r v. WILLIAM ALLEN EASTHAM, 2010 QCCQ 12132

R. c. Eastham 2010 QCCQ 12132 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF HULL LOCALITY OF GATINEAU Criminal and Penal Division Nos. 550-01-040291-090 550-01-040509-095 DATE: December 22, 2010 ______________________________________________________________________ PRESENT: THE HONOURABLE SERGE LAURIN J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

WILLIAM ALLEN EASTHAM Accused ______________________________________________________________________ VERDICT (deliver orally December 17, 2010 and edited) ______________________________________________________________________ Introduction [ 1 ] Mr. Eastham is accused of the following: File 550-01-040291-090 1.

Between August 1, 2008 and December 30, 2008 in Chelsea, district of Hull, did act towards Mireille Robillard knowing that Mireille Robillard is harassed or being reckless as to whether Mireille Robillard is harassed, did engage in a prohibited conduct referred to in subsectiopn 264(2) of the Criminal Code , causing Mireille Robillard to reasonably fear for her safety or the safety of anyone known to her, committing thereby the offence punishable on

summary conviction provided by section 264(1)

(3) b) of the Criminal Code. JL3470 2. Between August 1, 2008 and December 30, 2008 in Chelsea, district of Hull, did make, with intent to harass, repeated telephone calls to Mireille Robillard committing thereby the offence punishable on

summary conviction provided by section 372(3) of the Criminal code . [ sic ] File 550-01-040509-095 1. Between December 30, 2008 and February 11, 2009 in Chelsea, district of Hull, did act towards Mireille Robillard knowing that Mireille Robillard is harassed or being reckless as to whether Mireille Robillard is harassed, did engage in a prohibited conduct referred to in subsection 264(2) of the Criminal Code , causing Mireille Robillard to reasonably fear for her safety or the safety of anyone known to her, committing thereby the offence punishable on

summary conviction provided by section 264(1)

(3) b) of the Criminal Code. 2. Between December 30, 2008 and February 11, 2009 in Chelsea, district of Hull, did make, with intent to harass, repeated telephone calls to Mireille Robillard, committing thereby the offence punishable on

summary conviction provided by section 372(3) of the Criminal Code . [ sic ] Issue

The Court must determine whether Mr. Eastham is guilty of these offences. The facts File 550-01-040291-090 [ 2 ] In File 550-01-040291-090, the prosecution is asking the Court to acquit Mr. Eastham on counts 1 and 2 because the evidence is insufficient. In particular, Ms. Robillard agreed that Mr. Eastham would remove the snow from her driveway with his snowblower in December 2008 and would keep her dog, and that dates for the exercise of the rights to visit their daughter be switched so that Ms. Robillard could take her to visit her maternal grandparents outside the area during the Christmas holidays.

File 550-01-040509-095 [ 3 ] Ms. Robillard and Mr. Eastham had a daughter in July 1999. [ 4 ] Mr. Eastham was still married to another woman at the time of the birth of their daughter, X. He obtained his divorce in April 2000. [ 5 ] The parties were not living together at the time. However, they might spend the night together two or three times a week. [ 6 ] In June 2000, Ms. Robillard and Mr. Eastham had a misunderstanding and the police of the Des Collines RCM intervened, but no charge was laid. [ 7 ] In July 2002, Ms. Robillard and Mr.

Eastham began to see each other again and, in October 2002, they got married. [ 8 ] On July 1, 2008, Ms. Robillard and Mr. Eastham separated, but they continued to live together until Ms. Robillard took possession of her new house in September. [ 9 ] Ms. Robillard had surgery on her wrist around December 12, 2008. Mr. Eastham cleared the snow from Ms. Robillard’s driveway after her surgery. He also agreed to keep Ms. Robillard’s dog while she went to visit her parents with their daughter, X. Mr.

Eastham also agreed to switch the dates of the exercise of his visiting and outing rights during the Christmas holidays in order to accommodate Ms. Robillard. [ 10 ] On December 30, 2008, Ms. Robillard had a friend spend the night at her house. During the night, Mr. Eastham was going by and saw a vehicle he did not recognize parked in Ms. Robillard’s driveway. Mr. Eastham wrote a note and stuck it on the vehicle. Ms. Robillard discovered the note the next day and said it was nasty. She compared the handwriting to that in Mr.

Eastham’s previous letters and noted that it was the same, and contacted the police department. She also said she saw footprints leading up to her window under the carport. [ 11 ] Mr. Eastham admitted placing the note on the vehicle but he denied approaching the house. [ 12 ] Ms. Robillard stated that she was frightened to see that someone had left a note on her friend’s vehicle and that there were footprints near a window of her house. [ 13 ] Following that complaint, the present charges were laid against Mr. Eastham and he was released after signing an undertaking that he would not come within 500 metres of Ms.

Robillard’s house. [ 14 ] After that incident, Mr. Eastham continued to call Ms. Robillard’s house in order to speak to their daughter, X. However, after speaking with X, Mr. Eastham asked to speak with Ms. Robillard in order to have the charges against him withdrawn, because they would cause problems for him when he wanted to return to England, his country of origin. She stated that Mr. Eastham spoke to her two or three times about that. [ 15 ] Ms. Robillard stated that she recorded the calls and took notes. However, neither the recordings nor the notes were filed at the hearing. [ 16 ] Ms.

Robillard stated that Mr. Eastham was really nice to her. She tried to withdraw the charges. She said she even contacted the Des Collines RCM police. [ 17 ] On another occasion, she ran into Mr. Eastham by chance at the stable where her horses were boarded and Mr. Eastham proposed that he take her horses to his place and she could sign a contract indicating that she could go riding on her horses when she liked. Ms. Robillard reportedly responded that he should leave her alone. [ 18 ] Ms. Robillard stated that Mr.

Eastham spoke to her several times but the conversations were not about their daughter, X, but about getting back together. [ 19 ] Ms. Robillard moved to rue Kelly in Chelsea and said she saw Mr. Eastham go by her home the day she moved. She stated that Mr. Eastham passed close by her home on February 10, 2009. She said he was within 500 metres and was violating the condition of his undertaking. She affirmed that, when leaving her home, she saw Mr. Eastham coming toward her on rue Kelly. She said when he saw that she was coming in his direction, he turned into a neighbour’s driveway.

She stated that he was about 150 feet from her home, but she did not measure the distance. She said she contacted the police following that incident. She said she followed Mr. Eastham and they stopped by the side of the road. He came toward her car door. She said she was getting ready to leave but told him she wanted to put an end to that and he responded that he was going to Aylmer to get gas. [ 20 ] With the calls and chance meetings, she felt that Mr. Eastham was invading her privacy.

[ 21 ] Following that incident, she contacted the police. She said she has not had any trouble with Mr. Eastham since February 2009. [ 22 ] Mr. Eastham said that it was Ms. Robillard who left him and that he still loves her. [ 23 ] Mr. Eastham stated that, on December 30, he had the truck of one of his friends and four to five inches of snow had fallen. He was passing by Ms. Robillard’s home and wanted to remove the snow. He noted that a vehicle was parked in her driveway and he did not recognize it. He was hurt and left the note. He did not go near the windows of the house. [ 24 ] Mr.

Eastham affirmed there were several calls from his home to Ms. Robillard’s, but that they took place when his daughter was visiting him. She called her mother and a girlfriend. [ 25 ] Mr. Eastham contended that, when they separated in 2001, Ms. Robillard filed a report with the Director of Youth Protection saying that he had sexually abused his daughter. The report was rejected. He also had to file a motion for rights of access to his daughter. Ms. Robillard did not contest the motion and he obtained rights to visit and have access to his daughter. [ 26 ] As for the incident of February 2009, Mr.

Eastham stated that he saw Ms. Robillard on the road and she flashed her lights. He parked and they talked. Analysis [ 27 ] The Court has received contradictory versions. In such a situation, it must adhere to the rules dictated by the Supreme Court in R. v. W.(D.) : [1] First, [after considering all the evidence, not only the testimony of the accused], you believe the evidence of the accused, obviously you must acquit. Second, if [after considering all the evidence, not only the testimony of the accused], you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are left in doubt by the evidence of the accused, [ that does not mean you must find the accused guilty. Just because the accused does not tell the truth does not mean the accused is guilty ] . You must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [Text added.] First count: criminal harassment The incident of December 30, 2008: note stuck on Ms.

Robillard’s friend vehicle Regarding that incident, the evidence is not contradictory as to the accused having stuck a note on the vehicle of Ms. Robillard’s friend. What is contested is the nature of the note and whether the accused entered the carport and was at one of Ms. Robillard’s windows.

Section 264 of the Criminal Code stipulates the following: 264.

(1) Criminal harassment –

(1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

(2) Prohibited conduct – The conduct mentioned in subsection (1) consists of (

a) repeatedly following from place to place the other person or anyone known to them; (

b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;

(

c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or (

d) engaging in threatening conduct directed at the other person or any member of their family. [ 28 ] The nature of the words in that note is contradicted, and the footprints under the carport at one of Ms. Robillard’s windows are contested. [ 29 ] Regarding the footprints, the Court will rule immediately. It believes the accused’s version. The evidence provides no testimony of a person who saw Mr. Eastham walking under the carport and approaching the windows of Ms. Robillard’s home. Lastly, no analysis of the footprints was done by an expert. [ 30 ] It remains to be examined whether placing a nasty note on Ms. Robillard’s vehicle constitutes an offence within the meaning of

section 264 of the Criminal Code , i.e. criminal harassment. [ 31 ] That act occurred only once. The prohibited acts appearing in sub-sections (2)(

a) and (2)(

b) do not correspond to the act that occurred in that one-time incident. It remains to be ascertained whether the acts provided for in sections 264(2) (

c) and (

d) were committed by Mr. Eastham. [ 32 ] Regarding section 264(2)( c )—besetting or watching the dwelling-house—the evidence shows that, that evening, Mr. Eastham was removing the snow from driveways using the truck of a friend, whom he was replacing. During the night, four to five inches of snow had fallen. Mr. Eastham had cleared the snow from Ms. Robillard’s driveway in the weeks preceding that night, using Ms. Robillard’s snowblower. Ms. Robillard had agreed to Mr. Eastham removing the snow from her driveway following her wrist surgery. [ 33 ] Mr.

Eastham maintained that he intended to go and remove the snow from Ms. Robillard’s driveway. The Court does not believe that that act is the act described in section 264(2)( c ). [ 34 ] Regarding section 264(2)( d )—engaging in threatening conduct directed at the other person—the evidence shows that Mr. Eastham wrote a note on a piece of paper that he stuck in the door of the vehicle of Ms. Robillard’s friend. The next morning, the friend discovered the note and brought it to Ms. Robillard. She recognized Mr. Eastham’s handwriting, by comparing it to that in letters he had written. Mr.

Eastham admitted placing the note on the vehicle. [ 35 ] In R. v. Lamontagne , [2] the Court of Appeal stated that, in a charge brought under section 264(2)( d ), the question as to whether the accused engaged in threatening conduct must be analyzed the same way as the offence of uttering threats, provided for in

section 264.1 of the Criminal Code , that is, the nature of the threat must be examined objectively in the context and according to the person to whom the threat was directed. [ 36 ] In R. v. McCraw , [3] the Supreme Court dealt with the method to adopt in order to determine whether the words violate

section 264.1(1) (

a) of the Criminal Code . Paragraph 26 contains the following: 26. At the outset I should state that in my view the decision as to whether the written or spoken words in question constitutes a threat to cause serious bodily harm is an issue of law and not of fact. How then should a court approach the issue? The structure and wording of s. 264.1(1) (

a) indicate that the nature of the threat must be looked at objectively; that is, as it would be by the ordinary reasonable person. The words which are said to constitute a threat must be looked at in light of various factors. They must be considered objectively and within the context of all the written words or conversation in which they occurred. As well, some thought must be given to the situation of the recipient of the threat. The question to be resolved may be put in the following way.

Looked at objectively, in the context of all the words written or spoken and having regard to the person to whom they were directed, would the questioned words convey a threat of serious bodily harm to a reasonable person? [ 37 ] The note was not produced and the comments on it were not repeated verbatim to the Court. Being unable to apply the method taught by the Supreme Court, the Court dismisses that charge related to the incident of December 30, 2008. Incidents of February 2009: meeting in a vehicle and at the stable [ 38 ] Ms. Robillard said she saw Mr.

Eastham roughly 150 metres from her house, whereas a condition of his undertaking prohibited him from being within 500 metres of her house. She said that she was coming out of her driveway and saw Mr. Eastham’s vehicle turn into a neighbour’s driveway and turn around. She said she managed to reach him and she stopped by the side of the road, behind him. He got out of his vehicle and spoke to her. [ 39 ] Mr.

Eastham told her he was going to Aylmer for gas and she allegedly said that she wanted him to leave her alone. [ 40 ] On another occasion, he reportedly saw her by chance at the stable where she boarded her horses. Mr. Eastham allegedly offered to keep her horses at his place. [ 41 ] Another time, Mr. Eastham was driving on a public thoroughfare and Ms. Robillard was driving on it in the opposite direction. Mr. Eastham recognized her and flashed his lights. Ms. Robillard stopped and Mr. Eastham spoke to her and told her she was

looking well. [ 42 ] So the first incident, which allegedly occurred near Ms. Robillard’s house, can constitute a criminal offence if Mr. Eastham failed to abide by a condition of his undertaking when he was released. However, it is not the Court’s role to determine that in this case. [ 43 ] The Court must determine whether those acts constitute criminal harassment. [ 44 ] The incident that allegedly occurred at the stable where Ms.

Robillard boarded her horses did not involve any of the prohibited acts provided for in section 264(2) of the Criminal Code . [ 45 ] The same is true of the incident when they came across one another on a public thoroughfare and he said she was looking well. [ 46 ] Therefore, the Court: [ 47 ] ACQUITS the accused of the first count.

Second count: harassing telephone calls [ 48 ] Section 372(3) of the Criminal Code stipulates the following: 372(3) Harassing telephone calls – Every one who, without lawful excuse and with intent to harass any person, makes or causes to be made repeated telephone calls to that person is guilty of an offence punishable on

summary conviction. [ 49 ] In the New Brunswick ruling in R. v. Sabine , [4] the Court determined that the expression “with intent to harass” in section 372(3) meant intent to annoy. [ 50 ] The evidence shows that Mr. Eastham sometimes called his daughter, X, when she was at Ms. Robillard’s home. [ 51 ] Ms. Robillard stated that, at the end of the conversation, Mr. Eastham asked X if he could speak with her mother. Ms. Robillard said that, several times, Mr. Eastham asked her to withdraw the charges, because they would create problems when he travelled to see his family in England. [ 52 ] Ms.

Robillard stated that she took notes about and recorded some of the conversations. However, neither the recordings nor the notes of the conversations were filed. [ 53 ] The evidence shows that Ms. Robillard took steps to withdraw the charges. The evidence does not show that Ms. Robillard felt harassed by the calls. It would have been very simple for her not to take the call when her daughter, X, called her to the phone. What is more, she had a phone with caller display, so she could see who was calling her. [ 54 ] The evidence also does not show that Ms. Robillard asked Mr.

Eastham to stop speaking to her on the phone. [ 55 ] The Court notes that the prosecution did not demonstrate all the elements constituting the burden of proof of that offence. [ 56 ] Therefore, the Court: [ 57 ] ACQUITS the accused of the second count. SERGE LAURIN, J.C.Q. Mtre. Jennifer Morin Criminal and Penal Prosecutor Mtre. Marc Doyon Counsel for the accused Dates of hearing: December 22, 2009, and April 16, June 22, September 27 and 28, and November 12, 2010