



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nolan, 2019 ONCA 969

DATE: 20191210

DOCKET: C67047 & C67058

Feldman, Gillese and Miller
    JJ.A.

DOCKET:
    C67047

BETWEEN

Her Majesty the Queen

Respondent

and

William Nolan

Appellant

DOCKET:
    C67058

AND BETWEEN

Her Majesty the Queen

Appellant

and

William Nolan

Respondent

Ravin Pillay, for William Nolan

Caitlin Sharawy, for the Crown

Heard: November 21, 2019

On appeal by William Nolan from the
    convictions entered on December 19, 2018, by Justice Lawrence T. Feldman of the
    Ontario Court of Justice, with reasons reported at 2018 ONCJ 898.

On appeal by the Crown from the sentence
    imposed on May 7, 2019, with reasons reported at 2019 ONCJ 338.

Gillese J.A.:

A.

overview

[1]

Mr. Nolan (the appellant) was convicted of
    threatening death, intimidation by threats of violence, obstruction of justice,
    and criminal harassment. The first three convictions (threaten death, intimidation
    and obstruction of justice) arose from an incident in the Family Court of the
    Ontario Court of Justice on January 7, 2013 (the Family Court incident). The
    threaten death conviction was stayed pursuant to
Kienapple v. R
,

[1975] 1 S.C.R. 729
. The criminal harassment conviction
    arose from an incident on January 7, 2015, in which copies of a nude photograph
    bearing the complainants name were spread around the school yard of the school
    where she taught (the 2015 nude photo incident).

[2]

A jail sentence of 12 months was imposed for the
    criminal harassment conviction. An 18-month conditional sentence was imposed for
    each of the intimidation and obstruction of justice convictions, to be served
    consecutively to the jail sentence but concurrently with one another. These
    were to be followed by 12 months of probation. The trial judge also imposed a weapons
    prohibition order under s. 109 of the
Criminal Code
,
R.S.C.,
    1985, c. C-46.

[3]

The appellant appeals against conviction. The
    Crown seeks leave to appeal against sentence.

[4]

At the conclusion of the oral hearing of these
    appeals, the court advised that the conviction appeal was dismissed with written
    reasons to follow. The court also advised that it would address the sentence
    appeal in those reasons. These are the promised reasons.

B.

Background in Brief

[5]

The appellant and the complainant began a romantic
    relationship in 2004. They had two sons, the first born in 2006 and the second
    in 2007. In 2009, the appellant was sentenced to a four-year period of imprisonment.
    While the appellant was in prison, the complainant went to teachers college
    and by 2012, she was employed as a grade 5 and 6 teacher at CJPS. The
    relationship between the two ended shortly after the appellant was released
    from prison in 2012.

(1)

The 2013 Family Court Incident

[6]

Following the appellants release from jail,
    there were custody and access disputes between the two. These disputes led the
    complainant to seek full custody of the children.

[7]

According to the complainant, on January 7, 2013,
    while she waited outside the courtroom for her custody application to be heard,
    the appellant arrived unexpectedly and told her not to go through with the
    application. He pressured her to drop outstanding criminal charges against him,
    told her to withdraw a restraining order that she had obtained against him, and
    threatened to shoot her family if she did not comply.

[8]

The parties then appeared before Paulseth J.,
    the presiding judge. A copy of the transcript of the hearing before Paulseth J.
    was introduced into evidence at the appellants trial on these matters.

[9]

During the Family Court hearing, the appellants
    behaviour led Paulseth J. to tell him not to try to intimidate the complainant.
    Paulseth J. also asked the appellant to sit down but he refused, saying he was
    angry and needed to pace, which he then did. When a court officer entered the
    courtroom, the appellant told him to get the fuck out and carried on until
    Paulseth J. was forced to close the court. The appellant then left the
    courtroom and attacked the officer, causing him injury.

[10]

The appellant was later convicted of assaulting
    a peace officer and assault with intent to resist arrest in relation to the
    altercation with the court officer.

(2)

The 2015 Nude Photo Incident

[11]

On January 7, 2015, exactly two years after the
    Family Court incident, nude photographs purporting to be of the complainant
    were spread around the parking lot of the CJPS school yard where she was working
    as a teacher. The following words had been typed on the photograph:

This is your jr kg teacher, [the complainants
    first and last names were then written out in full, using capital letters]. This
    will keep happening as long as shes at TDSB. Find more of [the complainants
    name] www.dirty.com.

(3)

Trial Ruling on Prior Discreditable Conduct

[12]

At the close of its case, the trial Crown applied
    to have admitted two bodies of evidence of the appellants prior discreditable
    conduct. The evidence in support of the application was blended with the trial
    evidence. The two bodies of evidence were: (1) evidence relating to an incident
    in September 2012 in which copies of a nude photograph of the complainant were
    distributed in the parking lot of the CJPS schoolyard (the 2012 nude photo
    incident) and (2) transcripts of the facts admitted by the appellant when he
    entered pleas of guilt, before Otter J. on November 15, 2012, to charges of intimidation
    and criminal harassment of the complainant arising from a different incident in
    September 2012.

[13]

The trial judge granted the application in part.
    He ruled admissible all evidence relating to the 2012 nude photo incident. This
    evidence came from the complainant who testified that after his release from
    prison in September 2012, the appellant was angry about lack of access to the
    children and he threatened the complainant that he would destroy [her] life by
    spreading sexually explicit photographs of her at the school where she worked,
    the childrens school, the daycare, and her gym. The following day, copies of a
    nude photograph of her that had her name and phone number written on it, were
    scattered in the parking lot of the CJPS school yard. The photo was one that the
    complainant had sent to the appellant while he was in prison. The complainant
    testified that in January 2013, before the Family Court hearing, the appellant admitted
    that he was responsible for the 2012 nude photo incident and apologized.

[14]

The trial judge admitted the evidence of the
    2012 nude photo incident, finding that it was strikingly similar in nature and
    detail to the allegations in the 2015 nude photo incident. In his ruling, the
    trial judge said that he accepted the complainants evidence set out in the
    above paragraph and that it permitted the inference that in perpetrating these
    distinctive acts, the appellant was motivated by an intent to humiliate the
    complainant and threaten her livelihood. The trial judge also found that this
    evidence tended to enhance the complainants testimonial credibility on the
    material facts in issue. He concluded that the cogency of the evidence, its
    unique facts and relevance to the nature of the relationship and the
    appellants animus supported its threshold admission as prior discreditable
    conduct. He described its probative value as high.

[15]

The trial judge ruled the second body of
    evidence inadmissible. He described this body of evidence as showing the
    appellant as derogatory, confrontational and intimidating in his dealings with
    the complainant over the issue of access. Further, the trial judge said that
    the appellant displayed animus when he threatened to destroy the complainants
    life. However, the trial judge found that while the evidence was similar in nature
    to the allegations in the 2015 nude photo incident, the facts were not
    proximate in time, similar in detail, nor did they have distinctive features
    that elevated their probative value over the prejudicial effect of propensity evidence.

(4)

The Defence Position at Trial

[16]

The appellant did not testify at trial nor did
    he call defence evidence. His defence was a straight denial. He challenged the
    complainants credibility regarding the Family Court incident. In particular,
    he pointed to the complainants failure to report that incident until two years
    later, when the 2015 nude photo incident occurred. He challenged the criminal
    harassment charge on the basis that the Crown had not proven beyond a
    reasonable doubt that he had anything to do with the 2015 nude photo incident. At
    trial, the defence did not dispute that the complainant was the subject of the 2015
    nude photographs.

C.

The Conviction Appeal

[17]

The appellant raises a number of grounds of appeal
    against both his convictions arising from the Family Law incident and his
    conviction for criminal harassment arising from the 2015 nude photo incident.

(1)

The Convictions
    Arising from the Family Court Incident

[18]

The appellant submits that the trial judge erred
    in convicting him of the offences arising from the Family Court incident
    (threaten death, intimidation and obstruction of justice) by (1) improperly
    relying on the transcript of the Family Court proceedings for the truth of its
    contents and (2) finding him guilty when the counts were not proven as
    particularized on the information.

[19]

I do not accept this submission.

(a)

Use of the Family Court Proceedings Transcript

[20]

At para. 10 of his reasons, the trial judge explained
    how he used the transcript:

The defence denies that the [appellant]
    threatened the complainant in the hallway of the courthouse and challenges the
    reliability of her testimony in this regard, but in my view,
on this
    evidence, [the complainants] credibility is, rather, enhanced by an assessment
    of the [appellants] behaviour during the course of the proceedings before
    Justice Paulseth
. Given that behaviour, it is understandable that the
    complainant felt pressured into reversing her position on custody in court by
    [the appellants] threats and intimidation  [Emphasis added.]

[21]

The trial judge then reviewed the transcript,
    focusing on the appellants behaviour and what was said during the Family Court
    hearing. He concluded by finding that the appellants behaviour during the
    hearing enhanced the complainants credibility with regard to what had happened
    immediately prior to it and gave rise to the strong inference that [the
    appellant] gave the complainant her marching orders prior to the commencement
    of the [family law] proceedings in a manner consistent with [the appellants] subsequent
    overbearing behaviour during the hearing.

[22]

Thus, the trial judges use of the Family Court
    proceeding transcript was entirely proper. He did not use it for the truth of
    its contents. Rather, he relied on it to draw permissible inferences about the
    appellants aggressive and controlling demeanour in the hearing before Paulseth
    J. He then used those inferences to bolster the complainants credibility about
    what happened outside the courtroom before the hearing. This limited use of the
    Family Court proceedings transcript was permissible. Transcripts of judicial
    proceedings may be admissible to prove what was actually said or what actually
    happened in an earlier proceeding:
R v. Tsekouras
,
2017 ONCA 290,
    353 C.C.C. (3d) 349, at para. 179, leave to appeal refused, [2017] S.C.C.A. No.
    225.

[23]

The appellant also argues that the trial judge erred
    in finding that the appellant had injured the court officer after he left the Family
    Court courtroom in which the hearing before Paulseth J. had taken place. The
    Crown agrees that there was no evidence at trial that the officer had been
    injured but says that it was undisputed that a physical altercation between the
    appellant and the court officer had taken place outside the courtroom in which
    the hearing took place.

[24]

I do not accept the appellants submission on
    this matter. During an exchange with defence counsel, the trial judge indicated
    that he understood from the transcript that there had been a physical
    altercation. His mention of the officers injury was not a material
    misapprehension of the evidence. It had little bearing on his overall analysis,
    coming as it did in his recitation of how the Family Court hearing unfolded.

[25]

Reading the trial judges reasons as a whole, it
    is apparent that his reliance on the Family Court transcript was proper. His
    primary focus was on the appellants statements and behaviour during the Family
    Court hearing. He drew permissible inferences about the appellants aggressive
    and controlling demeanour which he used to bolster the complainants
    credibility about what had happened outside the courtroom before the Family
    Court hearing took place.

(b)

Particularization of the Counts Arising from the
    Family Court Incident

[26]

The wording of the obstruction of justice count on
    the information was that the appellant did wilfully dissuade [the complainant]
    by threats from giving evidence in a judicial proceeding. At para. 26 of his reasons,
    the trial judge rejected defence counsels submission that this count had not
    been proven as particularized. He explained that while the complainant had been
    able to give evidence through the affidavits she filed in the Family Court
    proceedings, he found that she had not been able to give full and candid
    evidence free of outside pressure in the hearing before Paulseth J. He
    concluded that the course of justice had been affected by the appellants
    actions prior to and during the hearing.

[27]

I see no error in the trial judges reasoning on
    this matter. The appellant threatened to shoot the complainants family if she
    did not drop the restraining order and agree to joint custody. As a result, the
    complainant agreed to the restraining order being withdrawn and resiled from
    her position seeking full custody of the children. On the findings of the trial
    judge, the complainant had been wilfully dissuaded from giving evidence in
    the family law proceeding.

[28]

Different considerations apply, however, in respect
    of the threaten death and intimidation counts. These counts recited that the
    threat of violence was to the complainant. However, on the evidence at trial, the
    threats were directed at the complainants family, not her.

[29]

Before the close of its case, the trial Crown
    brought an application to amend the information to conform to the evidence.
    Defence counsel initially opposed the motion. The trial judge ruled that he was
    inclined to grant the amendment if the complainant [was] recalled to cure any
    potential prejudice to the defence. The defence ultimately stated, on the
    record, that he would no longer pursue the matter and that he did not wish to
    cross-examine the complainant. Thereafter, the parties proceeded on the
    understanding that the threaten death and intimidation counts had been amended
    to conform to the evidence.

[30]

In the circumstances of this case, the
    information was amended in substance  any lack of a formal amendment to the
    physical information was a clerical error or oversight. Out of an abundance of
    caution, the Crown asks that this court amend the information to reflect that
    the threaten death and intimidation counts relate to the complainants family.
    An amendment at this stage will cause no prejudice to the appellant and I would
    make the amendment as sought under s. 683(1)(g) of the
Criminal Code
.

(2)

The Criminal Harassment Conviction

[31]

The appellant challenges his conviction for criminal
    harassment  which was based on the 2015 nude photo incident  on the grounds
    that the trial judge improperly relied on (1) cross-count prior discreditable
    conduct in the absence of a Crown application, and (2) extrinsic prior
    discreditable conduct that he had ruled inadmissible.

(a)

Use of cross-count prior discreditable conduct


i.

The Parties Positions

[32]

The appellant submits that in convicting him of
    criminal harassment, the trial judge erred by relying on presumptively
    inadmissible cross-count prior discreditable conduct, namely, the threats,
    intimidation and aggression the appellant exhibited prior to and during the
    Family Court proceedings. That evidence formed the basis of the threaten death,
    intimidation and obstruction counts. He points out that the Crown did not apply
    to use the evidence across counts, the trial judge did not conduct an
    admissibility inquiry regarding the use that could be made of the evidence cross-counts
    and he had no opportunity to respond to the use of the evidence. He says that
    resort to this evidence was critical to the trial judges finding of guilt on
    the criminal harassment count and, as a result, the conviction must be set
    aside.  The appellant relies on
R v. Tsigirlash
, 2019 ONCA 650 in
    support of his position.

[33]

The Crown concedes that there was no formal Crown
    application to use evidence across counts as prior discreditable conduct.
    However, it submits that in the circumstances of this case, the trial judges
    use of this evidence occasioned no prejudice to the appellant. The Crown says that
    the evidence would have been admissible across counts had an application been
    brought and the trial judges use of it discloses no error. If this court finds
    that the trial judge erred, the Crown submits the error was harmless and relies
    on the proviso.


ii.

The Applicable Legal Principles

[34]

In
Tsigirlash
,
Zarnett J.A.,
    writing for the court, thoroughly reviewed the legal principles relating to the
    use of evidence across counts. I summarize below the principles, as discussed
    in
Tsigirlash
, that are relevant to this case.

[35]

The general rule is one of presumptive
    inadmissibility: evidence of the accuseds discreditable conduct is inadmissible,
    unless that conduct is the subject-matter of the charge in question. In
    multi-count indictments, already admissible evidence can be used only on the
    count to which it relates. Before that evidence can be used to prove guilt on
    another count, the Crown should bring an application and the trial judge
    conduct an admissibility inquiry. In this way, the defence has a meaningful
    opportunity to respond to the use of the evidence across counts and no prejudice
    will have occurred (
Tsigirlash
, at paras. 23-27).

[36]

However, while it is an error for a trial judge
    to rely on cross-count prior discreditable conduct in the absence of a Crown
    application, that error is not necessarily fatal. This principle is evident in
    paragraphs 46 and 48 of
Tsigirlash
.

[37]

In paragraph 46 of
Tsigirlash
, Zarnett
    J. A. discusses
R v Graham
,
2015

ONCA 113. In
Graham
,
    this court upheld a conviction where the trial judge used extrinsic evidence
    and count-to-count evidence of specific acts without the Crown having sought a
    formal ruling on the use of that evidence. At paragraph 32 of
Graham
,
    this court stated that while it would have been preferable for the trial judge
    to have conducted an admissibility inquiry, the evidence was admissible,
    properly used, and caused no procedural unfairness. Its finding of no
    procedural unfairness was based on the fact that defence counsel at trial did
    not object to the Crowns failure to bring an application and, in closing
    submissions, the Crown relied on propensity reasoning. Defence was thereby
    alerted and given the opportunity to respond.

[38]

At paragraph 48 of
Tsigirlash
,
Zarnett
    J.A. explains that the absence of a Crown application provides important
    context for a consideration of the trial judges admission of the evidence and
    removes the basis for the appellate deference normally afforded to trial judges.
    Put another way, he does not say that the absence of a Crown application is
    fatal. Rather, he signals how an appellate court is to approach its
    consideration of the trial judges admission of the evidence.

[39]

See also
R v. T.C.
, 2019 ONCA 898, a
    recent decision written by Zarnett J.A. that addresses the issue of reliance on
    cross-count discreditable conduct.  In
T.C.
,
this court upheld
    convictions in which the trial judge relied on cross-count evidence despite the
    absence of a formal Crown application. At paragraph 30 of
T.C.
, the
    court affirms the importance of a Crown application to admit evidence across
    counts and the need for an appropriate process to determine whether the
    presumption should be displaced and the evidence admitted. It concludes by
    noting that, on appellate review, the absence of a formal application may not
    be fatal if the defence had a meaningful opportunity to respond.


iii.

Analysis

[40]

In my view, in the circumstances of this case,
    despite the absence of a Crown application, the trial judge did not err in
    relying on the cross-count prior discreditable conduct. As I explain below, that
    evidence was admissible across counts, the trial judge made no error in his use
    of it and, despite the absence of a formal application, given the way in which
    this trial unfolded, there was no prejudice to the appellant.

Was the evidence admissible across counts?

[41]

I begin by considering whether the evidence
    would have been admissible across counts had the Crown brought a formal application.
    There is no doubt in my mind that if such an application had been brought at
    trial, the cross-count evidence would have been admissible across counts. It
    was relevant to an issue at trial (the identity of the perpetrator of the 2015
    nude photo incident) and its probative value was greater than its prejudicial
    effect.

[42]

Such evidence is frequently admitted in domestic
    cases to assist the court in understanding the relationship between the parties,
    the context in which the alleged wrongdoing took place, and to prove animus and
    motive. See, for example,
R. v. Sandhu
, 2009 ONCA 102, 242 C.C.C. (3d)
    262, at para. 16 and
R. v. F.(D.S.)

(1999)
,
43 O.R. (3d)
    609 (C.A.), at pp. 616-617.

[43]

This case was no different. The cross-count
    evidence fulfilled all the purposes for which it was admissible. The
    appellants aggressive and threatening behaviour before and during the Family
    Court hearing provided important context within which the alleged wrongdoing
    took place, an understanding of the relationship between the appellant and the
    complainant, and evidence of the appellants animus and motive.

[44]

In terms of prejudice, there is little risk of
    reasoning prejudice in a judge-alone trial because the trial judge is presumed
    to know the law and the proper and improper use of evidence. Moreover, the risk
    of moral prejudice is also not a significant concern in a judge-alone trial.
    See
R. v. J.H.
,
2018 ONCA 245, at paras. 22-24;
R. v. T.B.
,
    2009 ONCA 177, 243 C.C.C. (3d) 158, at para. 26; and
R. v. MacCormack
,
    2009 ONCA 72, 241 C.C.C. (3d) 516, at paras. 56, 69.

Did the trial judge err in his use of the cross-count
    evidence?

[45]

Next, I must assess the trial judges use of the
    cross-count evidence. In my view, it was entirely proper. As you will see from
    my review of his reasons, below, the trial judge did not engage in any
    prohibited propensity reasoning. Instead, he used the evidence to draw
    inferences about the appellants animus and motive, which were directly
    relevant to the sole live issue of identity.

[46]

To make out the offence of criminal harassment,
    the Crown at trial had to prove that the appellant was responsible for the 2015
    nude photo incident in which copies of a sexually explicit photo of the
    complainant were spread around the parking lot of the school yard where she
    worked. Defence counsel had conceded that the complainant was the person in the
    photo. Thus, the sole issue was the identity of the perpetrator.

[47]

The trial judge found circumstantial evidence
    that it was the appellant who spread or arranged for the spread of the copies
    of the nude photo in 2015. This evidence included the fact that the appellant
    knew the complainants first name (both the complainants first and last names
    had been typed on the photo), the history of conflict and intimidation by the
    appellant of the complainant, and the unique nature of this cruel act (reasons,
    paras. 29,31).

[48]

However, the trial judge identified weaknesses that
    made the evidence of identify insufficient, without more, to support a finding
    of guilt. One weakness he identified was that the complainant could only say
    that the face in the photo looked like her. (I add parenthetically that in light
    of defence counsels concession that it was her, I do not view this as a weakness
    in the evidence.) The other weaknesses the trial judged noted were: the
    complainant did not teach kindergarten, she had not seen the appellant since
    the Family Court hearing, she had remarried, and the appellant had a
    girlfriend. However, the trial judge added, tension over custody remained
    because the complainant was in charge and the appellant was not (reasons, para
    30).

[49]

The trial judge then turned to the evidence of
    prior discreditable conduct that he had ruled admissible, namely, the complainants
    evidence on the 2012 nude photo incident. He summarized that evidence as
    follows. In the course of a continuing dispute over custody in 2012, the
    appellant threatened to destroy the complainants life by distributing nude
    photos of her at work. The complainant had sent the appellant a nude photo of
    her while he was incarcerated. The complainants name and phone number were
    written on the nude photo before copies were made and strewn about the parking
    lot of the school yard where the complainant worked, the same location as the
    distribution of the nude photos in 2015. The appellant acknowledged to the
    complainant that he was responsible for the 2012 nude photo incident (reasons,
    para. 32)

[50]

The trial judge then stated, The whole of this
    evidence provides a credible basis to infer motive and animus on the [appellants]
    part. He accepted that the appellant was the sole individual with the motive
    to perpetrate the 2012 nude photo incident that was uniquely similar in nature
    and modus to the 2015 criminal harassment allegations (reasons, para. 34).

[51]

It was at this point in the reasons that the
    trial judge referred to the cross-count evidence. At paragraph 35 of the
    reasons, the trial judge wrote:

Mindful of the
    weaknesses in the evidence regarding the 2015 school incident,
I take into
    account the threats, intimidation and aggression exhibited by the [appellant]
    prior to and during the course of the Family Court proceedings
, the
    continuing tensions over custody and access and the distinctly similar nature
    of the prior act that was so exceptionally unique to the personal circumstances
    of the parties and to the commission of the subject offence. [Emphasis added.]

[52]

He concluded that the evidence was compelling in
    enhancing proof of identity in relation to the 2015 nude photo incident and
    that no one but the appellant had the motive and animus to perpetrate the
    spreading of the photos in the schoolyard in 2015 (reasons, para. 36).

[53]

As this review of the reasons shows, the trial
    judge made little use of the cross-count evidence. His only reference to it is
    at paragraph 35 of the reasons, when he took into account the appellants
    threats, intimidation and aggression in the Family Court proceeding.
    Immediately prior to that, however, at paragraph 34 of the reasons, the trial
    judge had concluded that the whole of the evidence provides a credible basis
    to infer motive and animus on the part of the appellant. In reaching this
    conclusion, the trial judge had relied on the evidence of the 2012 nude photo
    incident evidence, admitted after a contested Crown application.

Was the appellant prejudiced?

[54]

Despite the absence of a formal Crown
    application, given the way in which this trial unfolded, in my view there was
    no prejudice to the appellant.

[55]

In this case, the Crown made no request, formal
    or informal, to use the cross-count evidence. Further, the Crown did not rely
    on the evidence in the Family Court incident in her closing submissions on the
    criminal harassment charge. Thus, unlike cases such as
Graham
, it
    cannot be said that the Crowns actions had alerted the defence and given it a
    chance to respond to the use of evidence across counts.

[56]

However, in his closing submissions, after
    acknowledging that the trial judge had ruled admissible the evidence of the
    2012 nude photo incident and would consider it, defence counsel argued that the
    appellant should not be found guilty of distributing the nude photos in 2015
    because after all that stuff happened back in 2012  there was nothing going
    on as between the two of them.

[57]

The defence position that nothing transpired
    between the two after the 2012 incident all but invited the trial judge to use the
    evidence across counts  that is, to consider the evidence in the 2013 Family
    Court incident. Put another way, for the trial judge to fairly consider the
    defence position, he needed to refer to that evidence.

[58]

In these circumstances, while it would have been
    preferable for the trial Crown to have brought the appropriate application and
    the trial judge run an admissibility inquiry, I see no procedural unfairness in
    the trial judges very limited use of the cross-count evidence.

[59]

Because of the appellants heavy reliance on
Tsigirlash
,
I would close by simply stating that it is a very different case than the
    present one.  In
Tsigirlash
, the trial judge made numerous errors in
    the way he considered and used evidence across counts as similar fact evidence.
    See paragraph 64 of
Tsigirlash
in which Zarnett J.A. summarizes the
    numerous errors and his conclusion that they were neither harmless nor trivial.
    The errors included deciding each count on the basis of evidence related to
    that count and 48 others. And, importantly, Zarnett J.A. states that the court
    could not be assured that the similar fact inferences drawn by the trial judge
    would have been available to him if a proper admissibility inquiry had been
    undertaken. As I have explained, the trial judge in this case made no such
    errors, the evidence would have been admissible had an application been
    brought, and the inferences he drew from the evidence were fully available to
    him.

(b)

Use of extrinsic prior discreditable conduct

[60]

The appellant argues that the trial judge erred
    by relying on the appellants 2012 threat to destroy the complainants life by
    distributing nude photos of her at work in order to find that he was the
    perpetrator of the 2015 nude photo incident. He contends that in his ruling on
    the Crowns application to admit prior discreditable conduct, the trial judge
    ruled that the threat, as opposed to the actual distribution of the photos, was
    inadmissible.

[61]

The Crown does not accept that the trial judge relied
    on extrinsic prior discreditable conduct that he had ruled inadmissible. Nor do
    I. As I explain above, the trial judge ruled admissible all evidence pertaining
    to the 2012 nude photo incident, including evidence of the appellants threat
    in 2012 to the complainant that he would spread nude photographs of her at her
    place of work.

D.

The Sentence Appeal

(1)

The
    Parties Positions

[62]

The Crown seeks leave to appeal against sentence
    on two grounds:

1.

the sentence is illegal because it is a blended custodial and conditional
    sentence that exceeds two years and because a period of probation was imposed
    where the global sentence exceeded two years; and

2.

the 18-month conditional sentences for intimidation and obstruction
    of justice are demonstrably unfit.

[63]

The Crown asks this court to impose a global
    sentence of two years imprisonment  a 12-month custodial sentence for
    criminal harassment and two 12-month custodial sentences for intimidation by
    threats of violence and obstruction of justice, to be served concurrently to
    one another and consecutively to the 12-month sentence for criminal harassment.
    It also asks that a 12-month probation order be imposed.

[64]

The appellant concedes that the sentence is
    illegal for both of the reasons given by the Crown and that, as a result, he
    must be re-sentenced. He submits that a fit and just sentence is a global
    custodial sentence of 12 months followed by a period of probation. He disagrees
    that a conditional sentence is inappropriate. Thus, if this court finds that a
    further period of custody is required, he asks that any period greater than 12
    months be served by way of a conditional sentence.

(2)

The Sentence

[65]

I begin by considering the principles that guide
    sentences for criminal harassment. As the sentencing judge indicated at para.
    29 of his reasons for sentence, this court has made clear that behaviour of
    this sort must be denounced in clear terms, a heavy sentence is required, and
    general and specific deterrence are overriding considerations. It is necessary
    to signal to the offender and the public that this conduct is not to be
    tolerated:
R v. Bates

(2000), 134 O.A.C. 156 (C.A.), at paras.
    30-31.

[66]

At para. 30 of the reasons for sentence, the
    sentencing judge wrote:

What [the appellant] subjected [the
    complainant] to was heartless. His motivation was loathsome. The irreparable
    harm perpetrated on his own boys was shameful. It is also significant that it
    wasnt the first time.

[67]

Nonetheless, the sentencing judge did not impose
    a penitentiary term. Giving as much weight as he could to the appellants more
    recent efforts to reform and despite the gravity of the offence, he imposed a
    sentence of 12 months in prison for the criminal harassment conviction.

[68]

The Crown urges this court to impose the same sentence
    for the criminal harassment conviction as was imposed by the sentencing judge. I
    accept that sentence is fit, for the reasons given by the sentencing judge.

[69]

I turn next to the question of a fit sentence for
    the convictions for intimidation by threats of violence and obstruction of
    justice. In my view, the prerequisites for a conditional sentence set out in s.
    742.1(a) of the
Criminal Code

are not met. The appellant is a
    repeat offender with over 30 prior convictions which include crimes of
    violence, weapons-related offences, and breaches of court orders. I am not
    satisfied that service in the community would not endanger the safety of the
    community nor is service in the community consistent with the fundamental
    purpose and principles of sentencing for offences such as these. A custodial sentence
    is necessary to reflect the primary sentencing objectives of deterrence,
    denunciation, and the need to separate this violent offender from society.

[70]

In recognition of the appellants efforts at
    reform, I would not accede to the Crowns request for a penitentiary term. In my
    view, a fit and just sentence is a global custodial sentence of two years less
    a day, broken down as follows: a 12-month custodial sentence for criminal
    harassment, and two 12-month less a day custodial sentences for intimidation by
    threats of violence and obstruction of justice, to be served concurrently to
    one another and consecutively to the sentence for criminal harassment. Like the
    trial judge, I would impose a 12-month probation period following imprisonment
    and make a s. 109 order.

E.

Disposition

[71]

Accordingly, I would dismiss the conviction
    appeal and order that count 1 of the information be amended to read that the complainant
    received a threat to cause death to her family (rather than to her) and count 2
    be amended to show intimidation by threats that violence would be done to the
    complainants family (rather than her).

[72]

I would grant leave to appeal sentence and allow
    the sentence appeal. I would sentence the appellant to a global custodial
    sentence of two years less a day, broken down as follows: a 12-month custodial
    sentence for criminal harassment, and two 12-month less a day custodial
    sentences for intimidation by threats of violence and obstruction of justice,
    to be served concurrently to one another and consecutively to the sentence for
    criminal harassment.

[73]

Further, I would order 12 months of probation to
    follow the prison sentences on the same terms and conditions as those imposed by
    the trial judge with one exception: I would change the wording of the condition
    prohibiting the appellant from contacting or communicating with the complainant
    to that proposed by the Crown at the oral hearing of the appeal. As the
    proposed wording includes the names of close family members, for the sake of
    their privacy, I will not repeat the proposed wording here. The Crown may
    submit a draft probation order to me for signature.

[74]

Finally, I would also impose the s. 109 order on
    the same terms as those of the trial judge.

Released: December 10, 2019

E.E. Gillese J.A.

I agree. K. Feldman J.A.

I agree. B.W. Miller J.A.


