) ) HER MAJESTY THE QUEEN Respondent – v. –, 2017 ONSC 6044

CITATION : R v. Clarke, 2017 ONSC 6044 COURT FILE NO.: 15-19593 DATE: 2017/10/10 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN Respondent – and – MATTHEW CLARKE Appellant ) ) ) ) ) ) ) ) ) Moiz Karimjee for the Respondent M. Elizabeth Warren, for the Appellant ) ) ) HEARD: August 16, 2017 REASONS FOR JUDGMENT JUSTICE S. GOMERY [ 1 ] On September 8, 2015, Matthew Clarke was found guilty of criminally harassing his former girlfriend Cassandra Parent. This was his third conviction for harassing Ms. Parent after they ceased being romantically involved in 2014.

In March and April 2015, while in jail awaiting trial on a previous charge, Mr. Clarke wrote Ms. Parent four letters saying that he loved her, blaming her for his situation, and expressing his desire that they get back together after his release. The judge found that he also made phone calls to Ms. Parent between March 23 and June 3, 2015, and sent two messages to Dylan on Facebook. At the time, Mr. Clarke was prohibited from communicating with Ms. Parent and her son, Dylan Parent. [ 2 ] Mr. Clarke is appealing his conviction for criminal harassment and related charges.

He admits that he wrote the letters, but claims that he did not think that Ms. Parent would receive them. He also admits to the Facebook messages. He argues, however, that it was unreasonable for the judge to conclude that he repeatedly phoned Ms. Parent between March 23 and June 5. Mr. Clarke also argues that the trial judge failed to consider his defence regarding the letters, and that the reasons given by the judge for her conclusions are inadequate. [ 3 ] I am dismissing Mr. Clarke’s appeal for the reasons set out below. What evidence did the trial judge hear and what did she decide? [ 4 ] Mr.

Clarke was charged with seven counts: one count of criminal harassment, one count of making harassing phone calls, one count of failing to comply with a recognizance and four counts of failing to comply with a probation order. He was convicted on all counts, but the charge based on the harassing phone calls was stayed pursuant to Kienapple principles. This appeal accordingly relates to the conviction on the six remaining counts. [ 5 ] At trial, Mr. Clarke plead not guilty to all counts, but made various admissions. As a result, the following facts are not in dispute: (

a) On November 25, 2014, Mr. Clarke plead guilty to a first charge of criminal harassment of Ms. Parent. As part of his sentence, he was ordered not to communicate with Ms. Parent for 12 months. This condition remained in force between March 23 and June 3, 2015. (I will refer to this period as the “charging period”.) (

b) On December 5, 2014, Mr. Clarke was released on bail after being charged with breaching the terms of the November 25, 2014 order. As a condition of his release, he was again prohibited from contacting or communicating with Cassandra Parent or Dylan Parent. This order was also in force during the charging period. (

c) Mr. Clarke was in custody at the Ottawa-Carleton Detention Centre during most of the charging period. While at the OCDE, Mr. Clarke wrote four letters addressed to “Angel Parent” on March 23, March 26, March 31 and April 7, 2015. (

d) On April 30, Mr. Clarke was convicted of further criminal harassment of Ms. Parent and making repeated phone calls to her

in the period of November 2014 to early February 2015. He was sentenced to 42 days in jail in addition to 138 days of presentencecustody. Once released, Mr. Clarke was subject to a further probation order prohibiting him from any contact or communication withCassandra or Dylan Parent. (

e) Mr. Clarke commented on a Facebook posting by Dylan Parent on May 30, 2015. [6] As a result of Mr. Clarke’s admissions and the statements made to Detective Johnson, many elements of the charges againstMr. Clarke were never in doubt. He indisputably wrote four letters to Ms. Parent despite orders prohibiting him from doing so. He alsocommunicated electronically with Dylan Parent when he was prohibited from doing so. The issues left for the trial judge to resolve wereMr. Clarke’s intent when he wrote the letters and messaged Dylan Parent, whether he placed calls to Ms. Parent during the chargingperiod, Mr.

Clarke’s intent in his communications and whether Ms. Parent felt harassed. [7] The Crown called Ms. Parent, Dylan Parent and the arresting officer, Detective Johnson, as witnesses. [8] Ms. Parent testified that she received many calls from an unknown number during the charging period. Ms. Parent answeredtwo of these calls. Both times, it was Mr. Clarke calling. The first time, he asked if Ms. Parent still hated him before Ms. Parent hungup. The second time, Mr. Clarke said only “hello” before Ms. Parent hung up. She testified that she felt scared when Mr.

Clarkecontinued his attempts to talk to her through his phone calls. [9] Dylan Parent also testified that his mother had received many phone calls from an unknown number during the chargingperiod. He described the phone calls as “…an alarm clock going off, but all day long”. Dylan answered one of these calls in May 2015. It was Mr. Clarke. During the call, Dylan attempted to persuade Mr. Clarke to stop phoning his mother. [10] Detective Johnson testified about two telephone conversations he had with Mr. Clarke on June 7 and June 10, 2015.

Thesecalls were recorded, and the transcripts of the calls were introduced into evidence. During the first call, Mr. Clarke denied writing lettersto Ms. Parent while in jail, or making any phone calls to her. During the second call, Mr. Clarke admitted that he wrote the four lettersand said he accidentally messaged Dylan on Facebook. He continued to deny making any calls to Ms. Parent over the preceding fewmonths. [11] Mr. Clarke did not testify. [12] The trial judge concluded that Ms. Parent’s account was credible and reliable. She rejected defense counsel’s characterizationof her evidence as evasive or vague.

She also found that Dylan Parent was an honest witness. She rejected Mr. Clarke’s denials toConstable Johnson during the two June 2015 phone calls as internally and externally inconsistent. [13] The trial judge concluded that: • Mr. Clarke intentionally addressed his first letters to Angel Parent rather than Cassandra Parent because he hoped that they wouldget through the jail’s screening process. • Whether or not Mr. Clarke’s initial Facebook message to Dylan was a mistake, the second message was intentional.

In thismessage, he said that “six months was enough for loving someone too much” and sent his “best wishes”. • During the charging period, Mr. Clarke made two calls from an unknown number that were answered by Ms. Parent, and one callthat was answered by Dylan Parent. • Mr. Clarke made numerous other phone calls to Ms. Parent at her home and on her cell phone during the charging period. Thejudge inferred that these calls were placed by Mr. Clarke either directly from jail, or through three-way calling with the assistance ofanother person. • Mr. Clarke’s intent was to harass Ms. Parent.

She had told him she wanted nothing to do with him, but he persisted. At best, Mr.Clarke was willfully blind to Ms. Parent’s feelings. • Ms. Parent felt harassed by Mr. Clarke. [14] Based on the test for criminal harassment set out in R. v. Moss, 2011 ONSC 5143 and R. v. Kosikar (1999), (ON CA), 138 C.C.C. (3d) 217 (ONCA), the judge found Mr. Clarke guilty as charged. Was the verdict reasonable? [15] Mr. Clarke’s attack on the reasonability of the verdict centres on the judge’s conclusion that Mr. Clarke phoned Ms. Parentrepeatedly during the charging period.

The defense argues that the judge overlooked weaknesses in the Crown’s evidence while unfairlyrejecting Mr. Clarke’s explanations and engaging in “propensity reasoning” and speculation. [16] The biggest problem with all of these arguments is that the Crown did not need to show that Mr. Clarke was responsible forthe many unanswered calls to Ms. Parent to prove its case. The judge concluded that Mr. Clarke’s other conduct – the four letters, thethree calls answered by Ms. Parent and Dylan Parent, and the Facebook messages – constituted harassment.

This alone is sufficient todispose of this ground of the appeal. [17] This problem aside, however, I conclude that the judge’s finding regarding the unanswered phone calls was reasonable. [18] Defense counsel argues that the Crown could not prove beyond a reasonable doubt that Mr. Clarke made the calls from anunknown number, and that there was insufficient evidence to establish that he could have used three-way calling or someone else’s

phone while he was in jail. The accused also contends that Ms. Parent was vague about when she received the phone calls, and that thecalls could have been made before the charging period. [19] This is not a situation analogous to R. v. Gravesande, (2015), 2015 ONCA 774 , 128 O.R. (3d) 111 (ONCA), where atrial judge rejected an accused’s evidence for spurious and speculative reasons. The judge here believed the Parents’ testimony aboutthe three phone calls placed from an unknown number during the charging period that turned out to be from Mr.

Clarke, she acceptedthat the call answered by Dylan Parent was made while Mr. Clarke was in jail, and that there was no-one else in Ms. Parent’s life whowas calling her incessantly. Constable Johnson testified that a person detained at the Ottawa Carleton Detention Centre couldcircumvent restrictions on outside calls by using three way calling. Given all of this, it was not speculative or unreasonable for the judgeto conclude that Mr. Clarke was responsible for the calls from an unknown number during the charging period. [20] The trial judge briefly canvassed the history between Mr. Clarke and Ms. Parent.

This history was relevant to explain whyMs. Parent felt harassed, and why Mr. Clarke knew that she would feel this way (R. v. Kosikar, at para. 27). The judge made the point,however, that she was not swayed by the belief that Mr. Clarke was more likely to harass Ms. Parent because he had done so in the past. [21] According to Mr. Clarke, the judge inferred that he was more likely to have made the unanswered phone calls because he alsosent four letters to Ms. Parent during the same period. If the letters were the only basis for the judge’s conclusion on the phone calls,there would be cause for concern.

As already noted, however, the judge had other evidence grounding her finding that Mr. Clarke madethe phone calls. She did not need to resort to propensity reasoning to reach this conclusion. [22] An appeal court reviewing a trial judge’s credibility assessment may only interfere if the judge’s conclusions cannot besupported “by any reasonable view of the evidence” (R. v. R.P., 2012 SCC 22 , [2012] 1 S.C.R. 746 at para. 10; see also R. v.Burns, (SCC), [1994] 1 SCR 656). The judge’s conclusions regarding Mr. Clarke’s conduct during the charging periodwas based on a reasonable view of the evidence.

It follows that her conclusions, and the verdict, were also reasonable. Did the judge fail to consider the defence of honest but mistakenbelief? [23] The judge considered Mr. Clarke’s statement to Constable Johnson that he did not think letters he addressed to “Angel Parent”would reach Ms. Parent. She rejected this evidence, stating: I find that Mr. Clarke intentionally wrote the name Angel to get around the screening process. Mr. Clarke maintained that he was justwriting things down, yet he placed his letters in envelopes and wrote Ms. Parent’s address and his own return address on the envelopes.

His evidence in this regard is illogical. In addition, the accused wrote “please write back” in his letter dated March 31st. This is inconsistent with someone who was writingdown his thoughts. [24] On appeal, I cannot substitute my view of the evidence for that of the trial judge unless she made a palpable and overridingerror (Housen v. Nikolaisen, 2002 SCC 33 , [2002] 2 SCR 235 at para.5). No such error has been identified. [25] The trial judge did not mention the defense of mistaken and honest belief in her reasons.

Given her finding about Mr.Clarke’s intent in addressing the letters, however, this defence could not possibly succeed. This ground of appeal must be rejected. Were the judge’s reasons deficient? [26] A judge’s reasons must show why she decided as she did (R. v. Vuradin, 2013 SCC 38 , [2013] 2 SCR 639 at para.15). The judge must make essential findings of credibility and resolve critical legal issues (R. v. REM, 2008 SCC 51 , [2008] 3S.C.R. 3 at paras. 15 and 157). Trial judges are not obliged to discuss all of the evidence or address every argument raised by counsel (R.v.

Morin, (SCC), [1992] 3 S.C.R. 286 at para. 296). [27] The trial judge’s reasons are more than adequate. She explained why she preferred the evidence of the Crown’s witnessesover that of Mr. Clarke. She set out the legal test for harassment I have no doubt as the evidentiary basis for her conclusions. [28] The appeal is accordingly dismissed. Justice S. Gomery

Released: 2017/10/10 CITATION : R v. Clarke, 2017 ONSC 6044 COURT FILE NO.: 15-19593 DATE: 2017/10/10 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN Respondent – and – MATTHEW CLARKE Appellant REASONS FOR JUDGMENT Justice S. Gomery Released: 2017/10/10