



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cook, 2013 ONCA 467

DATE: 20130709

DOCKET: C47282

MacPherson, Cronk and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

William Cook

Appellant

William Cook, in person

Breese Davies, duty counsel

Elise Nakelsky, for the respondent

Heard: July 4, 2013

On appeal from the convictions entered by Justice Paul U.
    Rivard of the Superior Court of Justice, sitting with a jury, on May 13, 2005,
    and the sentence imposed by Justice Rivard, on November 22, 2006.

By the Court:

[1]

The appellant was convicted of two counts of criminal harassment and one
    count of threatening death pertaining to Bernard Lenouvel, the appellants
    mothers common law spouse, and Laura Cook, the appellants sister, as well as
    one count of failing to comply with a probation order that required the
    appellant to keep the peace and be of good behaviour.  He was acquitted of
    additional counts of criminal harassment and threatening death in respect of his
    mother, Susan Cook.

[2]

On sentencing, the Crown applied under s. 753.1 of the
Criminal Code
to have the appellant designated a long term offender.  The trial judge granted
    the Crowns application, declared the appellant to be a long term offender and,
    after credit for 26 months and 10 days pre-sentence custody, imposed a
    suspended sentence and a 10-year community supervision order.

[3]

The appellant appeals from his convictions and sentence.

A.      Conviction Appeal

[4]

The appellant raises three grounds in support of his conviction appeal.

(1)

Evidence of Bad Character

[5]

The appellant argues that the trial judge erred by permitting the jury
    to consider evidence of his prior misconduct, adduced during the complainants
    testimony.

[6]

We would not give effect to this argument in this case for several reasons. 
    First, the appellant acknowledges that certain of the evidence at trial
    relating to his prior misconduct was both admissible and inevitable.  We agree.

[7]

The appellants mother, Susan Cook, has been in a common law
    relationship with Bernard Lenouvel for more than 20 years.  During the summer
    of 2004, one of the appellants sisters, the complainant Laura Cook, lived with
    her child at Susan and Bernards home.

[8]

The evidence revealed that the appellant had a long history of
    tumultuous and acrimonious behaviour in respect of his family members,
    including Bernard and Laura, both of whom testified at trial, and Susan, who
    did not testify at trial.  In particular, Bernard and Laura testified that in
    the spring and summer of 2004, the appellant continually harassed, threatened
    and badgered them, together with Susan, by incessant telephone calls, sometimes
    numbering 20 to 30 calls per day.  They said that if his mother answered the
    telephone, the appellant yelled at her and made demands.  If Laura or Bernard
    picked up the telephone, the appellant frequently threatened them, called them
    derogatory names, and generally engaged in abusive behaviour.

[9]

On August 24 and 25, 2004, the appellants behaviour took a serious turn
    for the worse.  Laura testified that on August 24, the appellant telephoned the
    family home 30 or 40 times.  She said that during one of these telephone calls,
    the appellant threatened to kill her and assault their mother.  Bernard went to
    the police station to obtain police assistance to escort Susan out of the house
    because it was feared that the appellant was coming to the house.  While he was
    at the police station, the appellant arrived at the family house.  Laura was
    home with her daughter.  The appellant banged on the door and rang the doorbell
    for approximately 30 minutes.  Laura, fearful of the appellant, hid in the
    basement with her daughter and called Bernard on his cell phone.  The police
    were dispatched to the house, but the appellant had left by the time they
    arrived.

[10]

The
    following day, the appellant repeatedly telephoned the Lenouvel residence. 
    Bernard testified that during a telephone call that day, the appellant
    threatened to slit Bernards throat.  The appellant was arrested a few days
    later.  He continued to call the family frequently from jail, until a few days
    before his trial.

[11]

In
    the context of this alleged behaviour, the evidence of the appellants
animus
and pattern of abusive conduct towards his family members was properly admitted
    as part of the narrative concerning his antagonistic history and relationships
    with Bernard, Laura and Susan.  It formed the backdrop for the events of August
    24 and 25, 2004, which gave rise to the offences charged.  No objection was
    taken by the defence to the admission of this evidence at trial.

[12]

Second,
    much of the complainants evidence, now described by the appellant as bad
    character evidence that should not have been left with the jury, was
    acknowledged by the appellant during his own trial testimony, including
    evidence bearing directly on the essential elements of the offences charged.

[13]

In
    his testimony, the appellant acknowledged that he persistently called Susan and
    Bernards residence on the dates in question.  He admitted that he became
    angry, went to his familys house, banged on the door and used the doorbell for
    a lengthy time.  Although he denied threatening Bernard and Laura, he conceded
    his animosity towards them and his use of obscenities when referring to or
    speaking with them.  He also admitted that when he spoke by telephone with Bernard
    on August 25, he might have said anything about his family.

[14]

Third,
    at its core, the appellants complaint is that the evidence of his prior
    misconduct went too far, impermissibly straying into non-essential and
    prejudicial areas.  This claim is belied by the theory and conduct of the
    appellants defence at trial.

[15]

During
    cross-examination, defence counsel mounted a vigorous attack on the
    complainants credibility and reliability.  In so doing, she raised numerous
    prior family incidents, including many involving past misconduct by the
    appellant, with the apparent objective of demonstrating that the appellants
    family was attempting to keep him away from his mother.  The transcript of the
    complainants cross-examinations is replete with questions by defence counsel
    that elicited responses tending to establish prior discreditable conduct by the
    appellant.  Thus, much of the impugned evidence was elicited by the defence for
    its own purposes.

[16]

In
    these circumstances, we agree with the Crowns submission that, having embarked
    on this defence strategy and having developed it at trial in a way that
    elicited evidence of bad character, the appellant cannot now complain that the elicited
    evidence should not have been admitted.

[17]

We
    also note that on at least one occasion during Bernards testimony, the trial
    judge delivered a blunt mid-trial instruction, telling the jury to disregard
    Bernards hearsay evidence that the appellant had reportedly broken one of his
    sisters car windows.  The trial judges instruction clearly identified the
    evidence in question and properly explained both the permissible and
    impermissible uses of the evidence to the jury.

[18]

We
    appreciate that the appellant complains, particularly, about Lauras testimony that
    she had been sexually abused by him as a child.  This evidence must be viewed
    in context.  Laura testified that she took the appellants threats seriously,
    that she was afraid of him and that she believed that he was capable of harming
    her and her mother.  When asked about the basis for this belief, Laura
    indicated that Since I was a child Ive been physically abused by that man,
    and sexually.

[19]

Defence
    counsel did not object to this evidence.  Instead, during her cross-examination
    of Laura, counsel pursued Lauras claim of childhood abuse.  When the
Crown
    objected
, the trial judge stated, The issue here is not whether or not
    this witness has been molested.  The issue here is criminal harassment, threats
    and breach of probation.  Whether or not she was sexually abused at a young age
    is not relevant in this action.  He then instructed defence counsel to move on
    in her questioning.

[20]

In
    all these circumstances, the admission of the challenged bad character evidence
    does not constitute reversible error.  Much of the impugned evidence was
    necessary narrative evidence of the appellants relationship and dealings with
    his family; other aspects of the evidence were conceded by the appellant
    himself; and much of the evidence was elicited or developed for the purpose of
    the appellants own defence.

(2)

Instructions Regarding Bad Character Evidence

[21]

The
    appellant next argues that the trial judge erred by failing to properly
    instruct the jury on the permissible inferences that could be drawn from the
    evidence of his prior misconduct.  Again, on the particular facts of this case,
    we disagree.

[22]

It
    is true that the charge contains no formal limiting instruction on the
    permissible and impermissible uses of bad character evidence.  However, a
    formal limiting instruction is not required in every case where evidence of
    prior misconduct by an accused has been led.  In our view, it was unnecessary
    here for several reasons.

[23]

In
    addition to the trial judges mid-trial instruction, described above, the trial
    judge cautioned the jury:

William Cook is charged with criminal harassment and
    threatening death.  You are trying him for those offences.  The real issue for
    you to decide in this case is whether the offences charged ever actually took
    place.  You have heard evidence that Mr. Cook has done other things that may be
    similar to those for which he is being charged in this case.  You are not trying
    Mr. Cook for that conduct; be careful not to jump to the conclusion that just
    because the acts appear similar, the offences charged must have taken place. 
    Whether or not you use the evidence of the other conduct to help you decide
    this case, you must not find Mr. Cook guilty of an offence unless Crown counsel
    has satisfied you of all the essential elements of that offence beyond a
    reasonable doubt.

This caution alerted the jury to the proper focus of its
    task.

[24]

The
    appellant has a history of violence and a lengthy criminal record, including
    other convictions for criminal harassment and threatening death, evidence of
    which was adduced during the appellants testimony.  Further, as we have said,
    the appellant himself testified about other aspects of his prior misconduct. 
    The impugned bad character evidence was part of the contextual narrative
    concerning the relationships within the appellants family and the volatility
    of those relationships, much of which was adduced by the defence.

[25]

In
    these circumstances, in our opinion, there was no realistic possibility that
    the challenged evidence would be used improperly by the jury to reason that the
    appellant was guilty of the offences charged.  Indeed, given the way in which
    this trial unfolded, a formal instruction on the permissible and impermissible
    uses of bad character evidence might well have unnecessarily emphasized the
    evidence of the appellants discreditable conduct, to his potential detriment. 
    See
R. v. Beausoleil
, [2011] O.J. No. 2819 (C.A.).

[26]

Finally,
    we note that defence counsel did not request a formal limiting instruction. 
    Nor did she object to the charge on this issue.  This supports the conclusion
    that the instruction contended for on appeal was unnecessary in the
    circumstances of this case.

(3)

Alleged Instruction Regarding Similar Act Evidence

[27]

The
    appellants final ground of appeal is that the trial judge erred by permitting
    the jury to use the evidence on the counts on the indictment as similar act
    evidence in relation to one another.

[28]

For
    convenience, we repeat what the trial judge told the jury:

William Cook is charged with criminal harassment and
    threatening death.  You are trying him for those offences.  The real issue for
    you to decide in this case is whether the offences charged ever actually took
    place.  You have heard evidence that Mr. Cook has done other things that may be
    similar to those for which he is being charged in this case.  You are not
    trying Mr. Cook for that conduct; be careful not to jump to the conclusion that
    just because the acts appear similar, the offences charged must have taken
    place.
Whether or not you use the evidence of the other conduct to help
    you decide this case, you must not find Mr. Cook guilty of an offence unless
    Crown counsel has satisfied you of all the essential elements of that offence
    beyond a reasonable doubt
.  [Emphasis added.]

[29]

The
    trial judge continued:

Mr. Cook is charged with six offences.
Each charge
    requires its own proof
.  The real issue for you to decide in this case is
    whether the offences alleged by each complainant ever actually took place.  Be
    careful to not jump to the conclusion that if one complainant is telling the
    truth, the others must be telling the truth as well.
Nor should you jump
    to the conclusion that because the complainants alleged similar conduct, they
    all must have occurred if any one of them is proved.  It is up to Crown counsel
    to prove each charge independently of the other.  You may, but do not have to
    find that there is a pattern of similar behaviour that confirmed each
    complainants testimony as to what took place
.  It is for you to say.

In considering this evidence, bear in mind the relationship
    between Mr. Cook and the complainants, as well as the circumstances of each of
    these situations.  Whether or not you
use the evidence of any of the
    complainants to help you decide whether any other complainant is telling the
    truth, you must not find Mr. Cook guilty of any offence unless Crown counsel
    has satisfied [you] beyond a reasonable doubt of all of the essential elements
    of that offence
.  [Emphasis added.]

[30]

The
    appellant argues that these instructions failed to direct the jury as to the
    manner in which similar act evidence may be used.  He says that these
    instructions were deficient because they (1) failed to identify which charges
    could be used as similar act evidence in relation to specific other charges,
    (2) failed to tell the jury the purpose for which the charges could be used as
    evidence, and (3) failed to warn the jury of the dangers of impermissible
    propensity reasoning.

[31]

We
    disagree.  This was not a similar act case.  It did not involve multiple
    offences against multiple victims with the admission of similar act evidence
    outside the scope of the indictment.  The Crown brought no similar act
    application.  Rather, as the Crown contends, the evidence of the appellants
    other misconduct was admissible in its own right for the purposes we have
    already described.  The allegedly similar acts were not extrinsic to the
    offences charged.  Rather, the evidence regarding the appellants prior
    misconduct and his relationships with his family was relevant to all the
    counts.  It was also relevant to demonstrating his
animus
towards the
    complainants.

[32]

Further,
    the trial judge was careful to warn the jury that each charge requires its own
    proof and that the Crown was obliged to prove each charge independently of
    the other.  He also twice told the jury that it must not find the appellant
    guilty of any offence unless Crown counsel has satisfied [you] beyond a
    reasonable doubt of all of the essential elements of that offence.  These were
    proper and, in the circumstances, adequate instructions.

(4)

Fresh Evidence

[33]

The
    Crowns case against the appellant was overwhelming.  As we have said, the
    appellant admitted most of the essential elements of the offences charged
    during his own testimony at trial.  Arguably, even on his own evidence, the
    offence of criminal harassment in respect of both Laura and Bernard was made
    out.  We emphasize that the appellant admitted to speaking with Laura and
    Bernard at the time of the alleged death threats and, further, that at least in
    his discussion with Bernard, he might have said anything about his family.

[34]

The
    fresh evidence sought to be introduced by the appellant on appeal does not
    alter this conclusion.  The fresh evidence does not relate to evidence at trial
    that was critical to the Crowns case.  Indeed, the trial judge made no mention
    in his charge of the trial testimony of the police officer whose
    creditworthiness is now sought to be undermined by the fresh evidence. 
    Moreover, the evidence of a second police officer, who heard the appellant
    utter the same statements as the officer whose credibility is now impugned, was
    also led at trial.

B.      Sentence Appeal

[35]

The
    appellant challenges his long term offender designation, particularly the
    10-year community supervision order imposed by the trial judge.  He submits that
    he was denied the right to make submissions on whether the requirements of the
    long term offender provisions of the
Code
had been met, specifically,
    whether the offence of criminal harassment constitutes a serious personal
    injury offence as defined under s. 752 of the
Criminal

Code
. 
    As a result, the appellant contends, he was denied procedural fairness at his
    sentencing hearing.

[36]

We
    accept this submission.  The record reveals that from the outset of the Crowns
    long term offender application, defence counsel signalled her intention to
    argue that none of the offences charged constituted a serious personal injury
    offence.  While other issues were addressed throughout the ensuing multiple
    court appearances before argument of the Crowns application, argument of this
    threshold issue did not take place.  Yet, the transcript reveals that when the
    trial judge eventually delivered his ruling, after a two-month adjournment of
    the proceedings, on whether the criminal harassment convictions constituted
    serious personal injury offences, he mistakenly believed that defence counsel
    had already made her submissions on this issue.  He therefore denied her request
    for an opportunity to address the issue.

[37]

With
    respect, this was an error.  Neither the Crown nor the defence had made
    submissions on this issue before the trial judges ruling.  The appellants
    right to hearing fairness was thereby fatally compromised.  Consequently, the
    sentence imposed as a result of the flawed sentencing hearing, including the
    appellants long term offender designation and community supervision order,
    cannot stand.

[38]

The
    Crown and duty counsel acknowledge that there is a full record before this
    court regarding the Crowns long term offender application.  They also agree
    that, in the somewhat unusual circumstances of this case, this court is positioned
    to determine whether the offences charged meet the statutory definition of a
    serious personal injury offence and, if so, to rule on the Crowns long term
    offender application and impose a fit sentence.

[39]

The
    sentencing judge ruled that the criminal harassment charges of which the
    appellant was convicted are serious personal injury offence[s] within the
    meaning of s. 752 of the
Code
.

[40]

We
    agree.  Under s. 752, the phrase serious personal injury offence is defined
    to include an indictable offence, other than certain specified offences that do
    not apply here, involving conduct endangering or likely to endanger the life
    or safety of another person or inflicting or likely to inflict severe
    psychological damage upon another person, for which the offender may be
    sentenced to imprisonment for ten years or more.

[41]

The
    evidentiary record confirms that the appellants conduct, in the context of his
    criminal harassment convictions, involved conduct likely to inflict severe
    psychological damage upon another person, within the meaning of the statutory
    definition of serious personal injury offence.  The pertinent evidence
    demonstrated that:

(1)

the
    appellant abused his family for many years, necessitating repeated involvement
    of the police;

(2)

Laura
    feared the appellant and, on August 24, was sufficiently frightened of him that
    she hid from him, with her daughter, in the basement of the family home;

(3)

the
    appellant used obscene, menacing and aggressive language in his calls with
    Laura, including on the dates relevant to the indictment, going so far as to
    threaten her death and the assault of their mother;

(4)

as a
    result of the appellants conduct, Laura was scared of him, anxious, and
    believed that he was capable of harming her and their mother;

(5)

the
    aggressiveness of the appellants threats progressed over time; and

(6)

the
    appellant threatened to slit Bernards throat.

[42]

We
    have no hesitation in concluding that the appellants harassing conduct
    involved conduct likely to inflict severe psychological damage on Laura. 
    Indeed, it would be astounding if it did not.  There is ample evidence on this
    record to support the conclusion that the criminal harassment of which the
    appellant was convicted in respect of Laura constituted a serious personal
    injury offence.  The appellants persistent and threatening conduct was
    neither trivial nor
de minimis
.  To the contrary, it demonstrated a
    likelihood of the appellant inflicting severe psychological harm, if not
    physical violence, on Laura.  This meets the statutory definition of serious
    personal injury offence.

[43]

The
    issue, therefore, is what sentence should appropriately be imposed at this
    juncture.  We are satisfied that a sentence identical to that imposed by the
    trial judge is fit, given the appellants circumstances and the circumstances
    of these offences.

[44]

Accordingly,
    we would grant leave to appeal sentence and allow the sentence appeal.  We
    would not interfere with the suspended sentence imposed, or the appellants
    long term offender designation.  However, as part of the 10-year community
    supervision order imposed by the trial judge has now run its course, we would
    impose a community supervision order for that number of years remaining on the
    original 10-year community supervision order imposed by the trial judge.  If
    the Crown and duty counsel are unable to agree on the unexpired term of that
    original order, the parties may request an opportunity, through the Registrar
    of this court, to make further brief, written submissions on that issue.

C.      Disposition

[45]

Accordingly,
    the conviction appeal is dismissed.   The sentence appeal is allowed in
    accordance with these reasons.

Released:

JCM                                                          J.C.
    MacPherson J.A.

JUL -9 2013                                     E.A.
    Cronk J.A.

Paul
    Rouleau J.A.


