Court File and Parties

Court File No.: CR-21-19795 Date: 2023/05/09 Ontario Superior Court of Justice

B E T W E E N: His Majesty the King, Applicant – and – Lance Crossley, Defendant

Counsel: M. Purcell, for the Crown Self-Represented with the assistance of Amicus Curiae, B. Del Greco

Heard: April 11, 2023

Ruling on Application

1The Crown seeks a ruling in relation to the admissibility of prior discreditable conduct for the purpose of establishing the identity of the accused and as narrative.

Background

2Lance Crossley is accused of one count of uttering threats to cause bodily harm, one count of threats to cause damage to property, two counts of attempt to impede a justice participant in the performance of his duties, and two counts of criminal harassment.

3The charges stem from emails that Mr. Crossley allegedly sent to the judge who had convicted him on charges of breach of a court order and threats as well as the investigating officer.

4His trial is scheduled to start in June and is before a jury.

5Mr. Crossley has previously been convicted of criminal harassment and breach of a court order. Some of these convictions form the backdrop of the charges that are presently before the court.

6Mr. Crossley has always been self-represented in this matter and until the fall of 2022, he was actively engaged in defending himself. Starting in the fall of 2022, Mr. Crossley stopped speaking while in court. He has not engaged with the court process since that time.

7An amicus was appointed in November 2022 to assist the court given Mr. Crossley’s decision not to engage with the process.

8At the last judicial pre-trial conference in which Mr. Crossley was engaged, the Crown indicated that it would be bringing an application to admit evidence that constituted prior discreditable conduct for the purpose of proving that Mr. Crossley was the author of various emails that were the subject matter of the charges.

9There was a discussion at that conference, the upshot of which, was that Mr. Crossley admitted he was the author of the emails the Crown sought to introduce, and he intimated that he would be prepared to admit other background facts. The Crown prepared an agreed statement of facts. However, Mr. Crossley never formally approved the agreed statement of facts.

10In the circumstances, the court indicated that despite the admission Mr. Crossley had made on the record previously at the pre-trial conference, the Crown would be obliged to demonstrate that the evidence it wished to introduce met the test for admissibility of prior discreditable conduct.

Positions of the Parties

11The Crown alleges that the subject matter of the indictment is inextricably linked to prior criminal proceedings dating back to 2016. He argues that throughout Mr. Crossley’s communications with the investigating officer, Det. Evraire, he refers repeatedly to his prior criminal proceedings.

12The Crown concedes that the emails purportedly authored by Mr. Crossley and sent prior to January 2021 fall within the category of statements that could be viewed with disapproval by a reasonable person. [1] In addition, Crown counsel wants to refer to trial transcripts and findings of fact made by the trial judges in prior proceedings. He prepared an outline of the material to which he wants to refer, and it is attached as Appendix A to this decision.

13Mr. Crossley was asked whether he wished to make any submissions. He did not respond.

14Amicus argued that some of the material the Crown wishes to put in evidence is too remote in time, too different from the present charges or too prejudicial to be admitted. However, he conceded that in the absence of any agreement concerning the authorship of the emails, some of the earlier emails and the fact of the convictions were likely admissible.

Analysis

15The general principle is that evidence of prior misconduct is not admissible in an accused’s trial. This exclusionary rule bars evidence that could support an inference that an accused has the propensity to do the acts charged. [2] Guilt is established by proof of conduct, not by proof of character. [3]

16There are exceptions. Evidence of prior misconduct may be used to prove the identity of an accused. [4] It may be used as narrative or contextual evidence. [5] It can also be used if it meets the test for similar fact evidence. [6] Where the purpose of the proposed evidence is motive, the probative value of the evidence does not necessarily arise from its similarity to the offence charged and consequently, not all the factors required in the analysis for similar fact apply. [7]

17Narrative evidence can be important to demonstrate motive and animus of the accused. [8] In the case of criminal harassment, evidence of the relationship between the accused and the complainant is relevant to the issue of whether the complainant’s fear was reasonable in all the circumstances. [9] Additionally, pre-charge evidence may be relevant to the issue of the accused’s intent and whether he knew or was reckless whether the complainant was harassed. [10] As noted in R. v. D.(D.),

This evidence of prior discreditable conduct was proffered to provide a context within which to assess the effect of the incident charged on the complainant and whether the conduct of the respondent was of such a nature that he knew that the conduct would cause the complainant to be fearful or that he was reckless as to whether or not she was fearful, an essential element of the offence of criminal harassment. Such evidence would also provide the necessary context in which to consider whether her fear was objectively justifiable. [11]

18For evidence of this nature to be admitted, it must be relevant to an issue at trial and its probative value must outweigh its prejudicial effect. In a jury trial, this type of evidence must be accompanied by a limiting instruction to ensure the jury does not misuse the evidence.

19In weighing the probative value versus prejudicial effect, the court must consider the purpose for which the evidence is tendered. [12] It is in that context that the balancing process should take place.

20In the present case, the Crown has divided the evidence it seeks admitted into three categories: the incidents in 2016 and January 2018 are the first category. The incidents from March 2018 to February 2020 fall into the second category, and the incidents from January 2021 are the incidents that form the subject matter of the charges.

First Category of Incidents

21Between August and September 2016, Mr. Crossley repeatedly damaged a LGBT Pride flag at the Youth Services Bureau in Ottawa. He is convicted of mischief in November 2016. In January 2018, Mr. Crossley sent a Facebook message that appeared to contain a threat. He was acquitted of charges of criminal harassment and threats but placed on a peace bond.

22I agree with amicus that these incidents are too remote and from the present charges to provide much probative value. In addition, the risk of prejudice to Mr. Crossley is relatively high. As a result, I find this conduct is not admissible.

Second Category of Incidents

23Mr. Crossley targeted a statue of Buddha on Heron Road in Ottawa. In March 2018, the head of the statue was damaged, and Mr. Crossley’s fingerprint was found on a metal bar that was left near the statue. He was charged with mischief to property. In April 2019, Mr. Crossley was acquitted and ultimately placed on a peace bond. The investigating officer was Det. Evraire and there were email exchanges between Mr. Crossley and Det. Evraire.

24In February 2020, Mr. Crossley sent an email to Det. Evraire telling him that he was planning on removing the head of the Buddha statue on Heron Road. He was charged with threats to damage property and breaching a peace bond. In January 2021, Mr. Crossley was convicted of both offences.

25These incidents are closely related in time and subject matter to the conviction that led to the third category of incidents. The third category of incidents involves emails and a letter addressed to the trial judge, statements made to the probation officer and further emails sent to Det. Evraire.

26As noted by the Crown, they must prove that Mr. Crossley was the author of the emails sent between January 2021 and March 2021 as part of the proof of their case. The Crown indicates that there is evidence that the emails were sent from the same email addresses. The use of language in the emails is consistent between the emails sent from November 2018 to February 2020 and the emails that form the subject matter of the charges. Within the emails, the writer refers to the legal proceedings that involve Mr. Crossley.

27The evidence in this second category is inextricably bound up with the charges before court. It would not be possible for the jury to understand the evidence concerning the charges without hearing this evidence. It is highly probative of the issues of the identity of the author of the emails, motive and intent.

28The potential for prejudice exists but, in my view, it can be mitigated by early and repeated limiting instructions. Additionally, references to the convictions can be limited to the bald fact of the conviction and a brief statement concerning the findings. Nothing more is required to meet the objective of the Crown in explaining the context of the earlier proceedings.

29The Crown’s application is granted, in part.

Justice J. Parfett Date: May 9, 2023

Citations

[1] R. v. J.W., 2022 ONCA 306 at para. 15 [2] R. v. Handy, 2002 SCC 56 at para. 31 [3] R. v. Moo, 2009 ONCA 645 at para. 96 [4] R. v. Baksh, 2022 ONCA 481 at para. 24 [5] R. v. Moo, 2009 ONCA 645 at para. 98 [6] R. v. Handy, 2002 SCC 56 [7] R. v. Johnson, 2010 ONCA 646 at paras. 97 and 98 [8] R. v. Moo, 2009 ONCA 645 at para. 98 [9] R. v. Krushel, 2000 CarswellOnt 325 at para. 17 [10] R. v. Krushel, 2000 CarswellOnt 325 at para. 26 [11] R. v. D.(D.), 2005 CarswellOnt 6605 at para. 16 [12] R. v. D.(D.), 2005 CarswellOnt 6605 at para. 17