Ducharme v. Borden, 2014 MBCA 5

Citation: Ducharme v. Borden, 2014 MBCA 5 Date: 20140109 Docket: AF 13-30-07956 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Alan D. MacInnes Mr. Justice Marc M. Monnin Mr. Justice Christopher J. Mainella BETWEEN : ) M. R. Ducharme MICHAEL RONALD DUCHARME ) on his own behalf ) (Applicant) Appellant ) G. W. Katelnikoff ) for the Respondent - and - ) ) Appeal heard and ) Decision pronounced: TRACEY LOUISE BORDEN ) January 7, 2014 ) (Respondent) Respondent ) Written reasons: ) January 9, 2014 MAINELLA J.A. [ 1 ] After a review hearing under The Domestic Violence and Stalking Act , C.C.S.M., c.

D93 (the Act ), a judge set aside a protection order granted to the appellant to stop his former girlfriend, the respondent, from stalking him. The judge also awarded costs in favour of the respondent in the amount of $10,000 plus disbursements payable within six months. [ 2 ] At the conclusion of the appellant’s appeal, the court announced that the appellant’s fresh-evidence motion was dismissed, the appeal of the decision to set aside the protection order was dismissed and the appeal of the order of costs was allowed with reasons to follow. These are the reasons.

Background [ 3 ] The parties began living together in December 2011, after dating for a few months. Two weeks after moving in, the appellant moved out. While rocky, the relationship continued with the parties seeing each other and having sexual relations. [ 4 ] On February 10, 2012, the appellant applied for and was granted a protection order under the Act .

He claimed to fear for his own safety due to abusive text and email communications, and alleged threats from the respondent that she would get her ex- partner living in Edmonton, Alberta, and some Hell’s Angels associates, to assault the appellant. [ 5 ] In setting aside the protection order, the judge disbelieved the appellant and accepted the testimony of the respondent that she did not threaten the appellant.

The judge concluded that the appellant had obtained the protection order by deceiving the justice of the peace of the true situation and then he used the protection order to manipulate his relationship with the respondent. The court was not satisfied there was any reasonable basis for the appellant to fear that the respondent would stalk him.

To the contrary, the judge found that the day after obtaining the protection order, the appellant invited the respondent out for coffee and then proceeded to initiate contact and pursue sexual relations with the respondent for several months. [ 6 ] The appellant challenges the judge’s credibility findings and the reasonableness of his decision. He argues that in reaching his decision, the judge failed to properly weigh the electronic media tendered in evidence by consent, which consisted of text messages, emails, Facebook messages and chats between the parties and others.

The appellant also seeks to introduce fresh evidence on appeal to rebut what he calls perjury and alteration of evidence. Finally, the appellant says the order of costs was excessive.

Fresh-Evidence Motion [7] The appellant wishes to tender a video recording that was never introduced at the review hearing to impeach thecredibility of the respondent’s mother who testified to seeing the appellant and respondent in bed together after the protection order wasgranted. The appellant also seeks to introduce police reports of the parties’ interaction with the police to discredit the respondent.

Finally, the appellant wants to introduce a statement of a co-worker at the bar the appellant worked at, to show he often worked nights inthe time period after the protection order was granted and, therefore, it was unlikely he could have been observed sleeping with therespondent. [8] The video recording and police reports the appellant seeks to introduce are evidence that, by due diligence, could havebeen introduced at the review hearing.

In terms of the proposed evidence of the bar co-worker, who could not testify at the reviewhearing as the appellant says he was in Calgary, Alberta, the evidence, even if believed, could not reasonably be expected to haveaffected the result.

The co-worker’s evidence does not undermine the testimony of the respondent’s mother and son seeing her, onseparate occasions, in bed with the appellant, as the co-worker does not suggest the appellant was working with him on the occasions thewitnesses say they observed the appellant in bed with the respondent. [9] The motion to admit fresh evidence on appeal is dismissed as the proposed evidence does not meet the criteriaenunciated in Palmer et al. v. The Queen, (SCC), [1980] 1 S.C.R. 759 at 775, and we are not satisfied that it is in theinterests of justice to admit the fresh evidence on appeal.

Decision to Set Protection Order Aside [10] An appeal of a decision of a judge in respect of a protection order is restricted to questions of law or jurisdiction (s. 25(1)of the Act). [11] A protection order can be set aside after a review hearing under the Act when it is “just or equitable” to do so. Reasonsto set aside a protection order include: full disclosure was not made when it is was obtained; restraints on liberty are unnecessary, toorestrictive or that the stalking will not continue; or, based on the weight of the evidence at the review hearing the order should be setaside (Baril v.

Obelnicki, 2007 MBCA 40 at para. 127, 214 Man.R. (2d) 7). [12] The reasons of the judge confirm he understood the meaning of stalking under the Act and that the onus to set aside theprotection order on any of the grounds discussed in Baril was on the respondent. In deciding to set aside the protection order, the judgemade factual determinations, particularly in relation to the credibility of the parties.

Absent some extricable principle of law, the judge’sfactual determinations cannot be disturbed on appeal unless he has made a palpable and overriding error in coming to a factualconclusion based on accepted facts (Housen v. Nikolaisen, 2002 SCC 33 at para. 21, [2002] 2 S.C.R. 235). [13] We are satisfied that factual determinations made by the judge to set aside the protection order for reasons of materialnon-disclosure to the justice of the peace and that the respondent’s conduct did not amount to stalking within the meaning of the Act, arereasonably supported by the evidence.

We are not convinced that the appellant has demonstrated any error involving a question of law orjurisdiction that would permit appellate intervention with the decision of the judge to set aside the protection order. [14] However, it is necessary to make comment on one aspect of the judge’s decision. The judge was categorical in refusingto attach any weight to the various electronic media in evidence over concerns about authenticity and his own “vague understanding” ofhow social media works.

He expected expert evidence before attaching any weight to the electronic media in evidence. [15] We do not endorse the judge’s view that electronic media evidence is of no value unless supported by expert evidence. Expert evidence is limited to information which is likely outside the experience and knowledge of a judge or jury (R. v. Abbey, (SCC), [1982] 2 S.C.R. 24 at 42). At the same time, we acknowledge that the technical details of how contemporarycommunications methods work are not necessarily matters “everybody knows” so that judicial notice can be taken (R. v.

Spence, 2005SCC 71 at paras. 49-50, [2005] 3 S.C.R. 458). [16] In addressing such issues, the distinction between the admissibility of evidence and its probative value is important.

Section 51.2 of The Manitoba Evidence Act, C.C.S.M., c. E150, places the burden of proof on the person seeking the admission of anelectronic document to establish threshold authenticity. This requires proof of evidence “capable” of supporting a finding that theelectronic document is what it purports to be.

At the review hearing, the parties agreed to the admissibility of the electronic mediaevidence for the purposes of s. 51.2, but the ultimate weight to be attached to various communications was a disputed issue. [17] Once the electronic media evidence was agreed to be admissible, it was up to the judge to decide how much weight togive to it in view of testimony he heard that aspects of that evidence may have been edited or fabricated.

In our view, a court is quitecapable of assessing the weight to give to electronic documents, without the assistance of an expert, when the witnesses to thecommunications testify and for whom credibility findings can be made on allegations of fabrication, editing or deletion ofcommunications. [18] Review of the electronic media evidence confirms it does little to assist the appellant. Most of the communications canbe described as spiteful discourse between the parties about each others’ supposed character flaws and dishonesty.

What the evidencedoes show is that the appellant was seeking contact with the respondent for the purpose of having sexual relations with her for severalmonths after the protection order was granted; such behaviour suggests objectively he did not have the type of fear required for therespondent’s conduct to constitute “stalking” under the Act (Baril at para. 12). [19] Ultimately, while the judge used perhaps too broad a brush in dismissing the probative value of the electronic mediaevidence as a whole, we are satisfied that appellate interference is not required.

The overall conclusion of the judge that the appellantused the protection order as a “sword” as opposed to a “shield” against the respondent is supported factually on the record. Decision on Costs

[ 20 ] We have a concern with respect to the awarding of costs in the amount of $10,000 plus disbursements payable in six months against the appellant. [ 21 ] When the judge invited submissions on costs, counsel were in agreement that the respondent should be awarded costs on a Class 2 basis. The only dispute was whether costs should be awarded for a four or five-day hearing as the appellant delayed the hearing by attending the hospital in the middle of the review hearing without informing anyone.

Counsel for the respondent advised the court that for a five-day hearing, the costs on a Class 2 basis would be between $6,300 to $6,700 plus disbursements. [ 22 ] Without advising counsel of his preliminary view to jump awarding costs on a Class 2 basis and without inviting submissions from counsel on departing upward, the judge imposed costs of $10,000 plus disbursements because he said costs on a Class 2 basis were not “satisfactory … in this case.” [ 23 ] Great deference is owed to an award of costs.

The exercise of a judge’s discretion on costs cannot be disturbed on appeal absent an error in principle or if the costs order is plainly wrong ( Hamilton v. Open Window Bakery Ltd. , 2004 SCC 9 at para. 27 , [2004] 1 S.C.R. 303). [ 24 ] Although a judge enjoys wide discretion in imposing costs, that discretion must be exercised judicially (i.e., not arbitrarily or capriciously). That discretion includes the ability to depart from the applicable tariff when the judge considers an award of costs according to the tariff to be unsatisfactory.

Rothstein J.A. (as he then was) explained in Consorzio Del Prosciutto Di Parma v. Maple Leaf Meats Inc. , 2002 FCA 417 at para. 10 , 297 N.R. 135, that the discretion to depart from the applicable tariff on an award of costs “should be prudently exercised.” [ 25 ] The decision of the judge here cannot stand because of the process he followed in departing from the relevant Class contrary to recommendations of counsel. The parties were in agreement as to the relevant Class and to the costs issue in dispute: indemnification for four or five days of hearing.

The judge erred in principle in departing upward from the relevant amounts under Class 2 without first alerting counsel of his inclination to do so, and second, without requesting submissions for or against departure from Class 2.

While we accept that indemnification of a successful party is not the sole purpose of a costs award, in this case we cannot discern from the judge’s conclusory statement why costs on a Class 2 basis were not satisfactory in the circumstances despite the agreement of counsel that they were. [ 26 ] On a fresh review, we are satisfied that the respondent should be awarded costs for five days of hearing on a Class 2 basis. She played no

part in the delay of the review hearing and incurred costs by reasons of the delay. The respondent’s costs for the review hearing are fixed at $6,500 inclusive of disbursements and applicable taxes. Conclusion [ 27 ] The appeal of the decision to set aside the protection order is dismissed. The appeal of the award of costs is allowed in accordance with these reasons. As success is divided the parties will bear their own costs of the appeal. J.A. J.A. J.A.