R. v. Plue, 2020 ONCJ 597

ONTARIO COURT OF JUSTICE CITATION: R. v. Plue , 2020 ONCJ 597 DATE: December 17, 2020 COURT FILE No.: 19-22538 BETWEEN: HER MAJESTY THE QUEEN — AND — THOMAS PLUE Before Justice P.K. Burstein Heard on October 20 and 22, 2020 Reasons for Judgment released on December 17, 2020 F. Stephens.......................................................................................... counsel for the Crown K.

Duncan........................................................................................ counsel for the accused BURSTEIN J.: Overview of the case [ 1 ] Thomas Plue and Colleen Harrison are older adults who met at church. They began dating. On July 17, 2019, after having been together for a few months, Ms Harrison told Mr. Plue that she no longer wanted to see him. In the weeks following, Mr. Plue made repeated efforts to communicate with Ms Harrison about the demise of their relationship despite her having told him that she wanted him to stop.

Some of those communications are reflected in email exchanges which were entered as exhibits at trial. [ 2 ] On the morning of August 30, 2019, Ms Harrison was upstairs at her home getting ready to go to work. Mr. Plue entered the house while Ms Harrison was in the bathroom getting ready. He made his way up the stairs to the bathroom. Ms Harrison claims that she was shocked to see Mr. Plue when he appeared in the doorway to her bathroom. Mr.

Plue claims that he had heard what he believed to be Ms Harrison calling for him to enter the house and then followed her voice up the stairs. [ 3 ] After a brief verbal exchange with Mr. Plue upstairs, Ms Harrison went downstairs to the kitchen. She told Mr. Plue to leave and said that she was going to call the police. Mr. Plue did leave. Ms Harrison called the police. When the police responded to her call that morning, she complained not only about Mr. Plue’s uninvited entry and confrontation inside the house, but also about his previous harassing communications. Mr.

Plue was eventually arrested and charged with being unlawfully in a dwelling house, unlawful confinement and criminal harassment. [ 4 ] At his trial before me on those three charges, the Crown called evidence from three witnesses: Ms Harrison, Acting Sgt Young (one of the investigating officers) and Reverend Mary-Jane Hobden, the minister at the church where Ms. Harrison and Mr. Plue had

met. Mr. Plue testified in his own defence. Issues and relevant legal principles [ 5 ] Following my rejection of the defence motion for a directed verdict on the unlawful confinement charge, there was no real contest about whether the evidence of Ms Harrison was capable of proving that Mr. Plue was guilty of each of the three charges.

In other words, in the absence of any reasonable doubt about it, there was no dispute that Ms Harrison’s version of events made out the legal elements of each of the three charges. [ 6 ] The central issue in this case was whether the Crown has proven beyond a reasonable doubt that Mr. Plue committed the offences with which he is charged. It is not enough that the Crown prove that Mr. Plue is probably guilty of the charges. Equally, Mr. Plue does not bear the burden of proving that he is innocent of these charges.

The presumption of innocence is the central tenet of our criminal justice system. [ 7 ] In accordance with that presumption of innocence, the Supreme Court of Canada has said that in cases where an accused has taken the witness stand to deny committing the offence, a court should analyze the case in the following manner: 1. If a court accepts the evidence of the accused that he did not commit the offence, he must be acquitted. 2.

Even if a court does not accept the evidence of the accused, so long as that evidence when considered in light of all the other evidence in the case, raises a reasonable doubt about whether he committed the offence, he must be acquitted. 3. If a court rejects the evidence of the accused, the court must not then assume that the opposite is true. Instead, the court must go on to consider whether on the basis of the other evidence relied upon by the Crown, the charges have been proven beyond a reasonable doubt.

Summary of the evidence [ 8 ] The only two witnesses who testified about the events in question were Ms Harrison and Mr. Plue. While I readily accepted the testimony of Reverend Hobden, it offered little help with respect to the central issue in this case. Similarly, although the evidence of Acting Sgt. Young proved very relevant to my ultimate assessment of Ms Harrison’s credibility, it did not cast any light on what Mr. Plue is alleged to have done in July and August of 2019. Accordingly, for the purpose of explaining my decision, I need only summarize the evidence of Ms Harrison and Mr.

Plue. [ 9 ] Ms Harrison testified that she met Mr. Plue at church on December 30, 2018, a fact that was confirmed by the poster Mr. Plue had left at her fence in July of 2019 (as depicted in the photo entered as Exhibit 1). The two of them became involved in an intimate relationship for the next several months. In chief, Ms Harrison testified that they were “boyfriend and girlfriend” for a few months. By contrast, Mr. Plue testified that the relationship had become quite serious by July of 2019.

He had already met Ms Harrison’s adult daughters on several occasions, and she had been to family dinners with his adult children. They had taken a trip together to Quebec and he had arranged for another in the near future. In Mr. Plue’s mind, the relationship had become quite serious. He had given her a promise ring. They had discussed purchasing a home together. In cross-examination, Ms Harrison ultimately admitted to most of these other features of their relationship, despite her initial characterization of it as having been less serious. Mr.

Plue testified that he had been very surprised by Ms Harrison’s decision to end their relationship on July 17, 2019. He did not understand why she had done it. [ 10 ] Both Ms Harrison and Mr. Plue testified about how she was the one who had arranged to meet Mr. Plue at a restaurant in Newcastle in mid-July of 2019 for the purpose of ending their relationship. During their dinner, Ms Harrison told Mr. Plue that she was ending their relationship. He demanded to know why. She told him that “things were not working well”.

Each then left the restaurant on their own. [ 11 ] Ms Harrison testified that she heard knocking at her front door the next morning at 7:30 a.m. It was Mr. Plue. He was on bended knee offering her a rose. Mr. Plue asked to come inside but she said “no”. Instead, they talked outside on the deck. He again was asking why the relationship was over. Ms Harrison asked him to leave. He did. Although Mr. Plue testified to a similar event, he claimed that it had occurred a week after the break-up at the restaurant. [ 12 ] Over the next couple of weeks, Mr. Plue continued to send text messages and emails to Ms Harrison.

He also called and left her voicemail messages. At trial, Mr. Plue admitted having done so. He testified that because the relationship had ended so suddenly, he was still anxious to understand what had happened. With respect to these texts, emails and voicemail messages, I did not hear any evidence estimating their number, nor evidence that any of those messages were threatening or menacing.

The only evidence from Ms Harrison about these messages was that she did not respond to any of them and that she deleted almost all of them, that is, all but the handful which she provided to the police (and which were entered into evidence at trial). [ 13 ] Ms Harrison was out of the country with her mother from July 30 to August 13, 2019. There was no suggestion that Mr. Plue had

attempted to communicate with her in any way while she was away. [ 14 ] The morning after she returned, Ms Harrison discovered a poster attached to the fence of her home. It had been placed there during the night by Mr. Plue. It read: “Welcome Home – Gal. Sunday Dec 30 – 2018 BEST day of my Life EVER…. Thank you Colleen. Always yours John.” The poster had a number of pictures affixed to it as well. Once again, there was nothing threatening or menacing about the poster’s content. Still, it seemed to very much annoy Ms Harrison that Mr.

Plue had come and placed it on her fence during the night. [ 15 ] On Sunday, August 18, 2019, Ms Harrison had attended church with her mother. She saw Mr. Plue there. In chief, Ms Harrison testified that Mr. Plue took up a seat at the end of the pew where she was already sitting. However, in cross-examination, she conceded that Mr. Plue may already have been sitting there when she arrived late at church but simply did not see him. Mr. Plue testified that he was already seated at the church when Ms Harrison arrived and took up a seat at the other end of the row. Both Mr. Plue and Ms Harrison testified that Mr.

Plue approached her at the conclusion of the service asking to speak with her. She declined and joined her mother who was exiting the church. Mr. Plue caught up to them and asked Ms Harrison about the doors that he had left in Ms Harrison’s garage. Ms Harrison testified that she responded by telling him to pick them up the next morning (August 19, 2019). [ 16 ] Mr. Plue did not attend at Ms Harrison’s house on August 19, 2019 to pick up the doors. On August 19, 2019, Ms Harrison sent Mr.

Plue an email – entered as Exhibit 2 at trial – telling him to pick up the doors, to stop contacting her and to stop coming by her home or her work. In the email, she also complained that he had been speaking with congregants of their church about their relationship and had thereby made “public” what was supposed to be “private”. [ 17 ] There was no evidence from Ms Harrison suggesting that he had attempted to contact her in any way between August 19 and August 30, 2019. [ 18 ] On the morning of August 30, 2019, Ms Harrison was home alone getting ready for work.

She was upstairs in the bathroom brushing her teeth when she heard her dogs barking outside. They normally did that when someone came onto the driveway. When the dogs suddenly stopped barking, Ms Harrison thought it was her teenage daughter coming home from her father’s house. She called out for her daughter but did not receive a response. According to Ms Harrison, she then turned around and saw Mr. Plue standing at the entrance of her bathroom door. She was startled by his sudden presence and asked him what he was doing in her house. Ms Harrison testified that he asked her why she broke up with him.

She said nothing in response. Instead, she passed by him intending to go get her phone. At trial, she had no memory of making any physical contact with him. After she had passed by him into the hallway, Mr. Plue somehow managed to then get in front of her again as she was heading down the stairs to the first floor. According to Ms Harrison, she once again passed by Mr. Plue without making any contact with him. She went down the stairs to her kitchen and picked up her landline. She held the phone and told Mr. Plue that she was calling 9-1-1 and he needed to “get the hell out of my house”.

Ms Harrison testified that Mr. Plue confronted her in the kitchen and again asked why she had broken up with him. She passed by him again and went outside on to the path. She again told him to get the hell off of her property as she was calling 9-1-1. Mr. Plue exited the house, patted Ms Harrison’s dogs and then drove away. [ 19 ] Mr. Plue testified that on the morning of August 30, 2019 he was on his way to a job site in Whitevale just north of Ms Harrison’s house on Altona Road in Pickering. Realizing that he was driving right past her house, Mr.

Plue decided to stop by to see how Ms Harrison was doing and to check up on the home repairs that he had been helping her to manage after a tree had collapsed on her roof [1] . He pulled his vehicle into her driveway and approached the fence which surrounded her house. The fence was designed to allow Ms Harrisons’ large dogs to have space to roam freely and safely. Given his recent relationship with Ms Harrison, Mr. Plue was very familiar to her dogs. Although they were barking at first, he was able to quickly settle them down as he entered through the fence and approached the front door of the house.

As Ms Harrison confirmed in her testimony, the entrance door to the house was open as the dogs were allowed to come and go at will while she was home. Mr. Plue, who is hard of hearing, believed he heard Ms Harrison say, “are you coming in”. He entered through the open door. Although he did not see Ms Harrison, he could hear her upstairs. He began climbing the stairs. According to him, as he got to the top of the stairs, he greeted her. He then stepped into the bathroom and gave Ms Harrison a hug. She hugged him back with one hand. Mr.

Plue testified that she said that it was not a good idea for him to be there and that if her daughter came home and caught them, they would be in a lot of trouble. She then ran past him into her bedroom and closed the doors behind her. He asked what he had done wrong. After some further brief conversation, Ms Harrison exited the bedroom and “flew” past Mr. Plue down the stairs to the kitchen. He followed. Once he got to the kitchen, Ms Harrison started saying something about people at the church knowing that she has a problem. She then picked up the phone and began waving it in his face.

She said that if she called 9-1-1, they would both be in a lot of trouble. After another brief dramatic exchange, Mr. Plue left the house and drove away. Analysis and findings [ 20 ] I begin my analysis with an assessment of the credibility and reliability of Mr. Plue’s testimony. [ 21 ] At first blush, his version of what happened on August 30, 2019 seemed entirely plausible. There were also no material inconsistencies in his repeated renditions of the details of those events.

For the most part, his narrative of those events flowed logically and coherently, including his explanation for how he had just happened to be passing by Ms Harrison’s home that morning on his way to a job site just north of there. However, in cross-examination, it quickly became apparent that the route he had professed to have taken to Ms Harrison’s home more than “250 times” before would not in fact have incidentally taken him past her home. That said, by the time that cross-examination resumed on the second day of trial, Mr.

Plue had realized his obvious geographical error and voluntarily corrected it (with the aid of some Google maps that he had brought to court with him). While that entire exchange caused me to have some serious reservations about the credibility and reliability of his testimony about the events of August 30 th , I am satisfied that it did not justify a wholesale rejection of Mr. Plue’s evidence nor of his evidence about the events that day. In the end, Mr. Plue’s testimonial denials left me with a reasonable doubt about all three of the criminal charges.

[ 22 ] In any event, Ms Harrison’s testimony did not satisfy the Crown’s burden of proving that Mr. Plue is guilty of the three charges. There were some logical frailties and inconsistencies in her account, such as her description of the events surrounding seeing Mr. Plue at church on August 18, 2019 and about the date that she had ended their relationship. Despite those frailties and inconsistencies, I generally accepted most of what Ms Harrison had said and would have been satisfied from her testimony that Mr. Plue probably did the things which she has alleged.

That, however, is not enough to satisfy the Crown’s heavy burden of proving the charges beyond a reasonable doubt. [ 23 ] My principal concern about the credibility of Ms Harrison’s testimony against Mr. Plue was the glaring inconsistency with the evidence of Acting Sgt. Young. Young testified that when she responded to Ms Harrison’s 9-1-1 call on August 30, 2019, she was confronted by Tom Andrews, Ms Harrison’s ex-husband and a former officer with the Durham Reginal Police Service. According to Young, “he was basically telling me what I was going to do with the situation and how I was going to do my job”.

Acting Sgt. Young was not some rookie officer in need of Mr. Andrews guidance. At the time, she had been a police officer for 15 years and was very experienced with domestic violence cases. Despite her rank and obvious years of experience, Andrews persisted in telling her what should be done with the investigation. Young described Andrews as having a “forceful personality”. [2] [ 24 ] While the presence or absence of a third party after the alleged commission of a criminal act will rarely be of much relevance, it very much is in the circumstances of this case. When he confronted Acting Sgt. Young, Mr.

Andrews held himself out to be Ms Harrison’s advocate in relation to her criminal complaint about Mr. Plue. More significantly, Mr. Andrews implied that his prior service as a police officer should allow him to influence how the police were going to deal with the investigation. According to the evidence of Acting Sgt. Young, Ms Harrison was obviously aware that her ex-husband was present at her house on the morning of August 30, 2019 as she was the one who told Acting Sgt. Young that he was a police officer. For some unexplained reason, though. when she was asked in chief about whether Mr.

Andrews ever showed up at her house that day, Ms Harrison was adamant that he had not. Indeed, when asked a second time in-chief, Ms Harrison testified that he was not there and that she did not inform Mr. Andrews of what had happened. Absent any testimonial explanation from Ms Harrison about this material inconsistency, I am left with the very reasonable possibility that her testimony on this point was designed to deliberately mislead the court about the fact that she had called Mr. Andrews to come over and that he was present when the police responded to her 9-1-1 call.

If Ms Harrison intentionally hid the fact that her ex- husband had come to her house knowing that he would try and influence the investigation into her criminal complaint against Mr. Plue, then it suggests she felt there was a need for influence, perhaps because of some perceived weakness in her complaint. Apart from Ms Harrison’s deliberately misleading testimony on this point, there was no other evidence as to why she called Mr. Andrews to come over that morning before the police arrived.

Ms Harrison’s deliberately misleading testimony relating to a possible scheme to influence the ensuing police investigation makes it unsafe for me to accept any of her criminal complaints against Mr. Plue. Simply put, because it would be unsafe for me to rely upon Ms Harrison’s testimony about Mr.

Plue’s entry to the house or about what happened once he was inside the house, the Crown cannot discharge its burden of proving the essential elements of the unlawful entry or unlawful confinement charges beyond a reasonable doubt. [ 25 ] I have also considered whether the emails alone or taken together with my diminished view of Ms Harrison’s testimony, could still prove the charge of criminal harassment beyond a reasonable doubt. I accept Ms Harrison’s evidence that she had told Mr. Plue in mid-July that she no longer wished to see him.

I also accept her evidence that he continued to reach out to her by voicemail and by email. Some of those emails were introduced into evidence. Nothing in any of the emails sent by Mr. Plue to Ms Harrison were threatening or menacing. They were, as he testified, benign attempts by him to try and rekindle the relationship. I have no doubt that Ms Harrison repeatedly rebuffed such efforts nor that, subjectively, she began to feel harassed by them. The emails which Mr. Plue received from Ms Harrison on August 19, 2019 very clearly made out Ms Harrison’s desire for Mr.

Plue to completely cease any further contact or communication. In other words, there is no doubt that, by that point, Mr. Plue knew (or was wilfully blind to the fact) that Ms Harrison was feeling harassed by his continued communications to her. The question, however, is whether Mr. Plue’s actions amounted to criminal harassment; that is, whether they extended beyond seriously annoying Ms Harrison to a point where they caused her to reasonably fear for her safety. [ 26 ] The text of Ms Harrison’s August 19 th emails themselves expressly contemplated Mr.

Plue returning to her house at least one further time after August 19, 2019, albeit for the limited purpose of going to her garage to collect some doors he had left there before their breakup. Although those emails also made clear that Ms Harrison did not want to see Mr. Plue when he eventually came by to pick up the doors, her invitation for Mr. Plue to come to her house at some point prior to August 23 at 10:00 a.m. leaves me with a reasonable doubt as to whether, up to that point in time, Mr. Plue’s communications had caused her to fear for her safety. Indeed, had Ms Harrison been fearful of Mr.

Plue by August 19, 2019, she would have been acutely aware of his presence in the same pew at church when she arrived late on August 18, 2019. I have no doubt that Mr. Plue’s inadvertent entry to her home on August 30, 2019 ultimately did instill some fear in Ms Harrison, but that did not retroactively convert Mr. Plue’s previous harassing communications into a form of criminal harassment. Conclusion [ 27 ] For the reasons set out above, the Crown has not proven all of the essential elements of each charge beyond a reasonable doubt. Accordingly, Mr. Plue is found not guilty of all three counts.

Released: December 17, 2020

Signed: Justice P.K. Burstein