R. v. Dexter, 2015 NSPC 94

CANADA CASE NO. 2652621 PROVINCE OF NOVA SCOTIA IN THE PROVINCIAL COURT Cite as: R. v. Dexter, 2015 NSPC 94 HER MAJESTY THE QUEEN versus STEPHEN LEE DEXTER DECISION HEARD BEFORE : The Honourable Judge Frank P. Hoskins PLACE HEARD : Provincial Court Dartmouth, Nova Scotia ORAL DECISION: May 25, 2015 [Edited for grammar, punctuation and readability] COUNSEL : Michelle James Crown Attorney David Grant Defence Attorney

INDEX OF PROCEEDINGS PAGE NO. DECISION .................................................................................................... 1

HOSKINS, J.P.C. (Orally) : Mr. Dexter is charged with having criminally harassed his estranged wife on September 30, 2013, by repeatedly communicating with her, and thereby caused her to fear for her safety, contrary to s. 264(2) (

b) of the Criminal Code . I reserved my decision until today, so that I would have time to carefully consider and thoroughly reflect upon the evidence. I will briefly summarize the surrounding circumstances which have emerged from the evidence presented, touch upon the law, and then provide my analysis, which has led me to the result in respect to the issue of whether or not the Crown has proven beyond a reasonable doubt the alleged offence. However, before I do that, it is appropriate to briefly comment upon the context in which this case arose.

The circumstances surrounding this allegation arises from a domestic context in which the accused, Stephen Dexter and the complainant, Lisa Dexter, were involved in Family Court proceedings as a result of their marital separation which occurred on July 30, 2013. They were married for approximately nine years, and have two young daughters. The central issue in this case is whether the Crown proved beyond a reasonable doubt each and every essential element of the offence of criminal harassment, as described in the Information.

Summary of the Evidence The Crown called three witnesses: Lisa Dexter, Cst. Catherine Willett, and Cst. Brian Cantfell, and the defence elected to call the accused, Stephen Dexter. The Evidence of Lisa Dexter Lisa Dexter is employed as a school guidance counselor with the Halifax Regional School Board. Prior to that position, she was a teacher for approximately seven years. She and Stephen Dexter have been married for approximately nine years. They separated on July, 30, 2013, and are involved in Family Court Proceedings. They have two daughters, ages eight and five.

She has custody of the children: they live with her. She and Stephen had contact up until September 30, 2013, the date she contacted the police. She explained that after receiving numerous text messages and calls, which included threats toward her, she became nervous and scared. On prior occasions, between July 30 and September 30, she told Stephen, both verbally and by text, that if he did not stop contacting her, then she would contact the police. He did not stop making contact with her, so she complained to the police on September 30, 2013.

On September 29, 2013, Lisa and Stephen celebrated their young daughter’s fourth birthday by having a birthday party at Lisa’s house. Lisa testified that during the party, Stephen made numerous harassing comments to her, which included threatening comments to her and others about her, while in her presence, such as, accusing her of having an affair with a co-worker. He also kept asking her when the co-worker was going to show up at the party. Lisa testified that Stephen stated to her, “Fuck, you’re fucking hateful looking”.

And he would not let her sit by their daughter, nor let her go around with the pony with her daughter He also got into a verbal fight with her father, after her father asked Stephen to stop making comments. Lisa stated that Stephen told her friend that he was going to burn their cabin to the ground so she would not get her hands on it. When he uttered things to her, she stated that Stephen glared at her with a look of hatred on his face, and told her “to go fuck herself”, during their daughter’s birthday party, in the presence of others, including children, which really upset her.

At one point, Lisa asked Stephen what his problem was as she became extremely uncomfortable, worried about how he was going to react, as she was concern his comments were

going to get worse during the party. She added that she was concern because Stephen seemed to be irrational, and his behavior concerned her because she was not able to predict what he might do. While Lisa was putting the children in her car, Stephen mentioned to her about taking their daughter shopping the next day, and stated that she would be home on time. After she suggested that she may not be home on time, by 5:00 o’clock, he stated, “oh you’ll be there”, which she took as an order, as he was quite adamant.

Lisa testified that after Stephen left the party, at approximately 3:00 pm; he texted her as he walked to where his truck was parked. He texted, “put a smile on your face”. He repeatedly texted and called her until after mid-night on that date. Apparently, that is when the texting began. Again, at 6:30 am, the next morning, Stephen called and texted Lisa as she was getting ready for work. She dropped her children off at her parents’ house because as she had a professional development day. Lisa was asked to provide an example of some of the texts she received on that day.

She stated that Stephen texted that he was going to rip the front door off of the house with his truck because he paid for it, and threatened to attend her place of work. He stated, “fuck you asshole, go fuck herself”. She added that Stephen repeatedly contacted her parents as well. Lisa stressed that she declined the calls that were coming from Stephen’s phone as she recognized the number. She did not respond to the phone calls nor to the texts.

She added that she knew it was Stephen because she recognized the telephone number and he addressed things that only they would know about, such as, who paid for the door of the house. Lisa also stated that Stephen threatened to purchase a house on her street so he could keep an eye on her. Lisa stated that most of the phone calls were made to her cell phone, but she did receive some on her land-line as well. Lisa testified that on September 30, Stephen repeatedly call her while she was providing her statement to the police. In fact, a police officer, Cst.

Willett, spoke to him and asked him to stop calling and texting. He texted, however, a few more times after that and then arrived at the police station. Lisa identified Exhibit 1 as the text messages sent by Stephen to her, which started immediately after their daughter’s birthday party. She did not respond to any of the text messages received on September 29, and on the 30 th , as noted in Exhibit 1, which notes incoming and outgoing calls. She also confirmed that the texts recorded in Exhibit 1 were an accurate representation of texts she received from Stephen.

Lisa stated that she and Stephen had incidental contact after September 30, when a third party did not have to be present while dropping off or picking up the children. That changed, however, after Christmas of last year, as they were “balancing criminal and family courts”. A third party is now involved in the process with the children. Lisa was asked how all of the texts from Exhibit 1 made her feel. She stated that Stephen’s behavior made her very uncomfortable, “a mix of being scared, exhausted, nervous, and hyper vigilant”. She was also asked what she meant about “being scare, concern about her safety”.

She responded by saying that “from being with him for nine years, she knew how unpredictable he could be when he was angry and that she had never seen him as intensely angry as he was for that length of time before”. What especially concern her was his willingness to make comments at a birthday party in front of witnesses, children and adults. She had no way of knowing what he might do to her if he showed up at her house or her place of work as he threatened to do.

She added that nothing felt rational and therefore she could not predict “what was going to go on.” On cross-examination, Lisa reaffirmed, by reviewing Exhibit 1, that Stephen was going to take the children shopping on Monday: the birthday party was on Sunday. She stated that Stephen told her to be at home at 5:00 pm because he wanted to take the children shopping. She took that to be an order from Stephen. She added that Stephen stated that he was going to get the children at her place, or he was going to her parents place to get them.

Lisa testified that she did not think that there was a marriage counselor appointment on that date because Stephen was going to take the children shopping, and she told him that she was not going to marriage counseling. She also responded to him about seeing the children. She agreed that Stephen wanted her to speak to the bank so he could get off of the line of credit in relation to the home. She agreed that Stephen told her that she needed a lawyer to get him off the line of credit.

Lisa stated that initially she and Stephen communicated by text messaging but after July 29 th , she did not respond, except for one response on July 30 th. She stated that their method of communicating about the children was by text messaging, e-mail, and/or phone. They would also talk when he was at her house. Lisa was asked when Stephen became harassing, and she responded by stating that it was after she told him, initially in August, to stop communicating with her or she was going to contact the police. She added that she gave him a lot of chances.

And she agreed that after that she and he had communicated during that six week period. Lisa explained that it was in August when she told Stephen that if he did not stop, she was going to contact the police. She stated that she told him that a few times in August because he was threatening her: at one point he threatened to take the children away from her.

Lisa testified that Stephen threatened to call her co-workers’ spouses and tell them that she was sleeping with their spouses. He threatened to break down the front door of her house, to go to her parents’ house, and he called her names. Lisa stated that Stephen told her that everything was her fault, called her a “fat cow”, and that she owed him money. She stressed that she kept trying to make things work for the sake of their children, and kept telling him to stop or she was going to go to the police, but he would not stop.

She was asked whether there was any specifics things that she wanted Stephen to stop, and she answered, yes. She stated that he promised at one point that he would stop text messaging her, but shortly after that he started again and blamed her for teaching him how to text message; as it was her fault. She added that Stephen could have talk to her by calling her on the phone or by email, or by coming to her house, because at that point he was still allowed to communicate with her, but he did not. He kept text messaging her, even though there were other means to communicate with her.

She stressed that she went to the police because Stephen would not stop. Lisa also stated that Stephen’s behavior became more insulting and threatening which concerned her, as she became concern for her safety. She was asked what she thought he was going to do, and she answered that she did not know, and that was the problem. She was asked whether Stephen had done anything to her before, and she answered that he had pinned her to the counter and threatened their daughter.

She stated that Stephen had threaten their daughter previously and told her that “if she didn’t get their daughter to stop crying he was going to put her head through a wall.” She was asked during the time period of July 29, and 30 whether she thought Stephen was going to hurt her. She answered yes and then was asked how, to which she responded, “emotionally, psychologically and physically”. She was asked how physically, to which she responded that he was threatening to come to place of work and to her house. She was also asked whether she thought Stephen was going to hurt their children, at that point.

She answered that she had no idea of what he was capable of. It was then suggested to her that her response was a “no”, to which she replied, her response was a “yes” because he was completely irrational; nothing about him was rational. She stated that she could not recall whether she told the police that Stephen was going to burn down the cottage, but recalled telling her lawyer. The Evidence of Cst. Catherine Willett Cst. Willett, a member of the Halifax Regional Police, testified that on Monday, July 30, 2013, she interviewed Lisa Dexter at the Dartmouth Police Station.

During the interview while Lisa was providing a written statement, Lisa’s telephone began to ring. Lisa’s phone excessively rang during the interview. At one point, Cst. Willett stated that she answered the phone. She immediately identified herself, and advised the caller, who she believed to be Stephen Dexter, that she was with Lisa and that Lisa was in the process of making a complaint. After advising Mr. Dexter that the police would be in touch with him, he told her that he was coming to the police station and that if no one answered the door, he would kick it in. Following that conversation, Cst.

Willett left the interview room and went to speak to Cst. Cantwell. Cst. Willett described Stephen’s demeanour as being very agitated and upset with the circumstances. He never threatened her, and the conversation was very brief. Cst. Willett recalled that Stephen attended the police station in a highly agitated state. He was yelling profanities directed towards Lisa, as he thought that she had cheated on him. Sgt. McNeil and Cst. Cantfell dealt with Stephen at the police station. On cross-examination, Cst. Willett agreed that she did not seize Stephen’s cell phone, and added that she thought Cst.

Cantfell seized it upon arresting him. The Evidence of Cst. Brian Cantfell Cst. Cantfell testified that he met the complainant, Lisa Dexter, on the date and time in question, at the front entrance door of the police station. She explained to him that she was being harassed by her husband Stephen Dexter. She told him that he sent her 53 text messages, and made 29 different telephone calls on that day. Following that Cst. Cantfell returned to his police cruiser. At approximately 5:20 pm, he learned that Stephen Dexter was at the front entrance door of the police station, and was adamant to speak to Lisa Dexter.

Cst. Cantfell attended the front entrance and arrested Stephen without incident. He described Stephen as being quite vulgar as he wanted to speak to Lisa. Cst. Cantfell stated that he arrested, cautioned and Chartered Stephen and then placed him in a holding cell.

Cst. Cantfell seized a cell phone from Stephen’s personal possession but did not have it forensically analyzed. Cst. Cantfell identified Exhibit 2 as a Production Order and phone records. On cross-examination Cst. Cantfell stated that the text messages were copied from Lisa’s cell phone. He also looked at her cell phone on the day in question, and observed 53 text messages. He recalled that he only reproduced the text messages recorded on the date and time in question. The Evidence of Stephen Dexter Mr. Dexter, Stephen, testified. He stated that he has been married to Lisa for approximately nine years.

They were married in 2004. They are currently separated and have been so since July 30, 2013. They have two daughters, ages five and eight. Stephen stated that approximately one week after they separated, he started to exercise his access rights to his children. Stephen explained how, and how often he gained access to his children. His access includes seeing his children for one evening per week, and every second weekend his daughters stay with him. He explained that he picks up and drops them off through a third person, who returns the children to Lisa.

There have been a few minor problems with access to the children but those existed quite some time ago. Stephen stated that the current access arrangement works very well, and to date there has been no problems. Stephen acknowledged Exhibit 1 as being a series of text messages that he sent to Lisa. Stephen was asked how the number of calls on the three days contained in Exhibit 1, September 28, 29 and 30, 2013, compared to other days he contacted Lisa. His response was that it depends on whether she would talk to him or not. When she would not talk to him, he would contact her more often.

When she did talk to him it was by text messaging because that was the way she wanted to communicate. He explained that if they were in conversation, he would not contact her as much. If he could not get hold of her, however, and he wanted to know something, he would contact her more often. For example, if he wanting to know about the line of credit that his name was on because it had an effect on his business, or if he could see his children, he would try to contact her.

He added that around the end of September, he wanted to know whether they were going to go to a marriage counselor, as she never got back to him on that: Lisa cancelled the marriage counselor. He was supposed to have his daughters on the night of Eden’s birthday and he wanted to know what was going on, but he was arrested on that night. With respect to comments made about the front door of the house, Stephen explained that he purchased the door and put it on the matrimonial home.

He stated that because he heard nothing about the line of credit, he stated that he would go over to the house and take the door that he purchased. He added that he said that to her to hear “to wake her up” because he had not heard anything from her. He did not remove the door. He also commented that he would tell her that he was going to her place of work to hear from her, as he had no intention of actually going to her work. He wanted to hear from Lisa about whether he could take the children and wanted to discuss the line of credit.

Stephen testified that he texted Lisa because that was the way she communicated with people. He started texting around the first of August. Stephen testified that Lisa told him a few weeks after they separated that she would contact the police if he did not stop contacting her. He also stressed that he did not threatened to assault his daughter as stated by Lisa in her testimony. He first learned about this after they broke up. He stated that the only thing he could remember was that approximately four years from when they separated, he was upstairs and his daughter had a temper tantrum.

She was in the bedroom when he closed the door, a little bit, and she started kicking the door. As he was walking down the stairs, he told Lisa, who was at the bottom of the steps, to go upstairs before their daughter put her foot through the door, as the doors were very thin doors. He also stated that the matrimonial home was owned by Lisa before he was married to her. Stephen denied that he confined or held Lisa in her room. He added that was not true. The only incident he could recall happened in August after they had broken up. That incident occurred while they were in the kitchen.

He wanted to sit down and talk to her about their relationship, but she refused. He explained that Lisa was in the kitchen standing in the corner area and he was about three feet away from her, but she would not talk about their relationship. He never held her there as she could have walked away at any time.

Stephen was asked whether he could recall anything that was said or text that might have caused Lisa to fear for her own safety or the safety of anyone known to her, to which he answered, “no.” He was then asked, what was the purpose of communicating to Lisa by text, after they had broken up, to which he responded that they have two children together and he wanted to know when he could see them. He was doing work on the house, so he would go over to the house after they had broken up, to clean things up; like putting on the siding, and he wanted to be around his children.

On cross-examination, Stephen agreed that the purposes of the text messages was to deal with child access issues, and to find out what was going on with the line of credit. He also had work to do around the house. With the assistance of Exhibit 1, Stephen’s attention was directed to specific text messages contained in Exhibit 1, including the first text

that he sent on September 30, at 6:02 a.m. where he stated, “where is my money for selling hot dogs, you even took that you fucking cow”. He was asked for which purpose that text message was sent. He stated that he was upset because she said that he never gave her money. His attention was also directed to the text messages relating to counseling which began at 7:44 a.m. on September 30. He agreed that he texted, “fuck you asshole” after she responded that she was not going to counseling. His attention was directed to September 29, a text he sent at 10: 06, wherein he stated, “I want to talk to my daughters”.

He agreed that given the ages of his daughter, ages four and seven, they were probably in bed at that time, but added not all of the time, because his children have been up before late. Following that exchange, Stephen asked, “what about the night of July 27, when he found his wife, at 12:30 in the night, with another man in a car, and asked how do you think that makes a person feel?” The Crown responded that she understood that he was upset about the break-up, and he added, that he was not hearing anything about that.

The Crown Attorney suggested to Stephen that she did not doubt that he was upset over the break-up of his marriage, and asked whether he agreed that his being upset is made abundantly clear in his text messages, to which he responded with the comment, - “text messaging”, - “that is what is wrong with the world, - text messaging’, He then posed the question – “what is wrong with having a conversation with a person”. He stated that is why a person may get upset. He suggested that earlier in his relationship with Lisa, he made comment to her that she should talk normal to a person instead of hiding behind her phone.

The Crown Attorney asked Stephen whether he understood that Lisa had no obligation to discuss things with him, to which he responded – “why didn’t she block my phone?” The Crown Attorney asked Stephen whether he understood that Lisa had no obligation to talk to him, if she did not want to, to which he responded, “She’s my wife”. He agreed that he did not understand that she had no obligation to talk to him. He agreed that he and Lisa were separated in September, for approximately two months. He agreed that in September they were living separate and apart, but added that there was no agreement.

He added that he left the house on his own free will and agreed that he and Lisa were separated after he found her in the car with another man. Stephen stated that he left his belongings in the house because he thought that “they may talk things out.” He agreed that he went to his daughter’s birthday party, but disagreed with the suggestion that he had an intense encounter with Lisa while there.

He stated that he exchanged “just a couple of words” with her father because “he was going around sticking a camera in their face while he was trying to visit his daughter, but would not take a picture of him and his daughter: he only took a picture of his daughter.” He agreed that he was annoyed by that, and he did exchange some words with her father. He agreed that Lisa was somewhere nearby but he did not know whether she was in ear shot of the exchange of words because he was not paying attention to that.

Stephen’s attention was drawn to the text message sent on September 29, at 15:29, which states, “your daddy hates me now after today”, and it was suggested to him that he understood her father was upset because of what happen at the party, to which he agreed, and added, that he “asked Lisa’s father why he was not taking pictures of him and his daughter, and stated to him that he hates him.” He stated, that Lisa’s father “turn around and said he hates him now.” He agreed that Lisa did not respond to that text message, nor did she respond to any of the text messages he sent to her on September 29.

He agreed that at 15:40, on September 29, he sent the text message, “cat got your tongue”, and added that “she was probably adding this all up to get him in trouble,” and asked the question “why didn’t she block my phone?” He agreed that he continued to text message Lisa throughout the day on September 29, until to 10: 35 in the evening, and then sent her a text message the next morning at 6:02 a.m., to which he received no responses. He agreed that he did not get a response from Lisa until 8:02 wherein she stated no, she was not going to counseling.

He disagreed that he was upset that she was not going to counseling, because she had cancelled a few times, even though he responded with the text at 8:06, “fuck you asshole”. He again repeated that he was not upset. Stephen’s attention was directed to Exhibit 2 where he acknowledged making the calls to Lisa, beginning at 6:41 on September 30th. He agreed that he made all the calls contained in Exhibit 2, and did not receive any response from “anyone”. No one answered, including Lisa.

The Crown Attorney asked Stephen “whether at some point in time did he think to himself that, hey, maybe she does not want to talk to me,” to which he responded “that Lisa was leading him on, adding these up, and knowing that she is getting him mad, as he knew she would talk to him sooner or later.” That is a brief

summary of the evidence. Burden of Proof The Burden is upon the Crown to prove these allegations beyond a reasonable doubt. This legal or persuasive burden never shifts to the accused; it remains with the Crown throughout the trial.

The issue in the present case is whether, on the whole of the evidence, the Crown has proven beyond a reasonable doubt that Mr. Dextercommitted the offence of criminal harassment. In R. v. Starr, 2000 SCC 40 , [2000] 2 S.C.R. 144, the Supreme Court of Canada held that this burden of proof lies much closerto absolute certainty than to a balance of probabilities’, and in R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, the SupremeCourt held that it is not sufficient to conclude that an accused person is - probably or likely guilty for a conviction to be registered.

A reasonable doubt is not an imaginary or frivolous doubt. It must not be based on sympathy or prejudice. Rather, it is based on reasonand common sense. It is logically derived from the evidence or absence of evidence. In the present case, credibility is a central or significant issue, as there is conflict between the evidence of the central Crownwitness and the evidence of the accused, and accordingly, I have considered the special instructions contained in the decision of theSupreme Court of Canada in R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742; wherein Justice Cory formulated a concise anduniform set of instructions which posed three questions for consideration of the accused’s evidence. W.(D.) is concerned with how a trier of fact should apply the burden of proof in a criminal case where the accused testifies. In brief, I must remember that the issue is not whether I believe Mr. Dexter, but whether the evidence as a whole convinces me of theMr. Dexter’s guilt beyond a reasonable doubt. If I believe the exculpatory evidence of the accused, Mr.

Dexter, an acquittal must follow.However, even if I do not believe that evidence, I must ask myself, if it nonetheless gives rise to a reasonable doubt. Finally, if I do not believe Mr. Dexter and I am not left in doubt on the basis of that evidence, I must still address and resolve the mostcritical, in fact, the only question in every criminal case: Does the evidence as a whole convince me of guilt beyond a reasonable doubt? The ultimate issue, as noted by Justice Binnie in R. v. Sheppard, 2002 SCC 26 , 2002 S.C.C. 26, is not credibility but reasonabledoubt. In R. v.

Mah, 2002 NSCA 99 , 2002 N.S.C.A. 99, Justice Cromwell, in delivering the judgment of the Nova Scotia Court ofAppeal, aptly stated, at para. 41: The W.D. principle is not a “magic incantation” which trial judges must mouth to avoid appellate intervention. Rather, W.D. describeshow the assessment of credibility relates to the issue of reasonable doubt. What the judge must not do is simply choose betweenalternative versions and, having done so, convict if the complainant’s version is preferred.

W.D. reminds us that the judge at a criminaltrial is not attempting to resolve the broad factual question of what happened. The judge’s function is the more limited one of decidingwhether the essential elements of the charge have been proved beyond a reasonable doubt. With respect to the demeanour of witnesses, I am mindful of the cautious approach that I should take in considering demeanour evidenceof witnesses, as there are a multitude of variables that could explain or contribute to a witness’s demeanor while testifying. Justice Saunders’ observation in R. v.

D.D.S., 2006 NSCA 34 , 2006 N.S.C.A. 34, at para. 77, is apposite: Before leaving the subject and for the sake of future guidance it would be wise to consider what has been said about the trier’s place andresponsibility in the search of the truth. Centuries of case law remind us that there is no formula with which to uncover deceit or rankcredibility. There is no crucible for truth, as if pieces of evidence, a dash of procedure, and a measure of principle mixed together byseasoned judicial stirring will yield proof of veracity.

Human nature, common sense and life’s experience are indispensable whenassessing creditworthiness, but they cannot be the only guide posts. Demeanour too can be a factor taken into account by the trier of factwhen testing the evidence, but standing alone it is hardly determinative. Experience tells us that one of the best tool to determinecredibility and reliability is the painstaking, careful and repeated testing of the evidence to see how it stacks up.

How does the witness’saccount stand in harmony with the other evidence pertaining to it, while applying the appropriate standard proof in a civil or a criminaltrial? Further, the court may believe all, none or some of a witnesses’ evidence. As the trier of fact, I am entitled to accept parts of a witness’sevidence and reject other parts, and similarly, I can afford different weight to different parts of the evidence that I have accepted.

It is against this context, that I must consider the issues, mindful that the presumption of innocence is displaced only by proofbeyond a reasonable doubt, and I am mindful of what my role, as the trier of fact, is not to simply choose between alternative versionsand, having done so, convict if the complainant’s version is preferred. My function is the more limited one of deciding whether theessential elements of the charges have been proved beyond a reasonable doubt.

The Law Although I have already touched upon the law in my earlier ruling which denied the defence motion for a directed verdict, I feel it isnecessary to do so again in my analysis of the issue of whether the Crown proved each and every element of the offence of criminalharassment.

The offence of criminal harassment is contained in s. 264 of the Criminal Code, which provides, in part, as follows: 264(1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the otherperson is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, tofear for their safety or the safety of anyone known to them.

(2) The conduct mentioned in subsection (1) which is relevant in this case consists of

(

b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them. The Essential Elements of Criminal Harassment The essential elements for the offence of criminal harassment are set out in s. 264 of Criminal Code , which has been considered and followed in the decision of R. v. Cromwell 2008 NSCA 60 .

They can be summarized as follows: • It must be established that the accused has engaged in the conduct set out in s. 264(2) (a),(b), (c), or (d); • It must be established that the complainant was harassed; • It must be established that the accused who engaged in such conduct knew that the complainant was harassed, or was reckless or wilfully blind as to whether the complainant was harassed; • It must be established that the conduct caused the complainant to fear for her or his safety or the safety of anyone known to her or him; and, • It must be established that the conduct complainant’s fear was, in all of the circumstances, reasonable.

The Mens Rea Requirement for Criminal Harassment The mens rea for the offence of criminal harassment is described in s. 264(1) as follows: • the accused intentionally engaged in the prohibited conduct specified in s. 264(2); and • the accused knew that his or her conduct caused the complainant to be harassed, or • the accused was aware of such risk and was reckless as to whether the complainant was harassed. It would appear from a plain reading of s. 264(1) that the mens rea for the offence of criminal harassment contains both a subjective and objective elements of fault.

Thus, in assessing the accused’s conduct, the court must consider whether the accused was subjectively aware of the risk, in the context of applying an objective analysis in its determination of whether the risk justified. Accordingly, honest mistake is available as a defence.

Section 264 requires that the accused should have known that his or her conduct caused the complainant to be harassed , or that he or she was aware of such a risk and was reckless as to whether the complainant was harassed . Thus, the morally innocent accused who honestly believed that his or her conduct was not known to the complainant, and who was not reckless or wilfully blind, would not be convicted. It is trite law that there is a distinction between the concepts of recklessness and wilful blindness .

An accused is reckless when he or she is aware that there is a danger that his or her conduct could bring about the result prohibited by the offence, but nevertheless persists, despite the risks. Wilful blindness arises where an accused who has become aware of the need for some inquiry declines to make the inquiry because he or she does not want to know the truth and would prefer to remain ignorant. Therefore, the defence of honest mistake is not available where the accused has wilfully blinded himself or herself to the objective circumstances surrounding the offence with which he or she is charged.

The wording of s. 264 does not require the Crown to establish that the accused intended by his or her conduct, as specified in s. 264(2) , to harass the complainant. The original wording of this

section was amended in that “with intent” was deleted from the provision because of the difficulty in proving the requisite level of mens rea. The Crown is only required to establish that the accused has intentionally engaged in the prohibited conduct, as specified in s. 264(2) , with knowledge that he or she harassed the complainant or that he was aware of the risks and was reckless or wilfully blind as to whether the complainant was harassed. Therefore, the offence is one of general , not specific , intent.

Prior Conduct in Relates to the Mens Rea of the Offence On many occasions courts have held that the evidence of the accused’s prior conduct is relevant and admissible with respect to the issue of whether the accused possessed the requisite mens rea for the offence of criminal harassment. In R. v. Ryback (1996), 105 C.C.C. (3d) 241 (B.C.C.A.), the accused, for over a two-year period, sent gifts to a grocery store clerk, attempted to communicate with her by watching her at the store, and on one occasion visited her home. The accused was not an acquaintance of the clerk.

The clerk complained to the police which led to the accused being cautioned about his behaviour. The accused was charged with criminal harassment. The trial judge admitted evidence of the accused’s prior conduct, which included behaviour outside the period covered by the charged. In dismissing the accused’s appeal, Finch J.A., who delivered the judgment for the British Columbia Court of Appeal, observed, at para. 34: The Appellant’s state of mind would, of necessity, depend in large part on his past association with, and conduct towards, the complainant.

His knowledge that the complainant was harassed, or his recklessness as to whether she was harassed, could be realistically decided only by looking back to what had gone before. Similarly, pre-charge conduct which tended to show an innocent

state of mind on the appellant’s part would also be admissible. If the pre-charge evidence tended to show that there has previously beena friendly relationship between the two, or that the complainant had encouraged the appellant in his advances so that the appellantbelieved his attentions were welcome, it would be difficult to conceive a sound reason for excluding the evidence. The reasoning in Ryback, has been quoted with approval and adopted in numerous cases where the mens rea or mental state of theaccused was at issue.

In determining whether the accused has the necessary subjective mens rea or mental state of blameworthiness required to commit theoffence of criminal harassment, the courts have applied a contextual approach in their analysis. It follows, that a proper understanding of the relationship between an accused and a complainant requires thorough examination of thecircumstances surrounding their relationship, which could include prior conduct before the enactment of the

section and/or outside thetime period alleged in the charge. In R. v. Hau, [1996] B.S.S.C. No. 1047, the British Columbia Supreme Court considered and applied the reasoning in Ryback, and heldthat the accused’s prior conduct and the history of any relationship between the parties is relevant and admissible to a determination ofthe accused’s state of mind. Edwards J., who delivered the judgment of the Court also expressed the view, at para. 53: The mens rea requirement should be seen as mandating that the accused know that his or her attentions were unwanted.

Once that isestablished, if the accused were to continue to communicate and follow the complainant, this must be seen as reckless. Clearly, evidence that the accused was cautioned, or warned that his or her conduct is harassing the complainant would be of significancein the court’s determination of whether the accused possessed the requisite mens rea, but it is not determinative of the issue, because thelaw does not mandate or require such a warning. Moreover, a requirement of such, would be inconsistent with the rationale behind theenactment of the section. In R. v. Rehak, [1998] M.J.

No. 110, a decision of Monnin J., of the Manitoba Court of the Queen’s Benchheld, at para. 17, that: A party need not be warned that his or her conduct is criminal before that conduct actually becomes criminal. It is criminal if it iscontrary to the provisions of the

section and is done intentionally or in a manner which displays recklessness as to the consequences ofhis or her actions. Similarly, in R. v. MacIntyre (1996), (NS SC), 157 N.S.R. (2d) 130 (S.C.), Edwards J. of the Nova Scotia SupremeCourt endorsed the proposition articulated in Hau, as earlier quoted. He also held in that case that there was no obligation upon thecomplainant to caution or warn the accused that his attentions were unwanted as it was evidently clear to any reasonable observer that theaccused was reckless. In R. v. S.B., [1996] O.J.

No. 1187, Hill J., of the Ontario Superior Court of Justice, accepted and applied the reasoning in Ryback,and observed, at paras. 30-31: Violence between strangers, as a general rule, involves a narrative of circumstances of limited temporal duration. Violence within arelationship, spousal or otherwise, necessarily, and frequently, involves the complex of dynamics and subtleties of the personalities of theprincipals within the context of their individual and shared experiences, understandings, roles and emotions.

While submissions of admissibility on the basis of mere narrative can, of course, be abused, to deny the triers-of-fact completeinformation regarding the prior history of the parties runs the risk of presenting an entirely sterile and antiseptic record devoid therealities of the individual circumstances of the participants. Hill J. cautioned that the Crown should lead this type of evidence without disproportionate emphasis on detail and in terms of the lengthof trial in comparison to the evidence which relates to the specific circumstances of the charged offence.

The evidence of prior conduct is admissible, notwithstanding that it would not be admissible as similar fact evidence, as long as itsprobative value exceeds its prejudicial effect. Hill J. expressed the view that the courts must carefully scrutinize the proffered evidenceby conducting a bad character or a criminal disposition admissibility analysis. In R. v. Kosikar, (ON CA), [1999] 138 C.C.C. (3d) 217 (Ont. C.A.) the accused was convicted of criminal harassmentas a result of a letter written to the complainant. He had been charged for the sixth-month period preceding the letter.

The letterindicated a willingness and desire to engage in sexual activity with the complainant. The accused had sent the complainant letters andgifts for approximately five years. The complainant has previously obtained a restraining order, which was breached by the accused. Approximately, six years earlier, the complainant obtained a peace bond which the accused honoured. There was no contact between theparties in the preceding six months of the receipt of this letter.

The issue at trial was whether the evidence of the accused’s prior conductwas admissible and whether criminal harassment could be proved on the basis of sending only one letter. The accused was subsequentlyconvicted. Durno J. applied the reasoning in Ryback, and held that the conduct which preceded the dates specified in the charge wasrelevant to the accused’s state of mind at the time the letter was sent. Durno J., found that subsection 264(2)(

d) does not require a courseof conduct to a find conviction. He concluded that a single incident will suffice if the consequence is that the complainant is beingharassed. The Ontario Court of Appeal agreed with his analysis and accordingly dismissed the appeal. More recently, the Ontario Court of Appeal, in two cases, R. v. Krushel (2000), 142 C.C.C. (3d) 217, and in R. v.

Kordrostami (2000), (ON CA), 143 C.C.C. (3d) 488, has also applied the reasoning articulated in Ryback, and has held that the evidence ofthe accused’s conduct prior to the charge was relevant and admissible in respect to the issue of the accused’s mental state. Harassment The Criminal Code does not define the word “harass”. Cases which have considered the meaning of the word have applied a contextual

approach in their

interpretation. The definition of harassment has been considered in several cases in which the courts have resorted tothe use of the dictionary definition in determining its meaning. Prior to Ryback, the

definitions of harassment have included, “conductwhich must be unwelcome to the complainant, which includes an element of tormenting the complainant” or “to annoy, pester, tormentor other vexatious conduct that is known or ought to be known to be unwelcome to a complainant”. In Ryback, the court adopted the meaning of harassment propounded by Murray J., of the Alberta Queens Bench, in R. v.

Sillipp (1995), (AB KB), 99 C.C.C. (3d) 394, wherein he stated, at pp. 418-19, that: …it is not sufficient that the complainant be “vexed disquieted or annoyed,” rather it must be demonstrated that the prohibited conduct“be tormented, troubled, worried continually and chronically, plagued, bedevilled and badgered”. The above quoted passage has been consistently applied and followed in subsequent cases. However, there seems to be inconsistency inthe cases as to whether or not the prohibited conduct enumerated in s. 264(2)(

c) and (

d) must denote a course of action, or be repetitive innature, as opposed to being a single act or incident. Recently, in Kordrostami, the Ontario Court of Appeal considered whether the words, “tormented, troubled or worried continually andchronically, plagued, bedevilled and badgered” must be read cumulatively. Sharpe J.A., who delivered the judgment of the Court,observed, at para. 11: I do not view the list of words used in Lamontagne, supra, and Kosikar, supra, as cumulative. Nor do they replace the word “harassed”in the Criminal Code. In their origin in R. v.

Sillipp, supra, at p.393, they were stated to be individually synonyms for “harassed”; seealso R. v. Ryback (1996), (BC CA), 105 C.C.C. (3d) 240 (B.C.C.A.), at p.248 where this point is made. Thus, itwould be harassment to be “plagued” in one context and “bedevilled” in another. Safety The complainant must fear for his or her safety or that of someone known to him or her as a result of the accused’s conduct. The word safety has been judicially considered very broadly to include the notion of being free from mental or emotional orpsychological trauma.

Indeed, victims of harassment do not have to suffer ill health or major disruption in their lives before obtaining theprotection of s. 264. The courts have consistently applied to a very liberal

interpretation to the word to give it the effect that the sectionintended. In R. v. Gowing, [1994] O.J. No. 2743, the Ontario Court of Justice, (Gen. Div.), held, at para. 5: In my view, it was the intention of the legislature that a victim’s fear for his or her safety must include psychological or emotionalsecurity. To restrict it narrowly, to the risk of physical harm by assault and behaviour would ignore the very real possibility ofdestroying a victim’s psychological and emotional well-being by a campaign of deliberate harassment.

The above quoted passage is consistent with the Supreme Court of Canada’s approach in R. v. McCraw (1991), (SCC),66 C.C.C. (3d) 517, wherein the Court applied the liberal

interpretation to the meanings of bodily harm in the context of uttering threatscharge. Reasonable Fear in all the Circumstances The Crown must establish that the accused’s conduct cause the complainant reasonably, in all the circumstances, to fear for his or hersafety or the safety of someone known to him or her. This element of the offence imports both a subjective and an objectiverequirement. The subjective requirement is in relation to the actual fear professed by the complainant. The accused’s conduct must havecaused the complainant to be fearful.

The objective requirement is that the complainant’s fear must be reasonable in all thecircumstances. In assessing whether the complainant could reasonably have been in fear for his or her safety, the courts have recognizedthe objective standard in the context of criminal harassment cases. The comments of Wilson J., in R. v.

Lavallee (1990), (SCC), 55 C.C.C. (3d) 97, at p. 114, are apposite: The definition of what is reasonable must be adapted to circumstances which are, by and large, foreign to the world inhabited by thehypothetical “reasonable man”… the factor of gender can be germane to the assessment of what is reasonable. As in Lavallee, the Court in Lafreniere (1994), 22 W.C.B. (2d) 519 (Ont. C.A.), emphasized the importance of considering thecircumstances surrounding the personal antecedents of the complainant in determining whether the actual fear professed by thecomplainant was reasonable in all the circumstances.

Accordingly, in applying the reasonable objective standard the Court in Lafrenier,followed the reasoning espoused by Wilson J., in Lavallee and held, at para. 22: …the trier of fact must determine how the ‘reasonable person’ would have felt in similar circumstances, i.e., in the circumstances inwhich the victim found himself or herself.

In making this objective determination, i.e., determining whether the victim’s professed fears were reasonable or not, all of the evidenceis to be taken into account including the gender of the victim and the history and circumstances surrounding the relationship whichexisted, if any, between the accused and the victim. As per Lavallee, it is legitimate to take gender into account due to the differenceswhich recognizably exist between size, the strength, and the socialization of women when compared to their male counterparts. Similarly, in Sousa, [1995] O.J. No. 1435 (Ont.

C.A.) the Court held that in assessing the reasonableness of the complainant’s fear,consideration ought to be given to the complainant’s age, sex, and race.

It should be stressed that the operative phrase “ in all of the circumstances ” was appropriately included in the wording of the

section to clarify the standard to which the subjective fear of the complainant is to be assessed in the context of an objective analysis of the total circumstances. This phrase should compel the courts to adopt a broader approach in their analysis of what is reasonable in all the circumstances, as such was taken in Lavalle, LaFrenier, and in Sousa, as well as in numerous other cases.

Prior Conduct as it Relates to the Reasonableness of the Complainant’s Fear The accused’s prior conduct and the history of the relationship between the parties is relevant and admissible to assist the court with a determination of whether the accused’s conduct caused the complainant to be reasonably, in all the circumstances, fearful. As mentioned previously, the reasoning in Ryback , has been quoted with approval and applied in numerous cases, in assisting the courts in making their determination on the whether or not the accused possessed the requisite mens rea .

Likewise, the courts have applied the same reasoning in the determination of whether or not the complainant’s fear is reasonable in all of the circumstances. The decisions of Ryback , Hau, S.B., Kosikar, Krushel, and Kordrostami , have all taken the same approach in this regard and thus the foregoing analysis in these cases applies with equal force. The decision of Hill J. in S.B. is instructive in respect to the application of historical context evidence in offences which arise out of a relationship.

Hill J. provides a comprehensive analysis of the law as it relates to the use of the accused’s prior conduct in consideration of the reasonableness of the complainant’s fear. Again, the Ryback approach is consistent with the reasoning in Lavalle , and with the reasoning in McCraw , and therefore presumably will continue to be applied by the courts in their consideration of the reasonableness of the complainant’s fear. The imposition of an objective standard of reasonableness on the apprehension of fear is clearly appropriate because it excludes fears which are unsubstantiated.

In several cases the courts have held that conduct which was ruse, petty, annoying, inappropriate or socially undesirable was not sufficient to establish a reasonable apprehension of fear in all the circumstances. Repeatedly – s. 264(2)(

a) and (

b) The word “repeatedly”, as used in subsections 264(2)(

a) and (b), connotes a course of conduct which has been judicially considered to mean conduct which is engaged in “persistently by the accused”, “more than once”, “many times over”, “overly frequent”, and “multiple acts”. The courts will continue to give this word (repeatedly) a contextual

interpretation. The exact number of repetitions required should be left for the trier of facts to decide on a case by case basis. As mentioned previously, there has been conflicting authority on whether subsections (

c) and (

d) require the prohibited conduct to be “repeated”. In Johnston , supra , the court held that subsections (

c) and (

d) require a course of conduct or conduct involving a course of action, as opposed to an isolated incident. In R. v. Fusion , [1998] B.C.J. No. 1441 (P.C.) the Court held that subsections (a), (b), and (

c) require a course of conduct, rather than a single incident. However, the Court concluded that subsection (

d) did not require a course of conduct. On other hand, the Ontario Court of Appeal in Kosikar , explicitly disagreed with the conclusion in Johnston , and held, at p. 222: As a matter of statutory

interpretation I do not think that s. 264(2)(

d) is limited to repeated threatening conduct to the exclusion of a single threatening act. Parliament expressly required repeated conduct in defining the prohibited acts in s. 264(2)(

a) and (b). The absence of such a qualification in s. 264(2)(

d) strongly suggests to me a legislative intention not to confine that prohibition to repeated threatening conduct, but to encompass a single threatening act as well. This conclusion is further supported by the wording of s. 264(2) (

c) where the proscribed conduct at least of watching can surely occur on a single occasion. Hence, there can be no suggestion that in s. 264(2) Parliament intended to proscribe only repetitive conduct. In R. v. Baker , [2000] B.C.J. No. 2497 , the British Columbia Supreme Court applied Kosikar , and held that in instances where a single act is relied upon, acts of prior conduct or the real likelihood of future problems with the accused was not required. Thus, a single act was sufficient to establish the offence.

In view of the foregoing, the Crown must prove each and every essential element of the offence of criminal harassment beyond a reasonable doubt. In considering whether the elements have been proven beyond a reasonable doubt, it is important to consider the totality of the evidence, the context of it and the history of the relationship between the complainant, Lisa Dexter, and the accused, Stephen Dexter. Analysis I have had an opportunity to assess and consider the evidence in relation to this matter. I have had the opportunity to watch carefully and listen intently to the witnesses as they testified.

It is trite to say that most criminal trials involve an assessment of the reliability and credibility of witnesses’ testimony; this case is no exception. As Justice Saunders’ observed in D.D.S. , there is no magic formula for deciding how much or how little to believe a witnesses testimony or how much to rely on it in deciding a case, what is required is a careful, thorough and thoughtful examination of all aspects of the

evidence called in the case. This imposes an important and special obligation upon the Court, as it requires a through, painstaking and careful examination of the allthe evidence; mindful, that in assessing the issues of credibility and reliability, the central question is not whether the offences occurred,but whether the evidence establishes the accused’s guilt beyond a reasonable doubt.

Moreover, I am also cognizant that while pieces of evidence are important to consider, they cannot be deal with any piece ofevidence in isolation, as I must consider the totality of the evidence before me in considering whether or not the Crown has proved itscase beyond a reasonable doubt. I am also mindful that the proper approach to the burden of proof is to consider all of the evidence together and not to assess individualitems of evidence in isolation.

To put it another way, I must consider the totality of the evidence in determining whether the Crowndischarged its burden of proving the offences beyond a reasonable doubt. Before embarking upon my analysis in this case, let me stress that I am mindful of the distinction between credibility and reliability,which has been recently addressed by Justice Watt in R. v. H.C., 2009 ONCA 56 , 2009 O.N.C.A. 56, in delivering the judgmentof the Ontario Court of Appeal. He wrote, at para. 41: Credibility and reliability are different.

Credibility has to do with a witness's veracity, reliability with the accuracy of the witness'stestimony. Accuracy engages consideration of the witness's ability to accurately: observe, recalled, and recount events in issue. Anywitness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is nota proxy for reliability: a credible witness may give unreliable evidence. Moreover, as Rowles J.A., in R. v.

R.W.B., [1993] B.C.J.No. 758, at para. 28, observed: It does not logically follow that because there is no apparent reason for a witness to lie, the witness must be telling the truth. Whether awitness has a motive to lie is one factor which may be considered in assessing the credibility of a witness, but it is not the only factor tobe considered. As this Court has commented many times in relation to the issue of credibility specifically, there is no category of witness who comes tocourt with an inherent degree of credibility built into their profession or position.

Although it is true that police officers have, as part of their professional responsibilities, the obligation to observe and record informationthat comes their way in the course of their duties, each witness, including police officers, necessarily are required to be assessed on thestrengths and weaknesses of their own specific testimony and how it stacks up to the evidence that is accepted by the Court. There are witnesses too who may have a bias or prejudice either for or against an accused, which must be factored into what weightcan be given to a witness' testimony.

There are witnesses who have very little interest in the outcome of the matter; that can contributeto the weight the witness' evidence is given. Each witness brings with them a multitude of factors which a court must look at inassessing evidence. Reliability and accuracy of witnesses' testimony is also something which, similarly, needs to be assessed on a witnessby witness basis. Each witness has factors which may impact their reliability and accuracy of their testimony, which is something thatcan be considered independent of credibility.

A witness who is not credible will never be reliable or accurate, but a person who is wellmeaning and attempting to be truthful can lack reliability and accuracy. This case arises from a domestic context in which the complainant and the accused were embroiled in emotional issues surrounding theending of their nine year marriage. During the date and time in question they were separated, and it would appear from the undertone andcontent of the text messages sent to Lisa by Stephen that he was becoming increasingly frustrated and angered with Lisa for notresponding to him.

While I must assess the issues raised in this case in the context of the whole of the evidence adduced at trial, I am mindful, aspreviously stated, that the presumption of innocence is displaced only by proof beyond a reasonable doubt, and I am mindful of what myrole, as the trier of fact, is not to simply choose between alternative versions and, having done so, convict if the Crown’s version ispreferred.

Having carefully considered the totality of the evidence, including Stephen Dexter’s evidence, in the context of all of the evidencethat I have accepted in this case, I am satisfied beyond a reasonable doubt that Stephen Dexter, with intent, repeatedly communicatedwith Lisa Dexter, knowing, that his conduct caused Lisa Dexter to be harassed, or at least was aware of such a risk and was reckless as towhether she was harassed.

I am also satisfied beyond a reasonable doubt that Lisa Dexter was harassed, and that Stephen Dexter’s conduct caused Lisa Dexter tofear for her safety or the safety of anyone known to her, and that her fear was, in all of the circumstances, reasonable. Let me explain. As previously mentioned, in this type of offence, criminal harassment, the Crown must establish that the accused’s conduct causedthe complainant to reasonably, in all of the circumstances, fear for his or her safety. This element imports both a subjective and anobjective requirement.

The subjective is in relation to the actual fear professed by the complainant, which was clearly articulated by Lisa Dexter. Theaccused’s conduct must have caused the complainant to be fearful. The objective requirement is that the complainant’s fear must be reasonable in all of the circumstances. In assessing whether thecomplainant could reasonably have been in fear for her or his safety the courts have recognized that an objective standard must beapplied. The accused’s prior conduct and the history of the relationship between the parties is relevant and admissible to assist the court

with a determination of whether the accused’s conduct caused the complainant to be reasonably, in all the circumstances, fearful. Having carefully listened to both Lisa and Stephen Dexter, and having observed them while they both testified, it is patently obvious that they have both felt the emotional impact of the deterioration of their marriage. As I listen to and observed Stephen Dexter during his testimony, it was obvious to me that he was extremely upset with Lisa over the breakup of their marriage, and wanted to reconcile the marriage.

Indeed, Exhibits 1 and 2 confirm that he was emotionally distraught or upset on April 29 and 30, as evident by the nature, and number of text messages and phone calls. While the test messages on a plain reading do not in isolation read as a threat to cause fear for one’s safety, the language used in some of the texts and the number of the messages and calls, the context in which they were made, cumulatively is threatening from an objective view, as the language of some of the text messages, in the context of all of the evidence, reveals as much it conceals.

The text messages and phone calls started after the birthday party, where Stephen was emotionally strained and intensely frustrated and angered with Lisa. His anger, aggression and hostility were described by Cst. Willett as “being very agitated, and upset with the circumstances.” This observation was made later in the day at the police station. Cst. Willett recalled that Stephen attended the police station in a highly agitated state. He was yelling profanities directed towards, Lisa, as he believed that she had “cheated on him.” This observation was made after he told Cst.

Willett while, on the phone with her, that he was coming to the police station and that if no one answered the door, he would kick it in. I find that this threat of violence is entirely consistent with what Lisa said he threatened to do to her, which was that he was going to rip the front door off of the house with his truck. I accept Lisa’s evidence that she took that as a threat, which in my opinion, in context of all of the evidence, would cause a reasonable person similarly situated to fear for their safety.

In other words, it would lead a reasonable person, well-informed and right minded, observer to conclude that she was in fear for her safety. On September 29, 2013, from approximately 15:36 until 21:12, approximately 6 hours, Stephen texted Lisa 26 times. She never responded to any of these text messages. On September 30, 2013, from approximately 6:02 until 17:16, approximately 11hours, Stephen texted Lisa 56 times. Lisa only responded on two occasions, wherein she texted the word, “no”. Stephen also called her on September 30, 2013 from 6:41 until 17:19, approximately 51 times.

Lisa never responded to any of those calls. There is no doubt that Steven repeatedly communicated with Lisa on the date and time in question. As he stated, when Lisa would not talk to him, he would contact her more often. In other words, notwithstanding Lisa’s repeated warnings to stop communicating with her, he continued with incessant persistence because he seemingly felt that he was entitled to communicate with his wife whenever he wanted to regardless of how that made her feel.

I have no doubt that Stephen’s impulsive and uncontrollable urge to repeatedly communicate with Lisa was driven by his desire to save their marriage. Having considered the totality of the evidence, including Stephen’s evidence, it is reasonable to infer that Stephen was emotionally distraught, frustrated and impulsive during the date and time in question.

It is also reasonable to infer from the evidence that he became increasingly emotional and frustrated with Lisa after his daughter’s birthday party, as this is borne out in some of the text messages wherein he became increasingly aggressive and insulting in his denigration of Lisa. During his testimony, Stephen explained his reasons as to why he repeatedly communicated text messages and phone calls to Lisa. I have to say in considering his evidence, I found him to be disingenuous, at times, and at other times, direct and forthright. In cross- examination he struck me as being defensive, argumentative and evasive.

Having considered the totality of the evidence, including his evidence, I do not believe him, nor am I left in a state of reasonable doubt by his evidence, as it relates to the essential elements of the offence. I accept Lisa’s evidence that Stephen told her that he was going to rip the front door off of her house with his truck because he paid for it. I reject Stephen’s evidence that he merely stated to Lisa that he was going to go over to the house and take the door that he purchased. His explanation defies credulity, and is inconsistent with his state of mind.

I find that Lisa’s evidence that he threatened to rip the door off of her house is entirely consistent with Stephen’s increasingly aggressive behaviour, and is corroborated, in part, by Stephen’s text message sent on September 30, at 16:03 wherein he stated, “I will go thru the door its mine”. This type of language is more consistent with Lisa’s evidence that he threatened to rip the front door off of her house, rather than Stephen’s evidence that he was going to go over and take it. Moreover, it is consistent with what he threatened to do at the police station, which was to kick down the door.

This threat is consistent with Stephen’s state of mind during the date and time in question, September 30, 2013, where he was emotionally distraught and frustrated. This evidence is confirmed by Csts. Willett and Cantfell’s evidence. During his testimony, Stephen was, at times, particularly in cross-examination, somewhat forthright and direct. For example, he candidly admitted that Lisa had warned him that if he did not stop she would contact the police.

Another example of his directness, was his response to the question, “whether at some point in time did he ever think that Lisa did not want to talk to him.” He stated, that “Lisa was leading him on, adding these up, knowing that she is getting him mad, as he knew she would call him sooner or later.” Stephen’s evidence that he said things to Lisa to “wake her up”, because he had not heard anything from her, struck me as being very direct.

Stephen’s response to the suggestion that Lisa had no obligation to discuss things with him, which was “she didn’t block my calls”, is another example of his belief that he could contact her as much as he wanted; notwithstanding her wishes.

These responses are very telling; in that, they establish that Stephen was clearly reckless as to whether his conduct was harassing Lisa. Moreover, on September 30, at 9:36, he texted, “Hope you’re keeping track of what I am saying which I now you are, fuck you cow”.

This text, in the context of the whole of the evidence, including the undisputed evidence that he was warned on previous occasions by Lisa to stop or she was going to contact the police, establishes beyond a reasonable doubt that Stephen, knowing that Lisa was being harassed, or was reckless as to whether she was being harassed, repeatedly communicated with her, and thereby caused her to fear for her safety. I accept Lisa’s evidence that Stephen promised her at one point that he would stop text messaging her, but shortly afterwards started texting and blamed it on her for teaching him how to text.

It is reasonable to infer from the evidence that Lisa only wanted to get the police involved as a last resort, as she only wanted Stephen to stop. I am satisfied that the text messages and phone calls of September 30 2012, as set out in Exhibits 1 and 2, by Stephen to Lisa, consist of repeatedly communicating with, either directly or indirectly, with her. I am satisfied that this conduct was conduct known to him to harass her, or at the least, he was reckless as to whether or not he was harassing her, and in all of the circumstances caused her to reasonably to fear for her safety.

I am satisfied of these things beyond a reasonable doubt. As previously stated, having carefully considered the totality of the evidence, including Stephen’s evidence, in the context of all of the evidence that I have accepted in this case, I do not believe his evidence as it relates to the essential elements of the offence, nor am I left in a state of reasonable doubt by his evidence on any of the essential elements of the offence.

Let me be clear, there is not one particular piece of evidence standing alone, that has caused me to reach the conclusion that Stephen committed the offence criminal harassment on September 30, 2013, but rather it is the cumulative effect of the evidence, considered in the context of all of the evidence, that I have accepted in this case, which includes Stephen’s behavior at the birthday party, his threat to rip the front door off of her house with his truck, his threat to kick down the door at the police station, and his anger directed towards Lisa at the police station.

I was particularly impressed with Lisa Dexter’s evidence. I accept her evidence as I found her to be a very compelling and convincing witness who seemingly testified to the best of her abilities, in a truthful and sincere manner. As I watched and listened to her, she struck me as being a conscientious witness, who was careful and thoughtful as she testified about the effects that Stephen’s conduct has had on her. I accept that she warned Stephen both verbally and by text that if he did not stop contacting her she was going to contact the police.

Notwithstanding that, he continued to repeatedly communicate with her. She only responded twice, in very terse comments, which is indicative of her state of mind at that time. For example, when asked how all of texts from Exhibit 1 made her feel, she stressed that Stephen’s behavior made her very uncomfortable; a mix of being scared, exhausted, nervous, and hyper vigilant, which, in my view, is a reasonable response in light of all of the circumstances.

She further explained what she meant by being “scared,” “concern about her safety.” She stated that she knew how unpredictable Stephen could be having been married to him for nine years. She knew how unpredictable he could be when he was angry, and that she had never seen him as intensely angry for such a long period of time. His behaviour at their daughter’s birthday party was especially of concern for her. She emphasized that Stephen’s behavior became more insulting and threatening which concerned her. She became more concern for her safety, as she did not know what he was going to do; he was unpredictable.

He seemed to be irrational. She added that nothing felt rational and consequently she could not predict what he was going to do. She testified that she thought Stephen would “hurt her emotionally, psychologically and physically,” which would cause a reasonable person similarly situated, in all of the circumstances, to fear for their safety. In my view, Lisa’s fear was, in all of the circumstances, reasonable . I accept that she was fearful, and her fear was reasonably based.

Given the nature and number of repeated text messages and phone calls over such a short period of time, including Stephen’s behavior at the birthday party; his threat to rip the front door off of her house with his is truck; his threat to kick down the door at the police station and his anger directed towards Lisa at the police station; and the history of their relationship, it is reasonable to infer from all of the circumstances that Lisa was genuinely fearful of what Stephen might do to her or anyone known to her.

I should add that Lisa’s description of her state of mind during the date and time in question was entirely consistent with her reaction to the text messages and phone calls. I accept Lisa’s evidence as being both credible and reliable. She was forthright, clear and intelligible in providing her evidence, and she seemed sincere and honest in providing her evidence. The emotional impact of Stephen’s conduct upon Lisa was palpable during her testimony, particularly when she was explaining why she was fearful, scared or frightened by Stephen’s conduct.

She seemed to have a clear and good recollection of the evidence and did not appear to embellish her evidence, in any way. Unlike Stephen, she answered all questions in a straight forward manner and was not evasive, or argumentative. Lisa’s evidence was consistent and corroborated, in part, by Exhibits 1 and 2, and the police officers’ evidence. Again, I accept Lisa’s evidence that she felt harassed by Stephen’s conduct after she told him to stop or she was going contact the police.

She testified that she told Stephen a few times in August that she would contact the police if he did not stop, as she felt he was threatening her. She stressed that she gave him a lot of chances.

Having considered the totality of the evidence, the context of it and the history of the relationship between the complainant, Lisa Dexter and the accused, Stephen Dexter, particularly Lisa’s evidence that she felt harassed by the nature and number of the repeated communications, I am satisfied that it is reasonable in all of the circumstances to infer that Lisa Dexter felt harassed by the repeated communications made by Stephen Dexter during the date and time in question.

Again, having considered the totality of the evidence, the context of it which includes the history of the relationship between the complainant and the accused, particularly Lisa and Stephen’s Dexter’s evidence, the nature and number of messages in the time frame in which they were communicated, a reasonable inference can be drawn that Stephen was reckless or wilfully blind to whether his conduct was harassing Lisa, particularly when he was warned before September 30, 2013, by Lisa that she would contact the police if he did not stop.

Having considered the totality of the circumstances, it is reasonable to infer that Stephen Dexter knew, or was reckless, or was wilfully blind to whether his conduct was indeed harassing Lisa Dexter. I am satisfied beyond a reasonable doubt that Stephen Dexter knowing that Lisa Dexter was being harassed or being reckless as to whether Lisa Dexter was being harassed, repeatedly communicated with Lisa Dexter, and thereby caused her to fear for her safety.

Having considered the totality of the evidence, including Stephen’s evidence, which I do not believe where it conflicts with Lisa’ evidence, as I prefer her evidence over his.

Having considered Lisa’s evidence, coupled with all of the evidence proffered in the Crown’s case, including Stephen’s conduct at his daughter’s birthday party, his threat to rip the front door off Lisa ‘s house with his truck, his threat to kick in the door at the police station, and his behaviour at the police station, and the history between he and Lisa, I am satisfied beyond a reasonable doubt that Stephen’s repeated communication caused Ms. Dexter’s to fear for her safety, and that her fear for her safety was reasonable in light of all of the circumstances.

In view of all of the foregoing reasons, I find Stephen Dexter guilty of the offence of criminal harassment, contrary to s. 264(2) (

b) of the Criminal Code . HOSKINS, J.P.C.