R v. Frank, 2011 NSPC 107

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R v. Frank 2011 NSPC 107 Date: August 12, 2011 Docket: 2244882-88 2277992-95 2287846-53 2287856-59 Registry: Halifax Her Majesty the Queen v. Robert Douglas Frank DECISION Judge: The Honourable Judge Anne S. Derrick Heard: June 17, 20, 22, and August 9, 10 and 11, 2011 Decision: August 12, 2011 Charges: sections 145(3) x12; 145(5.1) x 9; 430(4) 264(2)(

b) of the Criminal Code Counsel: Rick Woodburn - Crown Attorney Peter Dostal - Defence Counsel

By the Court : Introduction [ 1 ] Robert Frank is charged with offences that are alleged to have occurred during September 2010 through March 1, 2011. The offences concern contact he is said to have had with Susan Chawner and her mother, Joyce Chawner. I will discuss the evidence concerning the relationship between Mr. Frank and the Chawners shortly. I will first explain the 23 charges that were laid against him. [ 2 ] There are four Informations before me.

They allege offences on the following dates: August 31, 2010, September 1 and 8, 2010, October 13 and 14, 2010, and November 1, 2010 – a total of 7 counts; October 22, 2010 to March 1, 2011 – a total of 8 counts; December 16, 2010 – March 1, 2011 – a total of 3 counts; and January 30, 2011 – a total of 5 counts. [ 3 ] The nature of the allegations against Mr. Frank are as follows: • That on September 1 and 8, 2010, October 13 (twice) and 14, 2010 he breached the no-contact condition of an officer in charge (OIC) undertaking issued on September 1, 2010 by being outside Ms.

Chawner’s place of work, and on November 1, 2010, he breached the no-contact condition of the officer in charge (OIC) undertaking issued on September 1, 2010 by leaving Ms. Chawner a voice mail message, and that between August 31 and November 3, 2010, he further breached the September 1, 2010 OIC undertaking by communicating indirectly with Ms. Chawner that he wanted to meet with her; • That between October 22, 2010 and March 1, 2011 he breached the no-contact condition of the September 1, 2010 OIC undertaking by making calls to Ms.

Chawner; and that between these dates of October 22, 2010 and March 1, 2011, he breached three recognizances, entered into by him on November 4 and December 13, 2010 and February 2, 2011 by making calls to Ms. Chawner. In the case of each of these recognizances, Mr. Frank is charged with breaching no-contact and keep the peace and be of good behaviour conditions; • That between October 22, 2010 and March 1, 2011, he unlawfully and willfully damaged property of Susan Chawner, committing mischief. The Crown has indicated that this specific charge relates to Ms.

Chawner’s car tire being punctured on December 5, 2010; • That between December 16, 2010 – March 1, 2011, knowing that Joyce Chawner was harassed or being reckless as to whether she was harassed, without lawful authority, repeatedly communicated directly or indirectly with Mrs.

Chawner, causing her, in all the circumstances, to reasonably fear for her safety; • That between these same dates of December 16, 2010 – March 1, 2011, he breached the conditions of his February 2, 2011 recognizance by contacting Joyce Chawner and by failing to keep the peace and be of good behaviour; • That on January 30, 2011, he breached his November 4 and December 13, 2010 recognizances by going to Joyce Chawner’s home and having contact with Susan Chawner and by failing to keep the peace and be of good behaviour and, that by having this contact with Susan Chawner on January 30, 2011, he breached his September 1, 2010 OIC undertaking. [ 4 ] The Crown led evidence at Mr.

Frank’s trial from Cst. Patrick Lennon – the Halifax Regional Police (HRP) officer who had contact with Mr. Frank on July 4, 2010, Susan Chawner, Joyce Chawner, Larry Smith – a former co-worker of Mr. Frank’s, Reverend Stephen Ashton – the rector at the church the Chawners and Mr. Frank belonged to, and Cst. Daniel Roach – the HRP officer who investigated a complaint by Mr. Frank that he had been attacked by an unknown assailant on August 31, 2010. Mr. Frank then testified in his own defence. [ 5 ] Mr. Frank denies that he has committed any of the offences with which he is charged.

It was his evidence that his contact with Susan Chawner was consented to and that other contact she has alleged, by phone calls and other means, was not made by him. He also denies damaging her tires. He further asserts that he did not make repeated hang-up phone calls to Joyce Chawner and is therefore not guilty of criminal harassment and breaching his February 2, 2011 recognizance.

[6] Mr. Frank testified that he was in fact a victim, experiencing repeated death threats and two physical assaults where he was injured. According to Mr. Frank, unknown assailants warned him to stay away from Ms. Chawner, or he would be killed. He testified to hisbelief that Ms. Chawner was directly or indirectly responsible for menacing notes he claims to have found and that someone was out toget him, perhaps because they did not like his relationship with Ms. Chawner. [7] Mr. Frank’s evidence about the nature of his relationship with Ms. Chawner diverged starkly from hers.

He testified that theirfriendship blossomed into a sexual relationship and that he nurtured hopes of marrying her. Although Ms. Chawner knew Mr. Frank hadstrong romantic feelings toward her, she was emphatic that the relationship had never progressed beyond a few experimental dates whichconfirmed for her that she wanted nothing more than a friendship. She says what she got was a protracted harassment that was alsovisited upon her elderly mother. Fundamental Principles [8] I will pause here to reiterate some foundational principles. Mr. Frank is innocent until proven guilty beyond a reasonable doubt.

Areasonable doubt is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence. (R.v. Lifchus, (SCC), [1997] 3 S.C.R. 320) The Crown bears the burden of proving the elements of the offences againstMr. Frank beyond a reasonable doubt. The burden of proof never shifts to Mr. Frank. As Mr. Frank has testified I must apply the test inR. v. W(D), (SCC), [1991] S.C.J. No. 26. This means that if I believe his testimony I must acquit him. If I do not believehis testimony but am left in a doubt about it, I must acquit. Even if I do not believe Mr.

Frank’s testimony and am not left in a doubtabout it, I must still consider all of the evidence to determine if on the whole of it I am left with a reasonable doubt. I will note that inassessing the testimony of any of the witnesses, including Mr. Frank, I can believe all, some or none of it. [9] I have heard a lot of evidence in this trial. Not all of it is referred to in this decision. What I have included in my reasons is theevidence I regard as most relevant to disposing of the charges against Mr. Frank.

It has not been necessary for me to discuss every detailof evidence; had I done so these details would have simply augmented what I have relied on for my findings of fact. Susan Chawner’s and Mr. Frank’s Relationship [10] Susan Chawner knew Mr. Frank from Trinity Anglican church. They had been friends for 15 – 16 years when they had a briefperiod of dating in the summer of 2009. According to Ms. Chawner, the dating relationship did not extend beyond hand-holding and acouple of kisses. Mr. Frank had very strong feelings for Ms.

Chawner but she quickly concluded she was only interested in a friendship.She told him this in the fall of 2009. They continued to see each other at church. [11] Mr. Frank offered a very different version of his relationship with Ms. Chawner. A little further into these reasons, I will discusshis evidence about the relationship. What is agreed by both Mr. Frank and Ms. Chawner is that over the course of their friendship, theywould undertake bible study together and go for walks and drives. Some drives took them to a look-off on the Purcell’s Cove Road.

Ms.Chawner does not recall them regarding it as a special place, just a spot with a good view of the ocean, however Mr. Frank testified hethought of it as especially meaningful for them. For him it was a spiritual place. He said in his direct evidence they had discovered itafter he refused to visit Point Pleasant Park with Ms. Chawner once he learned that she used to go there with a former boyfriend. [12] On cross-examination on this issue, Mr. Frank said that the container port (at the entrance of Point Pleasant Park) always remindedMs. Chawner of a former boyfriend and she would mention him. This, Mr.

Frank testified, made it necessary to find another place forwalks. [13] The Purcell’s Cove Road location assumes some significance later on as it was the site where Mr. Frank claims to have beenvictimized in two separate attacks by unknown, unidentified assailants. [14] It was Ms. Chawner’s evidence that she had considered Mr. Frank to be a very good friend. She knew Mr. Frank had strongromantic feelings for her. She testified that he told her he was in love with her and that he believed God intended for them to be together.She didn’t share this view and told him there was no future for them as a couple.

She testified that Mr. Frank did not expressly ask her tomarry him although he made it clear that was his intention.

[ 15 ] Mr. Frank’s evidence was that he asked Ms. Chawner on two occasions to marry him but she told him she would have to ask her mother. He went on to describe what he characterized as the main obstacle to his romantic objectives: Joyce Chawner didn’t like him. Mr. Frank testified that Mrs. Chawner told him it would be over her dead body that he would marry Ms. Chawner and that she also “went up one side of Reverend Ashton and down the other” when she found out that he and Ms. Chawner were “going out” because “she blamed him for our relationship.” [ 16 ] According to Mr.

Frank the friendship with Susan Chawner grew deeper over time and he and Ms. Chawner became intimate in late 2007/early 2008. His evidence was that they were involved sexually until just before Ms. Chawner went away to Jamaica for a holiday in the spring of 2010. In response to questions on cross-examination, Mr. Frank elaborated on the nature of his intimate relationship with Ms. Chawner. He said there had been two instances of sexual intercourse in late 2007 but that Ms. Chawner was “scared” and so penetrative sex was abandoned. He testified that what continued instead was cuddling, fondling and oral sex.

This was by Mr. Frank’s description, “making love” and it last happened about a week and half before Ms. Chawner left for the Caribbean. [ 17 ] This is not the picture that Ms. Chawner drew of the relationship with Mr. Frank. She testified that it never became sexual and that after the brief dating in the summer of 2009, she made it clear she was interested only in a friendship. Mr. Frank and Susan Chawner’s Father [ 18 ] Not only did Mr. Frank describe a very different relationship with Ms. Chawner than the one she testified to, he also gave evidence of having a much closer friendship with Ms.

Chawner’s father than either Ms. Chawner or her mother agreed had been the case. Ms. Chawner testified that Mr. Frank had met her father on occasion when visiting her parents’ home but barely knew him. Joyce Chawner explained that Mr. Frank had, on two to three occasions, at her daughter’s request, come over to sit with Mr. Chawner during his illness when he could not be left alone because of his dementia. Mr. Frank’s presence enabled Mrs. Chawner to get out and do some errands. Mrs. Chawner testified that Mr. Frank was not at all close to her husband although Mr. Frank thought he was Mr.

Chawner’s friend. [ 19 ] Friendship between the two men is certainly what Mr. Frank described in his testimony. He talked of meeting Mr. Chawner for coffee on a regular basis and having heart-to-heart discussions about Susan Chawner, including Mr. Frank’s desire to marry her. [ 20 ] In the fall of 2009, Ms. Chawner’s father was seriously ill and hospitalized. While Ms. Chawner’s father was in hospital, Mr. Frank took to visiting him. The first occasion was fine with Ms. Chawner. However the visits continued, making Ms. Chawner and her mother uncomfortable: Mr.

Chawner was dying and his wife was concerned that he needed his rest and not late night visits from someone he hardly knew. Ms. Chawner asked Mr. Frank not to visit her father but he continued to do so, going in at night after Ms. Chawner and her mother had left. This was upsetting to Ms. Chawner especially because Mr. Frank disregarded her express wishes. An Important Finding of Fact [ 21 ] I am going to pause in my review of the evidence at this point to address the very different evidence given by Susan and Joyce Chawner and Mr. Frank about Mr. Frank’s relationship with Ms. Chawner and her father.

I simply do not believe Mr. Frank’s claims that he had a friendship with Mr. Chawner nor do I believe that he was intimately involved in any way with Susan Chawner at any point in their relationship. Mr. Frank’s description of these relationships had the qualities of a fantasy. I find that what Mr. Frank claims to have been the nature of these relationships has no grounding in reality. I am left in no doubt that Mr. Frank imagined a degree of closeness with Ms. Chawner and her father that did not exist outside of his mind. I accept that Mr. Frank and Ms.

Chawner were friends and that he had met her parents and sat with her sick father on a few occasions to help the family out. I accept Ms. Chawner’s evidence that she briefly dated Mr. Frank. I do not believe the elaborate story Mr. Frank has told about a romance with Ms. Chawner and a friendship with her father. I am wholly satisfied that the relationships Mr. Frank described lived only in his imagination. [ 22 ] Mr. Frank’s version of these relationships sounded like a story about how he wanted these relationships to be, not how they were. Reverend Ashton confirmed that Mr.

Frank felt he had a special relationship with Ms. Chawner and wanted it to be more intimate. This indicates that Mr. Frank yearned for something he did not have, not, as he has testified, that he already had achieved intimacy with Susan. And, according to Joyce Chawner, Mr. Frank was “not at all close” to her late husband. I have no doubt that Mrs. Chawner would have known if her husband had been meeting regularly with Mr. Frank, something she never mentioned in her evidence and was not asked about on cross-examination. [ 23 ] In arriving at my conclusion that Mr.

Frank has conjured up his relationships with Susan Chawner and her father, embroidering

them with details that are completely invented, I have considered the credibility of Susan Chawner and her mother. I found Susan Chawner to be an impressive witness. She had clear recall and gave very precise responses to questions without hyperbole or embellishments. She presented as an organized and focused person. She was balanced and fair in her responses and gave a narrative that resonated with credibility. [ 24 ] I also found Joyce Chawner to be a credible witness. It does not trouble me that she firmly rejected the notion that her daughter had ever gone out with Mr. Frank which is at variance with what Ms.

Chawner testified to. Mrs. Chawner knew Mr. Frank to be her daughter’s friend. It does not surprise me that she was either unaware of her brief trial dating of Mr. Frank or saw these outings as indistinguishable from their usual activities. [ 25 ] As for Mr. Frank I have found him to be a distinctly unimpressive witness, diffusely focused, confusing to listen to, evasive and unconvincing. I will have more to say about this in due course. I had no trouble concluding that Mr. Frank’s evidence failed to withstand scrutiny time and time again.

I do not accept that the dyslexia he claims to have has any bearing on this nor is there any evidence to suggest that it does. Susan Chawner and Joyce Chawner on the other hand gave evidence that consistently emerged intact under questioning. The Start of Odd Events [ 26 ] I will now return to a review of events that began to occur in late 2009 and intensified in 2010 and 2011. [ 27 ] Mr. Chawner died on November 11, 2009. [ 28 ] In December 2009, Ms. Chawner experienced three flat tires under very odd circumstances.

Cable staples were thrown in her driveway, something she didn’t notice until she had driven over them and punctured her tire. On a second occasion, a tire on her car was slashed at church. The third puncture occurred when she drove out of her garage. A tire went flat with a large nail in it. [ 29 ] Ms. Chawner asked Mr. Frank about the flat tires. According to her testimony he was very cavalier. He seemed not the least bit concerned that someone was trying to hurt her. [ 30 ] Joyce Chawner also testified to Mr. Frank having a peculiar reaction to the flat tires.

When she asked him in early 2010 who would be doing that to Susan, his response was that it was God “giving her a kick in the pants because she is not doing what he wants her to do.” [ 31 ] In April 2010, on Good Friday, Ms. Chawner experienced another flat tire. Mr. Frank offered to help her change it. The car was in the garage and only one tire was relatively easy to access. It happened to be the flat one. Without Ms. Chawner telling Mr. Frank which tire was flat, he mentioned that they would have to move a box out of the way to get at the tire.

It so happened that the flat tire was the one that was blocked by a box. [ 32 ] When Ms. Chawner asked Mr. Frank how he would have known which tire had been punctured, he responded by saying that he assumed it would be the passenger side tire as that was the one most vulnerable to curb-side garbage. The Jamaica Trip [ 33 ] In April 2010 Ms. Chawner had a holiday planned with several friends. This was the trip to Jamaica that I mentioned earlier in these reasons. Ms. Chawner testified that at first Mr. Frank seemed quite pleased she was going.

He then started to express concerns, saying that he was getting messages from God and that Ms. Chawner and her friends should be careful. Ms. Chawner recalls him describing visions of a “sudden stop” although he could not explain to her what that meant. It seemed to her that he did not really want her to go away. [ 34 ] Mr. Frank had entertained a notion of going with Ms. Chawner to Jamaica, but he was not invited. He acknowledged this but denied giving Ms. Chawner a warning about the trip. He says he only told her about an experience his mother had had, missing a flight that later

crashed. He testified that his concern was not that something would happen to Ms. Chawner on the trip but that she would come back different. And, he felt, she did. Mr. Frank testified that Ms. Chawner came back cold and inaccessible. It was his evidence that the romance they had been enjoying abruptly evaporated after her return. As I have indicated I do not accept that any such romance had been happening. But Ms. Chawner did come back from Jamaica wanting to pull away from her friendship with Mr. Frank.

She had decided to put some distance between herself and the friend that wanted a closeness she did not feel. [ 35 ] By the time of her return from Jamaica, Ms. Chawner was trying to extricate herself from her relationship with Mr. Frank without creating an awkward situation. She did not want to be on non-speaking terms with someone she would be seeing regularly at church. [ 36 ] The period after Ms. Chawner’s return from Jamaica to March 1, 2011 saw an escalation of events that included more tire punctures for Ms. Chawner, mysterious hang-up phone calls to Ms.

Chawner and her mother, strange notes and an apparent campaign of menace, threats and assaults against Mr. Frank. During this time Mr. Frank left some messages for Ms. Chawner which he was asked about in cross-examination. It is the evidence relating to these events that I will now discuss. Ms. Chawner’s Punctured Tires [ 37 ] As I have mentioned, Ms. Chawner had been experiencing tire punctures since late 2009. How her car could have got a nail in its tire in April 2010 when it was parked in the garage was a mystery to Ms. Chawner until June 30, 2010, a date Ms. Chawner recalls because it was her birthday.

On June 30 she opened her garage door and noticed in the driveway two large nails with their sharp ends protruding and positioned exactly where her tires would go when she moved her car. It seemed to her that this must have been how she got a nail in her car tire in December. Ms. Chawner took a cell phone picture of the nails, emailed it to herself at work and printed it. This was tendered as Exhibit 7. [ 38 ] In June 2010 Ms. Chawner noticed silver nails and a tiny screwdriver under her car which was parked in the street. She thought she recognized the screwdriver from a set Mr.

Frank had which she knew about because she had borrowed a slightly larger one from him. [ 39 ] To this point Ms. Chawner had not involved the police. She suspected Mr. Frank had been responsible for her punctured tires but she did not want to believe he had done this. She hadn’t wanted to wrongly accuse him. She testified that it took her “awhile to snap out of my fog of thinking it couldn’t be him to realizing it was.” She agreed that finding the little screwdriver was an “aha” moment for her. [ 40 ] After July 1, Ms.

Chawner found another protruding nail in her driveway and called the police. [ 41 ] This wasn’t the end of Ms. Chawner’s punctured tires. On Sunday, December 5, 2010 she went to visit her mother for dinner. When she drove away she discovered her tire had been punctured by a cable staple she had driven over. Joyce Chawner testified that with a neighbor she found 10 – 12 cable staples in her driveway the morning after her daughter’s visit. Although it was a garbage day, the staples were located in a spot where only Mrs. Chawner puts her garbage, which did not include any staples. Furthermore, Mrs.

Chawner did not have any staples and there was no construction underway in her neighbourhood. [ 42 ] Later on, Mrs. Chawner saw the staples her daughter had found in her own driveway in December 2009. They were identical to the ones Mrs. Chawner had picked up on December 6. [ 43 ] The only reasonable inference to be drawn from this evidence is that the staples were deposited in or around Mrs. Chawner’s driveway, just like the staples and nails Susan Chawner had found in hers. [ 44 ] The nails and cable staples and a little screwdriver collected by Ms. Chawner and her mother were tendered as Exhibit 5.

The screwdriver Ms. Chawner borrowed from Mr. Frank and did not return was tendered as Exhibit 6. [ 45 ] Ms. Chawner has had no flat tires since March 1, 2011. Mr. Frank was charged with a single count of damage to property for the December 5, 2010 damage to Ms. Chawner’s tire.

Mr. Frank’s Messages to Susan Chawner [ 46 ] Ms. Chawner wanted to limit the contact with Mr. Frank. She testified that a suggestion by him that they meet seemed to offer an opportunity to achieve her objective of putting the relationship on ice. Ms. Chawner’s evidence was that they met in early June 2010. Mr. Frank wanted the relationship to intensify but he said he would give Ms. Chawner thirty days to think about it without any calls from him. He told her he would respect her decision. [ 47 ] It was Ms. Chawner’s evidence that she was hoping if Mr.

Frank saw they could be friends that he would “stop and back off.” Even by Mr. Frank’s evidence, after Ms. Chawner returned from Jamaica he had been calling her “once or twice” a day “until I got her.” He said he wanted to know from her “when we are going to talk and resolve this?” [ 48 ] According to Ms. Chawner, Mr. Frank held off calling her for one day. When he called he started talking to Ms. Chawner about what God was telling him about their relationship. [ 49 ] Ms. Chawner decided to stop taking Mr. Frank’s calls. In the second week of June 2010, Ms. Chawner testified that she called Mr.

Frank and told him to stop calling, stay away from her and her home and her car. [ 50 ] Mr. Frank continued to call Ms. Chawner on her home phone, her work phone, and her cell phone. She made a tape of messages he left her on her home voice mail during the last week of June 2010. These recordings were entered as Exhibit 1. When these messages were replayed in court, Ms. Chawner testified that it was Mr. Frank’s voice. Mr. Frank acknowledged on cross-examination that it was. [ 51 ] In this series of messages, Mr. Frank urged Ms. Chawner to talk to him. He made references to God and told her he loved her.

He asked her to help him to understand what was going on. He said in one message: “I hope God kicks your ass and makes you grow up.” This statement is very reminiscent of what Mr. Frank said to Joyce Chawner when she queried who would be puncturing her daughter’s tires. [ 52 ] Mr. Frank was asked on cross-examination what he meant by a couple of the messages that had God references in them. In one message he said “Come back to God’s purpose. Not mine, not yours, his.” According to Mr. Frank this referred to Ms. Chawner’s responsibilities as a lay reader.

He said he was urging her to come back to church because she had not been going and to come back and talk to him about the Bible as they had done in the past. [ 53 ] In another message Mr. Frank told Ms. Chawner: “The weight of God’s hand is getting heavier because you are refusing to listen.” According to Mr. Frank, this latter message was a reference to Ms. Chawner’s decision to stop going to church. [ 54 ] Something can be learned from analyzing Mr. Frank’s responses to questions on cross-examination about the meaning of the messages. Mr. Frank gave his explanation – the weight of God’s hand referred to Ms.

Chawner not attending church. When confronted by the fact that the message was left during a time when Ms. Chawner was still attending church, Mr. Frank slid off into another explanation relating the message to Ms. Chawner’s sermons and a biblical discussion they had had previously. This kind of bobbing and weaving characterized the lion’s share of Mr. Frank’s responses on cross-examination. [ 55 ] Ms. Chawner testified that “the weight of God’s hand” was a reference to an allegation Mr. Frank made that she had had an abortion. This evidence is more consistent with the notion Mr.

Frank had gotten into his head that Ms. Chawner had become pregnant in Jamaica, a matter I will address shortly. His preoccupation with the possibility of pregnancy and an abortion is evident from the series of messages he left for Ms. Chawner in late June 2010. [ 56 ] The June 2010 messages were not the last. On November 1, 2010, Ms. Chawner retrieved a message off her voice mail at work that had come in the night before after she had left for the day. It was a single word “bitch” spoken in a whisper. Hearing the message played in court (it was Exhibit 9), Ms. Chawner said she could identify the voice as Mr.

Frank’s. [ 57 ] Ms. Chawner was frightened by this message because she felt it was “kind of threatening.”

[ 58 ] This November 1, 2010 message led to Mr. Frank being charged with breaching the condition in his September 1, 2010 OIC undertaking to abstain from communication or direct or indirect contact with Ms Chawner. The Pregnancy Allegation [ 59 ] Ms. Chawner testified that Mr. Frank got it into his head she was pregnant. Although he slid around the issue somewhat on cross- examination, saying that at first he had not thought that, Mr. Frank did ultimately admit the notion lodged itself in his mind. He says it was placed there when he went into the Credit Union on Wyse Road where Ms.

Chawner had worked and two tellers behind the counter made accusations amongst themselves that he was responsible for Ms. Chawner being pregnant. At first he didn’t believe there could be any truth to her being pregnant, he started to think this could have happened in Jamaica because Ms. Chawner had told him she had been drinking one evening and danced with the same man a couple of times. Mr. Frank testified he now thinks it is very possible Ms. Chawner had sex with someone in Jamaica. [ 60 ] Mr. Frank’s pregnancy suspicions can be circled back to the June 2010 messages I just discussed.

He testified on cross-examination that Ms. Chawner was not the same person when she came back from Jamaica and that in the messages he left her he was “cranky” and “uncertain.” That is quite different from what he initially said were his reasons for the messages. The biblical references in the messages are actually quite minimal: most of what Mr. Frank focused on was pregnancy, abortion and allegations of his involvement. He says in one message: “…I would like you to go back to (inaudible), publicly announce to the people that I am not the father.

I have not caused you to have an abortion and I didn’t screw you in Jamaica.” [ 61 ] Mr. Frank then said something very telling in response to the Crown suggesting that the messages indicate he was furious with Ms. Chawner. In Mr. Frank’s words, he stands by the direction in the Bible to “be good, love, forgive, try to understand, keep your cool to the best of your ability, help others, be there even if they don’t want you there, put a helping hand out even if it gets cut off, smacked or kicked in the head, you do those things if you believe in the Bible…” It is fair to say that the allegations against Mr.

Frank are that he insisted on “being there” for Ms. Chawner and her mother even though they did not want him to be, and that his conduct went from being intrusive and annoying to criminal. [ 62 ] Mr. Frank’s fixation on Ms. Chawner and her sexuality – was she pregnant, had she been having sex in Jamaica, reveals his unhealthy obsession with Ms. Chawner. She was not pregnant and had not had an abortion. She said of Mr.

Frank’s allegations that they came out of the “deepest, darkest blue.” The July 4, 2010 Memo [ 63 ] As I have noted, Susan Chawner’s evidence was that by mid-June 2010 she had decided to stop taking Mr. Frank’s calls. The meeting with Mr. Frank in early June had achieved nothing. [ 64 ] Ms. Chawner was shown two Exhibits, Exhibit 11 a series of notes and Exhibit 12, a handwritten memo dated July 4, 2010. The Crown referred to Exhibit 12 as a “contract” when questioning Mr. Frank but I think it is more accurate to call it a memo. Ms.

Chawner testified that she had never seen either the notes or the memo outside of court and she had no knowledge of them. It was her evidence that she did not create any of the notes, had not left them on Mr. Frank’s car, did not meet with him on July 4 and did not know “Ellen Carter”, the name that appears on Exhibit 12 along with the names “Sue” and “Bob.” Ms. Chawner testified that she does not ever sign her name as “Sue” although Mr. Frank called her that.

She called him “Bobby” as most people do. [ 65 ] The notes are printed in a what I will call a dot style format with the letters made up of a series of dots. Notes with the same kind of dot style surface later in Mr. Frank’s car trunk and at the home of the Trinity church rector but I will deal with those events later. [ 66 ] The notes purported to be requests by “Sue” for “Bobby” to talk and the memo was, as confirmed later by Mr. Frank’s evidence, prepared by him. He testified that the handwritten memo documented a meeting with Ms. Chawner on July 4 after church. He testified he had suggested a meeting and Ms.

Chawner had agreed. According to Mr. Frank it occurred in Ms. Chawner’s car at a Tim Horton’s in Fairview.

[ 67 ] Mr. Frank testified that he told Ms. Chawner he wanted to write something down so she did not “squirm away from [him] this time.” Mr. Frank maintains that this was because there were lots of times when Ms. Chawner “flip flopped” about the “stuff we were doing in church.” He wanted the memo signed he says because he thought “at least if we signed something we’d work on the things we’d done before.” [ 68 ] The memo contains very specific times for the meeting Mr. Frank claims he had with Ms. Chawner. It says 11:58 a.m. – 12:17 p.m. although these times are qualified by the word “roughly.” Mr.

Frank had two conflicting versions of how the times got fixed on the memo: in direct examination he said it was a precise exercise, he checked Ms. Chawner’s car clock and she checked her cell phone. On cross-examination, Mr. Frank testified that it had been a “guesstimate.” [ 69 ] How the time references came to be entered into the memo really makes little difference to me because I believe the memo to be a complete fabrication. I do not believe that Mr. Frank met with Ms. Chawner on July 4, 2010 after church. She denies it and I believe her. She had already decided to stop taking Mr.

Frank’s calls in mid-June yet, by his own admission, he kept calling her, leaving the messages I referred to earlier. According to Ms. Chawner, she and Mr. Frank had already met in early June, which I also accept, to no avail. Mr. Frank was not taking no for an answer. Just as Mr. Frank had to say about the biblical principles he tries to live by, he was going to “be there” even though he was not wanted. [ 70 ] The memo contains a revealing phrase. It claims that Ms Chawner and Mr. Frank had agreed it would be “OK to call each other to discuss this stuff [referring to Ms.

Chawner’s shelf and upcoming sermons] and more.” It doesn’t say anything about Ms. Chawner agreeing not to dodge her church responsibilities and stop “flip flopping” and it isn’t an agreement that they will work together on church matters. It purports to be an agreement that they can call each other. The logical upshot of this is that if Mr. Frank could show that Ms. Chawner was okay with him calling her, then there would be no problem with him doing so. [ 71 ] Coincidentally, late in the evening on July 4, 2010, Mr. Frank received a call from Cst. Lennon of the Halifax Regional Police. Cst.

Lennon was following through on a complaint by Ms. Chawner that Mr. Frank was continuing to contact her when she did not want him to. Cst. Lennon testified that he told Mr. Frank to stop calling Ms. Chawner and to stay away from her. Mr. Frank acknowledges getting this call. According to Cst. Lennon Mr. Frank said he had only been trying to help Ms. Chawner and he would stop. He said nothing about the agreement set out in the memo. There has been no evidence from either Cst. Lennon or Mr. Frank that earlier in the day, not only had Ms. Chawner and Mr.

Frank had consentual contact, she had agreed it would be okay for him to call her. There can only be one explanation for why that did not come up in the conversation Mr. Frank had with Cst. Lennon: the memo did not exist yet. It was created later. And the only reasonable inference that can be drawn as to why it was created is so that Mr. Frank could make it appear he had Ms. Chawner’s consent to contact her, something he did not have on July 4 or he would have mentioned it to Cst. Lennon. [ 72 ] Mr. Frank also, in my view, misrepresented what Cst. Lennon indicated was the purpose of his call.

In direct examination Mr. Frank testified that Cst. Lennon indicated he was calling to act as a mediator between him and Ms. Chawner. Cst. Lennon made no mention in his evidence of mediation. I am satisfied that was never said by him. I accept that, as he testified, he told Mr. Frank there were grounds to charge him with criminal harassment but charges would not be laid if contact ceased. August 31, 2010 – January 30, 2010 – Assaults and Threats Against Mr. Frank [ 73 ] On August 31, 2010, paramedics were called to Purcell’s Cove Road where they found Mr.

Frank who claimed to have been attacked while on a trail near the ocean. According to Mr. Frank about a mile along the trial he was looking for a weasel or mink that he had seen by the rocks when an unknown assailant crept up behind him and said “stay the fuck away from Susan.” It was a male voice. Mr. Frank was then struck on the back of the head and knocked out. He had not heard anyone approaching him before he was attacked. When he came to he staggered back to the parking lot and a hiker used her cell phone to call an ambulance. A police officer, Cst. Daniel Roach, also attended. [ 74 ] Mr.

Frank initially described receiving a blow to the back of his head. As was his tendency throughout his evidence, on cross- examination he then spun out new details, in this instance a description of another injury, this one consisting of scratches on the side of his head. During cross-examination these injuries became bloody injuries. They were not injuries that anyone else saw. Cst. Roach testified that he looked at Mr. Frank’s head and saw no injuries. Mr. Frank received no treatment and was assessed as fine to drive. Cst. Roach was unable to locate the hiker whom Mr. Frank claimed had helped him.

He formed the view that Mr. Frank had fabricated the allegation of an assault.

[ 75 ] Independently of Cst. Roach’s opinion, I formed that view too, on the evidence I heard at trial. Mr. Frank’s claim of being assaulted at the Purcell’s Cove look-off is simply unbelievable. It is not only entirely implausible that he could have been ambushed as he described, he was not found to have the injuries he now claims he suffered. Furthermore, I simply cannot accept that someone lurked behind rocks or in the bushes, knowing he would come along at that time, and then attacked him with a warning for him to stay away from Ms. Chawner. [ 76 ] Mr. Frank says he was also experiencing many damaged tires.

Ms. Chawner confirmed on cross-examination that the police had told her that during the period of August and September 2010, Mr. Frank had reported this. She testified that she had had nothing to do with this nor with the August 31 assault Mr. Frank had alleged. It was also her evidence that she was not aware that Mr. Frank was receiving threats relating to her. [ 77 ] A litany of alleged incidents targeting Mr. Frank – threatening phones calls, car break ins, damage to tires and notes found in Mr. Frank’s vehicle trunk – are detailed in a typed memo entered into evidence as Exhibit 14.

Reverend Andrew prepared this memo and on page 3, indicated the date (December 13, 2010) and made the following introductory notation: “Bobby Frank and I arranged this meeting in order to set down on paper a list of matters which he wishes to be known (by police) in his defence of the charges notified against him (by the Police) concerning “Criminal Harassment (Repeated Communication) between 26 June – 31 August 2010.” [ 78 ] The threatening calls detailed by Mr. Frank in the Reverend Andrew memo related to Ms. Chawner. They all had the tenor that he was to leave her alone or he would be killed. Mr.

Frank claimed in the Reverend Andrew document that he was called from 492-6570 and a man’s voice threatened to kill him for “fucking her”. When Ms. Chawner was asked about a male voice calling from 492-6570 she testified that would be unusual as the number was the external branch line for the Wyse Road Credit Union but there were only women working there. The purported message is another example of the subject matter having a sexual focus. [ 79 ] Another number Mr.

Frank claimed to have been called from and threatened – “If you go near her, we will get you” – was the number for the Vice President of the Credit Union. This was pointed out to Mr. Frank on cross-examination. Mr. Frank acknowledged that he never called the Credit Union to inquire about who was making the calls. He made it sound as though this would have been an impossible task due to the “hundreds” of employees although he testified that he had made a complaint to “bank people” about being accused by Credit Union staff of getting Ms.

Chawner pregnant. [ 80 ] From November 30, 2010 until December 13, 2010, the threats against Mr. Frank took the form of notes. The first four Mr. Frank claims to have found in his trunk and the last one was removed, at Mr. Frank’s request, by Reverend Andrew. Copies of these notes were tendered as Exhibit 11. They were all written in a dot style format for the letters. The first one urged Mr. Frank to “meet me” with the name “Sue” in the same dotted letter style. The next day a note urged “meet me Bobby.” After that a note of menace crept in with the note-writer urging Mr.

Frank to meet and saying it was his “last chance.” On December 10 and 13, the notes were threatening, telling Mr. Frank he was going to die. [ 81 ] The December 10 note was unequivocal: “Bob you are going to die too day I hate you”. [ 82 ] Mr. Frank testified that he interpreted the first note as a request from Ms. Chawner to meet him. His evidence was that the note could only have been placed in his trunk in the way that it was by someone with a key to his car. According to Mr. Frank, Ms. Chawner had a key to his car and they had passed notes like this before although not in quite the same place.

Notes 2 and 3 which refer to “Bobby” and “Bob” were Ms. Chawner getting “cranky” with him. Mr. Frank then had a biblical

interpretation for the content of Note 4: he said the phrase “too day” actually should be read, in biblical terms, “to a day” which means “a certain time.” Mr. Frank said he took that to mean Susan Chawner wanted him dead. [ 83 ] Another note was said to arrive on December 13 – “You talk, die.” Mr. Frank testified he understood this to mean that if he said anymore about what was happening to him or if he talked about Ms. Chawner, he was “a dead man.” His evidence was that perhaps Ms. Chawner was embarrassed or someone didn’t like him talking about his relationship with Ms. Chawner and all that they had “shared”.

Mr. Frank testified that he was being warned off talking to the police, “because they were involved now and…charges were involved and I wanted to defend myself.” [ 84 ] I believe that to be correct. Mr. Frank wanted to defend himself. I have concluded that a pattern can be discerned as to how he was endeavouring to do so. He created a phony memo dated July 4, 2010. On August 31, 2010 he concocted a story about being attacked by an unknown assailant warning him away from Ms. Chawner.

In late November and into December, 2010, he obscured his handwriting in notes he crafted using a peculiar dot style, notes that led up to a menacing message that he was going to die. All of this taken together creates quite a muddled picture. The July 4 memo suggested that Ms. Chawner was fine with Mr. Frank calling her. But he does not do so

after hearing from Cst. Lennon. But he is attacked anyway at the end of August and told to stay away from her. Then it is Ms. Chawner who wants to meet with him and when he refuses he is subjected to death threats. This is what Mr. Frank wants me to believe. It is a scenario that is as confusing and incoherent as much of his evidence. And in that manner it is a story that resembles his testimonial narrative. I view his allegations of victimization to be a reflection of his thinking processes, which I observed when he testified. What I am saying is that Mr.

Frank’s victimization scenario is as illogical as many of his responses and emerged from the same mind, not from reality. And furthermore, I do not believe that Ms. Chawner had anything to do with the the notes nor do I believe that Mr. Frank was being watched and threatened by potential killers she was in cahoots with. [ 85 ] I want to consider Note 4 again for a moment. Mr. Frank testified that he is a poor speller. He said: “I can’t spell, I literally can’t spell.” Whoever wrote Note 4 can’t spell either. In my view, the wording is unambiguous.

It does not say “to a day”, it plainly says “too day” a misspelling of “today.” I can only think that Mr. Frank gave a purported biblical meaning to the note’s content in order to distract from the fact that a misspelled note could be identified as coming from him. [ 86 ] A “dot note” also found its way to Mr. Frank’s lawyer, Mr. Dostal. It requests help for Mr. Frank saying he “is not guilty” and is being framed by Ms. Chawner’s former boyfriend. Reverend Ashton also received a “dot note” with the message that Mr.

Frank was not guilty and Susan Chawner, Susan Page and former boyfriend Peter “are trying to get me to kill him.” The would-be killer indicates in the note that all the monies for the contract-killing have not be paid. [ 87 ] Mr. Frank denied making the notes. When asked on cross-examination who would want to kill him, he said that Ms.

Chawner had told him, soon after she got back from Jamaica, that he “wasn’t good enough for a bullet and she would run him over.” He appears to have related this to Reverend Andrew on February 23, 2011, according to Exhibit 14, Reverend Andrew’s series of memos of discussions with Mr. Frank documenting the incidents he claimed to have experienced. [ 88 ] I just do not believe that Susan Chawner threatened Mr. Frank when she returned from Jamaica or at any other time. She testified that she wanted to distance herself from him without antagonism. I accept that evidence.

I do not believe any of these notes came from anyone other than Mr. Frank. I think they are all part of a clumsily conceived campaign undertaken by Mr. Frank to deflect suspicion away from him during a time when he was being accused of various offences in relation to Ms. Chawner. The first set of charges had been laid against Mr. Frank on November 3, 2010 and were for breaches of an officer in charge undertaking issued on September 1, 2010 that contained conditions prohibiting contact with Ms. Chawner. The notes appeared after these first eight charges were laid.

The Note at the Gravesite [ 89 ] By the fall of 2010, Mr. Frank was still indulging his fixation on his relationship with Mr. Chawner, who by now had been dead for a year. November 11, 2010 was the one year anniversary of Mr. Chawner’s death. Ms. Chawner and her mother went to put flowers on the grave. There was a note at the gravesite with a Remembrance Day poppy. It was written to Ms. Chawner’s father and signed “Bob”. The note said he would take good care of Ms. Chawner. She believed it to have been written by Mr. Frank.

It astounded her that he would do something like that and she was very upset by it. [ 90 ] Mr. Frank acknowledged in his evidence that he had indeed written a note to Mr. Chawner which was intended to indicate he would keep his promises to “be a friend to Susan and help his wife and keep his talks in my heart.” This note to a dead man whom Mr. Frank had not been close to and with whom I have found he did not have heart-to-heart talks reveals Mr. Frank’s inability or refusal to accept reality: he had no claim on Mr. Chawner’s memory and his friendship with Ms. Chawner was over. [ 91 ] I also strongly suspect Mr.

Frank may have hoped that his visit to the gravesite would coincide with running into Ms.Chawner. He certainly would have expected she would find the note at the very least and be reminded of him and his determination to “be there” for her. January 30, 2011 – Mr. Frank Appears in Joyce Chawner’s Driveway [ 92 ] On January 30, 2011 Mr. Frank went to Joyce Chawner’s home around suppertime. He was on two recognizances – one he entered into on November 4, 2010 and another he had entered into on December 13, 2010.

These recognizances required him to have “no direct or indirect contact or communication with Susan Chawner except through a lawyer.” They also required him to “keep the peace and be of good behaviour.” Mr. Frank was also subject to an OIC undertaking issued on September 1, 2010 which prohibited him from having any

communication or direct or indirect contact with Ms. Chawner. [ 93 ] Mr. Frank testified that two weeks earlier he had met Mrs. Chawner at the PharmaSave on Tacoma Drive in Dartmouth and she had said she wanted to talk to him to get his side of the story about his and Ms. Chawner’s relationship. This, Mr. Frank would have me believe, was an overture from someone whom he claims had been so angry about his relationship with Ms. Chawner she had reamed out the church’s rector over it. [ 94 ] Mr. Frank’s description of the invitation assisted in making his evidence even more unbelievable. Other than Mrs.

Chawner telling him to come in a couple of weeks, there was no further communication between them. And furthermore, Mrs. Chawner told him her daughter would not be there. When Mr. Frank was cross-examined about the fact that Ms. Chawner always had Sunday dinner with her mother and had for years, he insisted this was not the case and that he knew Ms. Chawner “did not always go every Sunday.” [ 95 ] I also cannot accept Mr. Frank’s testimony about what he was doing when he arrived outside of Mrs. Chawner’s home. According to Mr. Frank, it was before 6 p.m.

He parked his car some distance away because of cars on the street and walked in darkness toward the house. It was so dark he did not recognize Ms. Chawner’s car in Joyce Chawner’s driveway. He then slipped on ice and to steady himself put his hand on the car tire. Mrs. Chawner came out and asked him what he was doing there and he responded that she had wanted to talk to him. Then Susan Chawner appeared which Mr. Frank testified he wasn’t expecting and he left. [ 96 ] Mr. Frank made his story even harder to accept by adding that he had cooked his children a favourite meal and after the aborted visit to Mrs.

Chawner’s drove to Wyse Road and delivered it to them. This would of course mean he had the meal in his car where it would have sat, well past the supper hour if he had met with Mrs. Chawner as he said was the plan. [ 97 ] Susan and Joyce Chawner describe the January 30 visit of Mr. Frank to Mrs. Chawner’s driveway very differently. As usual, Ms. Chawner had gone to her mother’s for Sunday dinner. Mrs. Chawner had gone upstairs. She was worried about her daughter’s car being in the driveway after the puncture it had sustained on December 5. She looked out of her window and saw Mr.

Frank approaching her daughter’s car very deliberately, walking into the driveway and bending down by the tire. Mrs. Chawner banged on her window. Mr. Frank stood up and looked around. He began to walk away. Mrs. Chawner yelled down to her daughter. They both went to the door and confronted Mr. Frank, Susan Chawner asking him what he was doing. According to Ms. Chawner’s testimony, Mr. Frank said he had done nothing to her car and just wanted to talk to her. [ 98 ] Although darkness had fallen, the area was well lit by Mrs.

Chawner’s front and back door lights that shone onto the driveway, the neighbour’s front door light and the street light. Mrs. Chawner was very concerned about falling and had someone who regularly cleared away snow and ice. She noticed that Mr. Frank had no trouble standing up from being bent over and walking away. [ 99 ] The evidence establishes that Mr. Frank would have known Ms. Chawner had a standing arrangement to have dinner with her parents, now just her mother, every Sunday. Ms. Chawner testified that in the past Mr.

Frank had generally called her on Sunday evenings before she returned home and so would have known the approximate times she would be at dinner. I do not accept that Mr. Frank’s presence in Joyce Chawner’s driveway had an innocent purpose and I regard his evidence about an invitation to visit her to be a complete fabrication. Mr. Frank Reports A Second Attack [ 100 ] Mr. Frank testified that after the incident in Mrs. Chawner’s driveway he drove out to his special place on the Purcell’s Cove Road. He either sat or leaned on the hood of his car, both descriptions being provided by him during cross-examination.

It was very dark. He was there for about an hour. He is not able to supply many details about what happened but somehow, an unknown assailant was able to creep up to him and hit him on the head. Falling down, he put his hand up as something “flashed” down on him. When he woke up in the morning he was sitting in his car with the door open and blood on his arm and pants. His sleeve was slashed. [ 101 ] Mr. Frank indicated that some items were stolen from him in the attack.

A little wallet was missing and although he first said he did not have his cell phone with him “because I had to get it replaced”, a few minutes later in his cross-examination he said his cell phone was “gone”, apparently taken by the mystery attacker. [ 102 ] From Purcell’s Cove Road Mr. Frank made his way to work. Larry Smith saw him outside at about 7:15 a.m. and took him to the

hospital. [ 103 ] I do not have a shred of doubt that Mr. Frank was not attacked as he has claimed. It is not plausible that he would have spent twelve hours, many of them unconscious, outside on January 30, 2011. His assailant had to have known he would be there even though he was, according to Mr. Frank’s evidence, supposed to be at Joyce Chawner’s, talking. I find this targeted ambush by someone lurking in the darkness to be no more believable than the other assault Mr. Frank reported five months earlier.

The Phone Calls [ 104 ] Starting in July 2010, Susan Chawner began to keep a record of calls she was receiving, including calls from Mr. Frank’s cell phone. There were numerous calls which Ms. Chawner meticulously documented. She took the incoming call number from the caller-ID screen on her phone. [ 105 ] The record of calls prepared by Ms. Chawner was entered as Exhibit 2. It details calls from Mr. Frank’s cell phone 220-4233 and also calls from pay phones, both of which Mr. Frank denies using to call Ms. Chawner. The calls also continued through the period of October 22, 2010 to March 1, 2011.

During this time frame, Mr. Frank was on an OIC undertaking from September 1, 2010, and three recognizances entered into on November 4, 2010, December 13, 2010 and February 2, 2011. If I am satisfied the Crown has proven beyond a reasonable doubt that Mr. Frank made the calls documented by Ms. Chawner then he would be guilty of breaching the no- contact conditions of his undertaking and recognizances and of failing to keep the peace and be of good behaviour. [ 106 ] Mr. Frank had an explanation for the numerous calls to Ms. Chawner from his cell phone.

His original phone with the number 220-4233, which is documented as having called Ms. Chawner, was always on the fritz and behaved in a persistently peculiar way. In his testimony, Mr. Frank talked about garbled text messages, and weird numbers and letters and shapes and squares. This went on and on from late 2008 into 2010. Mr. Frank testified that he was told it was viruses, then he said that Bell Mobility told him it was a “tower problem.” Eventually, and I will not canvas all the evidence Mr. Frank gave about dealing with his bewitched phone, he obtained a new one.

Even so, the problems resurfaced. [ 107 ] There is some evidence to support Mr. Frank having had some issues with his cell phones. Ms. Chawner confirmed that Mr. Frank had complained to her about his phone and had shown her garbled text messages. She did not know what the problem was. Larry Smith, Mr. Frank’s co-worker, also testified to knowing that Mr. Frank seemed to be having some trouble with his cell phones.

But this evidence falls far short of creating a doubt in my mind about how the calls to Susan Chawner were occurring. [ 108 ] Exhibit 3 is a Bell Aliant printout of calls produced in response to a search warrant. It has been stipulated by Crown and Defence that Mr. Frank’s cell phone called the numbers indicated on the printout on the dates and times shown. These include calls to Ms. Chawner’s home phone, her work phone, her cell phone, and her mother’s phone. What is revealed is that Mr.

Frank’s cell phone 220- 4233 made a significant number of calls to Susan Chawner even after July 4, 2010 when he testified he stopped calling her. The deluge of calls prior to July 4, starting on June 26, 2010 supports Ms. Chawner’s evidence that when reporting the suspicious tire punctures to the police, she mentioned the phone calls which led to Cst. Lennon’s intervention. [ 109 ] Notably, when Mr. Frank was contacted by Cst. Lennon about his persistent calling of Ms. Chawner, Mr. Frank made no mention of having a rogue phone. He just said he would stop contacting her. It defies logic that Mr.

Frank’s phone would spontaneously start dialing Ms. Chawner after July 4, 2010, the date when he said he stopped calling her. And that is not what Mr. Frank testified to anyway. His evidence was his phone had been a problem since 2008. He made no mention of this to Cst. Lennon nor did he offer in response to being told to stop calling Ms. Chawner the explanation that it was his phone causing the problem, not him. [ 110 ] At some point, Mr. Frank got a new phone number. His own evidence about when this happened was contradictory, confusing and, in my opinion, evasive.

He said he did not recall but several times he would respond with a month and year only to change his tack if that was shown to be irreconcilable with the documentary evidence or inconsistent with evidence he had given previously. [ 111 ] Exhibit 4 indicates that Mr. Frank got a new cell phone number 719-7191 on September 23, 2010. According to Mr. Frank the weird phone behaviour continued. Somehow he says, each of the phones he owned were making calls on their own. Exhibit 4, a print-out from Bell Mobility Cellular Inc. shows that 719-7191 called Ms.

Chawner’s cell, home or work numbers on the following dates: December 20, 2010, December 21, 2010 – twice, December 23, 2010, January 1, 2011, January 3, 2011, January 24, 2011, January 29, 2011, February 8, 2011 and February 15, 2011.

[ 112 ] Exhibit 2, Ms. Chawner’s careful record of calls reveals an interesting development. After Mr. Frank’s arrest on September 1, the calls stopped for two days. They resumed on September 3, 2010. But Mr. Frank’s cell phone number as of September 23, 2010 of 719- 7191 never appeared in relation to any of the calls Ms. Chawner received through to February 28, 2011 when the calls stopped completely. (I will note that Mr. Frank was arrested and has been in custody since March 1, 2011.) All the calls documented by Ms.

Chawner from September 3, 2010 to February 28, 2011 were either pay phone calls, blocked pay phone calls or simply blocked numbers with the exception of two calls that came up unknown names. It is as though the caller or callers had started taking extra pains to prevent Ms. Chawner from being able to tell who the calls are coming from. [ 113 ] Coincidentally, some numbers that Ms. Chawner recorded as incoming calls were the same numbers that Mr. Frank reported to Reverend Andrew for his documentation in Exhibit 14 as the numbers associated with the threatening calls he received. These were pay phones.

This would mean that in the summer of 2010 Ms. Chawner and Mr. Frank were being called by unknown persons from the same pay phones. That might fit nicely with Mr. Frank’s elaborate depiction of sinister goings-on but it is not believable. And what does it signify when examined through the lens of Mr. Frank’s theory that Ms. Chawner was behind the threats he was receiving? If that were so, Ms. Chawner would not only have been orchestrating threatening calls to Mr.

Frank from callers at specific pay phones, she would have been arranging for those same pay phones to be used to place calls to her. [ 114 ] There is only one word to describe what Mr. Frank has attempted to construct with allegations of conspiracy, death threats, stealth attacks, and menancing notes with Susan Chawner scheming behind the scenes, and that word is, preposterous. [ 115 ] Mr. Frank was arrested on January 31, 2011 and the calls stopped for two days again, resuming on February 3, 2011. [ 116 ] Although it was pointed out to Ms.

Chawner in cross-examination that there are approximately 20 instances where there are differences between her log (Exhibit 2) and the Bell Aliant print-out of calls for 220-4233 (Exhibit 3), I do not find that this creates a problem with respect to the identity of who was making the calls. There is ample evidence that it was Mr. Frank. Not only do I not believe his denials of having called Ms. Chawner after July 4 and reject his elaborate tale of rogue phones, there is the fact that he never mentioned his phone problems to Cst. Lennon. He had been calling Ms.

Chawner relentlessly from June 26 to July 4 and was, given all the evidence of his obsession with her, not about to stop trying to contact her. Furthermore, he was observed using pay phones by Larry Smith in suspicious circumstances. It is that evidence I will examine next. The Evidence of Larry Smith About the Pay Phones [ 117 ] Mr. Smith works for Atlantic Automatic Sprinkler and in that capacity worked with Mr. Frank. They started working together in about April 2010 [ 118 ] Mr. Smith recalls that Mr. Frank told him he was “seeing Susan” which Mr. Smith knew was Susan Chawner. He met Ms.

Chawner once when he opened a bank account at the credit union in Dartmouth where she worked. He never saw Ms. Chawner and Mr. Frank together, not socially or at company functions. [ 119 ] Mr. Smith “really didn’t know anything about the relationship.” He recalls that Mr. Frank talked “constantly” about Ms. Chawner; that was “all he talked about.” It was his belief that Mr. Frank was regularly calling Ms. Chawner and there were occasions when he talked to her on the phone. [ 120 ] Mr. Smith knew there was a period of time when Mr. Frank was prohibited from having contact with Ms. Chawner.

He believes this to have been from January to March 2011 although he is not sure of the dates. He knew about the no-contact conditions because Mr. Frank told him he was not allowed to have contact with her. [ 121 ] In this same period, Mr. Smith observed Mr. Frank regularly using pay phones even though he had a cell phone during this time. Mr. Smith saw him go to use pay phones every second or third day in 2011. [ 122 ] Mr. Frank would look for pay phones where there were no cameras. Mr. Smith believed this was because Mr. Frank did not want to be seen using the phone: he testified that Mr.

Frank “more or less told [him] that this was because he was on conditions.” Mr. Smith

acknowledged that Mr. Frank did not say he was concerned about the cameras because he was on conditions but Mr. Smith did not think he was avoiding them because he was generally paranoid. [ 123 ] Although Mr. Smith could not see who Mr. Frank was calling and never overheard any conversations, it did not appear to him that he was talking to anyone. He seemed to be listening to an answering machine. He would often come back to the van and say to Mr. Smith that “the bitch is not home, she is running the roads.” [ 124 ] It was Mr. Smith’s evidence that Mr.

Frank would take a rag with him and wipe the phone down after he used it. Mr. Smith found that odd but never confronted Mr. Frank about it. Mr. Frank denied doing this. [ 125 ] Mr. Smith was a straight-forward witness who had no reason to misrepresent or lie about his evidence. There is no evidence of any bad blood between him and Mr. Frank. He offered no gratuitous comments in testimony. I am satisfied he described what he saw which was Mr. Frank behaving in a suspicious and furtive manner when making calls from pay phones. And I am further satisfied that Mr. Frank was placing calls to Susan Chawner.

As I am satisfied he had done in the November 1 message, he referred to her as a “bitch”, a prejorative terms that reflects a degree of hostility toward Ms. Chawner that was also demonstrated by flattening her tires. Ms. Chawner’s Observations of Mr. Frank Outside Her Office [ 126 ] On September 1, 2010 Mr. Frank was released from police custody on an OIC undertaking prohibiting him from having communication or direct or indirect contact with Susan Chawner. He was also prohibited from going within a 50 meter radius of 5670 Spring Garden Road, the location of Ms. Chawner’s office. [ 127 ] On September 1, Ms.

Chawner noticed Mr. Frank and Mr. Smith parked in an Atlantic Sprinkler truck outside her office window that looked onto Brenton Street. Mr. Smith came into the Credit Union where Ms. Chawner is manager and did some banking. Mr. Frank remained in the truck. Ms. Chawner could see him clearly as he was in the passenger side of the truck next to her building. Ms. Chawner could see Mr. Frank with his arm resting on the truck window while he waited. He looked at Ms.

Chawner who has big windows in her office overlooking the street. [ 128 ] On four subsequent occasions, September 8, twice on October 13 and once on October 14, Ms. Chawner clearly saw Mr. Frank in the passenger seat of the company truck as the truck drove by her office window. She recognized the big blue company lettering on the van. She was especially alert when a cube van drove down the street because she was anxious about Mr. Frank coming in and harassing her at work. She did not know what he might do.

She noted her sightings and they are referred to in Exhibit 2. [ 129 ] According to Larry Smith, when his and Mr. Frank’s work required them to drive to jobs, Mr. Smith would usually drive with Mr. Frank in the passenger seat. They drove in a white cube van with the company name in large lettering on the side. The windows of the van are not tinted and it is highly visible. [ 130 ] Mr. Smith testified that while Mr. Frank was on conditions to stay away from Ms. Chawner, he – Mr. Smith - dropped into the Credit Union on Spring Garden Road having parked the van up on the sidewalk. Mr.

Frank would wait for him in the van. He had told Mr. Smith he was on conditions and not supposed to be there but he did not ask to be dropped off somewhere while Mr. Smith did this errand. [ 131 ] Mr. Frank was asked about his presence outside Ms. Chawner’s office between September 1 and October 18, 2010 and he denied being there. His evidence was that he “did not go to the Credit Union building at any time.” Instead he said, he was on “fire watch” at the job site in case a fire broke out while the sprinkler system was down. I do not believe him. Contact With Susan Chawner By Mr.

Frank Through Reverend Stephen Ashton [ 132 ] Mr. Frank did not deny talking to Reverend Ashton about arranging a meeting to resolve matters with Ms. Chawner. His evidence was that it happened in late June/early July 2010 before he was put on no-contact conditions on September 1, 2010. According to Mr. Frank, the early part of July was the last time he spoke with the rector about Ms. Chawner.

[ 133 ] This was not Reverend Ashton’s evidence. Reverend Ashton testified that he was approached by Mr. Frank both before and after Mr. Frank’s September arrest with requests that he set up a meeting with Ms. Chawner, at which Reverend Ashton would mediate, to resolve matters. He refused to do so although he told Mr. Frank he would tell Ms. Chawner that Mr. Frank wanted such a meeting. He conveyed that to Ms. Chawner and she told him Mr. Frank was not allowed to do that. The Phone Calls to Joyce Chawner [ 134 ] Between December 16, 2010 and March 1, 2011, Mr.

Frank was on a recognizance that prohibited him from directly or indirectly contacting or communicating with either Susan Chawner or Joyce Chawner. Under the terms of this recognizance he was also required to keep the peace and be of good behaviour. During this period, the Crown alleges he was repeatedly calling Mrs. Chawner at her home, conduct that, in the Crown’s submission, amounted to criminal harassment. [ 135 ] To prove criminal harassment, the Crown must establish beyond a reasonable doubt that Mr. Frank repeatedly called Mrs.

Chawner, that she was harassed by these calls, that he knew or was reckless or willfully blind to whether Mrs. Chawner was harassed, that the calls made Mrs. Chawner fearful, and that her fear was, in all the circumstances, reasonable. As for the recognizance breach charges, any contact or communication by Mr. Frank to Mrs. Chawner, even if it falls short of amounting to criminal harassment, will constitute a breach. [ 136 ] The calls to Joyce Chawner were one ring hang-up calls. She confirmed this, and the calls themselves which are documented in Exhibit 2, as calls she received.

These calls can only have been for the purpose of harassment. The caller could not have been trying to reach anyone because the calls were terminated after a single ring. They were also made at times when Mrs. Chawner would reasonably be expected to be asleep, for example, on December 19 at 5 a.m. and on December 22 at 10 minutes past midnight. Other calls came in late at night, such as 11:20 p.m. on Christmas Day, December 25 and 10:30 p.m. on December 27. [ 137 ] Mrs. Chawner was harassed by these calls. She doesn’t get up until 8 a.m.

For example, she testified that a call at 2:29 a.m. on January 2, 2011 would have woken her up. So would the calls on February 4 at 4 a.m. and February 5 at 6 a.m. and 7 a.m. Some days the calls were constant, such as February 12 and 13 when Mrs. Chawner received a total of 27 single ring calls. [ 138 ] I find that Mrs. Chawner was very nervous and frightened by everything that was happening, including the calls she was receiving, and all that her daughter was going through.

As she said in her evidence, “This all made me feel very nervous, frightened, what was he going to do next?” That was an entirely reasonable fear: not only had Mrs. Chawner been talking to her daughter, for example, about the mysterious tire punctures, there was the January 30 incident with Mr. Frank actually appearing in her driveway. [ 139 ] The remaining issue then is whether there is proof beyond a reasonable doubt that Joyce Chawner’s harassing caller was Mr. Frank. I am satisfied there is. I do not believe anything Mr. Frank has said about the events that have been the subject of this trial.

I found him to be dissembling and evasive. His evidence was full of fabrications and deceit. I do not believe that anyone other than Mr. Frank was responsible for making the harassing calls to Mrs. Chawner. Not only do I disbelieve Mr. Frank’s denials, the rest of the evidence leads to only one inference; that Mr. Frank targeted Mrs. Chawner as part of a campaign to make Susan Chawner’s life miserable. That is entirely consistent with his other strategies during this time. [ 140 ] The evidence satisfies me that Mr.

Frank was obsessed with Susan Chawner, could not cope with her pulling back from the friendship, especially given the fanciful notions he had about their relationship, and became consumed by jealousy and vengefulness. He could not let Susan Chawner go. He visited his hostility on Susan Chawner by puncturing her tires. Staples found in Ms. Chawner’s and her mother’s driveways were identical to the staples that Larry Smith said were brought on to the truck in abundance by Mr. Frank. He manufactured stories about rogue cell phones and stealthy assailants. He crafted menacing notes and left cryptic messages.

He even inflicted superficial injuries on himself and concocted another fable about being attacked. He was not living by biblical teachings of kindness and love: he wanted Susan Chawner to be his and he was angry that she had cut off contact with him. He thought of her as a “bitch” and chafed at not being able to have what he wanted from her. In the course of his preoccupation with Ms. Chawner and his thwarted hopes, he crossed the bright lines of the criminal law. I have found no reasonable doubt in this case in relation to any of the charges, not in Mr.

Frank’s evidence and not on the evidence as a whole. [ 141 ] Although I am going to stay some charges under the Kienapple principle, I am satisfied the Crown has proven the charges against Mr. Frank beyond a reasonable doubt. His guilt is the only reasonable inference to be drawn from the evidence in this case. I am therefore finding Mr. Frank guilty as follows:

[ 142 ] On the Information sworn November 3, 2010: • On September 1, 2010, breaching an OIC undertaking issued September 1, 2010 by going within a 50 meter radius of 5670 Spring Garden Road contrary to section 145(5.1) of the Criminal Code ; [Count 1] • On September 8, 2010, breaching an OIC undertaking issued September 1, 2010 by going within a 50 meter radius of 5670 Spring Garden Road contrary to section 145(5.1) of the Criminal Code ; [Count 2] • On October 13, 2010, breaching an OIC undertaking issued September 1, 2010 by going within a 50 meter radius of 5670 Spring Garden Road contrary to section 145(5.1) of the Criminal Code ; [Count 3] • On October 13, 2010, breaching an OIC undertaking issued September 1, 2010 by again going within a 50 meter radius of 5670 Spring Garden Road contrary to section 145(5.1) of the Criminal Code ; [Count 4] • On October 14, 2010, breaching an OIC undertaking issued September 1, 2010 by going within a 50 meter radius of 5670 Spring Garden Road contrary to section 145(5.1) of the Criminal Code ; [Count 5] • On November 1, 2010, breaching an OIC undertaking issued September 1, 2010 by going within a 50 meter radius of 5670 Spring Garden Road contrary to section 145(5.1) of the Criminal Code ; [Count 6] • Between August 31 and November 2, 2010, breaching an OIC undertaking issued September 1, 2010 by having indirect contact with Susan Chawner. (This charge relates to the communication by Reverend Ashton to Ms.

Chawner following Mr.

Frank’s request, while he was on no-contact conditions, for a meeting.) [Count 7] [ 143 ] On the Information sworn March 2, 2011, offence dates October 22, 2010 – March 1, 2011: • Breaching an OIC undertaking issued September 1, 2010 by having direct or indirect contact with Susan Chawner through phone calls contrary to section 145 (5.1) of the Criminal Code ; [Count 1] • Breaching his recognizances dated November 4, 2010, December 13, 2010, and February 2, 2011 by having direct or indirect contact with Susan Chawner through phone calls contrary to section 145 (3) of the Criminal Code ; [Counts 3, 5 and 7] • Unlawfully and willfully damaging Susan Chawner’s car tire, thereby committing mischief contrary to section 430(4) of the Criminal Code ; [Count 8] • Convictions for breaching recognizances dated November 4, 2010, December 13, 2010, and February 2, 2011 by failing to keep the peace and be of good behaviour contrary to section 145 (3) of the Criminal Code are stayed. [Counts 2, 4, and 6] [ 144 ] On the Information sworn March 2, 2011, offence dates December 16, 2010 – March 1, 2011: • Criminally harassing Joyce Chawner between December 16, 2010 and March 1, 2011, contrary to section 264(2) of the Criminal Code and of breaching his recognizance dated February 2, 2011 by having direct or indirect contact or communication with Joyce Chawner, contrary to section 145(3) of the Criminal Code ; [Counts 1 and 3]

• A conviction for breaching a recognizance dated February 2, 2011 by failing to keep the peace and be of good behaviour contrary to section 145 (3) of the Criminal Code is stayed. [Count 2] [ 145 ] On the Information sworn February 1, 2011, offence date January 30, 2011: • On January 30, 2011, breaching his recognizance dated November 4, 2010 by having direct or indirect contact or communication with Susan Chawner, contrary to section 145(3) of the Criminal Code ; [Count 2] • On January 30, 2011, breaching his recognizance dated December 13, 2010 by having direct or indirect contact or communication with Susan Chawner, contrary to section 145(3) of the Criminal Code ; [Count 4] • Breaching an OIC undertaking issued September 1, 2010 by communicating with and having direct or indirect contact with Susan Chawner contrary to section 145 (5.1) of the Criminal Code ; [Count 5] • Convictions for breaching recognizances dated November 4, 2010 and December 13, 2010 by failing to keep the peace and be of good behaviour contrary to section 145 (3) of the Criminal Code are stayed. [Counts 1 and 3]