede he was bigger than both of the Pitkins. He said he did not actually look at them or it was too hard to tell because they were seated.
[35] Another example, Mr. Spee testified that he paid no attention to the contractors working on the Pitkins’ home renovation and yet the evidence is that he took pictures of the contractors’ work. He first denied speaking with Ms. Pitkin about the renovations and subsequently said he may have yelled at her about it. Also, Mr. Spee found out Ms. Pitkin was a lawyer. He initially denied that he threatened to have Ms. Pitkin disbarred. But his testimony vacillated from allowing that he made that threat, to denial he made the threat.
[36] The trial judge also cited areas of Mr. Spee’s evidence involving the incident on July 21st when Mr. Pitkin was outside in their yard and Mr. Spee in his yard. When asked if he saw Ms. Pitkin through the window of her house, his evidence vacillated from not being sure he saw her, to repeating a few times that she was watching him and also saying she had a phone in her hand.
[37] When questioned about his communication with Mr. Pitkin during the July 21st incident, he first said he might have been mumbling because of his sore back and then he conceded he may have used profane language in complaining about the apples.
[38] The trial judge found Mr. Spee’s evidence was largely evasive, inconsistent and unresponsive. He was stubborn in maintaining clearly unreasonable positions. The trial judge concluded Mr. Spee’s evidence did not raise a reasonable doubt about his guilt. The defence does not contest that conclusion.
[39] The focus of trial judge’s decision was therefore on whether or not Ms. Pitkin’s, Mr. Pitkin’s and Ms. Schiegl’s evidence raises a reasonable doubt about Mr. Spee’s guilt.
[40] The defence challenged Ms. Pitkin in some areas. The trial judge accepted the evidence of Ms. Pitkin. He found her evidence balanced and consistent. He found only minor inconsistencies between her and her husband’s evidence regarding whether she took the daughter inside or whether her husband sent her inside when Mr. Spee was throwing apples. He found that inconsistency of little consequence.
[41] The trial judge also accepted Ms. Pitkin’s explanation for why she told the 911 dispatcher that the east wall of her home was damaged by Mr. Spee piling snow there. The trial judge considered the defence’s position that Ms. Pitkin was untruthful in what she told the dispatcher because Ms. Pitkin did not know for a fact whether Mr. Spee piling the snow was the cause of the damage. The trial judge rejected the defence’s suggestion and accepted that Ms. Pitkin was just stating her belief about the cause of the damage and was never trying to make her belief a statement of fact.
[42] The trial judge also found that Ms. Pitkin’s evidence was largely corroborated by her husband’s evidence on both the July 21st incident and the earlier encounters with Mr. Spee. The trial judge also found that Ms. Pitkin’s evidence regarding July 21st was in part corroborated by Ms. Schiegl’s testimony.
[43] At trial defence counsel suggested that the delay of 38 days before Ms. Pitkin provided a police statement provided an opportunity for her to be influenced by others and even collude with them before giving the statement. The trial judge found, on the contrary, that the 911 recording actually rebutted that allegation and, in fact, saw her words as evidence of her emotional state at the time of or immediately following the assault. The trial judge took into account that on the recording Ms. Pitkin is crying and upset. She had observed from her home Mr. Spee throwing apples, aiming them at her husband.
[44] The trial judge also accepted Mr. Pitkin’s evidence. He found that Mr. Pitkin testified in a forthright manner without exaggeration or an attempt to mislead the court. The trial judge also accepted the testimony of Ms. Schiegl about the incidents previous to July 21st and about her witnessing Mr. Spee hurling profanities on July 21st.
[45] Defence counsel cited the fact that Mr. Pitkin remained on the ladder even though he was being struck with apples. The suggestion behind that view was that Mr. Pitkin did not feel fearful or harassed. The trial judge did not accept that argument. He found Mr. Pitkin had directed the daughter to go into the home and the fact he stayed on the ladder was not because he had no concern for his safety.
LEGAL PRINCIPLES
[46] Well established principles guide appellate courts in the review of lower court decisions.
[47] This case principally turns on credibility as between Mr. Spee and the Pitkins. In such a case, the trial judge must direct his or her mind to the decisive question of whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. That is, the trial judge is required to consider whether the evidence as a whole establishes the accused’s guilt beyond a reasonable doubt: [R. v. Dinardo, [2008] 1 S.C.R. 788, 2008 SCC 24, at para. 23, (S.C.C.)].
[48] Trial reasons do not have to live up to a standard of perfection. Reasons can fall short of the ideal so long as they are not so deficient that they fail to be sufficiently responsive to the live issues and the parties’ key arguments. The reasons must respond to the substance of what is at issue: [R. v. Walker, [2008] 2 S.C.R. 245, 2008 SCC 34, at para. 20, (S.C.C.)]. Put another way, trial reasons are not held to some abstract standard of perfection: [R. v. Dinardo, at para. 35 and R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869(S.C.C.)].
[49] In considering all of the evidence the court must not “dissect, parse, or microscopically examine the reasons of a trial judge”: [R. v. Burke, 1996 CanLII 229 (SCC), [1996] 1 S.C.R. 474, at para. 4, (S.C.C.); R. v. C.L.Y., 2008 SCC 2 (S.C.C.); R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193, at para. 11, (Ont. C.A.)].
[50] A trial judge’s findings on credibility are not to be easily disturbed. Where credibility is a determinative issue, “deference is in order and intervention will be rare”. An appellate court may only interfere with factual inferences drawn by a trial judge if those inferences are clearly wrong in law, unsupported by the evidence or result in a miscarriage of justice: [R. v. Dinardo, at paras. 24 – 33]. Intervention on credibility findings is only appropriate where the findings are based on palpable overriding error: [R. v. Sanderson 2017 ONCA 470, at p. 163, (Ont. C.A.)]. As the Supreme Court of Canada observed in R. v. Gagnon:
Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is why this Court decided, most recently in H.L., that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected.
[R. v. Gagnon, [2006] 1 S.C.R. 621, 2006 SCC 17, at paras. 20 – 21, (S.C.C.)]
[51] While appellate intervention is rare, when credibility is the central issue, there are credibility cases that call for appellate scrutiny. While intervention should be done sparingly, the rule against appellate intervention is not absolute particularly where there is a concern about the adequacy of the reasons:
I acknowledge that this is a power which an appellate court will exercise sparingly. This is not to say that an appellate court should shrink from exercising the power when, after carrying out its statutory duty, it concludes that the conviction rests on shaky ground and that it would be unsafe to maintain it. In conferring this power on appellate courts to be applied only in appeals by the accused, it was intended as an additional and salutary safeguard against the conviction of the innocent.
[R. v. Burke, 1996 CanLII 229 (SCC), [1996] 1 S.C.R. 474 (S.C.C.)]
[52] Misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those tests are met, there is the further test that the identified errors must take an essential place in the narrative of the judgment but also “in the reasoning process resulting in a conviction”: [R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193, at p. 221, (Ont. C.A.)].
THE CONVICTIONS
R. v. W.(D.)
[53] That hitting someone with apples constitutes an assault with a weapon is not in dispute. In his conclusion that Mr. Spee assaulted Mr. Pitkin with apples, I find the trial correctly applied R. v. W.(D.). The Supreme Court of Canada gave guidelines for trial judges in assessing credibility.
a) First, if you believe the evidence of the accused, obviously you must acquit.
b) Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
c) Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, based on the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 SCR 742 (S.C.C.)]
Assault with a Weapon Conviction
[54] The trial judge considered the following in finding an assault on Mr. Pitkin:
• The trial judge accepted Mr. Pitkin’s evidence that Mr. Spee assaulted him with apples and relied on Ms. Pitkin’s observation of Mr. Spee aiming apples at Mr. Pitkin.
• He considered Mr. Spee’s evidence and considered the possibility of that evidence raising a reasonable doubt.
• The trial judge also considered the evidence as a whole and found Mr. Spee’s evidence did not raise a reasonable doubt.
• The trial judge was mindful that the burden always rests on the Crown and that decisions on credibility are not to be treated as a credibility contest.
• The trial concluded he believed Mr. and Ms. Pitkin and after he considered Mr. Spee’s evidence found he disbelieved him on the totality of the evidence.
• The trial judge was mindful of the third step in R v. W.(D.) and that it is not the defendant’s obligation to raise a reasonable doubt; that the burden always rests with the Crown to prove the offence beyond a reasonable doubt.
Criminal Harassment Conviction
[55] On the offence of criminal harassment the Criminal Code provides:
264 (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.
[56] The trial judge’s finding on criminal harassment rests in both the history of the relationship between the Pitkins and Mr. Spee and in the evidence of what occurred on July 21st. The trial judge appropriately relied on the Ontario Court of Appeal decision in R. v. D.D. which, in paragraph 13, cited with approval the British Columbia Court of Appeal in R. v. Ryback: [R. v. D.D., 2005 CanLII 42472 (ON CA].
[57] The trial judge admitted the earlier incidents into evidence to both assess credibility as well as to determine whether, because of Mr. Spee’s earlier conduct from 2011 to July 21, 2015, the Pitkins’ fear for their safety or the safety of anyone known to them was reasonable in all of the circumstances. The trial finds support for his analysis in a case by the British Columbia Court of Appeal which addressed the admissibility of pre-charge conduct:
In my view, a similar test can be applied to a charge of harassment under s. 264. The appellant’s conduct which is the subject of the charge is to be looked at objectively and in the context of all that preceded it. Viewed in that way, the question is whether the complainant would reasonably fear for her safety by reason of the appellant’s conduct between December 1, 1993, and February 15, 1994, given her knowledge of the appellant’s prior conduct. It is, therefore, clear to me that the evidence of the appellant’s pre-charge conduct was relevant to the issues of whether the complainant had fear for her safety and whether it was reasonable that the complainant should be fearful “in all the circumstances”.
I am also of the view, however, that the pre-charge conduct is relevant to the appellant’s intent, that is to say as to whether he knew or was reckless as to whether his conduct harassed the complainant. The appellant was warned by the police in the summer of 1992 to desist from the conduct of the previous six months. The complainant had consistently ignored or rebuffed the appellant’s approaches. Any reasonable person would have understood at that time, and thereafter, that his approaches were unwelcome and a nuisance.
The appellant’s state of mind would, of necessity, depend in large part on his past association with, and conduct towards, the complainant. His knowledge that the complainant was harassed, or his recklessness as to whether she was harassed, could be realistically decided only by looking back to what had gone before. Similarly, pre-charge conduct which tended to show an innocent state of mind on the appellant’s part would also be admissible. If the pre-charge evidence tended to show that there had previously been a friendly relationship between the two, or that the complainant had encouraged the appellant in his advances so that the appellant believed his attentions were welcomed, it would be difficult to conceive a sound reason for excluding the evidence. It would clearly be relevant to showing an innocent state of mind and the absence of mens rea. If evidence of pre-charge events might be led to exculpate the appellant, then equally it would be admissible to inculpate him.
[R. v. Ryback (1996), 1996 CanLII 1833 (BC CA), 105 C.C.C. (3d) 240 (B.C.C.A.)].
[58] The trial judge demonstrates to my satisfaction through his reasoning that he was apprised of the law which sets what must be proven to make out the offence of criminal harassment. He also sought guidance from earlier authorities of the Ontario Court of Appeal and the Alberta Court of Appeal in arriving at his decision: [R. v. Silipp, 1997 ABCA 346, 1997 A.J. 1089 (Alta. C.A.); R. v. Kosikar, 1999 Carswell Ont. 2955 (Ont. CA); and R. v. Kordrostami, 2000 Carswell Ont. 554 (Ont. C.A.) 52].
[59] Guided by the case authorities the trial judge reviewed the evidence and found the following facts to be relevant to establish criminal harassment:
• that Ms. Pitkin feared for her own safety and that of her children and husband;
• that Ms. Pitkin called the non-emergency police line on a number of occasions due to Mr. Spee’s conduct;
• that Ms. Pitkin felt intimidated by Mr. Spee’s outbursts and often resorted to keeping herself and her children indoors to avoid him;
• that Ms. Pitkin feared for her husband and her child's safety and that the 911 audio provided corroborating evidence of that fear;
• that Ms. Pitkin’s fear was reasonable in all the circumstances;
• that given the previous incidents, by engaging in that conduct, Mr. Spee knew or at least was reckless as to whether Ms. Pitkin, who he saw witnessing the assault, was harassed;
• that Mr. Spee knew that Mr. Pitkin was harassed when he told him to go inside his home, to have some wine, while he was pelting him with apples and was at the very least reckless regarding whether he was harassing him in the course of his conduct that morning;
• that Mr. Pitkin was harassed and that his fears were reasonable in all the circumstances.
• that Mr. Pitkin felt threatened by Mr. Spee’s previous aggressive and angry conduct making him believe Mr. Spee was attempting to provoke confrontations.
• that after experiencing Mr. Spee’s violent outburst after being arrested, Mr. Pitkin felt a heightened fear for his own as well as his wife’s and children’s safety. The trial judge noted in this regard that on July 21, 2015, he made sure that his daughter was removed from the backyard when the apples were being thrown.
CONCLUSION
[60] The standard of review for an unreasonable verdict is directed toward whether the verdict is one that “no properly instructed jury, acting judicially, could reasonably have rendered”.An unreasonable verdict is one in which the judge “revealed he or she was not alive to an applicable legal principle or entered a verdict inconsistent with the factual conclusions reached: [R. v. Binaris, [2001] S.C.R. 381, at paras. 36 and 37, (S.C.C.)].
[61] The appeal court is asked to consider what verdict a reasonable jury, properly instructed, could judicially have arrived at, and, in doing so, to review, analyze, and within the limits of appellate disadvantage, weigh the evidence”; put another way, “whether on the whole of the evidence the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered”: [R v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168 (S.C.C.)]. The test does not concern itself with whether the verdict was the only reasonable verdict, but whether it was a reasonable verdict: [R v. Portillo, 2003 CanLII 5709 (ON CA), 176 C.C.C. (3d) 467, at para. 51, (Ont. CA)].
[62] The appellant submits the trial judge overlooked several material problems and made several errors that should be considered on appeal.
[63] For instance, the appellant submits that the trial judge failed to consider whether the evidence of Ms. Pitkin and Ms. Schiegl was tainted by collusion. The appellant cites an inconsistency between Ms. Pitkin’s and Ms. Schiegl’s evidence, that Ms. Schiegl said she and Ms. Pitkin spoke about the 2015 incident and Ms. Pitkin testified that they did not.
[64] The appellant suggests that Ms. Pitkin and Ms. Schiegl were friends who communicated about Mr. Spee and neither of them liked him. The evidence is that Ms. Schiegl heard Mr. Spee yelling, but did not see what happened. Then Ms. Pitkin attended Ms. Schiegl’s home and told her that Mr. Spee had thrown apples hitting her husband. The appellant suggests that this is evidence that the two women colluded.
[65] I can see that the trial judge was aware Ms. Pitkin went to Ms. Schiegl’s home in tears about seeing Mr. Spee throwing apples at her husband. [Reasons, at paragraph 79]. He was therefore alive to the fact that the two women spoke about the incident. In assessing each witness’s evidence on the whole, the trial judge did not conclude collusion tainted Ms. Pitkin’s evidence. He found Ms. Schiegl’s evidence was supportive of the Pitkins’ testimonies and confirmed Mr. Spee’s aggressive behaviour and his propensity for yelling profanities. Those findings were open to the trial judge on the evidence.
[66] On a related issue, the appellant cited what he considered to be an error related to how the trial judge treated Ms. Pitkin’s delay in making her statement to the police. The appellant submitted that Ms. Pitkin’s 38-day delay allowed an opportunity for collusion and influence on her statement by others.
[67] However, the trial judge did address that issue. He found the delay of little consequence and certainly not a strike against Ms. Pitkin’s credibility. He accepted her testimony that she had not been asked to provide a statement on July 21, 2015, and that she did not prepare her statement in conjunction with Mr. Pitkin or Ms. Schiegl. He believed Ms. Pitkin prepared the statement at the later time because that was when the police asked her to. Those findings were also open to the trial judge on the evidence he heard.
[68] What the appellant is asking of this court on the collusion issue is to improperly delve into and parse the trial judge’s credibility findings where no palpable overriding error or misapprehension of the evidence has been demonstrated.
[69] The law in any event is clear that it is “concoction and collaboration” not “mere contact” that is at issue when collusion is alleged. There must be an “air of reality” to an allegation of collusion: [R. v. Handy, (2002), 2002 SCC 56](https://www.canlii.org/en/ca/scc/doc/2002/2002scc56/2002scc56.html), 164 C.C.C. (3d) 481 at paras. [111 and 110](https://www.canlii.org/en/ca/scc/doc/2002/2002scc56/2002scc56.html#par111)[, (S.C.C.)]. Besides the fact that Ms. Pitkin may have spoken to her husband and Ms. Schiegl about the incident, there is insufficient support in the evidence to find there is an air of reality to collusion.
[70] The appellant also submits that the trial judge erred regarding his treatment of the audio of Ms. Pitkin’s 911 call. The appellant takes the position that the trial judge improperly used the audio of Ms. Pitkin’s 911 call to corroborate her trial evidence which, were this the case, would amount to a violation of the rule against oath-helping. I find as the Crown argues that this is not the use to which the trial judge put of the 911 call. He saw the 911 call not as corroborating Ms. Pitkin’s trial evidence. He rather accepted the contents of the 911 call as corroboration for her subsequent police statement.
[71] As well, the appellant suggests that the trial judge did not consider whether Ms. Pitkin’s statement to the police was a product of the influence of others. The trial judge considered the 911 call on that issue. The evidence is that the 911 call occurred right at the time of the July 21st incident. It was the 911 call, in the trial judge’s estimation, that corroborated Ms. Pitkin’s subsequent statement to the police. And importantly, the call also cast doubt on any suspicion that Ms. Pitkin’s statement was the product of the influence of others or collusion on her part. Those findings were certainly open to the trial judge on the evidence.
[72] It is the appellant’s view that the trial judge also erred by placing unreasonable reliance on his prior misconduct. The appellant’s position is based on his view that there is nothing in the prior conduct that would cause a reasonable person to believe that there was an objective basis for the Pitkins to fear for their safety.
[73] Contesting the trial judge’s assessment of Mr. Spee’s prior conduct is in effect to challenge his credibility findings on the Pitkins’ testimonies about their experiences. It amounts to an inquiry into the truthfulness of their evidence on their subjective fear for theirs and their child’s safety and into the truthfulness of what they have described as the objective basis of their fear.
[74] Credibility findings are the special preserve of the trier of fact at trial except in rare circumstances where the evidence was misapprehended or based in palpable overriding error. There is no support for a conclusion that the trial judge’s credibility findings were improper. It was open to the trial judge to assess all the witnesses’ evidence on the totality of the evidence and arrive at the findings he did.
[75] On the assault with a weapon charge, the trial judge considered Mr. Spee’s denial and did not believe Mr. Spee’s evidence that he did not throw apples at Mr. Pitkin. He did not believe that Mr. Spee simply placed apples at the base of the tree in the Pitkins’ yard. He found Ms. Pitkin’s and Mr. Pitkin’s evidence to be straightforward and credible. He found Ms. Pitkin corroborated Mr. Pitkin’s evidence as she witnessed Mr. Spee aiming apples at him and hitting him. He found on the totality of the evidence that Mr. Spee assaulted Mr. Pitkin with apples.
[76] On the criminal harassment charges, I find the trial judge more than amply reviewed the Pitkins’ evidence in the totality of the evidence, correctly applied the relevant law and reasonably found support for the finding that Mr. Spee engaged in criminal harassment of Mr. and Ms. Pitkin.
[77] I do not find on either charge that this is a case, as provided in R. v. Burke, where a limited review of credibility findings by the appellate court is appropriate. The trial judge’s reasons were fulsome in terms of legal analysis and setting out the factual underpinnings for his findings. There is no question in this case about the adequacy of the reasons on either charge.
[78] In conclusion, this is not a case where it would be appropriate for an appellate court to intervene. I find on the whole of the evidence that the verdicts of guilt on assault with a weapon and criminal harassment are reasonable, verdicts that a properly instructed jury, acting judicially, could reasonably have rendered.
[79] I do not allow the appeal on the convictions.
APPEAL ON SENTENCE
[80] The trial judge sentenced the appellant to a suspended sentence and two years’ probation. The appellant submits that a conditional discharge ought to have been imposed: [R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, at pp 209 – 210, (S.C.C.); R. c. Lacasse, 2015 SCC 64, at para. 11, 51, (S.C.C.); R. v. Ahmed, 2018 ONCA 426, at para. 7, (Ont. C.A.)].
[81] Appellate courts are required to show deference to sentences imposed after trial by the presiding judge. Intervention should only occur if the sentencing court has made an error in principle, failed to consider a relevant factor, overemphasized otherwise appropriate factors or imposed a demonstrably unfit sentence.
[82] The appellant argues that the trial judge made two errors which he argues allow for appellate intervention. The appellant argues:
• that the trial judge failed to apply the correct legal test for the imposition of a conditional discharge by failing to address whether a conditional discharge would be in the appellant's best interest.
• that the trial judge ought to have weighed the relevant sentencing principles and factors differently, namely, that the court:
o overemphasized the appellant’s lack of remorse;
o minimized the minor nature of the offence;
o minimized the fact that Mr. Spee was a first offender with no prior criminal history; and
o ought to have made restraint and rehabilitation the predominant sentencing conditions.
[83] The Ontario Court of Appeal held that a form of discharge is only “in the best interests of the accused” where “deterrence of the offender himself is not a relevant consideration”, except to the extent required by the conditions of a probation order: [R. v. Sanchez-Pino, 1973 CanLII 794 (ON CA), [1973] 2 O.R. 314 at paras. 16-17, (Ont. C.A.); R. v. Fallowfield, (1973) 1973 CanLII 1412 (BC CA), 13 C.C.C. (2d) 450, at para. 21, (Ont. C.A.)]
[84] I find the trial judge did find that a form of discharge was not in the appellant’s best interest. The trial judge did a careful examination of the nature of and circumstances surrounding the offences. He considered the protracted course of Mr. Spee’s conduct, the fact of his unremitting incursions into the Pitkins’ lives and enjoyment of their property. The trial judge pinpointed Mr. Spee’s limited insight into the effect of his conduct and his lack of remorse and concluded, appropriately, that specific deterrence was a relevant sentencing principle.
[85] As to the question of whether the trial judge overemphasized Mr. Spee’s lack of remorse, I find the facts at trial and the pre-sentence report more than amply support the trial judge’s assessment of Mr. Spee’s lack of remorse.
[86] Mr. Spee strangely told the author of the pre-sentence report that “his neighbours [the Pitkins] concocted the complaints as a way to gain access to his property” as other neighbours had previously done, all complaints being “related to real estate”. The trial judge found his lack of remorse was clearly portrayed in his assertion that any regret he had was limited to him not having pursued his complaints more aggressively.
[87] Those are findings open to the trial judge to make and this court ought not to interfere. I agree with the Crown that “in the circumstances of this case, giving significant weight to the appellant’s lack of remorse is hardly an error. Indeed, the case for doing so is compelling.”
[88] The appellant’s submission is that the trial judge minimized the minor nature of the offences. Again, the facts support the trial judge’s conclusion on the seriousness of the offences. In finding the offences were not minor the trial judge cited the historical nature of Mr. Spee’s behaviour toward the Pitkins over the four years before charges were brought against him in 2015. His behaviour made the Pitkins reasonably fear for theirs and their child’s safety and made them retreat from going out of their home and using their backyard.
[89] The Pitkins’ victim impact statement tells of the emotional impact on their lives of Mr. Spee’s aggressive behaviour, the looming presence of their next-door neighbour. They indicate they can no longer sustain being perpetually anxious and worried about family safety and the protection of their property. Their encounters with Mr. Spee have exacted an emotional toll on them and they fear there will be no change in his aggressive interactions. They feel ill at ease with the prospect of Mr. Spee returning to live next door to them.
[90] On the issue of the trial judge minimizing the fact that Mr. Spee did not have a criminal record, he did address that question. And he took it into account as a mitigating factor, with other mitigating and aggravating factors, in concluding that a suspended sentence with probation is a fit sentence.
[91] The appellant cites the fact that Mr. Spee has no prior criminal record and had attended an anger management program, to support the view that restraint and rehabilitation ought to have been the guiding principles in sentencing Mr. Spee. The appellant finds it problematic that the trial judge did not consider this.
[92] I find on the whole of what the trial considered that it can be assumed that the trial judge had ruled out any thought of restraint and rehabilitation. I think that can reasonably be implied by the aggravating factors he considered - Mr. Spee’s prolonged persistence with profanity and aggression, his many and varied forms of harassment, and despite the Pitkins’ passiveness non-provocative reaction, his heightening negative conduct. Though Mr. Spee did not have a criminal record, it was before the court that he had run-ins with the police, for instance with the Schiegls, which did not appear to affect his subsequent behaviour toward the Pitkins.
[93] The pre-sentence report was before the trial judge. I can assume the trial judge considered its contents. The author of the report cited Mr. Spee’s uncooperativeness in the interview and said of him that he ignored phone calls, was a difficult person and resistant to providing information and following up as he said he would. This does not give comfort that Mr. Spee would cooperate and learn from the anger management program.
[94] In conclusion, I find the trial judge appropriately considered the mitigating and aggravation factors within the framework of the sentencing principles with the advantage of having observed the witnesses at trial. In all the circumstances of this case, I find the trial judge has arrived at a fair and fit sentence.
[95] The Crown raised an additional issue for the court’s attention. The trial judge convicted the appellant on two counts of criminal harassment contrary to section 264(2)(d) of the Criminal Code. Where a person is convicted or discharged of an offence under s. 264, s. 109(1)(b) of the Criminal Code stipulates an additional punishment that applies to prohibit possession of any firearm or regulated item.
[96] For a first prohibition order, s. 109(2)(a)(ii) mandates that the order be at least ten years in duration. The Crown in this case in error sought a s. 110 firearm prohibition order and the court declined to grant the order. The Crown argues that absent a constitutional challenge to a sentencing regime, the trial judge had no authority to impose a prohibition below the mandatory minimum: [R. v. Silvajun, 2018 ONSC 3114 (Ont. S.C.J.)].
[97] What is at issue here is that the Crown did not bring this matter on its own appeal. What the Crown is requesting is that this appellate court increase the sentence on the firearm prohibition on this appeal brought by the defence.
[98] The Crown cites a Supreme Court of Canada case that considered whether a sentence could be increased upon a Crown request on the appellant’s appeal of the sentence where the Crown had not sought leave to appeal. The majority of the court concluded that the phrase, “vary the sentence within the limits prescribed by law” (in s. 687(1)(a) of the Criminal Code), the operative provision allowing appellate courts to address errors on sentencing, is not to be interpreted as to restrict the appellate court solely to a variation by way of reduction upon an appeal brought by a defendant. Once the case is appealed the court is permitted to vary the sentence as is appropriate: [R. v. Hill, 1975 CanLII 38 (SCC), [1977] 1 S.CR 827, at p. 14, (S.C.C.)].
[99] The Crown requests on this appeal that the court should correct the sentence of the lower court and impose a s. 109 prohibition order. The Crown submits that the minimum ten-year firearm prohibition order is appropriate in the circumstances. I accept the Crown’s position.
[100] I do not allow the appeal of the sentence. And I accept that this court has the jurisdiction to render the s. 109 order requested.
DISPOSITION
I would dismiss the appeal of the convictions and the sentence. I would vary the firearm prohibition to the ten-year minimum provided under s. 109(2)(a)(ii) of the Criminal Code.
B. A. Allen J.
Released: June 16, 2021
COURT FILE NO.: CR-20-10000059-00AP
DATE: 20210616
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
RICHARD SPEE
Appellant
REASONS FOR JUDGMENT
(On a summary conviction appeal)
Allen J.
Released: June 16, 2021