Stephen Lee Dexter Appellant v. Her Majesty the Queen by her Attorney General for Nova Scotia Respondent Judge: The Honourable Justice Margaret Stewart, 2016 NSSC 265

SUPREME COURT OF Nova Scotia Citation: R. v. Dexter , 2016 NSSC 265 Date: 20161005 Docket: Hfx No. 442897 Registry: Halifax Between: Stephen Lee Dexter Appellant v. Her Majesty the Queen by her Attorney General for Nova Scotia Respondent Judge: The Honourable Justice Margaret Stewart Heard: May 11, 2016, in Halifax, Nova Scotia Counsel: David A. Grant, for the Appellant Michelle D. James, for the Respondent By the Court: [ 1 ] This is a

summary conviction appeal. Against a background of texting his estranged wife of two months some 82 times and calling her some 29 times in just over 24 hours, Stephen Dexter seeks to set aside his September 30, 2013 conviction for criminal harassment, pursuant to Section 264 (2) (

b) of the Criminal Code of Canada , R.S.C. 1985, c. C-46. [ 2 ] The trial judge was satisfied beyond a reasonable doubt that Stephen Dexter, with intent, repeatedly communicated with Lisa Dexter, knowing, that his conduct caused Lisa Dexter to be harassed, or at least was aware of such a risk and was reckless as to whether she was harassed and that Lisa Dexter was harassed, and that his conduct caused her to fear for her safety and that her fear was, in all of the circumstances, reasonable. Background [ 3 ] After nine years of marriage, Lisa Dexter and Stephen Dexter separated at the end of July 2013.

Contact between them ended on September 30, 2013, the date she went to the police. The Dexters were involved in Family Court proceedings. Lisa Dexter is the primary parent of their two children then aged 4 and 7 years. [ 4 ] At trial, the Crown called evidence from Lisa Dexter, and Constables Willet and Cantfell. Their evidence was reviewed in detail by Judge Frank Hoskins of the Nova Scotia Provincial Court. In her evidence, Lisa Dexter described the repeated phone calls and text messages received from the appellant. Copies of the text messages were tendered as an exhibit.

They show the dates and times and content of the various messages. [ 5 ] Lisa Dexter described the nature of their relationship with more details about post separation and specifics about exchanges and conduct at their daughter’s birthday party on September 29, 2013, the appellant’s anger, as well as fear of the appellant’s behaviour. She described him as unpredictable when he was angry. She described his threats to rip the front door off their house with his truck, and threats to attend at her place of employment in addition to prior incidents of violence and threats by him.

She testified to telling him in August verbally and through texts to stop communicating with her and the consequence of her going to the police if he did not stop. She stated she gave him lots of chances prior to September 30th. [ 6 ] Following their daughter’s birthday party on September 29, the appellant sent Lisa Dexter 82 text messages and called her 29 times in just over 24 hours. The entire time there were two one word negative text responses by Lisa Dexter. None of the unanswered phone calls lasted longer than 93 seconds and a number were in a repetitive series seconds apart.

He messaged Lisa Dexter looking to talk to his 4 and 7 year old daughters after 10 p.m. On cross examination, he acknowledged that the children would have been in bed at

that time. The next morning at 6:02 a.m., he messaged her about taking his money and called her a “fucking cow”, at 8:06 a.m. told her“Fuck you asshole” when she responded no to his emails about attending counselling and between 9:28 a.m. and 12:00 p.m., she took hisrepeated direction to call him to be orders. [7] When asked if he understood that Lisa Dexter had no obligation to speak to him, the appellant’s response was “She’s mywife”. Further, when later asked the question: Q. At some point in time do you not think to yourself, “Hey, maybe she doesn’t want to talk to me? He testified: A.

Or she - or she’s leading me on. Adding this all up. Knowing she’s getting me mad. Q. So that—that doesn’t cross your mind at all? A. No Q. That maybe she doesn’t want to talk to you? A. No. I knew she’d talk to me sooner or later. The appellant continued to message and call Lisa Dexter while she was at the police station giving a statement to Cst. Willett. Hispersistence was so disruptive that the officer eventually answered the phone. The Cst. identified herself, and told the appellant that thepolice would be in touch with him regarding the complaint of Lisa Dexter.

The male on the other end identified himself as the appellant,and said he was coming to the police station. He further told the police that if nobody answered the door, he would kick it in. Aftertalking with the Cst, he still continued to text. [8] A short time later, the appellant followed through and arrived at the police station. He was met by Cst. Cantfell. The Cst.testified that the appellant was taken into the police station and continued yelling “vulgar” comments to Lisa Dexter, as he was beingescorted down the hall. The appellant was described by Cst.

Cantfell as “confrontational”, “yelling quite loudly” and “adamant that hespeak to his wife”. [9] Over the timeframe of the text messaging, she described feeling a very uncomfortable mix of scared, exhausted, nervous, andhypervigilant as she knew how unpredictable he could be when angry and she had never seen him that intensely angry for this longbefore. His willingness to make comments at his daughter’s birthday party in front of adult witnesses and children left her concerned andnot knowing what he might do to her if he showed up at her residence or place of work as threatened.

Absolutely, nothing felt rationaland therefore, she could not predict “what was going to go on”. On cross examination, she stated she thought he was going to “hurt heremotionally, psychologically and physically.” [10] Stephen Dexter testified that the purpose of the calls and texts were basically to deal with child access, matrimonial finances,and work around the house issues. As to how the number of calls on September 29 and 30th compared to other days, it depended onwhether she would call him or not. When she would not talk to him, he would contact her more often.

He did text her “cat got yourtongue” and indicated that “she was probably adding this all up to get me in trouble” and asked “why didn’t she block my phone.” Hedisagreed that his vulgar responses and name calling indicated that he was upset. Texts about “I will go thru the door its mine” andtelling her he was coming over to her work were to “wake her up” and get her to respond to his financial enquiries. Neither action wastaken. As for the 24 hours of unanswered texts and phone calls, he felt it was not a question of Lisa Dexter not wanting to talk to him ashe “knew she would talk to me sooner or later”.

Issues [11] The Notice of Appeal sets out the following two issues on appeal: 1. The learned trial Judge erred in law in defining what element of fear was required to be experienced by Lisa Dexter and erred inentering a conviction when there was no evidence of any fear that she may have experienced that was reasonable. 2. The learned trial Judge erred in law in failing to apply the rules set out in R v.

WD and in considering whether there was areasonable doubt that the accused was guilty of the offence. [12] In his factum, the appellant expands the issue of unreasonable verdict to include the lack of an evidentiary basis for otherelements of the offence; and raises the trial judge’s failure “to consider the reasonable doubt issue in terms of the actions being a lawfulmeans of communication relating to child access and other matrimonially related matters.” Standard of Review [13] This appeal seeks to overturn the conviction on the grounds that the verdict is unreasonable or cannot be supported by theevidence and is clearly wrong in law, pursuant to S. 686(1)(

a) of the Code. [14] The test to be applied by the appellate court in reviewing guilty verdicts for unreasonableness is well settled. A verdict isunreasonable or cannot be supported by the evidence if it is one that a properly instructed jury acting judicially could not reasonably haverendered: R. v. Yebes, (SCC), [1987] 2 S.C.R. 168 (S.C.C.) at p. 185. The appellate court reviews and considers the trialjudge’s reasons for his or her findings as part of its reasonableness analysis.

In doing so, the reviewing court must give weight to theadvantages of the trier of fact who was present throughout the trial seeing and hearing the evidence as it unfolded and not find the verdictunreasonable simply because it had a reasonable doubt based on its review of the record. On the other hand, it is not a question of just

asking whether there is evidence in the record to support the verdict, but also whether the trier’s conclusion conflicts with the bulk ofjudicial experience derived in part by reviewing, analyzing and within the limits of appellate disadvantage, weighing the evidence: R. v.Biniaris, 2000 SCC 15 at para. 36, 39 and 40. [15] Application of the test for unreasonable verdict occurs in cases such as this one in which the verdict is based on an assessment ofwitness credibility: R. v.

W. (R.), (SCC), [1992] 2 S.C.R. 122, at para 20: It is thus clear that a court of appeal, in determining whether the trier of fact could reasonably have reached the conclusion that theaccused is guilty beyond a reasonable doubt, must re-examine, and to some extent at least, reweigh and consider the effect of theevidence. The only question remaining is whether this rule applies to verdicts based on findings of credibility. In my opinion, it does. The test remains the same: could a jury or judge properly instructed and acting reasonably have convicted?

That said, in applying thetest the court of appeal should show great deference to findings of credibility made at trial. This Court has repeatedly affirmed theimportance of taking into account the special position of the trier of fact on matters of credibility: White v. The King, (SCC), [1947] S.C.R. 268, at p. 272; R. v. M. (S.H.), (SCC), [1989] 2 S.C.R. 446, at pp. 465-66. The trial judge has theadvantage, denied to the appellate court, of seeing and hearing the evidence of witnesses.

However, as a matter of law it remains open toan appellate court to overturn a verdict based on findings of credibility where, after considering all the evidence and having due regard tothe advantages afforded to the trial judge, it concludes that the verdict is unreasonable. [16] In applying same, the appellate court must show great deference to the trier of fact’s assessment of witness credibility given thetrier’s advantage in seeing and hearing the witnesses’ evidence. Directions on the parameters are provided in R. v.

P. (R.), 2012 SCC 22at para. 10: Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact. A court of appealthat reviews a trial court's assessments of credibility in order to determine, for example, whether the verdict is reasonable cannot interferewith those assessments unless it is established that they "cannot be supported on any reasonable view of the evidence" (R. v.

Burke, (SCC), [1996] 1 S.C.R. 474, at para. 7). [17] In assessing the reasonableness of a guilty verdict, the role of an appellant judge is not to retry the case or simply substitute hisor her views for those of the trial judge; rather, it is to determine whether there was evidence on the record to support the verdict.

Analysis The trial judge failed to consider the existence of lawful authority for the appellant’s conduct. [18] The appellant submits as there is an obligation placed on both parties to a marriage, when separated, to communicate and dealwith issues of child access and matrimonial property and texting and calling were the appellant’s and complainant’s regular and onlymethods, the trial judge failed to consider the existence of lawful authority for the appellant’s conduct. [19] There is no merit to this grounds of appeal.

Firstly, with further elaboration to follow, the appellant’s various text messageswere not limited to words and content concerning access to the children, marriage counselling, and matrimonial debts as asserted by theappellant. Secondly, as argued, no authority is provided for the underlining proposition that married parties in the midst of a separationcan contact each other endlessly and not be subject to the provisions of the Criminal Code. A parties married marital status does notexempt him from a criminal harassment conviction. (R. v.

Skoczylas (BC CA), 99 B.C.A.C. 1) [20] There is no lawful authority for the appellant’s conduct. The trial judge’s verdict was unreasonable in failing to define and apply elements and in concluding they were supported by theevidence. [21] To support his contention of an unreasonable verdict the appellant asserts errors of law and a decision unsupported by theevidence. [22] The appellant challenges factual findings and emphasizes various aspects of the defence evidence. Communication concerningchildren, property and finances was the focus and not topics intended to harass.

There was a need and an obligation on the parties in themidst of separation to communicate and deal with such issues. Texting and calling was their regular and accepted method ofcommunicating. Texting was insisted upon by Lisa Dexter. At times, it became unpleasant. The communication became unwanted on themorning of the day of the charge. The evidence remained unclear as to whether the appellant was aware of this change, until the policeofficer advised him that there was a problem. He proceeded to the police station to try to resolve the matter. The time involved was lessthan 24 hours.

This should have left a reasonable doubt. [23] As for proof of the elements, there was an “absence of any specific identified fear by the complainant”, no indication of anythreat, and no finding that fear was “directed to someone”. The use of bad language was insufficient to establish fear. Lisa Dexter notknowing “what he might do” was not enough to formulate a reasonable fear for her safety.

Neither was it open to the trial judge to makealternative findings that the appellant had knowledge and was reckless as to whether Lisa Dexter was harassed. [24] The trial judge thoroughly and correctly reviewed the law of criminal harassment.

He set out the five elements as cited in R v.Cromwell 2008 NSCA 60; reviewed both the subjective and objective mens rea requirement for criminal harassment; discussed the needto apply a contextual approach to establish the requisite mens rea and the factual and evidential parameters thereof which included athorough examination of the circumstances surrounding the appellant’s and the complainant’s relationship; reviewed the case law as itapplied to each element of harassment after defining same and then conducted a detailed analysis of each element on the evidence,overall context where appropriate and totality.

[25] His reasons reveal that he was alive to the applicable legal principles and entered a verdict consistent with the factualconclusions reached. Short of palpable and overriding error, it is not appropriate for this court to disturb the trial judge’s factual findings. [26] It is quite apparent, from the transcript and the learned trial judge’s written decision that he was thoroughly aware of the contextand meaning of the words “fear and safety” and insured that those meanings were made explicit.

In law, there is no requirement thatthreats to cause harm be uttered for there to be a finding of criminal harassment. He correctly considered the complainant was entitled tobe concerned about her psychological welfare as well as her physical safety.

Noting that the text messages on a plain reading did not, inisolation, read as a threat to cause fear for one’s safety, he logically reasoned that: ...the language used in some of the texts and the number of the messages and calls, the context in which they were made, cumulatively isthreatening from an objective view, as the language of some of the text messages, in the context of all of the evidence, reveals as much asit conceals. [27] He ultimately concluded after having considered Lisa Dexter’s evidence, coupled with all of the evidence proffered in theCrown’s case, including the appellant’s conduct at his daughter’s birthday party, his threat to rip the front door off of Lisa Dexter’shouse with his truck, his threat to kick in the door at the police station, and his behaviour at the police station, and the history betweenthe appellant and Lisa Dexter that he was satisfied beyond a reasonable doubt that the appellant’s repeated communication caused LisaDexter to fear for her safety, and that her fear for her safety was reasonable in light of the circumstances. [28] The suggestion that the evidence on the communication between the appellant and complainant centred on topics of childaccess, finances and marriage counselling is just not the case as both words, context and frequency provides otherwise.

The appellantnever had carte blanche to communicate with Lisa Dexter as often as he felt like it or to ignore her refusal to do so simply because shewas his wife. No basis existed for him to expect, if he persisted enough, she would communicate with him eventually and her wishescould be ignored.

Over a 24 hour period against the context of a history of physical intimidation and anger, along with arguing, beingangry, name calling, and being confrontational at the birthday party, some 80 texts eliciting two one word responses were sent and some29 unanswered phone calls were made that captured the emotional stress, frustration and anger that the trial judge found. A theme ofthreatened property destruction was later redirected at the police. By the time Lisa Dexter presented at the police station to make astatement, the appellant’s conduct peaked and the repeated calls caused the police to answer.

He never reassessed his own behaviour.Subsequent texts followed.

His presence at the police station had nothing to do with any request from the police to attend or wanting tospeak to them about the situation; rather, he was so angry and upset with his wife, he ignored the fact that the police advised him thatthey would be in touch, told them he was coming, threatened to kick in the station door and on arrival was adamant that he speak to thecomplainant all the while yelling, calling her names and presenting as confrontational to the officers. [29] It was clearly open to and appropriate for the trial judge to conclude beyond a reasonable doubt that the appellant knew thatLisa Dexter was being harassed or was reckless as to whether she was being harassed.

He sets out the evidence at paragraphs 188-190relying in part on the appellant’s direct words and undisputed evidence. [30] There is no basis for holding that the trial judge either misapprehended the evidence as it applied to the elements or that he didnot give it full force and effect in law.

It simply did not raise a reasonable doubt in his mind. [31] Having read and reviewed the evidence, I am satisfied the learned trial judge was eminently justified in concluding that on anevidentiary basis the charge was made out against the appellant and in so doing, he properly defined and applied the law. [32] There is no merit to this ground of appeal. The trial judge erred in law by reciting but not applying the test in R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742(S.C.C.) [33] The appellant argues that while the W.(D.) test is “accurately stated that there is no indication” in the trial judge’s “decision thathe applied it” and reiterates “that no analysis or review involving the rule occurred beyond the statement of the rule and an indicationthat in all the circumstances the appellant was guilty”. [34] Respectfully, there is no merit to this aspect of the appeal. [35] The trial judge was well aware of the guidance offered by the Supreme Court in R. v. W.(D.), supra. and need to apply same. Hestated: 100 W(

D) is concerned with how a trier of fact should apply the burden of proof in a criminal case where the accused testifies. 101 In brief, I must remember that the issue is not whether I believe Mr. Dexter, but whether the evidence as a whole convinces me ofthe (sic) Mr. Dexter’s guilt beyond a reasonable doubt. If I believe the exculpatory evidence of the accused, Mr. Dexter, an acquittalmust follow. However, even if I do not believe that evidence, I must ask myself, if it nonetheless gives rise to a reasonable doubt. 102 Finally, if I do not believe Mr.

Dexter and am not left in doubt on the basis of that evidence, I must still address and resolve themost critical, in fact, the only question in every criminal case: Does the evidence as a whole convince me of guilt beyond a reasonabledoubt? [36] Before going on to note the W.(D.) test is not a “magic incantation” mouthed to avoid appellate intervention by quoting R. v.

Mah , 202 NSCA 99 at para.41, he correctly stressed that the ultimate issue is not credibility but reasonable doubt. That said, in his assessment of credibility, besides considering W.(D.) “Special Instructions”, he was alive to the distinction between credibility and reliability and weight afforded to demeanour. [ 37 ] The trial judge noted the requirement to consider the whole of the evidence to determine whether there was a reasonable doubt. He relied on the cumulative effect of the evidence combined in the context of all of the evidence.

His rejection of the accused’s testimony was based on noted flaws as to its reasonableness and a considered and reasoned acceptance of the complainant’s testimony with sufficient reasons given regarding its credibility and reliability. He found the appellant’s explanation to deify credulity and to be inconsistent with his state of mind. He discussed the complainant’s evidence at length and gave several reasons why he found her evidence to be both credible and reliable. He found confirmatory evidence and her to be consistent, forthright and palpable.

He properly applied the burden of proof in assessing credibility and reliability. [ 38 ] The accused’s evidence was not accepted simply because the evidence of the complainant was accepted. Any reasonable view of the evidence as a whole supports the trial judge’s assessment. Conclusion [ 39 ] For all of the above reasons, I would dismiss the appeal. Stewart, J.