R. v. Spencer-Anderson, 2022 ONCJ 6

ONTARIO COURT OF JUSTICE CITATION: R. v. Spencer-Anderson , 2022 ONCJ 6 DATE: January 5, 2022 BETWEEN: HER MAJESTY THE QUEEN — AND — COREY SPENCER-ANDERSON Before Justice T. Lipson Reasons for Judgment released on January 5, 2022 J. Nicol ................................................................................................... counsel for the Crown O.

Benjamin Vincents .......................... counsel for the accused Corey Spencer-Anderson Lipson J.: REASONS FOR JUDGMENT INTRODUCTION [ 1 ] Corey Spencer-Anderson pleaded not guilty to a charge of entering a dwelling house without lawful excuse and with intent to commit an indictable offence. This charge is set out in s. 349(1) of the Criminal Code which provides that:

(1) Every person who, without lawful excuse, enters or is in a dwelling-house with intent to commit an indictable offence in it is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or of an offence punishable on

summary conviction. [ 2 ] Moreover, there is a presumption in s. 349(2) that where the prosecution proves that the individual acted without lawful excuse and with the requisite intent, guilt will be found. This subsection provides:

(2) For the purposes of proceedings under this section, evidence that an accused, without lawful excuse, entered or was in a dwelling- house is, in the absence of any evidence to the contrary, proof that he entered or was in the dwelling-house with intent to commit an indictable offence therein. [ 3 ] It is significant that the information before the court is particularized only as “enter” but not “was in” a dwelling-house, about which I will have more to say later in these reasons. The parties agree that proof of the accused’s intent at the point of entry is determinative here of the Crown’s ultimate burden.

OVERVIEW OF THE EVIDENCE [ 4 ] Mr. Spencer-Anderson is a constable with the Toronto Police Service (TPS). The complainant, Emily Corneil, was, at the time, a civilian employee. They had been in an intimate relationship for about 18 months, one accurately described by counsel as “toxic”, “dysfunctional” and “volatile”. Their relationship was characterized by numerous break-ups, followed by reconciliation. There are numerous texts and emails between the accused and Ms. Corneil entered into evidence which amply support those observations. The Crown contends that by the offence date, July 4, 2018, Ms.

Corneil had made it abundantly clear to the defendant that their relationship

was over and that she wanted nothing more to do with him. [ 5 ] Ms. Corneil lived in a basement apartment at 90 Roanoke Ave. in Toronto. She gained entry through a back door which opened into a small vestibule that led to her apartment door. Access was also available from inside the house down a back stairwell from the main floor. [ 6 ] There was also a laundry room in the basement across the hallway from the complainant’s door. It was used by Ms. Corneil and another tenant, James IIkay, who lived on the main floor. Mr. IIkay testified at this trial.

I found the evidence of this independent witness helpful. [ 7 ] The parties agree that although Mr. Spencer-Anderson entered the residence at about 1:30 a.m. on July 4, there is no evidence he was ever in the complainant’s apartment. There is, however, evidence that the defendant went into the laundry room to retrieve business documents pertaining to his start-up “dating app” company. [ 8 ] The Crown and defence agree that the defining issues are whether the defendant had a lawful excuse to enter the dwelling and whether at the time of entry he had the intent to commit an indictable offence.

POSITIONS OF THE PARTIES Position of the Crown [ 9 ] The Crown submits that on the totality of the evidence, it has proven that Mr. Spencer-Anderson’s entry into 90 Roanoke Ave, where he was neither tenant nor resident, was made without lawful excuse. The Crown says evidence of texts sent by Ms. Corneil to the defendant between June 29 – July 3 made clear to him that she wanted no further contact. In them, she warned that if he persisted in attempting to communicate with her, she would involve the police. [ 10 ] The Crown contends that Mr. Spencer-Anderson continued to communicate with Ms.

Corneil and that she was disturbed by this unwanted contact to the degree that on June 30, she complained to P.C. Reid at 33 Division. [ 11 ] At the time, she did not disclose the defendant’s identity. But she later texted him about her complaint to the police. She again asked him to leave her alone. The Crown says that rather than respect her wishes, Mr. Spencer-Anderson attended the complainant’s residence on July 4 to speak to her and collect some personal belongings. [ 12 ] The Crown submits that Mr.

Spencer-Anderson’s entry into the residence was illegal, made without lawful excuse and supports a finding that he intended to commit an indictable offence, in this case, criminal harassment. [ 13 ] In support of its position, the Crown relies on the presumptive benefit in s. 349(2). That is, if the court concludes that the defendant had no lawful excuse to enter the residence and there is no credible evidence to the contrary on the question of intent, the subsection compels a finding of guilt: see R. v. Nagy (1988), 45 C.C.C. (3d) Ont.

C.A., at pp. 356-7. [ 14 ] In the alternative, Crown counsel submits that even were the court to accept, or at least not reject, the evidence to the contrary, depriving the prosecution of the benefit of the presumption, the evidence still supports a finding that the accused intended to commit an indictable offence. Position of the Defence [ 15 ] Counsel for the accused submits that the essential elements of the offence are not made out.

He says his client’s sole purpose in entering the home was to collect his property, the business records, and that, in addition, he did so with the permission of the co-tenant. [ 16 ] Moreover, he says the entry must be seen in context. Mr. Spencer-Anderson was entering a place where he had lived and had a right to enter. Counsel contends that at the time, the defendant had a genuine, if mistaken, belief about the state of his relationship with Ms. Corneil that had seen a pattern of break-ups and reconciliation. Mr. Vincents suggests it is a reasonable inference that Mr.

Spencer- Anderson believed the most recent rift was not permanent and that the couple would reconcile as they had done many times before. On the issue of intent, counsel submits it is apparent he knew the complainant wasn’t home, leaving in doubt his intention to communicate with her. ANALYSIS Was the Defendant’s Entry into 90 Roanoke Ave Made “Without Lawful Excuse”? [ 17 ] On a review of the evidence and for the following reasons, I am satisfied beyond a reasonable doubt that Mr.

Spencer- Anderson did not have a lawful excuse to enter the residence. [ 18 ] As noted, for some time, the defendant was involved in an intimate relationship with the complainant, sometimes spending extended periods of time with her at her apartment. He kept clothing, including his police uniforms, as well as other personal belongings there. He used the laundry room. [ 19 ] But he did not contribute to the rent, nor was he a signatory to the lease. He was a guest. On June 3, he returned his key and removed most of his belongings.

On that day, he also emailed the complainant that, “I will continue to respect your space by not calling you or showing up at your place. So don’t worry about that aspect of things”. It is a reasonable inference that he understood he was no longer welcome. [ 20 ] Nonetheless, he went there on July 4, entering the residence without alerting the complainant, nor seeking her permission to do so. In testimony, he explained that he attended the home merely for the purpose of removing his few remaining belongings.

[ 21 ] The couple’s more recent history would have made it clear to the defendant on July 4 that the relationship was at an end and that he was no longer welcome there. For example, on June 29, the defendant drove to the complainant’s residence and insisted on speaking with her. He repeatedly banged on her door and windows despite her sending him multiple messages that he was scaring her. [ 22 ] As well, on June 30, Ms. Corneil texted the defendant that she was so upset by his conduct that she had attended 33 Division and conveyed her deep concerns to P.C. Reid.

About this, she wrote to him that, “If I see you on my street, at my house or you continue to contact me, he has advised me to put in a report or call your supervisors”. [ 23 ] There is additional evidence that Mr. Spencer-Anderson did not regard 90 Roanoke Ave to be his residence. On July 4, the defendant asked his friend and colleague, P.C. Kung, then on duty, for a ride “to his girlfriend’s house to pick something up”.

The inference about his state of mind in that regard is clear. [ 24 ] In finding that the defendant did not have a lawful excuse, I have considered, as well, his use of deceit in his dealings with the tenant to help him gain entry to the house. Mr. Ilkay testified that the accused, in uniform, told him he was conducting a police investigation of the basement tenant, an assertion denied by Mr. Spencer-Anderson. On the evidence, I don’t accept the self-serving evidence of the defendant on this fact-in-issue. [ 25 ] Mr. Ilkay’s evidence about this interaction was clear and straightforward.

Of significance, he is not an interested witness. It makes little sense he would let a stranger into the house without good reason and in the absence of the complainant’s consent. I am not left in reasonable doubt on the evidence that Mr. Spencer-Anderson deceived Mr. Ilkay for the purpose of gaining entry to the residence and, in doing so, committed a flagrant and serious breach of his professional responsibilities as a peace officer. [ 26 ] In my view, evidence of the interaction between the two suggests an attempted manipulation by the defendant that proved ineffective. Mr.

Ilkay testified that the accused asked him about rear door access but then shifted to a request to enter by way of the main floor, indicating then that he was looking for something. He says the defendant asked that Mr. Ilkay not tell the complainant he had been there. The defendant denied all of this. But he knew Ms. Corneil wasn’t home because her car was not in the driveway. And he understood he had no permission to be there. It explains why he asked the tenant to keep this information from his co-tenant. [ 27 ] There is more. Mr. Spencer-Anderson testified that while at the front door he at first asked Mr.

Ilkay to do him the favour of unlocking the back door. He said that when he went around to the rear, he found the door unlocked and then returned to the front door where he found the tenant holding the door open and inviting him inside. But Mr. Ilkay told the court that after the defendant first knocked on the door they spoke briefly, after which Mr. Spencer-Anderson went down into the basement alone from the main floor. [ 28 ] Mr. Ilkay’s recall of the sequence of events is more logical. Mr. Spencer-Anderson came over to speak with Ms. Corneil, not Mr. Ilkay.

In the absence of the complainant’s car, it makes common sense he would go to the rear of the house to see if she were home. His evidence that “it only dawned on him to check the rear door” after first speaking to the tenant as an explanation for asking him to unlock the rear door is not plausible given his history of using the back door while a guest of the complainant. Had he asked Mr. Ilkay to unlock the rear door as he testified, I have little doubt the tenant would have complied. I accept that the request was never made.

I adopt the Crown’s description of the defendant’s explanation for not attending the rear door first as “tortuous and unconvincing”. I am not left in reasonable doubt that the defendant checked the rear door first before speaking to Mr. Ilkay at the front door. [ 29 ] Both Mr. Spencer-Anderson and Mr. Ilkay testified that while the defendant was leaving the residence, he instructed the tenant to keep information about his being there from Ms. Corneil and that he should make up a story, if necessary, to explain the unlocked rear door.

As noted earlier, I infer he made this request to cover up his attendance because he had to know he had no permission to be in her residence and that he would risk being subject of a police investigation. [ 30 ] I am not left in reasonable doubt on all the evidence that Mr. Spencer-Anderson did not have a lawful excuse to enter the complainant’s dwelling house.

Did the Accused have an Intent to Commit an Indictable Offence at the time he Entered 90 Roanoke Ave? [ 31 ] The Crown submits the evidence supports a finding that the defendant had the intent to commit the indictable offence of criminal harassment when he entered the residence.

Section 264 provides that:

(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) 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. [ 32 ] Mr. Spencer-Anderson told the court he had two reasons for attending 90 Roanoke Ave. One was to speak with Ms. Corneil, this despite her clear admonition to have no further communication with her. He said he did so because he felt it important to disclose that she may have contracted a disease from him that required medical attention.

In fact, his determination to communicate with the complainant was made clear by his July 3 email to her that he was prepared to express his concerns at the risk of facing a charge of criminal harassment for ignoring her explicit request that he not contact her.

[ 33 ] There is no independent evidence to back up this health claim. Rather, the evidence permits the inference that his motivation was otherwise, and that he went over that day because he refused to accept that their relationship was over. This is apparent in his July 3 email, sent in the hours leading up to his attendance, in which he revealed an intense sexual jealousy. He pleaded, “please don’t cheat on me, please don’t”. In another email he wrote, “Please don’t sleep with anyone else. Please don’t go out with anyone else. In my heart and mind we’re still together”.

It was a transparent reveal. [ 34 ] The second purpose was to collect personal belongings, especially some contracts connected to a dating app business he had started and that were important to him. They allowed him to use the images of the complainant and others in its promotional materials. [ 35 ] There is support in the evidence for this stated purpose. On the way over there, the defendant told P.C. Kung that he needed “to pick something up”. He admitted obtaining the contracts from the laundry room. And he provided copies of the contracts to the police when interviewed.

The Crown concedes it is unable to disprove the accused’s claim that he retrieved the contracts from the laundry room on July 4. [ 36 ] It is a reasonable inference on the evidence that on the drive to and arrival at 90 Roanoke Ave, the defendant intended to speak with Ms. Corneil. Had he done so, that evidence would have supported a finding that the essential elements of criminal harassment had been made out. [ 37 ] But the evidence suggests the defendant was aware that Ms. Corneil was not home given the absence of her vehicle and the fact that the back door was locked. Apparently, Ms.

Corneil was out of town visiting her mother. It was clear to the defendant that he would not have an opportunity to talk to the complainant that day. [ 38 ] As a result, I am persuaded that in the circumstances, when Mr. Spencer-Anderson first spoke to Mr. Ilkay and subsequently entered the residence, his sole intent at that point in time was to collect his belongings, in particular the contracts, and that he did so. That is not to say that the defendant had relinquished his intent to continue communicating with Ms. Corneil.

Rather, the evidence would indicate that the intent to act was only delayed because the complainant was not at home. [ 39 ] That Mr. Spencer-Anderson admitted in his statement to the police that he knocked on the complainant’s door does not assist the prosecution on the question of intent. In this regard, the Crown sought a ruling on the statement’s voluntariness for the purpose of cross-examination, but not for substantive proof of the alleged offence. I ruled in the Crown’s favour.

I also rejected as nonsensical the accused’s explanation in his cross-examination that he made the admission in order to assist the police by giving them information he thought they wanted to hear in order to build its case. Nonetheless, the defendant did not accept the truth of the prior statement, so that its value is limited to an assessment of his credibility. [ 40 ] That Mr. Spencer-Anderson intended to communicate with the complainant going forward is apparent in the evidence.

He testified that while in the basement he made a “spur of the moment” decision to unlock the back door because he wanted to return when Ms. Corneil was present in order to retrieve the rest of his belongings at a time when he hoped she would be willing to allow him to do so. In fact, counsel for the accused refers to text messages between the two on June 29. In one, the defendant says, “Okay. I’ll be collecting my stuff and moving on”. The complainant responded, “I’ll leave your belongings outside…or I can bring them to you… whatever works”. [ 41 ] This evidence permits the inference that Mr.

Spencer-Anderson unlocked the back door to facilitate further contact with Ms. Corneil whether he had her consent or not, providing compelling evidence of a future intent to criminally harass the complainant. Ultimately, however, given the particulars in the Information, the point at which the accused formed his intent will determine if the Crown has met its burden of proof. [ 42 ] It is beyond dispute that the accused intended to unlock the door while he was in the basement. He acted on that intent. But the information alleges that he intended to commit an indictable offence at the point of entry.

Notably, the words in s. 349(1) , “or is in a dwelling” are not particularized. Those words, if included, would have established the requisite intent to commit an indictable offence. Their omission is significant because of the defendant’s testimony that he decided to unlock the door “on the spur of the moment” only after entry when he was in the basement, an assertion that has, in my view, not been disproved beyond a reasonable doubt. [ 43 ] On a weighing of all the evidence, I am left in reasonable doubt that at the time of entry, Mr. Spencer-Anderson had the intent to commit an indictable offence.

On that basis, the charge must be dismissed. Released : January 5, 2022 Justice T. Lipson