



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McGaw, 2019 ONCA 808

DATE: 20191009

DOCKET: C64435

Strathy C.J.O., Doherty and
    Tulloch JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Jennifer Gladys McGaw

Appellant

Robert Sheppard, for the appellant

Karen Papadopoulos, for the respondent

Heard: October 1, 2019

On
    appeal from convictions entered at London, Ontario by Justice A.T. McKay of the
    Ontario Court of Justice on May 2, 2017, and from the sentence imposed on June
    30, 2017.

REASONS FOR DECISION

[1]

The appellant and Michael McCaughey had a
    romantic relationship. Mr. McCaughey ended that relationship in 2012. He
    continued to have some contact with the appellant and her two children. Mr.
    McCaughey met, and eventually married, another woman.

[2]

The appellant would not accept Mr. McCaugheys
    decision to terminate their relationship. In the words of the trial judge, she
    reacted by:

[c]onducting an intense, prolonged,
    multi-faceted and vicious campaign against her former domestic partner and his
    new partner.

[3]

The appellant was charged with several offences
    arising out of the ongoing harassment of Mr. McCaughey and his wife. The
    charges included counselling murder. The Crown alleged that the appellant had
    separately incited her brother, Billy, and her ex-husband, Rick, to murder Mr.
    McCaughey. The other charges against the appellant involved allegations of the
    breaching of court orders and the ongoing criminal harassment of Mr. McCaughey
    and his wife.

[4]

The appellant pled guilty to some of the
    charges. The trial on the other counts, including the counselling murder charge,
    proceeded before a judge alone. Both Billy and Rick testified that the
    appellant had asked them to murder Mr. McCaughey. According to both men, the
    appellant told them that Mr. McCaughey had sexually assaulted her young
    daughter who was also Ricks daughter. The Crown argued that the allegation was
    false and that the appellant had used it to incite both men to kill Mr.
    McCaughey.

[5]

The appellant did not testify.

[6]

The trial judge convicted on all counts, save
    one count of criminal harassment. He imposed a sentence of 7 years plus 1 month
    on the counselling murder charge, having given the appellant credit of 35
    months for pretrial custody. The effective sentence on the counselling murder
    charge was 10 years. The sentences on the other counts were made concurrent.

[7]

The appellant appeals conviction and, if leave
    is granted, appeals from the sentence imposed.

[8]

The appeals are dismissed for the following
    reasons.

The Conviction Appeal

(i)

The trial judges assessment of the evidence on the counselling murder
    charge

[9]

There was a great deal of evidence against the appellant on the
    counselling murder charge. Much of it came from her brother Billy and her
    ex-husband, Rick, the two men the Crown alleged the appellant had asked to kill
    Mr. McCaughey. The credibility of both men was vigorously challenged at trial.

[10]

The
    trial judges reasons demonstrate that he was alive to the credibility concerns
    in respect of both witnesses. He correctly characterized them as 
Vetrovec

    witnesses and highlighted the problems associated with their credibility and
    reliability. The trial judge appreciated that one 
Vetrovec
 witness
    could confirm the evidence of another. He also found substantial other
    confirmatory evidence. For example, the trial judge concluded that the
    overwhelming evidence of the appellants unbridled longstanding animus toward
    Mr. McCaughey and his new wife and her many efforts to physically harm them and
    ruin their lives provided confirmation of Billys evidence that the appellant
    asked him to murder Mr. McCaughey. We agree that the evidence of the
    appellants strong and unrelenting animus toward Mr. McCaughey was capable of making
    the evidence of Billy more credible.

[11]

Ultimately,
    the trial judge accepted the evidence of Billy to the effect that the appellant
    sought over several months to get Billy, whom she knew to be a very violent
    man, to kill Mr. McCaughey. The efforts culminated in December 2014 when, on
    Billys evidence, he went to the McCaughey home intending to kill him.
    Fortunately for Mr. McCaughey, Billy changed his mind.

[12]

The
    trial judge also indicated that while the evidence of Rick, the ex-husband,
    could not, on its own, support a conviction on the counselling charge, its
    striking similarity with the evidence of Billy made Ricks evidence
    confirmatory of the evidence given by Billy. In other words, on the trial
    judges findings, Ricks evidence, while not sufficiently credible to carry the
    full burden of the Crowns case, was sufficiently credible to render the
    strikingly similar evidence given by Billy more credible. This analysis reveals
    no legal error and was reasonably open on the evidence.

[13]

Not
    surprisingly, given the nature of the witnesses and the length of this trial,
    there were many inconsistencies in the evidence of some witnesses. Different witnesses
    also had different versions of the relevant events. Many of the differences
    were in respect of factual issues that were not central to the charge of
    counselling murder.

[14]

The
    trial judges detailed review of the evidence, and his somewhat briefer analysis,
    shows that he was aware of the inconsistencies and contradictions. He addressed
    the main ones. For example, he acknowledged that Billys evidence in respect of
    several events was quite different than the evidence of his girlfriend.
    Ultimately, the trial judge found that the girlfriends evidence was not
    credible. He gave reasons for that finding.

[15]

The
    trial judge was not obliged to go through each and every inconsistency and
    contradiction and offer an explanation for its impact on his analysis of the
    evidence. The reasons provide ample explanation for the credibility assessments
    and factual findings made by the trial judge.

(ii)

Did the trial judge err in allowing the Crown to amend the counselling
    murder charge to conform with the evidence?

[16]

The
    count in the information charging counselling murder initially alleged that the
    offence occurred between April and July 2015. After evidence was called
    indicating that the appellant counselled Billy to commit murder in December
    2014, the Crown moved to amend the information to conform with the evidence.

[17]

The
    trial judge allowed the amendment and gave careful reasons for his ruling. We
    agree with those reasons.

[18]

Section
    600 of the
Criminal Code
sets out broad powers of amendment. If the
    amendment is supported by the evidence, the amendment must be allowed, unless
    the accused can demonstrate irreparable prejudice: see
R. v. Bidawi
,
    2018 ONCA 698, at paras. 30-33, leave to appeal refused 2019 SCCA No. 145.

[19]

The
    amendment caused no possible prejudice to the appellant. She had full
    disclosure of all of the relevant evidence long before trial. The appellant
    also had ample notice from the Crown of the proposed amendment and a full
    opportunity to mitigate any potential prejudice by, for example, seeking a
    brief adjournment or postponing cross-examination of Billy. No mitigating steps
    were requested, no doubt because there was no prejudice. Finally, the amendment
    in no way expanded the scope of the evidence. All of the evidence relevant as a
    result of the amendment of the counselling murder charge was already properly
    before the court in respect of another count in the information.

(iii)

The admissibility of statements attributed to the appellants daughter,
    Hailey, to the effect that she had been sexually assaulted by Mr. McCaughey

[20]

Billy
    and Rick testified that the appellant told them that Mr. McCaughey had sexually
    assaulted Hailey. It was the Crowns position that she did so in an effort to
    get Billy or Rick to kill Mr. McCaughey. Both men and one other witness also testified
    that Hailey also told them that she had been sexually assaulted. They further testified
    that she later said she had not been assaulted.

[21]

Hailey
    did not testify.

[22]

The
    appellant submits that the evidence of Haileys statements constitutes
    inadmissible hearsay.

[23]

We
    accept the Crowns position that the evidence was not offered for its truth,
    but rather as evidence of the state of mind of Billy and Rick and, in
    particular, their animus towards Mr. McCaughey which, in part, led them to agree
    to kill Mr. McCaughey.

[24]

The
    Crown contended that the animus arose, in part, out of what they were told by
    Hailey about the sexual assaults. The truth of Haileys statements was
    irrelevant to their admissibility as evidence of the state of mind of Billy and
    Rick and, in particular, their animus towards Mr. McCaughey.

(iv)

Was the trial judges analysis clouded by findings of the appellants
    bad character?

[25]

Clearly,
    on the trial judges findings, the appellant engaged in a barrage of
    vindictive, cruel and criminal activity, all directed at Mr. McCaughey and his
    new wife. The findings made against the appellant flow from the evidence which
    obviously painted the appellant in a very bad light.

[26]

There
    is, however, nothing in the reasons to support the contention that the trial
    judge improperly inferred guilt from the appellants bad character. Indeed, the
    trial judge cautioned himself against misusing the evidence in that fashion.

[27]

The
    trial judge reviewed the entirety of the evidence and made factual findings
    grounded in the evidence. His verdicts reflect those factual findings. The
    nature of those findings and the convictions they warranted inevitably shows
    the appellant as a person of very bad character. That consequence does not,
    however, cloud the trial judges findings of fact, or the legal correctness
    of his analysis.

(v)

Was the conviction on count 7 unreasonable?

[28]

Count
    7 charged the appellant with harassing Mr. McCaughey by besetting or watching
    him at his home on July 30, 2015. The evidence revealed that the appellant
    drove slowly past Mr. McCaugheys home at about 10:00 p.m. on July 30
th
.
    She had been previously charged with harassing conduct toward Mr. McCaughey and
    had been designated by the police as a high risk domestic offender. The
    police were following the appellant when she drove slowly past Mr. McCaugheys
    home.

[29]

As
    of July 30
th
, the appellant was on bail for various offences
    relating to her harassment of Mr. McCaughey. She was with a young person named
    Darren Weston. According to his evidence, the appellant had spoken to him many
    times about different ways they could terrorize Mr. McCaughey in his own home. At
    the appellants request, Mr. Weston had slashed Ms. McCaugheys tires. As of
    July 30
th
, Mr. McCaughey had also learned from the police that the
    appellant had tried to have him murdered.

[30]

Mr.
    McCaughey did not know that the appellant was driving slowly past his home at
    10:00 p.m. When the police told him about it the next day, Mr. McCaughey
    expressed serious concern for his and his wifes safety.

[31]

In
    oral argument, counsel for the appellant did not suggest that there was no
    evidence of the
actus reus
required for the
    crime of criminal harassment as defined in s. 264(2)(c) of the
Criminal Code
. He submitted, however, that there was no
    evidence from which it could be inferred that the appellant knew that her
    conduct would harass Mr. McCaughey. Knowledge in this context includes
    recklessness or willful blindness. Knowledge is part of the fault component of
    the offence.

[32]

The
    brief factual outline set out above provides ample basis upon which the
    required knowledge or recklessness could be inferred. Indeed, having regard to
    the entirety of the appellants conduct toward Mr. McCaughey, the inference is irresistible.

[33]

There
    was ample evidence to support the conviction on this count.

The Sentence Appeal

[34]

The
    trial judge imposed a lengthy sentence, especially given that the appellant had
    virtually no criminal record. However, the offence was a very serious one. The
    harassment was vicious, long-term and relentless. It culminated in genuine
    attempts by the appellant to get two men to kill Mr. McCaughey. She knew both
    men were capable of doing so.

[35]

The
    counselling charge was clearly the most serious charge. However, several of the
    other charges were also serious and warranted significant jail terms. In
    considering the fitness of sentence, it is appropriate to look at the totality
    of the conduct, even though the trial judge chose to impose concurrent
    sentences on all charges.

[36]

In
    addition to the seriousness of the offence, the trial judge found that the
    appellant showed no remorse, no empathy for her victims, and no real
    appreciation for what she had done. According to the trial judge, she posed a
    significant risk to offend. These findings were open to the trial judge and
    properly played an important role in determining the fit sentence. These
    factors also distinguish this case from
R. v. Shier
,
    2018 ONSC 5624, the authority relied on by the appellant.

[37]

The
    trial judge made no error in principle. Nor is the sentence manifestly
    excessive. We would grant leave to appeal sentence, but would dismiss the
    appeal.

Conclusion

[38]

The appeal from conviction is dismissed, leave to appeal sentence
    is granted, and the appeal is dismissed.

G.R.
    Strathy C.J.O.

Doherty
    J.A.

M.
    Tulloch J.A.


