R. v. Gallaugher, 2012 ONCJ 853

Citation: R. v. Gallaugher , 2012 ONCJ 853 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. CHAD ELLIOTT GALLAUGHER REASONS FOR JUDGMENT BEFORE THE HONOURABLE JUSTICE B.E. PUGSLEY on September 18, 2012 at Orangeville, Ontario

APPEARANCES : L. Marcon Counsel for the Crown L. Haskell Counsel for C.E. Gallaugher TUESDAY, SEPTEMBER 18, 2012 THE COURT: Mr. Gallaugher before the court, please Mr. Haskell. R E A S O N S F O R J U D G M E N T PUGSLEY, J. Orally : Chad Gallaugher faces a single count of criminal harassment. There is also an application before the court for a

Section 810 peace bond. Counsel agreed that the evidence on the criminal trial would also apply to the

Section 810 application. The defendant and the complainant shared an on and off relationship over some seven years. They had separated briefly in the past and did so in a final way in the late Spring of 2011. The Crown alleges repeated and unwanted harassment by the defendant of the complainant between August 1, 2011 and April 4, 2012. The defence submits that objectively the defendant's contact with the complainant could not been see to be harassment within the meaning of

Section 264 of the Criminal Code . The second issue is whether the evidence supports the invocation of the court's preventative justice authority as set out in

Section 810 of the Code . The complainant Courtney Davidson was the sole crown witness. She testified that the parties met in September of 2004 and started to date almost immediately. During the course of seven years they had an on and off relationship. They fought frequently and broke up for short times on several occasions. At one point they cohabited in their own apartment for nine or ten months. Gradually the parties moved towards an end to their relationship. The complainant told the defendant in May of 2011 that she wished no further communication from him.

Shortly thereafter while returning some of the items the complainant had given him over year, the defendant broke several of those items. The defendant continued to send the complainant text messages which she ignored. The number of texts increased in August of 2011 from six or seven a day to 20 times per day after she started to date another man.

After the first few text messages, which she answered by telling the defendant to stop texting her, she stopped answering them. On occasion a call would come in and she would answer it and find out it that it was the defendant and then she would end the call quickly. The defendant texted her about her new boyfriend telling her not to do anything that she would regret in their new relationship and that they would soon be back together again inevitably. At the end of June 2011, the complainant worked at a new job in Alliston, Ontario.

She thought that the defendant did not know about her job, but came out to her car one day to find ziploc plastic bags containing cut up photos and a cut up postcard she had sent the defendant attached to her car. There were other times that notes were placed on her car by the defendant, or sent to her home. The defendant sent her flowers and an effusive birthday card on her birthday in October of 2011. In November of 2011 the complainant was working at a car parts plant in Shelburne, Ontario.

Unknown to her the defendant's brother also worked there and one day when she came out of the plant after work, she found the defendant sitting in his vehicle at the plant. She confronted him about being there and then saw that he was there to pick up his brother. On a further five occasions or so, she saw the defendant's vehicle after she left work at the plant in the area. In November of 2011, she changed her cell phone number. For two weeks thereafter there were no calls or text messages from the defendant and then the texts started again.

On occasion the defendant's vehicle followed her car to the point where she drove into the police station parking lot to avoid the defendant. She scanned cars and licence plates to see if the defendant was there. Around the end of 2011, the complainant again changed her cell number. Since then no more text messages or calls have been received. At the end of February the defendant left an old Valentine card and letter on her car. On February 25, 2011 the defendant wrote a letter to the complainant which she received in the mail. These cards and letters were entered as exhibits.

The complainant stated that the unwanted communications from the defendant left her fearful and worried. She testified that there had been times in the past when the defendant had physically assaulted her during their relationship. She took her worries to family members and ultimately came to the courthouse to seek a

Section 810 Peace Bond. Her complaint was referred to the police and the defendant was subsequently charged. Since his release on bail there has been no further contact with the defendant. Since the start of 2012 there has been no cell phone, or text contact with the defendant. None of the defendant's communications were expressly threatening. In cross-examination the complainant repeated that there had been multiple times that the defendant had been sighted in his vehicle outside her work.

She stood by her version of the facts surrounding the communication in Alliston and the defendant's deliberate smashing of articles that he returned to her in May of 2011. She denied any conversation with the defendant by way of text, nor any steps after the final breakup that continued the relationship, nor did she give the defendant her new cell phone number in November of 2011. Ms. Davidson agreed that the sentiment in the notes and texts was always that the defendant loved her and that he would change.

She stated that these messages continued long after she made it clear that no communication was welcome and even after she told the defendant that she would call the police if he persisted. The defendant's words did not send a kind message from her perspective; neither did she agree that the defendant was just a slow learner in accepting that she did not want to have any contact at all with him. The defendant was the only defence witness to testify. Mr. Gallaugher testified that he met the complainant in 2004 and started to date seriously right away.

Their relationship was rocky and they had frequent disagreements. The defendant agreed that he had texted the complainant many times from August of 2011 and thereafter, but stated that the texts were conversations both ways not repeated unanswered text messages. He sent her flowers and a card for her birthday in October of 2011 and the complainant called him to say thank you, but that they were not really necessary. They met by accident at the KTH car part factory in November of 2011 while he was picking up his brother and only once thereafter was

he in the area. When the complainant drove by he was on the roadside talking into his cell phone. He was not waiting for her on that occasion. He and the complainant had spoken about her seeing his young cousins in Alliston before he left a single baggie tucked into her car door in Alliston in the parking lot. He stated that he came upon her car by accident and happened to have a baggie from his lunch and the older photo and postcard in his truck and took the opportunity to return them to the complainant. He stated that he just felt that he had no need for these articles any more.

This would have been in early August of 2011. He did not mean to break the belongings that he had returned to the complainant's driveway in May of 2011. He was foolish and forgot that the bag contained multiple breakable items when he tossed it onto the Davidson Driveway. He apologized immediately and the complainant came over a week or two later and stayed the night with him. The defendant put the final break up with Ms. Davidson at the end of June, 2011 when he found out that she had quickly entered into another relationship after their seven year relationship.

The complainant herself gave him her new cell phone number in November of 2011 telling him that he had no need to save it. He does not have the complainant's number since she changed it last, in January of 2012. The last contact he had with the complainant was after he wrote to her the February 25, 2012 letter. Ms. Davidson called him and asked why he had sent the letter and he hung up on her. There were never any threats to her and he never intended any threats. The last letter was sent to the complainant to give him closure so that he could move on.

He never thought or suspected that the complainant was fearful of him. In cross-examination the defendant agreed that it became clear to him at some point that the complainant did not want any calls from him. In the beginning and for some time after separation he wanted to reconcile and this extended well beyond the time he knew that Ms. Davidson no longer wanted the contact, as he said, deep down he thought there was still a chance of reconciliation. The final closure for him was the February 25, 2012 letter that he sent to the complainant until then he was not himself ready to move on.

When he found that he complainant had started dating soon after they broke up he was disappointed and jealous and willing to do whatever he needed to do to get Ms. Davidson back. He stated he was not angry except during the driveway incident in May when he wanted to make a point with the complainant. He did not cut up the photo and postcard that he returned to the complainant in Alliston. He left these on her car but knew that the complainant did not want these back. He intended to send the message that the sentiments the complainant wrote on those cards were not real sentiments.

When the complainant told him she would call the police he knew that she was obviously scared at that point. The defendant submits that the messages sent to the complainant by Mr. Gallaugher were non-threatening messages of his affection for her and his desire to effect the change in his own personality. While the persistence of the defendant may have been annoying and the defendant acted as a pest, there was no criminal act here. Further, the defendant's evidence was that the communication was mutual. The defendant submits that there is no need for a Peace Bond here.

The Crown submits that the unwanted attention of the defendant for some ten months after the breakup of the parties represents a valid basis for a

Section 264 conviction beyond a reasonable doubt. The defendant admitted that he knew that the complainant was bothered and even scared. At the least, it is submitted he was reckless as to the harassing affects of his acts. Certainly the subjective fear of the complainant was made out given the background of the relationship of these parties and the angry act of the defendant returning unwanted articles and then smashing them. The Crown further submits that the objective element implied by the use of the word "reasonably" in Subsection 264 (1) of the Criminal Code is made out in all of the evidence.

In any event, the Crown submits that there is a valid basis to require the defendant to be bound to keep the peace under

Section 810 of

the Criminal Code . Criminal harassment criminalizes acts taken by a defendant knowingly or recklessly that causes a person to reasonably fear for their safety. Subsection 264 (2) codifies the conduct that makes out such acts. In this case only the conduct in paragraph 264 (2) (

b) is engaged. That is, repeatedly communicating with, either directly or indirectly, the other person. While repeatedly may mean as little as twice, the allegations here are of many unwanted text messages, a few phone calls and written communications on at least three occasions. Notably the foolish act of the defendant in returning and smashing sentimental objects in May of 2011 while informing the complainant's fear lies outside the timeframe of the alleged harassment set out in the information.

It is apparent as well that while the defendant's text messages spiked in August of 2011, they were not consistently high in volume and ended completely by the end of December of 2011. I have no doubt that the complainant found these calls both annoying and alarming. Clearly, the defendant's belief in the end of their seven year relationship was not as clear as hers. Perhaps because they had in the past often fought and then made up and often separated and then reconciled, the defendant could not accept the finality that the complainant herself knew.

The defendant agreed in cross-examination that at some point he understood that the complainant did not want to hear from him and that he did not fully end the communication as she wished. Clearly, from the text of his February 25, 2012 letter he had come to that moment of closure, finally, but by then it was too late and the letter only served to confirm the complainant's fear that the defendant was just never going to leave her alone. Her instinct to seek the protection of a

Section 810 Peace Bond was well founded. With regard to the criminal charge subjectively and objectively, I find that the complainant's fear is reasonable. It is not up to a complainant who is being harassed by the unwanted attentions of a former partner to wait out however long he or she takes to learn that the relationship is over. The actus reus of the offence is clearly proven here. The mens rea of the offence can be established by the knowing act of the defendant to harass the complainant, or by the defendant being reckless as to whether his act of repeated text messages to the complainant is harassing.

Here the defendant testified that the text messages were exchanges, not unanswered texts by him. The complainant's evidence here is the opposite: that except at the start when she hoped they could still be friends and except for some times when she accidentally answered the defendant's phone calls, she never responded. I suspect that the complainant's version of the facts is more likely. However, some of what the defendant stated in this regard could also be true. Certainly the February 25, 2012 letter can be read as a final farewell by the defendant to his former partner.

Notably too, no threats were ever made and no contact ever attempted after the police became involved. In the end, I find that neither branch of the needed mens rea has been made out here beyond a reasonable about. The defendant was certainly careless in his communication during the timeframe engaged by the four corners of the information, but I find that it does not reach the level of recklessness needed to turn very annoying behaviour into criminal behaviour. The criminal charge is therefore dismissed. The test for a Peace Bond is entirely met by the Crown on the facts of this case.

Indeed, as already noted the complainant's initial instinct to pursue this preventative justice remedy was appropriate. This type of behaviour by the defendant can create disquiet and fear if unchecked and frictions can build up to the stage where criminal action is required. The defendant has not shown cause why he should not enter into a

Section 810 bond here.

Would you stand up please sir. You are bound over to keep the peace and be of good behaviour for 12 months on the following terms: The Bond will be in the penal sum of $1,500.00, but without deposit and without surety. You will also keep the peace and be of good behaviour. You shall not communicate directly or indirectly with Courtney Davidson or any member of her immediate family. You will not attend within 100 metres of her place of residence, employment or occupation, nor any other place you know her to be. You will not possess any weapon as defined by the Criminal Code .

THE COURT: Are there any other terms suggested counsel? MS. MARCON: I don't believe so, thank you. THE COURT: Do you understand those terms sir? MR. GALLAUGHER: Yes, sir. THE COURT: It is a serious matter to breach the terms of this court order. If you do so when you are convicted of that, it is not just the money that is at risk, do you understand? MR. GALLAUGHER: Yes, sir. THE COURT: If you're convicted under

Section 810 of the Criminal Code you could go to jail, correct? MR. GALLAUGHER: Yes, sir. THE COURT: If this order needs to be reviewed or changed, you can bring it back before the court and ask the court to reconsider the terms of the order. You can do that through your counsel, or even by going to the counter upstairs and the court will consider changing the order. In a few minutes you will receive a copy of this court order. Please make sure you understand your rights and your duties under this order. If you have any questions clear them up by talking to Mr. Haskell.

There are two other counts on the three count Criminal Code information that were not part of an arraignment here. MS. MARCON: If they could be marked withdrawn please. THE COURT: All right, counts two and three on the three count information are withdrawn at the request of the Crown. MR. GALLAUGHER: Thanks, Your Honour. THE COURT: There will be some paper work Mr. Haskell for your client to sign upstairs... MR. GALLAUGHER: Upstairs. THE COURT: ...before you leave the courthouse. Thanks. MR. HASKELL: All right. I'll take him upstairs. ********** I, K. J.

McFadden certify that this document is a true and accurate transcript of the recording of R. v. Chad Elliott Gallaugher, in the Ontario Court of Justice held at 10 Louisa Street, Orangeville, Ontario taken from Recording CD#0611_101_20120918_085424, which has been certified in Form 1. Dated: October 5, 2012 "K.J. McFadden" _______________________ K.J. McFadden

** This certification does not apply to the Reasons for Judgment and Reasons for Sentence which were judicially edited. Transcript Ordered: September 18, 2012 Transcript Completed: October 5, 2012 Ordering Party Notified: October 5, 2012