Court File and Parties

COURT FILE NO.: CR-21-89-00-AP DATE: 20230721 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Kerri-Jean Young Appellant

Counsel: Adam Zegouras, for the Respondent Megan Stephens and Neil Abraham, for the Appellant

HEARD: February 3, 2023

BEFORE: Bramwell, J.

OVERVIEW

[1] The appellant was charged with one count of criminal harassment against her former domestic partner. The incidents giving rise to the charges occurred from July through September 2020. It was alleged that she repeatedly followed the complainant during this time period which caused him to fear for his safety and the safety of others known to him.

[2] Four witnesses testified at the trial: the complainant, his current partner (Ms. Mills), the appellant and her friend (Mr. Graham) who was with her during the incidents in question. The evidence was heard over two days. The appellant was self-represented. Counsel was appointed to conduct the cross-examination of the complainant and his current partner (“s. 486 counsel”). At the close of the Crown’s case, and after s. 486 counsel’s involvement was over and she had left, the Crown brought a successful application to amend the Information.

[3] After the appellant’s friend and the appellant testified, the trial judge invited the appellant to make submissions. He then said he did not need to hear submissions from the Crown. He then delivered a decision from the bench and convicted the appellant.

[4] The matter returned for the sentencing hearing three months later. The appellant’s sentence was suspended and she was placed on probation for two years.

[5] The appellant appeals her conviction on the basis that:

a. The trial judge misapplied the test set out in R. v. W.D.[^1];

b. The trial judge’s reasons are insufficient;

c. The trial judge failed to assist the self-represented accused as required;

d. The verdict was unreasonable as there was insufficient evidence to establish the necessary elements of the offence; and

e. The trial judge failed to consider whether a conditional discharge was appropriate.

[6] I find the trial judge’s reasons are insufficient and it is unclear whether and how he conducted the analysis required by R. v. W.D. For the reasons that follow, I allow the appeal on these issues, set aside the appellant’s conviction and order a new trial.

THE EVIDENCE AT TRIAL

[7] In light of the disposition of this appeal, only the facts that are necessary to understand the nature of the evidence and the issues on appeal will be reviewed.

[8] At all relevant times, the child of the complainant and the appellant, Hailey, who was 12-13, lived with her father, the complainant, pursuant to a family court order, and was only having sporadic telephone contact with her mother, the appellant. The same order prohibited the appellant from going to the complainant and Hailey’s home and from going to Hailey’s school and provided that the complainant and appellant were to communicate about Hailey only though email or text message. The order provided that the appellant was to have supervised parenting time with Hailey but, due to the COVID 19 pandemic, and the resultant closure of supervised access centres, the appellant had not seen Hailey in person for a number of months by the summer of 2020, when these allegations arose. The complainant also said that Hailey did not want to see her mother for the supervised access visits that the family court order provided for and so, in his view, the best course of action was to have Hailey speak to her mother on the phone instead.

[9] At all relevant times, the complainant was in a relationship with Ms. Mills. He and Hailey did not live with Ms. Mills but both of them spent quite a bit of time at her home.

The birthday gift incident

[10] On July 22, 2020, Hailey’s 13th birthday, Mr. Graham and the appellant went to Ms. Mills’ house. The complainant was not at Ms. Mills’ house at the time, nor was Hailey. While the appellant waited in the car, Mr. Graham knocked on Ms. Mills’ door and asked Ms. Mills whether he could leave a box of birthday gifts for Hailey from her mother with Ms. Mills.

[11] Ms. Mills said that the appellant and Mr. Graham should not be at her home because of the court order but that she would accept the gifts. When Mr. Graham brought the box of gifts to the porch and left it, there was a note on top of the box to Ms. Mills from the appellant advising Ms. Mills that the appellant had suffered abuse at the hands of the complainant when they were together and asserting that there was no restraining order preventing the appellant from going to Ms. Mills’ home.

[12] Ms. Mills testified that the appellant remained at or in the car during Ms. Mills’ exchange with Mr. Graham but that she was waving at Ms. Mills and trying to take photos and video recordings of her.

[13] When the appellant and Mr. Graham left, Ms. Mills called the complainant and told him what had happened. The complainant testified that when he got to Ms. Mills’ home later that day, she showed him a video she had taken of the appellant.

[14] This was the first time the complainant and Ms. Mills realized that the appellant knew where Ms. Mills lived.

[15] The complainant reported this incident to the police. The officer who was dispatched to respond to the complaint intended to contact the appellant to caution her against going to Ms. Mills’ home but was unable to reach the appellant at that time.

The Zwick’s Park incident

[16] In early August 2020, the complainant and Ms. Mills were walking on a waterfront trail in Zwick’s Park in Belleville when they encountered the appellant and Mr. Graham, walking on the same trail, but in the opposite direction.

[17] Upon passing the complainant, the appellant called the complainant a series of derogatory names. The complainant ignored her and he and Ms. Mills kept walking. The appellant and Mr. Graham continued walking, away from the complainant.

[18] Both the complainant and Ms. Mills testified that they believed it was a coincidence that they crossed paths with the appellant and Mr. Graham at Zwick’s Park that day.

The Myer’s Pier incident

[19] In or around August 23, 2020, the complainant and Ms. Mills were seated at a table watching live music at a bar/restaurant at Myer’s Pier in Belleville. At some point, they noticed the appellant and Mr. Graham in the area. The appellant and Mr. Graham then came over and stood right in front of where the complainant and Ms. Mills were seated and, essentially, stood between them and where the band was playing.

[20] Both the complainant and Ms. Mills testified that they do not know whether the appellant and Mr. Graham were already there at Myer’s Pier that day when they arrived and whether it was again, co-incidental that they were all in the same place at the same time.

[21] The appellant made some comments to the complainant and Ms. Mills and took some photos and videos of them, then stopped and turned around and watched the band. The appellant and Mr. Graham turned around and looked at the complainant and Ms. Mills from time to time until the complainant and Ms. Mills left.

[22] The complainant and Ms. Mills decided to leave the show about 30-45 minutes before the end. They left because of the actions of the appellant and Mr. Graham. The complainant testified that “the fun had gone out of the evening.”

[23] As the complainant and Ms. Mills went to their car in the parking lot, they noticed the appellant and Mr. Graham walking behind them, also travelling to the parking lot. Nothing was said on the way to or in the parking lot. The complainant and Ms. Mills left in their vehicle and did not see what the appellant and Mr. Graham did or where they went after that.

The window at Ms. Mills’ home incident

[24] A day or two after the Myer’s Pier incident, the complainant, Ms. Mills and Hailey were sitting at Ms. Mills’ dining table playing a board game when the appellant was spotted standing in the flower bed or garden area in front of Ms. Mills’ front window, looking into the window and holding up her cell phone as though she was video recording the inside of the house.

[25] Ms. Mills’ quickly got up and went to the window and lowered the blinds. The appellant responded by moving over to the next window. The appellant was yelling “we’re not separated” and “he’s cheating” and “stay away from my daughter.”

[26] Ms. Mills’ told the appellant to get off her property. The complainant called the police. The appellant then got into Mr. Graham’s vehicle and Mr. Graham drove away.

[27] Ms. Mills testified that essentially the same thing happened while the complainant and Hailey were at her home again on August 26, 2020, about three days after this incident. The complainant did not refer to a second incident involving the appellant coming to Ms. Mills’ home in his evidence.

[28] The complainant testified that this incident made him question Mr. Graham’s intentions. Specifically, he wondered whether he might go out to his car some night to find Mr. Graham there with a weapon. The complainant said his mind “went wild” from there.

[29] Regarding his feelings about the appellant’s actions in this incident, the complainant said he didn’t know what she was up to and felt she was “kind of like an unstoppable force at this point.” After seeing her in the window, the complainant had a lot of anxiety and stress and wondered what was going to happen next and whether things were going to escalate. He wondered what he had to do to get the appellant to go away. The complainant also testified that Hailey got very upset upon seeing her mother in the window and went under the table and was crying and saying that she and her father couldn’t go anywhere without her mother finding them.

[30] The officer who was dispatched to respond to the complainant’s call on this date contacted the appellant on August 28, 2020 and cautioned her against attending at Ms. Mills’ home. This was the first time the appellant was spoken to by police about her conduct in these incidents.

The music lesson incident

[31] On September 29, 2020, the complainant dropped Hailey off at a music lesson and then went home to grab his wallet. When he returned to the plaza where Hailey takes her lessons, he saw the appellant standing in a nearby alleyway, appearing to video record him on her phone.

[32] The complainant got out of his vehicle and started to approach the area where he had seen the appellant and she was no longer there. He went around to the back of the plaza, through the alleyway and did not see the appellant there. At the back of the plaza, the complainant spotted and approached Mr. Graham’s car and began to ask Mr. Graham questions. The appellant was in Mr. Graham’s car at the time. The exchange between the parties at the car was recorded by the complainant on his phone and the recording was tendered as an exhibit on the trial. The recording was not part of the record on this appeal.

[33] After confronting the appellant and Mr. Graham behind the plaza, the complainant left the area and hadn’t seen the appellant since (by the time of the trial). He returned to where Hailey takes her music lessons, retrieved her, went home and called the police.

[34] When the officer who had cautioned the appellant on August 28, 2020 learned, on October 7, 2020 that the complainant had reported the September 29. 2020 incident, he charged the appellant with criminal harassment.

Tim Horton’s incident

[35] The complainant was not able to provide a date or timeframe for an incident in which he took Hailey to a Tim Horton’s. He testified that the appellant and Mr. Graham followed his car, pulled past them and parked about 50 yards, or half a football field away, with Mr. Graham’s car facing the Tim Horton’s. Because of the presence of the appellant and Mr. Graham in the area, the complainant told Hailey that they couldn’t go to that Tim Horton’s. They left and went to one in a different part of the city.

[36] The complainant testified that he knew it was the appellant and Mr. Graham in the car because Mr. Graham drove a red Pontiac Vibe and the complainant had written down the license plate number of that vehicle on a post-it note that he kept on the dash of his vehicle. He did that so that he didn’t “freak out” upon seeing any red Vibe.

The complainant’s overall feelings about the appellant’s conduct

[37] At some point in the chronology of the above-described incidents, the complainant paid for and installed video cameras outside of Ms. Mills’ home because he was concerned that “somebody was going to come into the house at night and maybe do something.” The complainant felt that it was his responsibility to put the cameras up because he had brought trouble to Ms. Mills’ home in the form of the appellant’s conduct. He wanted Ms. Mills to feel safe in her home. However, he testified that he never went through the footage recorded by the cameras.

[38] When asked how the appellant’s conduct had affected him, the complainant testified that he didn’t go out with the intention to look behind him and that was not how he lived because it was not how he wanted to live. He said he didn’t want to look over his shoulder to see if he was being followed or to have to go down side streets to avoid being followed or bothered.

[39] The complainant said that he felt as though he didn’t have the right to go out and have a good time. He pointed out that he had not stopped the appellant from pursuing her life and other relationships and he didn’t interfere with or engage with Mr. Graham. He felt that he gave the appellant and Mr. Graham privacy and wanted the same in return. Because he didn’t get that, he felt that “something was going to happen” and he didn’t feel as secure in doing things. He was worried that Hailey was at risk of “something happening” because he didn’t know where the appellant’s “line” was drawn.

[40] The complainant agreed in cross-examination that the appellant never threatened his life or physical health nor that of Ms. Mills or Hailey and he agreed that the appellant did not damage property at any time.

The appellant’s intentions

[41] Regarding the birthday gift incident, the appellant testified that her intention was to drop off presents for Hailey as a show of love for her. The appellant believed that the family court order did not prohibit attendance at Ms. Mills’ house because it only referenced the complainant’s home and Hailey’s school and it didn’t say that she could not have indirect contact.

[42] Regarding the Zwick’s Park incident, the appellant testified that she did not go there seeking the complainant and Ms. Mills out that day.

[43] Regarding the Myer’s Pier incident, the appellant testified that she wanted to leave at the same time that the complainant and Ms. Mills left because she was not feeling very well and the band was not very good. She said that she and Mr. Graham and the complainant and Ms. Mills all happened to go to their respective vehicles at the same time.

[44] Regarding the window incident at Ms. Mills’, the appellant testified that she went there to take photos of a truck that she jointly owned with the complainant that was parked in the driveway. She wanted photos in order to document the fact that he was not taking care of the truck and that her share in it was therefore depreciating. He had sole use of the truck even though she was, according to her, a half owner of it. She also said that she wanted to see Hailey through the window because she hadn’t seen her in a very long time and she was worried that the complainant had not been dealing with Hailey’s medical issues properly. She said that when she was shouting “we’re not separated,” she was referring to the fact that their family court issues had not been resolved, including the division of property. She testified that she meant that their property was not separated, meaning divided.

[45] The appellant gave a significant amount of evidence about abuse that she alleges she suffered at the hands of the complainant throughout their relationship, some of which he was convicted of, and admitted in his own evidence. She testified that she has serious concerns about her daughter’s welfare given the abuse she suffered and she feels the abuse is being perpetuated by the fact that the complainant has sole decision making power regarding Hailey and that Hailey’s primary residence is with him while the appellant has only supervised visits with Hailey which were not happening.

[46] The appellant’s evidence can be summarized as her asserting that she was not intending to harass or instill fear in the complainant or anyone else. Rather, she was “fighting for” her daughter and seeking to protect her. The appellant believed the complainant was in breach of the family court order because she was supposed to be having supervised access visits with Hailey but the only contact she was having with Hailey was over the phone. At the time of the trial, the appellant had not taken steps to revisit the family court order in family court.

[47] Mr. Graham’s evidence generally supported the appellant’s in that he testified that the appellant was trying to see Hailey when she went to Ms. Mills’ house and that she wanted to make sure Hailey was safe.

[48] Mr. Graham confirmed that he and the appellant went to Myer’s Pier to see and hear the music, not to seek out the complainant and Ms. Mills.

[49] The police officer who cautioned the appellant on August 28, 2020 testified that she told him that she was indeed at Ms. Mills’ home on or about August 23, 2020 but that she had gone there to check on her daughter.

THE DECISION

[50] Immediately after hearing from eight witnesses over two full days of evidence – one in April and June 2021, the trial judge called upon the appellant, who was self-represented, to make her submissions. After hearing the appellant’s submissions, the trial judge told the Crown he did not need to hear submissions from him.

[51] The trial judge then immediately rendered the following decision:

The evidence in this matter was heard initially on April the 8th, the evidence of Jason Coit and Carla Mills. I have no reason to disbelieve their evidence. In my view, it was put forward in a very straight, frank, and straightforward manner.

With respect to the evidence of Ms. Mills and Mr. Graham, apart from being internally inconsistent, they were also externally inconsistent in their evidence. I have no difficulty in concluding beyond a reasonable doubt that Ms. Kerri-Jean Young is guilty of the offence of criminal harassment, and she will be found guilty of such.

To articulate further this matter. Despite the fact that there was a court order in place with respect to noncommunication, it is quite clear from the evidence given before this Court, particularly by Ms. Young, that there is obsessive behaviour with respect to these matters. Apparent not only from the issue of the truck and the custody of the child but even in minor matters where she says to Ms. Mills that she is not separated when clearly she is and articulates the fact that Jason was wearing the same shirt he wore at the Myers Pier when she was there.

The behaviour that has been exhibited by Ms. Young over the period of time of these offences between and before July 22nd to September 29th is a pattern of behaviour which clearly is meant to and does harass not only Mr. Coit and Ms. Mills, but in my view, her own daughter, Hailey. That criminal harassment is apparent and obvious from the offences before the Court and the dates related to them.

July, the 22nd, going to the home of Ms. Mills, when clearly they had been there on a number of occasions. Following Ms. Mills to her home, I am sure making sure they knew where she lived knowing that a court order existed. Rather than going to Mr. Coit, they go to her place to leave gifts, make a point of leaving information, which is consistent with her testimony throughout, and her submissions of gratuitous comments with respect to matters of fact that are not proven or established by any evidence before the Court with respect to the behaviour.

Ms. Mills, who she does not even know, makes assessments and assumptions and inferences with respect to her and her ability to care for a child without any foundation or factual basis either. Her inability to realize reality when it is put in front of her, specifically, Exhibit 1, the video showing what occurred on the date at Arden's Music, clearly demonstrates exactly what Mr. Coit said it showed. But when presented with it, even in cross-examination today, and shown that quite clearly there was no behaviour as she had described, it causes the Court to have real concern about her grasp of reality.

The coincidences that she describes at Myers Pier and Zwick's Island, in my view, are just fabrication. It is quite clear even from the photo she says she has filed herself that they are purposely standing in front of Mr. Coit and Ms. Mills between them and the band. There is absolutely no reason for them to be doing so. There is quite clearly availability of other accommodation that they could have had.

More significantly, the attendance at Ms. Mills' home on August the 23rd, and I believe as well and find, on August the 26th, where Ms. Young takes pictures into the interior of the residence and her own self-justification, in my view is, again, without foundation. I have no doubt at all in my mind beyond any reasonable doubt that Ms. Young has committed the offence of criminal harassment as charged, and she will be found guilty of such.

I remind her that she is still on an undertaking which prohibits her from having any communication directly or indirectly with Jason Coit or Carla Mills, and since Mr. Graham is still in Court, he should understand the indirect includes him.

I am going to seek a presentence report with a psychological assessment in this matter. The evidence in this matter certainly is significant enough on a criminal harassment charge that Ms. Young could find herself incarcerated in jail for the offences before this Court. Because of that, a presentence report is required, and in view of everything I have heard and observed over the two days of trial, a psychological assessment is definitely required.

[50] On September 23, 2021, the appellant received a suspended sentence and was placed on probation for two years.

THE APPELLANT’S POSITION

[52] The appellant raises four issues in her appeal against her conviction:

a. that the judge erred in his application of R v. W(D.);

b. that his reasons were inadequate;

c. that the trial was unfair in that the judge failed to assist the self-represented accused as required in the circumstances of this case; and

d. that the verdict cannot be supported by the evidence.

[53] In the alternative, she appeals against her sentence on the basis that the judge erred by failing to consider whether a conditional discharge would have been appropriate for this first time offender.

THE RESPONDENT’S POSITION

[54] The respondent reminds this Court that deference is owed to the trial judge’s decision and asserts that the trial judge’s reasons were sufficient in the context of this particular case which, according to the respondent, was a simple one with only two live issues: whether the accused intended to harass or was reckless as to whether her actions harassed the complainant and whether the complainant had reasonable fear for his or another’s safety.

[55] The respondent asserts that the trial judge’s analysis pursuant to R. v. W(D.) was sufficient and is entitled to deference.

[56] The respondent asserts that the assistance the trial judge gave the self-represented accused was appropriate given that there were, according to the respondent, no complex legal issues before the court and there were no alleged Charter breaches.

[57] The respondent asserts that the verdict is supported on the evidence as follows:

a. With respect to the required element of repeatedly following from place to place, the respondent points out that there is a division in the law on this issue in that some decisions have found that to establish this element, the Crown must prove that the complainant was literally followed, from behind, from one place to another while other decisions have held that following encompasses a situation in which an accused puts herself in the path of the complainant purposefully and repeatedly. The respondent urges this court to accept the latter, broader definition and to find that this element was therefore established at trial.

b. With respect to the required element of the complainant being harassed, the respondent asserts that the trial judge clearly accepted the complainant’s evidence and that that evidence clearly illustrated that he was harassed as that term has come to be defined in criminal harassment case law.

c. With respect to the required element of mens rea or proving that the appellant intended to harass or was reckless as to whether her conduct was harassing the complainant, the respondent asserts that the principle that a person can be assumed to have intended the natural consequences of their acts applies. The respondent argues that the trial judge, having rejected the appellant’s evidence as being disconnected from reality, must have looked at her actions to determine her intentions.

d. With respect to the required element that the complainant feared for his safety, the respondent asserts that there was evidence from both the complainant and Ms. Mills about their fears and that they installed video cameras.

[58] The respondent asserts that the appellant has not established that the sentence was demonstrably unfit and so it should remain undisturbed.

ANALYSIS

[59] In the analysis below, I will focus on the sufficiency of the trial judge’s reasons and the R. v. W.(D.) analysis which, in my view, are inextricably linked. The resolution of those issues is dispositive of the appeal and it is therefore not necessary for me to address the remaining issues.

[60] I am cognizant that the trial judge’s reasons are to be reviewed for their functionality, not their eloquence. Further, his reasons cannot be assessed as though they stand alone. Rather, they must be “examined in the context of the entire proceeding, especially the nature of the evidence heard and the arguments advanced.” [^2]

[61] A trial judge’s reasons should be given deference by an appellate court when it comes to findings of credibility, absent palpable and overriding error. This is because the trial judge was there and saw and heard the evidence being called. The principle of deference also recognizes that it can be difficult for a trial judge to assess credibility and then articulate the reasons why a witness is or is not believable. [^3]

[62] It is also important to note that a trial judge is not required to set out every finding or conclusion that he considered in the process of arriving at the verdict. He need not “expound on matters that are well settled, uncontroversial or understood and accepted by the parties.” He need not “expound on evidence which is uncontroversial or detail his or her finding on each piece of evidence or controverted fact, so long as the findings linking the evidence to the verdict can be logically discerned.” [^4]

[63] However, in my view, the trial judge fell into error in this case by treating it as a credibility contest between the Crown and defence witnesses. I agree with the appellant that the trial judge found the Crown witnesses believable and rejected the evidence tendered by the appellant and then seems to have moved straight to finding the appellant guilty on that basis, without considering whether the evidence he accepted was sufficient to establish each element of the offence beyond a reasonable doubt. In other words, the trial judge seems to have neglected to engage in the analysis required pursuant to the third part of the test articulated in R. v. W.D..[^5]

[64] The R. v. W.D. test was articulated by the Supreme Court of Canada in 1991 and is to be used by triers of fact in assessing the impact of defence evidence on the ultimate question as to whether the Crown has proven the case against the accused beyond a reasonable doubt. The test is generally articulated as follows:

a. First the trier of fact must decide if it believes the exculpatory evidence of the accused. If the accused’s evidence is accepted, she must be acquitted;

b. Second, if the trier of fact does not accept the evidence of the accused but is left with a reasonable doubt by it, she must be acquitted; and

c. Third, even if the trier of fact rejects the accused’s evidence and is not left with a reasonable doubt by it, the trier of fact must still go on to determine whether the Crown has proven the accused’s guilt beyond a reasonable doubt based on the evidence the trier of fact does accept.[^6]

[65] An accused can only be found guilty when the trier of fact concludes that the answer on the third branch of the analysis is yes. While this is not a “sacrosanct formula that serves as a straightjacket for trial courts”[^7]—what matters is that the “substance of the W.(D.) instruction be respected.”[^8] Judges must avoid falling into an “either/or” approach that conflates a credibility battle with a finding of guilt or innocence”.[^9] Even if a judge believes a complainant, he must still consider whether the evidence as a whole establishes each element of the offence beyond a reasonable doubt.[^10]

[66] In this case, the trial judge gave sparse reasons for credibility findings that resulted in the complainant’s evidence and that of Ms. Mills being accepted while the appellant’s evidence and that of Mr. Graham was rejected. He then went on to say that he had no difficulty concluding beyond a reasonable doubt that the appellant was guilty.

[67] I agree with the appellant’s submission that there is no indication that the trial judge considered the decisive question of whether the evidence as a whole was sufficient to establish guilt beyond a reasonable doubt on each element of the offence.

[68] Even after rejecting the appellant’s evidence, in order to find the appellant guilty, the trial judge had to find that the Crown proved each of the following five elements beyond a reasonable doubt:

a. That the appellant had repeatedly followed the complainant from place to place;

b. That the complainant was harassed;

c. That the appellant knew or was reckless as to whether the complainant was harassed;

d. That the appellant’s conduct in repeatedly following the complainant (assuming that was proven beyond a reasonable doubt) caused the complainant to fear for his safety or the safety of anyone known to him; and

e. That the complainant’s fear, in all the circumstances, was reasonable.

[69] I agree with the appellant’s submission that the trial judge arguably made a finding in relation to two elements of the offence – whether the complainant was harassed and whether the appellant knew or was reckless as to whether the complainant was harassed. This is supported by the finding of the trial judge that there had been “a pattern of behaviour which is clearly meant to and does harass not only [the complainant] and Ms. Mills, but in my view, her own daughter, Hailey.” However, he did not explain what evidence he accepted in support of that conclusion.

[70] But beyond that, I also agree with the appellant’s submission that the trial judge did not address the other elements the Crown was required to prove. As the Ontario Court of Appeal held in R. v. L.M.[^11], “the flaws in the trial judge’s analysis lead directly to the insufficiency of his reasons.” Had the trial judge considered the whole of the evidence at stage three of the R. v. W.D. analysis, he would have had to turn his mind to, and address, what evidence established each of the elements the Crown had to prove.

[71] In considering the sufficiency of the trial judge’s reasons, I am aware that I must not “finely parse the trial judge’s reasons in search for error.” Instead, I am to “assess whether the reasons, read in context and as a whole, in light of the live issues at trial, explain what the judge decided and why they decided that way in a manner that permits effective appellate review.” [^12]

[72] There must be a logical connection between the verdict and the basis for that verdict. As Chief Justice McLachlin explained, “the foundation of the judge’s decision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded.”[^13]

[73] I find that the trial judge’s reasons are insufficient as they relate to the first element – that the complainant was repeatedly followed from place to place and the third element, that the appellant knew or was reckless as to whether the complainant was harassed.

[74] With respect to the first element, the trial judge’s reasons do not reflect that he made a finding that the complainant had been repeatedly followed from place to place. He referred to “obsessive behaviour” on the part of the appellant but obsessive behaviour does not equate with repeatedly following a person from place to place which is what the Crown had to prove.

[75] The respondent asserted in oral argument that the real issue in this appeal is the decision in R. v. Hunt[^14] and whether I consider that decision persuasive and follow it or whether I find it to be plainly wrong. R. v. Hunt is a summary conviction appeal decision in which the judge was reviewing the way the trial judge had considered the issue of what constitutes “following.” The respondent argued that if I agree with the decision in R. v. Hunt, the finding that the appellant repeatedly followed the complainant from place to place should be upheld.

[76] The problem with this argument and what distinguishes the situation facing the summary conviction appeal court in R. v. Hunt from the situation facing this court is that there was no finding made by the trial judge in this case that there was repeated following from place to place and there was no consideration of what constitutes following. There was no analysis along the lines of what the trial judge in R. v. Hunt engaged in or what trial judges in the authorities the summary conviction appeal court in R. v. Hunt considered, engaged in.

[77] I cannot make these determinations which is why I find that the trial judge’s reasons on the first element required to be proved by the Crown beyond a reasonable doubt are insufficient to allow appellate review.

[78] I also find that the trial judge’s reasons with respect to the third element the Crown was required to prove – that the appellant knew or was reckless as to whether the complainant was harassed – are insufficient. The trial judge asserts that the appellant’s conduct was clearly “meant to harass” the complainant without articulating how he arrived at that conclusion.

[79] I agree with the appellant’s submission that the trial judge seemed not to understand or consider the relevance of the appellant’s evidence about what motivated her to attend at the locations that she attended. I agree that this evidence was relevant to the appellant’s mens rea. While I understand that the trial judge rejected the appellant’s evidence, given that he did not engage in a complete R. v. W.D. analysis, I am left to guess whether he was left in any doubt by it. In my view, this is particularly important in the consideration of the mens rea element of criminal harassment.

[80] Further, even if he was not left in any doubt by the appellant’s evidence, as noted above, having not articulated his analysis as to how the Crown had proven each element of the offence, it is impossible for me to know what evidence he relied on in concluding that the appellant had the necessary mens rea. There is nothing but an assertion that the conduct was meant to harass. This is not sufficient to allow me to engage in appellate review.

[81] I also agree with the appellant that the trial judge seems to have misapprehended the evidence of the family court order that the appellant was bound by. The family court order did not prohibit the appellant from attending at Ms. Mills’ residence. This is important because he seems to relied on an erroneous finding that the appellant was breaching a court order, at least in part, in finding that there was “obsessive behaviour” on the part of the appellant and it was the “obsessive behaviour” that he arguably found established the actus reus.

[82] While there is evidence that the complainant was harassed, it is not clear what evidence the trial judge relied on in finding that the appellant knew or was reckless as to how the complainant felt. She was not prohibited from going to Ms. Mills’ house. She said she went there to check on her daughter and to look at the jointly owned truck. She went there at some times that Mr. Mills wasn’t even there. There is no evidence that the appellant knew that cameras were installed. There is no evidence that the complainant ever told the appellant that he was harassed or anything along those lines. The complainant did not see the appellant after the police cautioned her on August 29, 2023 until a month later when there was a parking lot confrontation at the “music lesson incident.” This is, arguably, evidence that once the appellant became aware, as a result of being advised by the police, that the complaint was harassed, she stopped. As for the “music lesson incident”, on the complainant’s own evidence, he approached the appellant that day. He had to go looking for her in the parking lot behind the plaza.

[83] In pointing to these pieces of evidence, I am not intending to provide or substitute my own views regarding the mens rea element of the offence. I cite them to illustrate the fact that I don’t know whether or how the trial judge came to the conclusion that the appellant had actual knowledge that the complaint was harassed or whether he found she was reckless and, in either event, on what evidentiary basis. Again, the reasons are insufficient to allow me to engage in appellate review.

[84] Given my findings on the R. v. W.D. issue and the insufficiency of reasons, it is not necessary for me to consider the other grounds of appeal argued by the appellant.

DISPOSITION

[85] For these reasons, I would set aside the conviction and order a new trial.

Justice L. Bramwell

Released: July 21, 2023

COURT FILE NO.: CR-21-89-00-AP

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Kerri-Jean Young Appellant

Released: July 21, 2023 J. Bramwell

[^1]: R. v. W.D., [1991] 1 S.C.R. 742 [^2]: R. v. J.J.B., 2013 ONCA 268, at paras. 19-21. [^3]: R. v. J.J.B., supra, at paras. 22-23. [^4]: R. v. R.E.M., 2008 SCC 51, [2008] S.C.J. No. 52, at paras. 18-20. [^5]: R. v. W.D., supra note 1. [^6]: R. v. W.D., supra note 1, pg. 757-758. [^7]: R. v. Boucher, 2005 SCC 72, at para. 29. [^8]: R. v. Dinardo, 2008 SCC 74, at para. 23. [^9]: R. v. O.M., 2014 ONCA 503, at paras. 37, 42. [^10]: R. v. L.M., 2019 ONCA 945, at para. 43. [^11]: R. v. L.M., supra at para. 53. [^12]: R. v. G.F., 2021 SCC 20 at para 69. [^13]: R. v. R.E.M., supra at para. 17. [^14]: R. v. Hunt, [2019] O.J. No. 6605 (Sum. Conv. App.)