Her Majesty the Queen - v. -, 2016 SKPC 32

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 032 Date: February 29, 2016 Information: 90011863 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - C.F.R. Appearing: Ms. Leona Andrews For the Crown Mr. C.F.R. For himself The parties are identified by initials in order to protect the identities of their children. DECISION ON APPLICATION FOR PEACE BOND 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. The couple separated in the fall of 2010. In February 2011, C.F.R. agreed to enter into a Peace Bond with respect to J.W. for a period of one year. [ 3 ] A family law trial took place before Mr. Justice Sandomirsky of the Court of Queen’s Bench for Saskatchewan. In his Judgment of January 27, 2012 , J.A.W. v C.F.C.R., 2012 SKQB 46 [ J.A. W. v C.F.C.R ], Mr. Justice Sandomirsky recognized the high level of conflict which existed between the parties.

To manage the high conflict, Mr. Justice Sandomirsky determined that J.W. and C.F.R. would continue as joint custodians and guardians of their children. Mr. Justice Sandomirsky decided that the best interests of the children would be best achieved under a parallel parenting regime which allocates unfettered child rearing responsibilities to each parent. At para 72 Mr. Justice Sandomirsky added: This scheme intends to allow the children to be raised in a manner which minimizes the contact and need for communication between their parents.

Only in this manner can the court defuse the level of conflict between the parents and recognize the very limited ability of the parents to communicate. The regime shall attempt to provide as much structure and finiteness as the facts and circumstances of the family will allow. [ 4 ] Mr. Justice Sandomirksky granted C.F.R. 39% co-parenting time with the two children in his care as follows:

(1) On alternative weekends from Friday at 5:00 p.m. until the following Monday at 8:30 a.m.

(2) Every Wednesday from 5:00 p.m. until Thursday morning at 8:30 a.m.

(3) Following the weekend the children spend with their mother, Mondays from 5:00 p.m. to 8:00 p.m. [ 5 ] Mr. Justice Sandomirsky also addressed in considerable detail such topics as the children’s education, health care needs, religious upbringing, extracurricular athletic activities and lessons. [ 6 ] 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 that evidence did not show that J.W. fears that C.F.R. will cause physical injury to her and her children. [ 7 ] On August 25, 2015, in R v C.F.R., 2015 SKPC 126 , I granted the application for a non-suit

respecting the peace bond in relation to the children N.R. and C.R. I dismissed the application for a non-suit respecting a peace bond in relation to J.W. [ 8 ] Immediately following my decision to dismiss the application for a non-suit respecting the peace bond in relation to J.W. , Mr. Roger Lepage, who was legal counsel representing C.F.R. was asked if he wished to cross-examine J.W. Mr. Lepage decided not to cross-examine J.W. The matter was adjourned to October 9, 2015, at which time Mr. Lepage withdrew as counsel for C.F.R. C.F.R. decided to represent himself. The matter was reconvened on December 11, 2015.

C.F.R called Constable Tyler Lerat, his mother, S.R., and his sister, B.L. to testify on his behalf. Mr. C.F.R. testified on December 11, 2015, and January 7, 2016. [ 9 ] In this case, I have decided to dismiss the application for a Peace Bond against C.F.R. The Evidence J.W. [ 10 ] J.W. testified about several encounters she has had with C.F.R. between 2012 and 2015 which she claims have emotionally traumatized and intimidated her and have also breached her privacy. These encounters include: 1. J.W. testified that she and C.F.R. have not communicated verbally since May 2012.

J.W. testified that she has received constant emails and texts from C.F.R., regarding the children, her and the children’s whereabouts and what they are doing. She found this constant electronic communication overwhelming and described it as “badgering” her. As a result and after consulting a counsellor she does not respond to most of C.F.R.’s emails and texts. 2. In May 2012, C.F.R. being at or near the Sandra Schmirler Recreation Complex when the children have swimming lessons and she had 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. J.W. observed C.F.R. to puff out his chest and glare at her and her family. She felt intimidated by this behaviour. 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.’s van preventing her from exiting. 5. Following their son’s Hapkido (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 minutes hoping 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 (fall 2014), Hapkido (May 2015), and while driving near Sobey’s in Regina. [ 11 ] J.W. testified that she sees a counsellor for herself and for how to best deal with her children. She fears her former husband will manipulate her children and attempt to damage her relationship with them. C.F.R.

[ 12 ] C.F.R testified that the last five years have been extremely difficult for him as he has been constantly fighting with J.W. to have access to his children. He maintains that J.W. has interfered with his Court ordered children rearing responsibilities and is always looking for “any angle” to remove him as a co-parent. He feels he has no choice but to go back to Family Court sometime in the future. Emails and Texts [ 13 ] C.F.R. testified that he is an Information Technology Manager.

He testified that he has compiled a database of email and texts which were exchanged between J.W. and himself between January 1, 2012, and May 15, 2015. C.F.R. testified that he sent 1330 emails and/or texts to J.W. during this period of time. J.W. sent 1057 emails and/or texts to him during this time. He described this electronic communication as a constant flow of information between the two regarding their co-parenting of the children.

He testified that sometimes he is frustrated by J.W.’s responses to him and her actions in relation to the children (i.e. access to children, picking up the children, the children’s activities and the children’s attendance at religious events) however, he maintains that his communications to J.W. have been respectful and non-threatening. He testified that at no time has J.W. told him or warned him not to communicate with her by email or text. C.F.R. provided several examples of electronic communications which were exchanged between he and J. W. over the years and which were entered as exhibits at the hearing.

C.F.R. takes the position that the email/text exhibits reveal an exchange of information between he and J.W. which is inconsistent with J.W.’s allegation that she fears him. May 2012 attending children ’s swimming lessons [ 14 ] C.F.R. acknowledges that in May, 2012, he went to the Sandra Schmirler Recreation Complex to watch his children at their swimming lessons. He testified that he felt some responsibility to be present because he had enrolled his son in swimming lessons.

He added that his attendance at swimming lessons is no different from J.W.’s attendance on Wednesday’s after 5:00 at their son’s Hapkido lesson which runs from 4:30 to 5:30. As previously discussed, C.F.R. has parenting responsibilities of the two children every Wednesday from 5:00 p.m. until Thursday morning at 8:30 a.m. June 2013 attending son ’s piano recital [ 15 ] C.F.R. testified that he received email correspondence from J.W. advising him of his son’s piano recitals. He acknowledged that he attended his son’s piano recital. He testified that he did not sit directly behind J.W. and her family.

He sat a few rows behind them. Prior to Daughter ’s kindergarten talent show [ 16 ] C.F. R. testified that he has no recollection of his daughter’s kindergarten talent show. He further testified that the driving behaviour prior to the talent show as described by J.W. simply did not happen. After his son ’s Hapkido lesson

[17] C.F.R. denied that he was waiting in his car behind J.W. following his son’s Hapkido lesson. Taking photographs and/or videotaping J.W. and her family [18] With the exception of one photograph [Exhibit R-12] C.F.R. denies taking photographs and/ or videotaping J.W. and her family. C.F.R. testified that on Wednesday April 16, 2014, he and his children had just left his son’s Hapkido lesson and were walking to hiscar. At a nearby intersection they encountered J.W. C.F.R. testified that he took a photograph of J.W. at 5:31 p.m. when he realized shewas taking a picture of the children and him.

C.F.R. further testified that Exhibit R-2 is the photograph taken by J.W. of C.F.R. and hischildren that same day. He obtained Exhibit R-2 from the Crown as part of disclosure for this hearing. He added that he wanted theCourt to be aware that J.W. chose to be present (near him and the children) 30 minutes past the start of his parenting time. [19] C.F.R. acknowledged that in the fall of 2014, he took five videos of his son’s football team playing at Mosaic Stadium.

He has no recollection of pointing his camera or phone at J.W. near Sobey’s. [20] C.F.R. testified that some of the disclosure he has received respecting this hearing contains additional photographs of him taken by J.W. For instance, Exhibit R-9 is a photograph of C.F.R. taken by J.W. in May, 2011, at hisson’s soccer game. There is also Exhibit R-1 which is an undated photograph taken by J.W. of C.F.R. standing talking to a formerneighbour on the bay where J.W. lives. C.F.R. testified that he was supposed to pick his children up from J.W. at 5:00 p.m. that day.

Headded that at 5:15 p.m. the children had still not come out of J.W.’s house and he got out of his vehicle and spoke to his formerneighbour. The Law - Peace Bonds [21] 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; [22] In R v Klein, 2011 SKQB 95, 369 Sask R 273, Mr.

Justice Gerein explained the nature of a Peace Bond. Justice Gerein also set 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. [23] 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 specifically stated by the applicant as the Court can infer it from the totality of the evidence received. [24] Several cases have held that the words “personal injury” set out in s. 810 of the Criminal Code includes both physical and psychological injury. [See: R v Hujdic, [1997] SJ No 779, 1997 Carswell 782, J.H. v W.B., supra, R vP.A.O., 2002 BCPC 560, R v D.C.H., 2011 BCPC 443, Anderson v Barney, [2012] NJ No 327 and R v Louis, 2013 BCJ 2905.] Issues 1. Does J.W. actually fear psychological injury to herself? 2.

If the answer to issue 2 is yes, are there reasonable grounds for her fear? Analysis 1. Does J.W. actually fear psychological injury to herself? [25] This is a subjective test. J.W. is clearly emotionally troubled by her past encounters with C.F.R. She is of the view that C.F.R.’s constant emails/texts do not allow her to live freely and be at peace. She feels that she hassustained emotional trauma and sought out counselling to deal with C.F.R. In this case I am satisfied on a balance of probabilities that J.W. actually fears psychological injury to herself from the actions of C.F.R. 3.

If the answer to issue 2 is yes, are there reasonable grounds for her fear? [26] This is an objective test. The Crown must establish on a balance of probabilities that

reasonable grounds exist for J.W. ’ s fear. [ 27 ] The evidence before me reveals that C.F.R. and J.W. exchanged many emails and text messages between May 10, 2011, to May 21, 2015. While it appears that C.F.R. initiated many of these exchanges, the evidence reveals J.W. replied to his communications, sometimes inviting further communication. The evidence also reveals that sometimes J.W. initiated the communications. I am of the view that the content of these emails and text messages were not threatening towards J.W. It appears the content is largely confined to issues relating to co-parenting their two children.

I am of the view that the ongoing exchange of emails and text messages is, on an objective basis, inconsistent with J.W. fearing C.F.R. [ 28 ] The Crown also provided several examples of instances when C.F.R. came to the children ’ s activities, lessons, and recitals while she had the children. The evidence also reveals that J.W. would remain at her son ’ s Hapkido lesson on Wednesdays past her parenting time. In addition, it appears the Judgment of Mr.

Justice Sandomirsky does not preclude such behaviour. [ 29 ] The Crown also submits that C.F.R. laid in wait, followed and prevented J.W. and the children from exiting her vehicle. C.F.R. adamantly denies doing this. In J.A.W. v C.F.C.R. , Mr. Justice Sandomirsky heard J.W. and C.F.R. each testify about C.F.R. ’ s consumption of beer and marijuana. He found that J.W. is a more highly emotional person than C.F.R. He concluded that J.W. is prone to some exaggeration, though such exaggeration may well be inadvertent and fueled by her propensity to operate at a high anxiety level. On the other hand, Mr.

Justice Sandomirsky found that C.F.R. minimized or marginalised the extent of his drinking and the use/dependency on marihuana in the year 2010. I came to a similar conclusion regarding the testimony of J.W. and C.F.R. on this application for a peace bond. I found J.W. to be a more highly emotional person than C.F.R. I am also of the view that J.W. is prone to some exaggeration, though such exaggeration may well be inadvertent. I am also of the view that C.F.R. minimized or marginalised the nature of his interactions with J.W.

As a result of these findings, I am of the view that the testimony of J.W. and C.F.R. are equally credible and reliable. I am unable to prefer the evidence of one over the other. Hence, I am once again unable to conclude that the Crown has met its burden of proof. [ 30 ] In this case, I am unable to conclude that reasonable grounds exist for the informant ’ s fear. As a result, I dismiss the application for a peace bond. [ 31 ] Lastly, I would encourage both J.W. and C.F.R. to be more respectful and act in a more mature fashion towards each other.

I expect this would be very much in the best interests of your children. _______________________ M. Hinds, J