R. v. Johnstone, 2015 ONCJ 704

The ONTARIO COURT OF JUSTICE CITATION: R. v. Johnstone , 2015 ONCJ 704 DATE: 2015·12·09 COURT FILE No.: Durham Region 998 14 13518 BETWEEN: HER MAJESTY THE QUEEN — AND — Francis Johnstone Before Justice De Filippis Heard on August 25 & October 13, 2015 Reasons for Judgment released on December 9, 2015 Ms. L. Crawford ...................................................................................... counsel for the Crown Mr. K.

Mitchell-Gill ......................................................................................... for the defendant De Filippis, J.: [ 1 ] The Crown alleges that the defendant criminally harassed Derek Ferguson, causing him to reasonably fear for the safety of his wife and daughter. The context for this allegation is a dispute among neighbours. I heard from the complainant, his wife, a peace officer, and the defendant. These reasons explain why I find the defendant not guilty. [ 2 ] The following facts are not in dispute: The parties live in a rural area near Port Perry, Ontario.

The complainant lives in a home with three acres of property. The defendant lives in a home about 300 meters down the road. His home is surrounded by a corn field and is part of a chicken farming business. The defendant is an employee in that business. He moved to this area in 2010 and the complainant did so the following year. For about 18 months the parties enjoyed a cordial relationship. Afterwards, the defendant ignored the complainant.

This persisted notwithstanding attempts by the latter to engage the former in conversation. [ 3 ] On the Sunday of the Thanksgiving weekend in 2013, the complainant entertained family and friends at his home. As the guests were leaving, two strange dogs, a pit bull and rottweiller, ran onto the property. The complainant testified that “everyone panicked”. He and one of the guests pursued the dogs through the empty corn field on two “four wheelers”. Eventually, they found the woman who owned the animals and had been out walking with them. She took the dogs away and the complainant returned home with his guest.

Soon after, the defendant arrived in front of the house in a pick up truck. He shouted “stop disrespecting the land” and then drove the truck onto the front yard, “did a donut spin and sped away”. [ 4 ] According to the complainant, the defendant’s actions frightened his two children, aged five and eight years old, and caused temporary damage to the lawn. While his wife went inside to call the police, the complainant drove to the defendant’s property to explain why that he had been on the field in pursuit of two dogs. On arrival, he saw his brother struggling with the defendant.

The complainant intervened and the parties went to their respective homes. [ 5 ] The complainant testified that the next day, while he sat on his front porch with his daughter, the defendant drove by, gave him “the finger”, and told him to “fuck off”. The complainant called the police to report this. He testified that in the following months the defendant would “give [him] the finger every once and a while”. He added that during this period the defendant would regularly position his truck so that its high beam lights would shine towards his bedroom window. This was done in the evening while the

defendant worked in the barns with the chickens. He said this was bothersome and heightened his daughter’s anxiety. [6] Things did not improve in the following year. The complainant described two incidents in the summer of 2014: In July, the defendant“had a temper tantrum” because the complainant’s brother drove a four wheeler in a ditch near the defendant’s home. The defendantscreamed, “get off my land”. According to the complainant, the ditch is not part of the defendant’s property.

In August, as thecomplainant backed his truck out of the driveway, the defendant drove past, gave him “the finger” and loudly swore at him. Thecomplainant’s daughter, who was in the truck, witnessed this and “lost it”. The complainant explained that “she has a touch of anxietyand goes into panic attacks”. He went to the defendant’s driveway and said, “what’s your problem”? The defendant replied “fuck you”.

When the complainant added, “nice language in front of my daughter”, the defendant said he did not know she was present. [7] Several weeks later, on Labour Day, the complainant’s nephew came running into the house and shouted “Frank’s outside”. Thecomplainant went to the front yard and saw his brother and the defendant arguing about whether the former had walked on the latter’sproperty. The defendant then went into his barn, emerged with a camera, and began to film the people on the complainant’s front lawn.

His daughter asked, “Daddy why is he taking pictures of us”. [8] The complainant testified that the “videotaping or picture taking…was the last straw” and he insisted that the police lay chargesagainst the defendant. He explained that he is does not fear the defendant but “I’m afraid for my family”. As a result, he installed avideo surveillance system on his property. [9] Kara Ferguson, the complainant’s wife, also witnessed the events on Thanksgiving 2013.

She testified the defendant arrived in histruck, honked the horn, drove onto the front lawn and “did at least two circles”, while shouting something about “destroying farmproperty”. She went inside to call the police and, through the window, saw defendant strike her brother in law as they struggled. Thelatter fact is not mentioned in her previous statement to the police. Soon after, when the defendant’s truck approached again, she tookher daughter inside and saw him “give the finger” to her husband.

She testified that her daughter, is “very afraid” of the defendant. [10] Ms Ferguson testified that beginning in February 2014, the defendant began “shining his high beams into the house atnight…for 30 to 60 minutes at a time” and added, “there was no need for him to park there, he hadn’t done so in the past”. She statedthat her daughter “has always had small anxiety but this brought it out more”. It caused her to cry and lose sleep. She asked that thefamily to move and did not want to go to school.

Consequently, a psychologist was engaged to provide counselling to the young girl. [11] Ms Ferguson conceded that the defendant has never said anything to her or the children and has done nothing to directlythreaten them. However, she added that his conduct made her worry about what he might do to her husband and daughter and caused herto fear being alone in the house. [12] PC Redmond responded to the call to police placed by Ms Ferguson on Thanksgiving 2013. He testified that the complainantdid not want to press charges.

Accordingly, he advised the defendant that he had committed mischief and cautioned him to stay awayfrom the Ferguson family. The defendant replied that he was upset because the complainant had damaged the corn field. PC Redmonddid not see any such damage and told the defendant that in future he should take his concerns about the land to his employer, the ownerof the property. PC Redmond cautioned the defendant “about criminal harassment” in February 2014 after the complainant told himabut being given the finger and the shining of truck lights into the home.

The defendant admitted giving the finger to the complainantbecause the latter “continued to disrespect the land”. Later that summer, the complainant reported that the defendant had shoutedobscenities in the presence of his daughter and was taking pictures of his family. As a result, the officer arrested the defendant for thepresent charge. [13] The defendant is 36 years old. He lives in a home on the poultry farm with his wife and fur year old son. He testified that hestopped talking to the complainant because his use of “ATMs and snow machines…was disrespectful to the farm and damaged theland”.

He conceded that he ignored the complainant when the latter tried to discuss the issue with him. [14] The defendant admitted his misconduct on Thanksgiving 2013. He was upset that the complainant drove a machine over thefield and decided to “return the favour….I over-reacted and did a little burnout on their lawn”.

He testified he regrets his actions anddenied striking the complainant’s brother in the confrontation that followed; indeed, he asserted that this man tried to grab him. [15] The defendant believes the August 2014 incident was a provocation by the complainant; “he [the complainant] pulled out infront deliberately…he could have waited for me to drive by…it irritated me”. The defendant acknowledged he raised his fist at thecomplainant and that he repeatedly cursed at him when the latter asked “what’s your problem”.

The defendant said he was “shocked” tolearn the complainant’s daughter was present in the truck at this time. [16] The defendant said he took photographs of the complainant’s brother as he felt threatened by the ongoing difficulties withhim and wanted a means of identifying him should the police become involved. He said he also videotaped the complainant as he cutthe grass to prove he was trespassing on the farm property.

The defendant denied the complainant’s wife or children were the intendedsubjects of these activities. [17] The defendant concedes he often “gave the finger” to the complainant but denied intentionally shining the highbeams fromhis truck onto his house at night. He testified that he has never met the complainant’s wife and has not had any direct contact with hischildren. He denied threatening these people. When cross-examined about why he was so concerned about the land when there were nocrops growing, the defendant responded “but it’s still farmland – it was resting”.

He was also challenged about his continued use of foullanguage and gestures after being cautioned by police to bring his concerns about the land to his employer. The defendants’ answers,sometimes rambling in nature, were not convincing. [18] The Crown must prove its case beyond a reasonable doubt if the defendant is to be found guilty. This means that if thedefendant has called evidence, there must be an acquittal: (

i) where the testimony is believed, (ii) where the testimony is not believed, butleaves the trier of fact in reasonable doubt, (iii) where testimony is not believed and does not leave a reasonable doubt, but the remainingevidence fails to convince, beyond reasonable doubt, that the defendant is guilty: R v W.D. (1991) (SCC), 63 C.C.C.(3d) 397 (S.C.C.). The application of this principle does not mean the defendant’s evidence is to be viewed in isolation, divorced from

the context or other evidence in the case: F v R.D. [2004] O.J. 2086 (O.C.A). Moreover, in the appropriate case, the trier of fact mayreject a defendant’s evidence and find guilt on the basis of a reasoned acceptance beyond a reasonable doubt of a complainant’sevidence: R v T.S. 2012 ONCA 289. [19]

Section 264 of the Criminal Code provides that:

(1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person isharassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear fortheir 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 onbusiness or happens to be; or • (

d) engaging in threatening conduct directed at the other person or any member of their family. [20] The prohibited conduct relied upon by the Crown is that set out in subsection 2 (d). The Defence argues that the Crown hasnot proven this and that the complainant was not fearful. With respect to the former, it is submitted that the defendant has admitted oneact of mischief but explained or denied the other allegations.

With respect to the latter, was it is submitted that even if it is established, inaddition to his “burnout on the lawn”, that the defendant used foul language and gestures, shined his vehicle lights in the bedroom, andtook pictures and videos, that this could not reasonably cause the defendant to fear for the safety of his wife and daughter.

The Crownasserts that all the acts have been proven and that taken together they constitute harassment that reasonably caused the complainant tofear for the safety of his wife and child. [21] The elements of the offence of criminal harassment was discussed by the Court of Appeal for Ontario in R. v. Kosikar (1999) (ON CA), 138 C.C.C. (3d) 217 and R. v. Kordrostami (2000) (ON CA), 143 C.C.C. (3D) 488.Applying those principles to this case, the offence is proven if it is established that:

(1) The defendant engaged in threatening conductdirected at the complainant’s wife or daughter

(2) The complainant was harassed;

(3) The defendant knew the complainant felt harassed(or, was reckless or willfully blind as to whether the complainants were harassed);

(4) The defendant's conduct caused the complainant tofear for the safety of his wife or daughter;

(5) The complainant's fear was reasonable. [22] In addition, I note the following legal principles: Conduct that causes a person to be "vexed, disquieted, or annoyed" does notamount to harassment. A person is harassed if they are "tormented, troubled, worried continually, or chronically plagued, bedeviled, andbadgered". These words are not cumulative. If anyone of them properly describes the effect of one's conduct on another, that other personis harassed (Kordostrami, paragraphs 10 and 11).

The phrase "to fear for their safety" is not limited to a fear of physical safety.Parliament also intended to address psychological safety. This means a fear of mental, emotional, or psychological trauma. R. v. Ryback(1996) (BC CA), 105 C.C.C. (3D) 240 (BCCA). [23] I accept the testimony of the complainant and his wife. They impressed me as witnesses who understood their duty to betruthful and accurate. Their evidence was not seriously challenged or undermined. I have confidence in their account of the incidents inquestion.

The defendant readily acknowledged his uncivil behaviour and admitted his mischief on Thanksgiving 2013. Notwithstanding this candour, in general, I found his testimony less persuasive than that of the complainant and his wife. In any event, Ido not reject it entirely. The defendant’s exaggerated concern for the integrity of agricultural land manifested itself in instances of rudewords and gestures over many months towards the complainant. Against this background, it is likely that he also deliberately shinedlights at the complainant’s home to further provoke him. This conduct constitutes harassment.

However, I believe the defendant’sstated reasons for taking the photographs and video and find he did not intend to harass by so doing. Moreover, I accept that his actionswere directed toward the complainant and that he did not intend to threaten the complainant’s wife and daughter. [24] It is understandable that the complainant (and his family) would be upset and annoyed by the defendant’ s conduct but itcannot be reasonably said that this would cause him to be tormented or chronically plagued, to use some of the examples offered by theCourt of Appeal.

The offence of criminal harassment is not an answer to the incivility displayed by the defendant in this case. [25] The defendant ignored attempts by the complainant to reconcile their differences and remained an unpleasant neighbour. Icannot convict him for that. However, I have a common law power that can be an effective tool in situations such as this. I can compelthe defendant to enter into a recognizance to abide by terms, including keeping the peace and being of good behaviour (i.e. a “peacebond”).

I am inclined to exercise this common law power to prevent the defendant from further disturbing the complainant and hisfamily. [26] The charge is dismissed. I will invite submissions from counsel about the propriety, length and conditions of a peace bond. Released: December 9, 2015 Signed: “Justice J. De Filippis”