Her Majesty the Queen - v. -, 2015 SKPC 126

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 126 Date: August 25, 2015 Information: # 90011863 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - C.F.R. Appearing: Ms. Leona Andrews For the Crown Mr. Roger Lepage For Mr. C.F.R. The parties are identified by initials in order to protect their identities. INTERIM RULING ON NON-SUIT APPLICATION M. HINDS , J [ 1 ] The Crown brought an application for a Peace Bond against C.F.R.

It is alleged that between May 10, 2011 and May 21, 2015, at or near Regina, Saskatchewan he did: Harass J.W., N.R. and C.R. and she fears that C.F.R. will cause personal injury to them, and prays that C.F.R. may be required to find sufficient sureties to keep the peace and be of good behaviour towards them, pursuant to

section 810 of the Criminal Code .

[2] J.W. and C.F.R. were married in 2000. Their son, N.R. was born in 2005. Their daughter, C.R. was born in 2007. Thecouple separated in the fall of 2010. In February 2011, C.F.R. entered into a Peace Bond with respect to J.W. for a period of one year. Afamily law trial took place before Mr. Justice Sandomirsky of the Court of Queen’s Bench for Saskatchewan. On January 27, 2012 Mr.Justice Sandomirsky determined that J.W. and C.F.R. would continue as joint custodians and guardians of their children. Mr.

JusticeSandomirsky further determined that the best interests of the children would be best achieved under a parallel parenting regime whichallocates unfettered child rearing responsibilities to each parent. [3] On August 11, 2015, the Crown called its sole witness, J.W. J.W. testified about several interactions she has had with C.F.R.over the years. At the conclusion of J.W.’s examination-in-chief, the defence made an application for a non-suit on the basis thatevidence does not show that J.W. fears that C.F.R. will cause physical injury to her and her children.

For the reasons which follow, theapplication for a non-suit respecting a peace bond in relation to J.W. is dismissed. The application for a non-suit respecting a peacebond in relation to the children N.R. and C.R. is granted. The Law Application for a Directed Verdict or Non-Suit [4] In R v De Clercq, 2012 AJ 527, Judge R.G. Redman explains how an application for a directed verdict has now becomeknown as an application for a non-suit: 3 In a typical criminal case, the Crown Prosecutor leads evidence in an attempt to prove beyond a reasonable doubt all the essentialelements of each of the charges before the Court.

When the Crown has concluded its case, the Court invites the accused to call evidence. Before deciding whether to call evidence it is open to the accused to bring an application for a directed verdict of acquittal on the basisthat no reasonable jury, properly instructed, could return a verdict of guilty. 4 An application for a directed verdict arises from the common law: R. v. Litchfield, (SCC), [1993] 4 SCR 333. Ittakes its name from the fact, that historically, the trial judge literally directed the jury to return a verdict of not guilty.

Over time thisprocedure was criticized as it was considered to be unduly formal, and there was always a risk that the jury would disobey the judge'sdirection. It also led to unnecessary frustration for some juries as they had to retire and elect a foreman, only to return a verdict that thejudge directed notwithstanding their opinion. Juries, after all, were suppose to be independent of the judge and yet the judge in thesecases was telling them what to do.

As a result the Supreme Court of Canada modified the common law procedure so that a trial judgenow simply withdraws the case from the jury and enters the acquittal. As a result, the application is now also referred to as anapplication for non-suit: R. v. Rowbotham, (SCC), [1994] 2 SCR 463. Test for a Directed Verdict or Non-Suit Application [5] The test for a directed verdict or non-suit is well settled as being the same test to be applied by a judge at a preliminaryinquiry in determining whether there is sufficient evidence to commit an accused for trial.

As stated in R v Charemski, (SCC), [1998] SCJ No 23 at para 2: The leading case on the issue of directed verdicts is United States of America v Sheppard, (SCC), [1977] 2 S.C.R. 1067,which sets out the test to determine whether a case should go to a jury in terms, at p. 1080: "whether or not there is any evidence uponwhich a reasonable jury properly instructed could return a verdict of guilty". See also R. v. Monteleone, (SCC), [1987] 2S.C.R. 154, at p. 160.

In other words, a motion for a directed verdict should not be granted "in any case in which there is admissibleevidence which could, if it were believed, result in a conviction". See Shepard, at p. 1080.

For there to be "evidence upon which a reasonable jury properly instructed could return a verdict of guilty" in accordance with theShepard test (at p.1080), the Crown must adduce some evidence of culpability for every essential definitional element of the crime forwhich the Crown has the evidential burden. ...if the Crown fails to adduce any evidence to discharge the evidential burden on any ofthese issues, the trial judge should direct a verdict of acquittal.

Peace Bond [6] The proceedings herein were brought pursuant to s. 810 of the Criminal Code. The relevant provisions are these: 810.

(1) An information may be laid before a justice by or on behalf of any person who fears on reasonable grounds that another personwill cause personal injury to him or her or to his or her spouse or common-law partner or child or will damage his or her property. ... The justice or the

summary conviction court before which the parties appear may, if satisfied by the evidence adduced that the person onwhose behalf the information was laid has reasonable grounds for his or her fears, order that the defendant enter into a recognizance, with or without sureties, to keep the peace and be of good behaviour for any periodthat does not exceed twelve months, and comply with such other reasonable conditions prescribed in the recognizance, including theconditions set out in subsections (3.1) and (3.2), as the court considers desirable for securing the good conduct of the defendant; [7] In R v Klein, 2011 SKQB 95, 369 Sask R 273, Mr.

Justice Gerein explained the nature of a Peace Bond. Justice Gerein alsoset out the burden and standard of proof as well as the test for a Peace Bond at paragraphs 21 and 22: 21

Section 810 does not create a criminal offence, but rather it seeks to prevent the commission of a criminal offence. It is preventativerather than punitive. The burden of proof rests upon the Crown and requires proof on a balance of probabilities. 22 The test is both subjective and objective. It must be established (1) that the victim actually fears personal injury and (2) that there arereasonable grounds for the fear. See R. v. Banks, (SK KB), [1995] 4 W.W.R. 698, 129 Sask. R. 147 (Q.B.) at paras.18 to 22; and more recently, R. v. MacLeod, 2005 BCPC 108, (2005) (P.C.), [2005] B.C.J.

No. 798, (QL) wherein at para. 2 thissummary is found: 2 The burden of proof is that the applicant under s. 810 is not required to prove beyond a reasonable doubt, but rather prove on a balanceof probabilities. The test is twofold: the Crown must establish (1) that the informant actually fears that the defendant will cause personalinjury to him; and (2) reasonable grounds exist for the informant's fear.

The first condition is subjective, while the second is objective;namely, the Crown must establish subjectively the informant's belief and whether his belief is objectively founded. [8] In J.H. v W.B, 2001 YKTC 502 , [2001] YJ No 37, C.J. Stuart held that the applicant’s fear need not be specificallystated by the applicant as the Court can infer it from the totality of the evidence received. [9] In the present application for non-suit respecting a

section 810 Peace Bond, the defence took the position that there is noevidence that J.W. fears that her former husband, C.F.R., will cause physical injury to her and her children and hence the Crown hasfailed to establish J.W. fears C.F.R. will cause personal injury to her and her children. [10] Several cases have held that the words “personal injury” set out in s. 810 of the Criminal Code includes both physical andpsychological injury. [See: R v Hujdic, [1997] SJ No 779, 1997 Carswell 782, J.H. v W.B., supra, R v P.A.O., 2002 BCPC 560, R vD.C.H., 2011 BCPC 443, Anderson v Barney, [2012] NJ No 327 and R v Louis, 2013 BCJ 2905.] [11] In J.H. v W.B., supra, C.J.

Stuart stated as follows at paragraphs 18 and 19: 18 Scope of Peace Bond - The protective reach of a peace bond encompasses the complainant and the complainant's spouse andchildren. The harm to be prevented includes personal injury to any of these people and any damage to the complainant's property. Doespersonal injury include physical and psychological injury? S. 810 speaks of personal injury, not physical harm. Although often not asapparent, psychological harm can be as devastating as any physical injury. For the following reasons the protective reach of a peace bondencompasses psychological injuries:

The dictionary definition of injury is not restricted to physical injury. "Injury" means: (1) "Wrongful action or treatment, violation or infringement of another's rights, suffering or mischief wilfully or unjustly inflicted . . .Also a wrongful act, a wrong inflicted or suffered

(2) Intentionally hurtful or offensive speech or words: insult, calumny or taunt, anaffront" (Shorter Oxford Dictionary (1973) at 1075). The primary and secondary

definitions of injury encompass both physical and psychological injuries. The wrongful act can be by actionsor words. The suffering caused by a wrongful act can be physical, mental or emotional. The Criminal Code, in defining "bodily harm", includes "any hurt or injury to a person that interferes with the health or comfort of theperson and that is more than merely transient or trifling in nature" (Section 2, Criminal Code). Psychological damage can be the principalor non-transient injury of a physical or sexual assault R. v. McCraw (1991), (SCC), 7 C.R. (4th) 314 (S.C.C.)).

In defining the scope of a peace bond, the Legislature chose quite different terminology than in defining the scope of assaults. The use orthreat of physical force is necessary to constitute an assault under the Criminal Code, but the use of physical force is not necessary tocause psychological injury. Nothing in s. 810 restricts the protective reach of a peace bond to matters that constitute an assault or a crime.The basis of an information for a peace bond need not allege a crime - only reasonable fear of personal injury.

To read any less into thescope of a peace bond would ignore the plain language of the provision and ignore the significant practical protection a peace bondprovides in circumstances that do not involve the fear of physical harm. 19 If psychological harm were excluded from the reach of a statutory peace bond, a very savvy respondent could wage a campaignof vengeful, injurious acts causing significant psychological injury without stepping over the legal line that brings their actions within theprotective reach of a peace bond. A psychological injury can be as serious a personal injury as most physical injuries.

Peace bonds protectagainst both kinds of personal injuries (R. v. Hujdic, [1997] S.J. No. 779 (Prov. Ct.) at para. 15). [12] In this case J.W. has testified about several encounters she has had with C.F.R. over the years which she claims haveemotionally traumatized and intimidated her and have also breached her privacy. Some of these encounters include: 1. Receiving constant emails and texts from C.F.R., regarding her and the children’s whereabouts and what they are doing. 2.

In May 2012, C.F.R. being at or near the Sandra Schmirler Recreation Complex when the children have swimming lessons and shehad custody of the children. 3. In June 2013, C.F.R. attended his son’s piano recital and sits directly behind J.W. and her family. 4. Prior to their daughter’s kindergarten talent show, C.F.R. drove around the school block several times and stopped right beside J.W.’svan preventing her from exiting. 5. Following their son’s Hapkedo (martial art) lesson, C.F.R. has been observed in his vehicle when J.W. (who had custody of the son)and the son left the building.

On one occasion J.W. testified that she observed C.F.R. parked behind her and she waited 10 minuteshoping that he would leave before her. He did not. 6. Taking photographs and/or videotaping J.W. and her family at school functions, their son’s football practice and tournament (fall2014), Hapkedo (May 2015), and while driving near Sobey’s in Regina. [13] J.W. testified that she sees a counsellor for herself and for how to best deal with her children. [14] J.W. testified that she feels something is wrong with her daughter. She feels that her daughter has taken on the role of aproblem solver for her father.

J.W. also testified that in the spring of 2015, her son felt the need to be cuddled and to sleep with herevery night. [15] J.W. testified that she fears her former husband will manipulate her children and attempt to damage her relationship with them. [16] In this case I am satisfied that (1) there is some admissible evidence upon which a reasonable jury, properlyinstructed could find J.W. actually fears psychological injury to herself and (2) that there are reasonable grounds for the fear. As aresult the motion for a non-suit respecting the application for a peace bond in relation to J.W. is dismissed.

[ 17 ] In this case I am not satisfied that (1) there is some admissible evidence upon which a reasonable jury, properly instructed could find J.W. actually fears psychological injury to her children and (2) that there are reasonable grounds for the fear. I am of the view that the evidence before me does not establish that the children have been emotionally traumatized, intimidated or otherwise sustained psychological injury. As a result the motion for a non-suit respecting the application for a peace bond in relation to the children is granted. _______________________ M. Hinds, J