Court File and Parties

COURT FILE NO.: CR-21-19795 DATE: 2023/06/29

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: June 19 to 23, 26, and 27, 2023

Mid Trial Rulings

J. PARFETT

DECISION RE APPLICATION PURSUANT TO S. 715 OF THE CRIMINAL CODE

[1] The Crown seeks to introduce the transcript of evidence of Constable Christa Schellenberg taken at the preliminary inquiry in this matter.

Background

[2] The Accused, Mr. Lance Crossley is charged with two counts of threats contrary to s. 264.1 of the Criminal Code (R.S.C., 1985, c. C-46), (“the Code”), two counts of criminal harassment contrary to s. 264(3) of the Code and two counts of intimidation to impede the administration of criminal justice contrary to s. 423.1(3) of the Code.

[3] The charges arise out of emails and a letter sent to the investigating officer, Detective Chris Evraire, an officer with the Ottawa Police Service, and the trial judge at the conclusion of a trial in which Mr. Crossley was convicted of threats and breach of a peace bond.

[4] Cst. Christa Schellenberg is a Crown witness in the case. She retired early from the police service due to ill health and is unable to attend court to testify. The Crown filed a note from Cst. Schellenberg’s doctor confirming her serious illness. [1]

[5] Cst. Schellenberg testified at the preliminary inquiry and was cross-examined by Mr. Crossley who was present and self-represented. Presently, Mr. Crossley is not participating in the trial process. However, the court does have the assistance of amicus.

Analysis

[6] The relevant portions of s. 715 of the Criminal Code are as follows:

(1) Where, at the trial of an accused, a person whose evidence was given…on the preliminary inquiry into the charge… if facts are proved on oath from which it can be inferred reasonably that the person

(c) is so ill that she is unable to … testify

And where it is proved that the evidence was taken in the presence of the accused, it may be admitted as evidence in the proceedings without further proof, unless the accused proves that the accused did not have full opportunity to cross-examine the witness.

[7] The situation in the present case meets the criteria for admission. The investigating officer testified that he had spoken to Cst. Schellenberg. She indicated that she was too ill to come to court and testify. Sgt. Toghrol also received a doctor’s note that was filed on this motion. The note indicated that Cst. Schellenberg was undergoing treatment for cancer.

[8] Mr. Crossley was present at the preliminary inquiry and cross-examined Cst. Schellenberg on her testimony.

[9] Mr. Crossley was given an opportunity to testify or make submissions on this issue but did not respond.

[10] The only issue is whether the court should exercise its residual discretion and refuse to admit the evidence.

[11] Section 715 of the Code seeks to achieve a balance between an accused’s right to fully cross-examine a witness at his trial and to ensure that important evidence is not lost to the trier of fact due to the inability of a witness to testify at trial. Both goals engage the truth-seeking function of a trial. [2]

[12] The court’s residual discretion to refuse admission of the evidence is focused on whether the evidence was obtained in a manner that was unfair to the accused. [3]

[13] In the present case, there is no evidence from the accused suggesting that he did not have a full opportunity to cross-examine this witness. Nor is there any evidence that the admission of this evidence would be unfair to the accused.

[14] I note that this evidence relates primarily to the issue of the identity of the person who wrote the emails and letter that form the subject matter of the charges. Cst. Schellenberg’s evidence forms one part of a body of circumstantial evidence that the jury will be required to assess to make the determination of identity.

[15] In the circumstances, I find that this evidence is admissible.

DECISION REGARDING VOLUNTARINESS

[16] The Crown seeks to have admitted into evidence several emails sent by the accused, Mr. Lance Crossley to Det. Evraire. These emails were all sent between November 2018 and February 25, 2020.

[17] Mr. Crossley is self-represented and has chosen not to participate in the present proceedings.

Background

[18] In March 2018, a statue of Buddha that was in front of the Buddhist Temple on Heron Road in Ottawa was severely damaged. A steel bar was left behind at the scene. Mr. Crossley’s fingerprint was found on the metal bar. Det. Evraire was assigned to investigate the matter. The members of the Buddhist Temple did not want charges to be laid. So, Det. Evraire issued a warning to Mr. Crossley.

[19] In May of 2018, the same statue was again damaged. Mr. Crossley was arrested by Det. Evraire and charged with mischief. He was released on a Promise to Appear with a condition that he notify Ottawa Police if he changed his address. [4]

[20] In November 2018, Mr. Crossley sent Det. Evraire an email advising him of a change in his address. The trial on the May 2018 charges was held on April 2 & 3, 2019 and Mr. Crossley was placed on a common law peace bond for 12 months. The only conditions were to stay away from the Buddhist Temple and keep the peace.

[21] On April 8, 2019, Mr. Crossley sent Det. Evraire another email with religious content and suggesting that Det. Evraire not continue to investigate him should there be another incident.

[22] On May 20, 2019, Mr. Crossley again sent Det. Evraire an email. This time he asked that the metal bar that had been seized in March 2018 be returned to him.

[23] On February 25, 2020, Mr. Crossley sent Det. Evraire an email advising him that he intended to further damage the statue of Buddha on Heron Road. He was arrested and charged with breach of the peace bond and threats to damage property.

[24] The trial on the February 2020 charges was held on January 18, 2021, and Mr. Crossley was convicted of both offences. On January 20, 2021, Mr. Crossley sent a series of emails to Det. Evraire. These emails contained threatening language. He also delivered a letter to the courthouse intended for the trial judge that contained similar threatening language.

[25] As a consequence of those emails and the letter, Mr. Crossley was charged with the offences before the court.

Issues

1. Were the emails sent to Det. Evraire sent to a person in authority; and
2. Did the emails constitute voluntary statements?

Person in authority

[26] As noted in R. v. Bharwani, 2023 ONCA 203, there is no absolute definition of a person in authority. While police officers are generally considered to be persons in authority, the test is subjective and involves an inquiry into ‘whether the accused, based on his or her perception of the recipient’s ability to influence the prosecution, believed either that refusing to make a statement to the person would result in prejudice, or that making one would result in favourable treatment.’ [6]

[27] In the present case, Mr. Crossley in his first email to Det. Evraire indicates that while he is not sure Det. Evraire is the correct person to contact, he believes that he should advise him of his change of address.

[28] In addition, in the February 25, 2020 email, Mr. Crossley acknowledges that Det. Evraire could arrest him for threatening to damage the Buddha statue.

[29] In the circumstances, I find that Mr. Crossley viewed Det. Evraire as a person in authority.

Voluntariness

[30] As noted in R. v. Oickle, 2000 SCC 38, there are four factors to examine in determining the question whether a statement made to a person in authority was made voluntarily.

[31] They are:

• Operating mind;
• Threats or promises;
• Oppression; and
• Police Trickery [8]

[32] The application of the confessions rule is contextual, and all relevant circumstances should be considered to determine whether Crown counsel has proven beyond a reasonable doubt that the statements in question were voluntary. [9]

[33] Mr. Crossley did not testify on the voir dire, although he was provided with the opportunity to do so.

[34] The threshold for operating mind is relatively low and in the present case, the content of the emails themselves demonstrate that Mr. Crossley had an operating mind.

[35] The evidence is that Mr. Crossley initiated all the contact with Det. Evraire. Det. Evraire did not solicit any of the emails sent by Mr. Crossley. Det. Evraire did not caution Mr. Crossley at any point. However, as noted in R. v. Tessier, 2022 SCC 35 at para. 8, while the police are well advised to provide a caution in advance of engaging in conversation with a suspect, it is not always required. It is up to the Crown to prove that the absence of a caution did not undermine a suspect’s free will. I find that in this case, the lack of caution did not negatively affect the voluntariness of Mr. Crossley’s emails given that Mr. Crossley initiated all the contact with Det. Evraire.

[36] Det. Evraire testified that he did not make any threats, promises or inducements towards Mr. Crossley at any time. That evidence is uncontradicted and I accept it. Finally, there is no evidence of police trickery.

Conclusion

[37] The circumstances surrounding the communications – the fact the emails were unsolicited, and the content of the emails persuade me that they were entirely voluntary in nature. Consequently, the emails can be admitted into evidence for the purpose of assisting the jury in determining whether the emails and the letter sent in January 2021 were authored by Mr. Crossley.

[38] As noted earlier in this decision, the evidence of Cst. Schellenberg, taken at the preliminary hearing of this matter, will also be admitted.

Justice J. Parfett

Date: June 29, 2023