



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Orton, 2019 ONCA 334

DATE: 20190425

DOCKET:
C62660

Watt, van Rensburg and Brown
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Richard Orton

Appellant

Naomi M. Lutes, for the appellant

Joseph Hanna, for the respondent

Heard: November 6, 2018

On appeal from the convictions entered
    on October 6, 2015 by Justice Alain H. Perron of the Ontario Court of Justice.

BROWN J.A.:

I.
OVERVIEW

[1]

Following an 8-day trial in 2015 on 21 counts
    contained in 3 informations, the appellant, Richard Orton, was convicted of 14
    counts, 1 of which was stayed applying the principle in
R. v. Kienapple
,
    [1975] 1 S.C.R. 729. The various offences of which the appellant was convicted
    included dangerous driving, mischief to property, intimidation, and criminal
    harassment. They are described in detail later in these reasons. The appellant
    was sentenced to a 12-month conditional sentence, followed by two years probation.
    In addition, ancillary orders were imposed, including a five-year driving
    prohibition.

[2]

Five of the charges proceeded by way of
    indictment. The appellant was convicted of two of them and appeals. The other
    convictions were in respect of summary conviction offences. The appellant seeks
    leave to appeal those convictions on the basis that they are factually
    intertwined with some of the convictions that the appellant may appeal as of
    right; the respondent does not oppose leave being granted. Consequently, I
    would grant leave to appeal the summary convictions, and I will deal with both
    types of convictions together.

[3]

The appellant did not testify at the trial but
    did call some witnesses as part of his defence.

[4]

The appellant advances grounds of appeal common
    to all convictions, as well as others specific to certain convictions. One
    overarching ground of appeal is that the trial judges reasons are insufficient
    in two main respects: they fail to explain why he did not accept the evidence
    of the defence witnesses; and they lack any real analysis of how the Crown
    established the essential elements of the offences. As a related submission,
    the appellant contends that the trial judge applied a higher standard of
    scrutiny to the evidence called by the defence than to the Crowns evidence. I
    will consider these common challenges when dealing with each group of charges.

[5]

For certain convictions, the appellant also
    argues that the trial judge erred with respect to the essential elements of the
    offences.

[6]

For the reasons that follow, I would not give
    effect to any of the grounds of appeal advanced by the appellant.

II.       THE JUNE 22, 2013 DRIVING INCIDENT

A.      THE CHARGES

[7]

In respect of a June 22, 2013 driving incident
    in North Bay, the appellant was charged with: one count of dangerous driving (
Criminal
    Code
s. 249); two counts of criminal harassment by threatening conduct (s.
    264(2)(d)); and two counts of intimidation by following in a disorderly manner
    (s. 423(1)(e)) in relation to the occupants of another vehicle, Darren Binz and
    Carly Bishop.

[8]

The appellant was convicted on all counts.

B.      THE EVIDENCE

[9]

The charges concerned the interaction on June
    22, 2013 in North Bay between the Honda Civic driven by the appellant, bearing
    the personalized licence plate RIKYO, and a pickup truck driven by Darren Binz.
    Carly Bishop was a passenger in Mr. Binzs truck. A dispute existed as to
    whether the passenger in the appellants truck was his wife, Laurie Orton, or a
    younger female.

[10]

The incident started when Mr. Binz attempted to
    change lanes on Lakeshore Drive approaching Main Street. The appellants car
    was slightly behind the truck, travelling in the lane into which Mr. Binz
    attempted to move. Mr. Binz did not check his blind spot before he started to
    move over; he started to cut off the appellant, who honked; and Mr. Binz moved
    back into his lane.

[11]

According to Mr. Binz and Ms. Bishop, the
    appellant then drove up alongside the Binz car and yelled at Mr. Binz to pull
    over, claiming that he had captured everything on a dash camera. Mr. Binz did
    not pull over because he was extremely scared at that point. He continued
    driving, veering left on Main Street at the Y-intersection with McIntyre
    Street East. The appellant angled right along McIntyre.

[12]

After a block, Mr. Binz turned right onto John Street
    to make his way up to Seymour Street, where his girlfriend worked at a
    restaurant. He saw the appellants car turn left from McIntyre onto John into
    the lane in which Mr. Binz was travelling and drive straight towards the Binz
    car. Ms. Bishop testified to the same effect. Both Mr. Binz and Ms. Bishop said
    that just as the appellant reached their truck, he turned his car in front of
    them at a 90-degree angle, blocking their lane.

[13]

Mr. Binz drove around the appellant, who
    followed. According to Mr. Binz, the appellant moved into the lane of oncoming
    traffic, crossing a solid line, passed the two or three cars that were between
    their vehicles, and then tailgated his truck in an extremely close fashion,
    through several left and right-hand turns, until the intersection of Seymour
    Street and Highway 11. At that point, Mr. Binz waved his cellphone in the air
    to convey that he was going to call the police. The appellant then turned left
    onto the highway.

[14]

Laurie Orton testified that she was a passenger
    in the appellants car. She and her husband were on their way to the Northgate
    Shopping Mall. Ms. Orton testified that the appellant had yelled to the other
    car that they were driving in a reckless fashion and she had pointed to the
    dash camera at the car. The truck went off to the left on Main Street, while
    they went to the right on McIntyre. They stopped at a red light at the
    intersection of McIntyre and John Streets.

[15]

Ms. Orton stated that the truck passed in front
    of them travelling along John Street on the green light at the intersection
    with McIntyre. Although the truck was moving away from them, Ms. Orton
    testified that she and the appellant actually thought the truck was trying to
    follow them. When their light turned green, instead of continuing along the direct
    route to the Northgate Shopping Mall  driving straight along McIntyre to
    Fisher Street and then turning right - they decided to turn right onto John
    Street and follow the truck. According to Ms. Orton, they wanted to take down
    the licence plate number and report it to the police. They continued to follow
    the truck all the way to Highway 11, then turned left to the shopping mall. Ms.
    Orton denied that the appellant had blocked traffic on John Street.

[16]

The appellant placed a 911 call at 4:43 p.m.;
    Mr. Binz placed a separate call a minute later. In his call, the appellant was
    emphatic that he had been the victim of Mr. Binzs erratic driving and that he
    had a video capturing the incident. No video of the events was ever located.
    Mr. Binzs 911 call did not mention the 90-degree maneuver. He only stated that
    the appellant had been passing, chasing, and driving in the wrong lane.

C.
The
    trial judges reasons

[17]

The trial judge stated that the determination of
    whether the Crown had proven each and every element of the offences, in the
    circumstances, turned on the credibility of the three witnesses: Mr. Binz; Ms.
    Bishop; and Ms. Orton. He expressly instructed himself on the principles set
    out in
R. v. W.D.
, [1991] 1 S.C.R. 742. As well, he noted the
    principle articulated by this court in
R. v. J.J.R.D.
(2006), 215
    C.C.C. (3d) 252 (Ont. C.A.), leave to appeal to S.C.C. refused [2007] 1 S.C.R.
    x (note), at para. 53, that [a]
n outright rejection of
    an accuseds evidence based on a considered and reasoned acceptance beyond a
    reasonable doubt of the truth of conflicting credible evidence is as much an
    explanation for the rejection of an accuseds evidence as is a rejection based
    on a problem identified with the way the accused testified or the substance of
    the accuseds evidence.

[18]

The trial judge accepted as credible and
    reliable the evidence of Mr. Binz and Ms. Bishop, in large part because their accounts
    of the events were consistent.

[19]

He did not accept Ms. Ortons evidence as
    reliable or credible for several reasons: on cross-examination she became vague
    and non-responsive to some basic elements of what happened and, towards the
    end, aggressive; at one point she testified that she did not remember specific
    details; and her testimony that she thought the truck was chasing them, so they
    decided to follow it, did not make sense. As well, based on the descriptions
    given by Mr. Binz and Ms. Bishop that the passenger in the appellants car was
    a young female under the age of 20, the trial judge had serious concerns as to
    whether Ms. Orton - who testified that she was 45 years old - was in fact a
    passenger at the time of the incident. For those reasons, he rejected her
    evidence.

[20]

The trial judge concluded that the Crown had
    established beyond a reasonable doubt that: the appellants driving on the date
    in question amounted to a marked departure from the standard of care that a
    reasonable person would have observed and presented a danger to the public;
    blocking the Binz vehicles lane of travel on John Street was conduct that was
    threatening in nature, which created some reasonable fear to both Ms. Bishop
    and Mr. Binz; and crossing a solid line to pass motor vehicles in the opposing
    lane of traffic and then following someone in a disorderly and aggressive
    fashion met the elements of the offence of intimidation by following in a
    disorderly manner.

D.
Errors
    of fact


[21]

The appellant advances numerous grounds of
    appeal regarding the trial judges assessment of the evidence about this
    incident. I shall deal with each.

Uneven scrutiny of evidence

[22]

The appellant contends that the trial judge
    improperly and unfairly subjected the evidence called by the appellant to a
    heightened degree of scrutiny, specifically the evidence given by his wife, Ms.
    Orton:

(i)

According to the appellant, the overt criticism
    of Ms. Ortons lack of memory of precise details of the driving incident stands
    in sharp contrast to the forgiveness of the inconsistences between Mr. Binz and
    Ms. Bishop in their versions of that same event;

(ii)

The trial judge appeared to draw an adverse
    inference from the fact that Ms. Orton spent less time dealing with the topic
    of the June 22, 2013 incident in her examination-in-chief than she did in
    cross-examination. The appellant contends that no Crown witness was subjected
    to this kind of scrutiny;

(iii)

The trial judge found that Laurie Orton was
    vague and unresponsive in her answers and he criticized her for being uncertain
    in her answers about speciﬁc details, yet those details, in the view of
    the appellant, were peripheral to the core allegations. He contends that his
    wife was cooperative, readily conceded issues where she was unsure, and was
    quick to adopt reasonable suggestions put to her by the Crown. She was anything
    but antagonistic; and

(iv)

The trial judge noted
    that he had serious concerns that Ms. Orton was even in the vehicle on June
    22. However, the appellant argues that this suggestion was never put to Ms.
    Orton by the Crown. Rather, Ms. Orton agreed that if the other driver described
    her as a young woman, she would take it as a compliment, and it would have been
    a mischaracterization.

[23]

Uneven scrutiny of the evidence is a difficult
    ground of appeal to advance. In order to succeed with an argument that a trial
    judge applied a different and stricter standard of scrutiny to defence
    evidence, it is not enough to show that a different trial judge could have
    reached a different credibility assessment, or that the trial judge failed to
    say something that he could have said in assessing the respective credibility
    of the complainant and the accused, or that he failed to set out expressly
    legal principles relevant to that credibility assessment. Instead, an appellant
    must point to something in the reasons or elsewhere in the record that make it
    clear the trial judge applied different standards in assessing the evidence of
    the appellant and the complainant:
R. v. Howe
(2005), 192 C.C.C. (3d)
    480 (Ont. C.A.), at para. 59.

[24]

A review of the transcript of the evidence of
    Mr. Binz, Ms. Bishop, and Ms. Orton does not bear out the appellants
    submission of uneven scrutiny. The trial judge accurately noted that Ms. Orton
    testified that she was unable to remember many details of the incident, some of
    them quite important ones. The trial judge did not draw an adverse inference
    from the comparative lengths of her examination-in-chief and cross-examination.
    He did fairly state that the incident was only addressed very briefly during
    examination-in-chief. The transcript supports the trial judges description of
    Ms. Ortons answers in many places as vague and unresponsive. And while Crown
    counsel did not directly suggest to Ms. Orton in cross-examination that she was
    not in the car at the time, he did ask a series of questions that indirectly
    put that suggestion to her.

The dash cam video

[25]

Next, the appellant argues that the trial judge
    misapprehended the evidence by characterizing the existence or non-existence of
    the dash cam video as a red herring. The appellant contends that the trial
    judge ought to have considered whether evidence of the existence of the dash
    camera during the events in question, including the evidence of Mr. Binz, in
    conjunction with the Appellants immediate and spontaneous declaration to the
    police that he possessed exculpatory video evidence, raised a reasonable doubt
    about these charges.

[26]

I am not persuaded by this submission.

[27]

When the appellant placed his 911 call, he
    informed the operator that he had a video of the incident. In a conversation
    with Cst. Drolet a few days after the incident, the appellant stated the
    incident had been recorded on his dash cam and the video would not incriminate
    him. Transcripts of the 911 call and conversation with Cst. Drolet were entered
    into evidence.

[28]

The video was not tendered as an exhibit at
    trial. The trial judge was not prepared to accept that the video would
    exculpate the appellant simply because the appellant had made that assertion
    during his conversation with Cst. Drolet. In those circumstances, the trial
    judge regarded the existence or non-existence of the video as a red herring on
    this trial because [t]his Court has not received the video in evidence and
    makes no conclusion from any reference to it on the fact - or from the fact
    that same has not been tendered as evidence. I see no error in that statement.

Mr. Binzs 911 call

[29]

The appellant further argues that the trial
    judge failed to give effect to important inconsistencies between the statements
    made by Mr. Binz in his initial 911 call and his evidence at trial. The
    appellant argues that the trial judge erred in discounting the content of the
    911 call because it was not a statement.

[30]

It is true that the trial judge did not
    characterize Mr. Binzs 911 call as a statement; he described it as a
    complaint to the police. Nevertheless, the trial judge did not ignore the
    defence argument that Mr. Binzs credibility was weakened because he did not
    mention in his 911 call that the appellant had blocked his passage on John
    Street. The trial judge directly addressed that discrepancy, placing the 911
    call in context when assessing its weight and consistency with other evidence:

These types of calls are quick [in] nature and
    only provide the highlights or basic facts of what occurred. One must recall
    that Mr. Binz testified that this was one of the scariest moments of his life
    and the call was made within minutes, if not seconds, of it and forgetting or
    brushing off some details can be understood.

However, he does clearly explain to 911 that
    the vehicle was driving in the wrong lane and that it [passed] a car on the
    city streets trying to catch up to him.

[31]

The trial judge committed no palpable and
    overriding error in so assessing that piece of evidence.

Failure to apply the principles in
W.D.
and
J.J.R.D.

[32]

Finally, the appellant argues that the trial
    judge erred in his interpretation and application of the principles in
W.D.
and
J.J.R.D.
by comparing the versions of the evidence and finding
    that he was not left with a reasonable doubt notwithstanding the absence of
    obvious flaws in the defence evidence. As a result, he failed to squarely
    consider whether he was left with a reasonable doubt.

[33]

I see no such error. Ms. Orton testified that
    when they were stopped at the lights at John and McIntyre Streets, they saw the
    Binz truck pass in front through the intersection, moving away from them. She
    stated that instead of taking the direct route to the shopping mall, the
    appellant made a right turn in order to follow the truck, ostensibly to take
    down its licence plate number. In his reasons, the trial judge questioned why
    the appellant would follow a truck that, on Ms. Ortons evidence, they thought
    was trying to chase them. Given the implausibility of her explanation, it is
    understandable why the trial judge did not regard Ms. Ortons evidence as
    giving rise to a reasonable doubt.

E.
Error of law


[34]

The appellant was convicted of two counts of
    intimidation by following in a disorderly manner contrary to s. 423(1)(e) of
    the
Criminal Code
, which states: Every one is
    guilty of an indictable offence  who, wrongfully and without lawful authority,
    for the purpose of compelling another person to abstain from doing anything
    that he or she has a lawful right to do  (e) with one or more persons, follows
    that person, in a disorderly manner, on a highway.

[35]

The trial judge convicted the appellant of
    intimidation for the following reasons:

Finally, having [to] pass motor vehicles in
    the opposing lane of traffic is, in this Courts view, and following someone in
    a disorderly manner and following them in such an aggressive fashion does meet
    the provisions of Section 423 of the Code.

[36]

The appellant submits the trial judge failed to
    address the fault element of the offence because he did not consider whether
    the Crown had proved beyond a reasonable doubt that the appellants conduct was
    for the purpose of compelling the complainants to abstain from doing something
    they had a lawful right to do. This submission forms part of the appellants
    overarching position that the trial judges reasons are not sufficient to
    permit appellate review.

[37]

As stated in
R. v. R.E.M
., 2008 SCC 51,
    [2008] 3 S.C.R. 3, at paras. 43 and 44, the degree of detail required in
    reasons may vary with the circumstances. Less detailed reasons are required in
    cases where the basis of the trial judges decision is apparent from the
    record, even without being articulated. What is required is that the reasons,
    read in the context of the record and the submissions on the live issues in the
    case, show the judge seized the substance of the matter.

[38]

The Crown submits that a finding that the
    appellant had the requisite
mens rea
for the two intimidation charges
    was clearly inferable from the conduct involved. I agree. The trial judge
    accepted the evidence of Mr. Binz and Ms. Bishop that, after attempting to
    block the passage of their car on John Street, the appellant drove quickly to
    catch up with them, crossing a solid line to pass intervening traffic, and then
    proceeded to tailgate their truck aggressively for a considerable distance
    until they reached Highway 11.

[39]

It was clear from the findings of fact made by
    the trial judge that he accepted the appellant had driven in such an aggressive
    manner for the purpose of compelling Mr. Binz and Ms. Bishop to abstain from
    their lawful use of a public highway. I would not give effect to this ground of
    appeal.

III.      THE JUNE 26, 2013 DRIVING INCIDENT

A.
The charges

[40]

In respect of the June 26, 2013 driving
    incident, the appellant was charged with the following counts: dangerous
    driving (s. 249(1)(a)); escaping from lawful custody (s. 145(1)(a)); assaulting
    a person with intent to resist or prevent lawful arrest or detention (s. 270(1)(b));
    counselling a person to commit the offence of obstructing the police, which was
    not committed (s. 464(a)); and wilfully obstructing a peace officer engaged in
    the execution of his duty by attempting to conceal evidence (s. 129(a)).

[41]

The appellant was convicted of dangerous driving
    and escaping from lawful custody but acquitted on the other charges. He appeals
    those convictions.

B.
The
    evidence

The evidence relating to dangerous driving
    and escaping from lawful custody

[42]

On June 26, 2013, the police decided to arrest
    the appellant on charges relating to the June 22 driving incident involving Mr.
    Binz and Ms. Bishop. The Street Crime Unit was to arrest the appellant in his
    vehicle away from his home. Cst. McFarlane, who previously had dealt with the appellant,
    commenced surveillance of the appellants residence. He saw the appellant leave
    his house with a young female at 11:35 a.m. and drive away in his black pickup
    truck.

[43]

Cst. McFarlane followed the truck using an
    unmarked vehicle. He instructed other members of the Street Crime Unit to box
    in the appellants truck at a red light. An initial attempt to do so at the
    intersection of Lakeshore Drive and Gertrude Street failed.

[44]

When the appellant stopped in the curb lane at
    the next red light, at Lakeshore and Judge Avenue, Cst. McFarlane decided to
    proceed with the arrest. According to Cst. McFarlane: he left his vehicle;
    walked over to the appellants truck where the appellants left arm was resting
    on the rolled-down drivers window; placed his left hand on the appellants
    wrist and his right hand on the appellants  bicep; and told him that he was
    under arrest. The appellant looked at the officer, said like fuck, pulled his
    arm away, and started to put the truck in motion. Cst. McFarlane put his arm into
    the truck to reach for the keys. At the same time, the vehicle started to mount
    the curb towards an adjacent parking lot. Cst. McFarlane stated that his arm
    was caught in the window and he was dragged with the truck, but was able to get
    off before the truck hit the curb. Cst. McFarlane suffered a scrape on his arm.
    He decided not to pursue the appellants truck at that time.

[45]

Cst. Robertson was a member of the arrest team,
    driving a separate car. Following the unsuccessful attempt to box in the
    appellant, Cst. Robertson followed Cst. McFarlane and stopped two car lengths
    behind his cruiser at the intersection of Lakeshore and Judge. Cst. Robertson
    left his car when he saw Cst. McFarlane leave his. Cst. Robertson then saw Cst.
    McFarlane reach inside the appellants vehicle. When Cst. Robertson had almost
    reached the back of the appellants pickup truck, it started to move towards
    the right onto the curb. He heard Cst. McFarlane yell stop. He observed the
    truck moving about three to four feet towards the curb, with Cst. McFarlane
    still reaching inside the window of the truck with his arms. Once the truck hit
    the curb, Cst. Robertson went back to his car to broadcast on the radio that
    the appellant was fleeing. The appellants truck jumped the curb into the
    adjacent parking lot and drove away.

[46]

Cst. Reaume was part of the arresting team,
    driving a third car. At the intersection of Lakeshore and Judge, Cst. Reaume
    stopped at the red light with the others. He was within the length of a car and
    a half from the appellants truck. He saw Cst. McFarlane go to the drivers
    side of the appellants vehicle and yell at the driver that he was under arrest
    and to stop. The driver immediately turned right onto the curb, with the upper
    third of Cst. McFarlanes body stuck in the trucks drivers-side window. Cst.
    Reaume saw Cst. McFarlane dragged by the truck for about seven to eight feet.
    The truck accelerated, drove over the curb, entered and crossed a parking lot,
    and turned onto another street. Cst. Reaume followed but lost sight of the
    truck.

[47]

Jodi Lamabe, a Grade 10 student and the
    girlfriend of the appellants son, was a passenger in the appellants truck at
    the time. She was living with the Ortons. Ms. Lamabe testified that when they
    were stopped at an intersection, some guy came over, reached into the truck and
    said youre under arrest. This man did not identify himself and was not
    wearing a uniform. The appellant started to close the window and the man
    removed his arm from the window. The appellant pulled away and went over the
    curb. Ms. Lamabe testified that after the attempted arrest, the appellant asked
    her to call his wife. As will be explained shortly, the Crown was unable to
    cross-examine Ms. Lamabe on her testimony about the incident.

[48]

The camera on the front dash of the appellants
    truck recorded most of the incident. The video was entered as an exhibit at
    trial. Although the camera was pointed towards the front of the truck and
    therefore did not capture the events taking place at the side door, the quality
    of the audio was good. When the truck was stopped in the curb lane at the
    intersection of Lakeshore and Judge, the video clearly recorded a male voice
    yelling youre under arrest, dont move, three times. The man who was yelling
    did not identify himself as a police officer. The video shows the appellants
    truck mounting the curb and driving away through a parking lot.

[49]

The appellant is recorded as telling the
    passenger to call his wife. When the connection is made, the appellant is then
    recorded as saying, Laurie, the cops are trying to arrest me. As well, the
    appellant can be heard yelling the cops are trying to arrest me  They just
    came to grab me out of the truck and everything  theyve got undercover cops
    and everything. As the appellant drove toward his lawyers office, he said to
    the passenger: Do not allow [the police] to get this here fucking recording
    device. The video stops upon the appellant entering his lawyers office.

Evidence of subsequent events

[50]

Cst. Reaume ultimately located the appellants
    truck at a lawyers office.

[51]

Cassandra Paulitzki worked at the law office.
    She testified that the appellant entered the office and claimed that he had
    been attacked or jumped. The appellant asked her to hold onto the dash camera
    and not to turn it over to anyone.

[52]

According to Cst. McFarlane, the appellant had
    barricaded himself in the back office. Cst. McFarlane advised him through the
    door that he was under arrest. He eventually had to force the door open.
    According to Cst. Reaume, Cst. McFarlane tried to open the door to the back
    office but it was being held shut.

[53]

Ms. Paulitzki testified that the police were
    able to open the rear office door without having to use force. Ms. Lamabe was
    with the appellant in the back office. She testified that the appellant was not
    holding the door shut, although they were both standing very close to the door.

C.
Factual
    errors advanced

[54]

The appellant advances two fact-based grounds of
    appeal in respect of these convictions, which can be summarized as: (i) the trial
    judge did not place enough weight on the evidence of Ms. Lamabe about the
    events that transpired at the intersection of Lakeshore and Judge; and (ii) the
    trial judge placed too much weight on Cst. McFarlanes evidence notwithstanding
    that he did not accept the constable had been dragged by the appellants
    truck.

[55]

I am not persuaded by either submission.

[56]

Ms. Lamabe testified briefly about the incident
    in her examination-in-chief. Part way through her cross-examination, she stated
    that she did not want to continue and left the courtroom. The following day,
    counsel agreed that in light of Ms. Lamabes medical condition, she would not
    be required to continue with her evidence. The trial judge generally agreed
    with the position of the defence on how to treat the evidence that she had
    given: where the evidence was conﬁrmed by other independent evidence, it
    would be safe to rely upon it.

[57]

As the trial judge noted in his reasons, Ms.
    Lamabe was not cross-examined on her evidence about the events at Lakeshore and
    Judge. The appellant contends the trial judge erred by not giving any weight to
    Ms. Lamabes evidence in-chief that the officer who reached into the truck was
    not dragged by the vehicle. According to the appellant, part of the error consisted
    of the trial judge mischaracterizing Ms. Lamabes evidence that the officer was
    not dragged by the vehicle and his arm was not pinned by the vehicles window.
    The trial judge described that evidence as given in response to leading
    questions. The appellant argues that the questions were not leading, just
    focused.

[58]

I do not accept the appellants position. It was
    open to the trial judge to discount Ms. Lamabes evidence in light of his
    ruling that accepted the defence position on how to use her untested evidence.
    The trial judge preferred the evidence of the three police officers at the
    scene, which did not support that of Ms. Lamabe on this point. However,
    contrary to the appellants submission, the trial judge did not use their
    evidence to find that the appellant dragged Cst. McFarlane with his truck or
    pinned the officers arm with the vehicles window, thereby committing the
    offence of dangerous driving. Instead, the trial judge stated:

I do agree with Defence Counsel that Constable
    McFarlane was not dragged by the Orton vehicle. In my view, the word dragged
    does not properly describe what happened. It is clear in my mind that the Orton
    vehicle started to move from a parked position while Constable McFarlane was
    still reaching inside the window. He is clearly able to exit the window before
    the vehicle accelerated at a high rate of speed.



It is clear that leaving from a parked
    position while somebody is reaching inside your motor vehicle is dangerous.
    This combined with the fact that Mr. Orton pulled over a curb into a parking
    lot on two occasions, made no attempts to slow down or stop at the intersection
    of Lee or George Avenue, proceeded through a red light at the intersection of
    Lakeshore Drive and Judge Avenue, and simply slowed down at a stop sign at the
    intersection of Sherbrooke and Worthington are all, in my view, an indication
    that he was driving in a manner dangerous to the public.

[59]

Ample evidence supported that conclusion,
    including the video recording made by the appellants dash cam. I would not
    give effect to this ground of appeal.

D.
Legal
    error

[60]

Under s. 145(1)(a) of the
Criminal Code
,
    the external circumstances of the offence of escaping from lawful custody are
    complete where the accused escapes from lawful custody. The mental element of
    the offence requires proof that the accused intended to do so: David Watt and Michelle
    Fuerst,
The 2019 Annotated Tremeears Criminal Code
, at p. 276.

[61]

The appellant contends that the only live issues
    in respect of this offence were the appellants knowledge and belief: did the
    appellant know that it was the police who were arresting him and did he know
    that they were in the lawful execution of their duties? The appellant argues
    that the trial judge erred by focusing on the reasonableness of the appellants
    belief as opposed to his actual subjective state of mind.

[62]

I am not persuaded by this submission. Again,
    the starting point is the trial judges reasons. He stated:

Section 145(1)(a) creates a criminal offence
    for everyone who escapes from lawful custody. [In] the case at bar, the defence
    concedes that if  that by Constable McFarlane grabbing Mr. Orton by the arm
    that he was at that time in lawful custody. The issue is that defence is
    suggesting that Mr. Orton was justified in escaping as he had a reasonable
    belief that he was not in lawful custody. His actions were justifiable as he
    had a reasonable basis to believe that he was being attacked.

I do not accept Defence
    Counsels suggestion that Mr. Orton had the belief
or in fact that same was reasonable. Within seconds of the
    incident, Mr. Orton is overheard on the dash-cam video speaking to what the Court
    believes is his wife Laurie, and telling her the cops are trying to arrest
    me. He clearly identifies them as undercover cops.  Later during the trip to
    Mr. Eggerts office, hes advising someone on the phone the cops are trying to
    grab him.

In view of the
    statement, it is clear that Mr. Orton knew the police were trying to arrest him
, and I do not accept that he had any belief that he was not in
    lawful custody.  Any belief that he had, in my view, was definitely not
    reasonable within the circumstances. [emphasis added]

[63]

It is clear from his reasons that the trial
    judge rested the conviction for this offence on his finding that the appellant
    knew the police were trying to arrest him. In light of the appellants
    statements recorded on the video, that finding is unassailable.

IV.     MISCHIEF COUNT INVOLVING DOREEN
    MCLUHAN

A.

The charges


[64]

In respect of the appellants dealings with his
    neighbours, he was charged under s. 430(1)(c) of the
Criminal Code
with four counts of committing mischief by obstructing, interrupting or
    interfering with the lawful use, enjoyment or operation of the property of
    Doreen McLuhan, Vital Lascelles, Doug Steringa, and Al and Joelle Boyle. As
    well, the appellant was charged with one count under s. 175(1)(a)(i) of the
Criminal
    Code
of causing a disturbance by using insulting language.

[65]

The appellant was only convicted of the count of
    mischief to the property of Doreen McLuhan; he was acquitted of the other
    charges.

B.      The Evidence

[66]

Doreen McLuhan and her late husband lived next
    door to the appellant. In 2009 or 2010, their relationship with the appellant
    soured. The appellant would ride his mower onto the McLuhans lawn, damaging
    it. The McLuhans complained about loud music frequently coming from the
    appellants garage during the day, often when he was not at home. Ms. McLuhan
    went to the police and was advised to start keeping a journal of incidents with
    the appellant, which she did.

[67]

Ms. McLuhan also testified about the appellants
    noisy driving in the neighbourhood: he would rev the engine and spin the wheels
    of his truck as he drove down the road and would do burnouts inside of his
    garage, which resulted in the emission of smoke when the garage door opened.

[68]

The appellant would also insult her when she was
    hanging clothes outside, saying: Well I guess the fuckers going out to hang
    her clothes. After the McLuhans complained to the police about the noisy music
    from the appellants garage, he yelled at them: See you old fuckers, nobody
    telling me what to do. The next day, Ms. McLuhan heard the appellant loudly
    singing: Bobs an old fucker, a real old fucker.

[69]

Ms. McLuhan also testified that her house once
    got egged and painted with a swastika. She later confirmed that she did not
    know if her house had been mistaken for that of the appellant, who had been
    charged with sexual offences in 2009 and 2010. Although ultimately acquitted on
    some of the charges, with others disposed of by way of a peace bond, the
    appellants house had been the target of several episodes of vandalism.

[70]

Ms. Orton testified that several police officers
    had attended from time-to-time in response to noise complaints. When Cst.
    Parker attended, the radio was on in the garage although no one was in it at
    the time. She went with him into the garage to determine an acceptable level
    for the music. She placed a scratch on the radio knob to indicate the level.

[71]

Ms. Orton claimed that she had never experienced
    her husband spinning tires or revving an engine in the driveway. She did
    testify that he might rev the truck engine in the garage, if he was testing it.
    She confirmed he might do this without her knowledge. Ms. Orton testified that
    the oral exchanges between the appellant and the McLuhans usually were polite
    and calm.

C.      The trial judges reasons

[72]

In convicting the appellant of the offence of
    mischief to the McLuhans property, the trial judge accepted the evidence of
    Ms. McLuhan about the events she described. He rejected Ms. Ortons evidence,
    primarily on the basis that, while she first had denied that there was loud
    music in the garage, ultimately she admitted that she knew the music from the
    garage was too loud. The trial judge continued:

I do agree with Defence Counsel that Ms.
    McLuhan does not know who was turning on the radio that was too loud.  It is
    clear that she did not have a direct view into the garage to see who was in the
    garage. If the only evidence to support this charge was the loud radio, the
    Crown would have difficulties in obtaining a conviction.  However, there is
    much more than that. Ms. McLuhan clearly saw Richard Orton in his motor
    vehicle, revving the engine and spinning the tires. She clearly saw him and
    heard him yelling obscenities to her and her husband on a number of occasions.
    She was clear that the bullying behaviour of Mr. Orton clearly interfered with
    her enjoyment of the property to a point that they had to move and relocate.

I am therefore satisfied, beyond a reasonable
    doubt, the Crown has proven all the elements of the offence and accordingly
    there will be a finding of guilt.

D.      Errors advanced

[73]

The appellant did not identify a specific error
    made by the trial judge regarding this conviction. However, in respect of all
    convictions the appellant advanced general grounds of appeal involving the
    misapplication of the principle in
W.D
., insufficient reasons, and
    uneven scrutiny of the evidence.

[74]

I see no insufficiency in the trial judges
    reasons on this count. They show that the trial judge seized the substance of
    the matter. Nor do his reasons disclose any misapplication of the principle in
W.D
.
    or an uneven scrutiny of the evidence.

V.      WEST FERRIS SECONDARY SCHOOL
    INCIDENTS

A.      The charges

[75]

The appellant was charged with several offences
    relating to students at the West Ferris Secondary School (the School) and an
    incident at the School: one count of dangerous driving on Summit Drive, the
    street on which the appellant lived, contrary to the
Criminal Code
s.
    249; one count of causing a disturbance at the School by shouting contrary to
    s. 175(1)(a); and one count of mischief in respect to property, namely the
    School, contrary to s. 430(1)(c).

[76]

The appellant was convicted on all counts, but
    the count of mischief to property was stayed upon application of the
Kienapple
principle.

B.      The Evidence

June 2011 driving incident

[77]

Zach Vibe, a student at the School, testified
    that in June 2011 he was walking home from School for lunch with three other
    people along Summit Drive, spread across the oncoming lane of traffic. Mr. Vibe
    was the closest to the centre of the road. He testified that there was a lot of
    room for a car to go around the group. He noticed a black truck turn onto
    Summit and come towards them in the lane in which they were walking. The truck
    started to pull into the other lane to pass by them but then accelerated
    aggressively, swerved toward them, and pulled away at the last second. The
    truck revved its engine while swerving. Mr. Vibe jumped to the left out of the
    way, and the truck passed two or three feet away from him.

[78]

Mr. Vibes friend, Skylar Logan, gave the middle
    finger to the driver of the truck, who slammed his brakes, reversed the truck,
    and exchanged vulgarities with the students. Mr. Vibe identified the appellant
    as the driver of the truck. The truck drove away, at which time Mr. Vibes
    friend again displayed his middle finger. Yet again the truck stopped,
    reversed, and more common vulgarities were exchanged.

December 2011 incident at the School

[79]

On December 7, 2011, Mr. Vibe was walking along
    Summit Drive back to School after lunch with several friends, including Robert
    Dickson. They saw the appellants truck in a driveway, which prompted Mr. Vibe
    to throw a McDonalds bag onto the driveway. According to Mr. Vibe, the
    appellant thereupon came out of his house and told Mr. Vibe to pick up the bag,
    which he did.

[80]

The students continued on to the School.
    According to Mr. Vibe, the appellant passed them in his truck, slowed, said
    Im not your moms bang buddy, took their picture, and drove to the School.

[81]

Upon their arrival at the School, Mr. Vibe and
    Mr. Dickson went to the office. Mr. Vibe testified that the appellant called
    them shitheads. There ensued a loud verbal exchange amongst Mr. Vibe, Mr.
    Dickson, and the appellant. Mr. Dickson said the appellant yelled at them, and
    Mr. Dickson yelled back. Obscenities flowed back and forth for a number of
    minutes.

[82]

Bronwyn Sands, the vice principal, invited the
    appellant into her office. Mr. Vibe and Mr. Dickson both testified that the
    appellant insulted them as he was walking out, calling them scum.

[83]

Leslie Aitchinson and Elizabeth Nettlefold, both
    secretaries at the school, testified that they heard loud voices yelling at
    each other. Ms. Aitchinson described the voices as loud, raised, at a level
    above normal conversation, and disrupting the normal work in that part of the
    School. She thought the appellant was aggressive. Although she had seen upset
    parents at the school before, what was unusual about the situation was the
    upset combined with the appellants aggressiveness.

[84]

Ms. Nettlefold took the appellant to see the
    vice-principal, Ms. Sands. She heard raised voices from the appellant and the
    students. The appellant was loud, shouting at the students. The students were
    giving back as good as they were getting. The appellant called one of the
    students a little shit. Ms. Nettlefold recalled that the appellant came back
    later that day to apologize for his behaviour.

[85]

Ms. Sands met the appellant in her office. He
    was clearly agitated and speaking at a loud volume. The two students came by
    her office; a verbal exchange ensued between them and the appellant. The
    appellant accused the students of throwing a food wrapper on his property; they
    accused the appellant of having attempted to run them over. Their voices were
    raised to the point of extreme agitation. She did not hear any swear words from
    the boys or the appellant.

[86]

Ms. Sands was concerned about the safety of the
    two boys. Although she infrequently called the police, she did contact the
    school liaison officer with the North Bay Police Service to report the incident
    involving the appellant.

[87]

The defence called no evidence on these two
    incidents.

C.      Errors advanced

Dangerous driving

[88]

The appellant submits the trial judge erred by
    failing to grapple with and give effect to important prior inconsistent
    statements by Mr. Vibe.

[89]

Mr. Vibe maintained that the dangerous driving
    incident had occurred in June 2011, when the weather was warm and there were
    leaves on the trees. However, Ms. Sands testified that she spoke with Mr. Vibe
    after the December incident in the School office. At that time, Mr. Vibe told
    her he had thrown the wrapper on to the appellants property in retaliation for
    an incident in the previous week or two when the appellant had backed his truck
    out of the driveway and deliberately cut very close to a group of students
    walking along the sidewalk.

[90]

As well, Mr. Dickson, one of the friends
    involved in the December 2011 lunch bag dropping incident, testified that at
    that time Mr. Vibe had told him he dropped the bag on the appellants driveway
    because of something that had happened earlier about almost getting run over.
    Mr. Dickson had no knowledge of that event. On cross-examination, Mr. Dickson
    testified that it sounded like the driving incident had taken place in the
    weeks before.

[91]

According to the appellant, the trial judge
    erred by forgiving these inconsistencies because he concluded time was not an
    essential element of the offence. The real issue was not when the offence had
    occurred, but whether it had occurred.

[92]

I am not persuaded by this submission. The trial
    judge squarely grappled with the defence argument that the inconsistencies in
    Mr. Vibes evidence regarding the timing of the driving incident rendered his
    testimony incredible and unreliable. He did not accept the argument. He
    explained why at some length in his reasons, stating:

First, one must remember that this incident
    happened when Zack Vibe was 15 years of age. He testified in June 2015
    concerning an incident that happened in 2011. He presented himself to the Court
    in a clear, competent fashion. He would respond to the question posed to him by
    both the Crown and defence. He agreed with the suggestion made by both lawyers,
    even though the suggestions were not entirely favourable to him personally.

The part of his testimony that concerned
    specifically the incident of December 7, 2011, is clearly confirmed by other
    witnesses that testified concerning that incident. Yes, there are some
    discrepancies between the witnesses, especially Mr. [Dickson] and Mr. Vibes
    explanation as to how they ended up at the principals office. However, the
    testimony of the five Crown witnesses on this incident i[s] generally
    consistent.

Finally, simply because there are
    inconsistencies between Ms. Sands and Zack Vibe does not mean that Zack Vibe is
    not a credible witness. It is simply possible that Ms. Sands herself
    misunderstood what was explained to her, or simply got it wrong.

Accordingly, I accept Zack Vibes evidence and
    find his evidence to be credible and reliable. I also accept the Crowns
    submission that the time of the offence is not an essential element that the
    Crown must establish as provided by the Supreme Court of Canada decision [
R.
    v. B.(G.)
]
[1990] 2.
    S.C.R. 30.

[93]

The respondent submits that just because the
    trial judge did not give the prior inconsistent statements the weight the
    defence wished, it does not follow that he committed reversible error. I accept
    that submission. I see no basis for appellate intervention.

Causing a disturbance and mischief to
    property

[94]

The appellant did not make any specific
    submissions about the convictions on these counts. The evidence of the
    witnesses about the incident at the School generally was in agreement about the
    nature and effect of the appellants conduct. The trial judge gave detailed
    reasons for his findings on both counts. I see no reversible error.

VI.     THE COUNTS IN RELATION TO THE
    APPELLANTS DEALINGS WITH C.S.T.

A.
The
    charges


[95]

As mentioned, the appellant had been charged
    with committing sexual offences against C.S.T. when she was 10 years old. At
    the time, C.S.T. was friends with the appellants daughter. The charges were
    withdrawn, with the appellant entering into a four-month common law peace bond
    commencing July 25, 2011. A condition of the peace bond was that the appellant
    not communicate directly or indirectly with C.S.T.

[96]

The appellant subsequently was charged with two counts
    in relation to his dealings with C.S.T.: disobeying a court order without
    lawful excuse, contrary to s. 127(1) of the
Criminal Code
; and,
    criminal harassment by repeatedly communicating with C.S.T. (s. 264(1) and
    (2)(b)).

[97]

The appellant was convicted on both counts.

B.
Evidence

(i)

The October 30, 2011 football game

Crown witnesses

[98]

Denise Lamontagne was the parent of a student
    playing at a high school football game. She attended the game with C.S.T. and
    two other girls who knew her son. There were no incidents during the game. The
    girls sat with her throughout the game.

[99]

After the game, Ms. Lamontagne was walking back
    to her car with the three girls. C.S.T. was beside her. Ms. Lamontagne heard
    some voices behind her: those of two young girls and an older man, who was
    encouraging the girls to make taunts and who himself was making suggestions
    that there was something dirty and disgusting nearby. He was swearing, saying
    fucking dirty and take a look at that. Ms. Lamontagne thought there might
    be some dirt on her coat and asked C.S.T. whether there was. C.S.T. said no,
    theyre referring to me, like theyre talking to me.

[100]

After Ms. Lamontagne and the girls reached their car in the parking
    lot, the man and the other girls drove by in a van. The man was saying,
    Shouldve thrown that out with the trash, disgusting, dirty.

[101]

During the game, C.S.T. was not aware that the appellant was
    present. As C.S.T. was leaving the game with her friends and Ms. Lamontagne,
    she heard the appellants voice behind her. He said she smelled like fish and smelled
    gross. C.S.T. felt scared and gross.

[102]

Katherine Harkness also was present at the game. At the time, she
    was a friend of C.S.T.; by the time of the trial, she had had a falling out
    with C.S.T. Ms. Harkness testified that as they were leaving the game, the
    appellant was walking behind them with some girls. She heard the appellant make
    comments about something smelling like fish and that someone needed to clean
    something up that was dirty. Ms. Harkness did not know if the comments were
    directed towards them. She observed that C.S.T. was very upset by the comments.

[103]

Desiree Brown was a friend of the appellants son at the time; she
    had previously hung out with C.S.T. She attended the game with the appellant
    and some other people. During the game, there was no communication between the
    appellant and C.S.T. As she was leaving the game and walking towards the
    parking lot, Ms. Brown was in a group with the appellant walking behind C.S.T.
    and her party. The appellant said, Whats that smell? According to Ms. Brown,
    it was obvious that the appellant was directing the comment at C.S.T. She could
    see that C.S.T. was very upset and thrown off by the comment.

Defence witnesses

[104]

Ms. Lamabe attended the game. Her best friend at the time was
    Desiree Brown. Ms. Lamabe sat in the stands with the appellant. In-chief, Ms.
    Lamabe testified that during the game C.S.T. and Ms. Harkness walked back and
    forth in front of where they were sitting in the bleachers saying that the
    appellant was a pedophile. After the game, Ms. Lamabe walked out with a group
    that included Desiree Brown and the appellant. She heard the appellant say that
    it smelled like shit but this comment was not directed at anyone. They were not
    close to C.S.T. at the time.

[105]

During her cross-examination, Ms. Lamabe was asked a series of
    questions about her dealings with Desiree Brown, with whom she had attended the
    football game. Ms. Lamabe said that she did not wanna do this anymore and she
    thereupon ended her testimony.

[106]

Penny Mason testified about attending a football game. One of her
    sons was the best friend of the appellants son. Both in-chief and on
    cross-examination, Ms. Mason stated that the football game she was testifying
    about took place in October 2012. She was 100% sure of that. Ms. Mason
    testified that she sat with the appellant during that particular football game
    but did not hear the appellant make any remark to C.S.T. She did see C.S.T. and
    her friends, including Desiree Brown, passing back and forth at the bottom of the
    bleacher, giggling and making obscene comments toward the appellants wife and
    daughter, including the word cunt. She could not say which of the two girls
    uttered that word. At the time, the appellant was sitting elsewhere talking to
    some other parents.

(ii)

The volleyball game

Crown witnesses

[107]

C.S.T. was on the volleyball team of her elementary school, Alliance
    Public School. They played a home game against another school team on which the
    appellants daughter was a member. The appellant attended the game. C.S.T.
    testified that as she was walking out of the gym at the end of the game, the
    appellant called her a fucker. C.S.T. felt scared and upset.

Defence witnesses

[108]

Haley Holmes, a good friend of the appellants daughter, testified
    for the defence. She had had problems with C.S.T. for quite a long time.

[109]

In chief, Ms. Holmes stated that she attended the volleyball game
    and sat in the bleachers with the appellant, his father, and Al McCauley. At
    the conclusion of the game, Ms. Holmes left with the appellant and others.
    C.S.T. passed by with her grandmother and said, piece of shit. The remark was
    directed towards the appellant. No one in the group responded.

[110]

On cross-examination, Ms. Holmes stated she might have been playing
    in the game, but perhaps not. She was sure the appellants daughter was
    playing. Ms. Holmes also was sure that C.S.T. was not playing in the volleyball
    game. She acknowledged that she had problems with her memory in general, with
    a lota stuff in the past.

[111]

Al McCauleys daughter was a teammate of the appellants daughter.
    There had been a history between C.S.T. and his family. Mr. McCauley recalled
    attending a volleyball game at a school. He sat with the appellant. As he was
    walking out to the parking lot, C.S.T. passed by and muttered some sarcastic
    things, although he could not recall the individual words. The appellant did
    not say anything to C.S.T.

(iii)

The 2011 Halloween school dance

Crown witnesses

[112]

C.S.T. attended a Halloween dance at a school with her friend
    Katherine Harkness. The appellants daughter attended the school. C.S.T.
    testified that at the end of the dance, as she was exiting and passing some
    parents waiting in the school foyer, the appellant looked at her and her friend
    and said little shits. C.S.T. felt scared.

[113]

This incident was described in similar terms by Ms. Harkness.

Defence witness

[114]

Ms. Orton testified that she was present at the end of the dance to
    pick up her daughter. She did not see C.S.T. at the dance. She did not hear the
    appellant say little shits while waiting for his daughter to leave the dance.

(iv)

The driving incident

[115]

C.S.T. testified that on one occasion she was walking down the
    street when the appellant drove his car up from behind and almost hit her,
    passing within about eight inches of her. C.S.T. was really pissed and scared.
    As a result of this incident, she stopped walking to her friends homes and had
    her mother drive her everywhere.

C.
The
    grounds of appeal


Grounds relating to the assessment of the
    evidence

[116]

The appellant submits that the trial judge made several errors in
    his assessment of the evidence upon which he based the convictions.

[117]

First, the appellant
submits that Penny
    Masons evidence about events at the football game provided some
    conﬁrmation of Ms. Lamabes version of events and ought to have been
    considered in determining the weight to be placed on Ms. Lamabes evidence on
    this point. Although not amounting to direct corroboration, Ms. Masons
    evidence lent support to what Jodi Lamabe recounted that C.S.T. said and did
    before the contact she alleged with the appellant. Ms. Masons evidence
    provided comfort that Ms. Lamabes narrative of the events could be trusted as
    providing insight into the dynamic between the appellant and C.S.T.

[118]

The trial judge found that Ms. Masons evidence had very little to
    add to this matter because she was adamant that the events about which she
    testified took place in October 2012, not October 2011, the date of the alleged
    offence. The trial judge did not misapprehend Ms. Masons evidence. Given Ms. Masons
    recollection of when the events she testified about occurred, her evidence
    could provide no confirmation of Ms. Lamabes evidence about a football game
    that took place a year before.

[119]

Second, the appellant argues that in light of the medical circumstances
    that led to the inability of Ms. Lamabe to complete her evidence, the trial
    judge should have considered whether Ms. Lamabes evidence on behalf of the
    defence raised a reasonable doubt. I disagree. As stated earlier, the trial
    judge adopted the defence position that although Ms. Lamabes evidence was
    admissible, its weight would depend on whether it was confirmed by other
    evidence. The trial judge applied this ruling to Ms. Lamabes evidence about
    the football game; that evidence was not confirmed by any other witness. The
    trial judge made no error.

[120]

Third, t
he appellant submits that the trial
    judges differential treatment of the evidence led by the Crown and the defence
    is demonstrated by the way in which he looked to conﬁrmatory evidence of
    the December school incident to bolster Mr. Vibes general credibility, while
    failing to look to other events to confirm Ms. Lamabes evidence. As stated,
    the trial judge adopted and followed the defences position regarding the
    assessment of Ms. Lamabes evidence. I give no effect to this ground of appeal.

[121]

Fourth, the appellant submits that the trial judges application of
    uneven scrutiny of the evidence is further shown by his reliance on C.S.T.s
    demeanour to bolster her credibility, while at the same time ignoring the
    antagonistic nature of her cross-examination. Further, the trial judge made no
    mention of the fact that C.S.T. left the witness box during cross-examination,
    while at the same time being critical of Jodi Lamabes emotional response in
    doing the very same thing.

[122]

I am not persuaded by this submission for several reasons:

·

The trial judges ultimate findings demonstrate
    that he critically examined all of the evidence in an even-handed fashion:
    while he was satisfied beyond a reasonable doubt that the appellant made the
    statements alleged at the Halloween dance and football game, he could not reach
    a similar conclusion regarding the volleyball game in light of the
    inconsistencies of the various witnesses versions of events;

·

His acceptance of C.S.T.s evidence rested
    primarily on the confirmatory nature of the evidence given by other witnesses,
    especially that given by Desiree Brown concerning what happened on the way out
    to the parking lot after the football game. Ms. Brown was part of the group
    walking with the appellant; and

·

Although C.S.T. left for a while at the
    beginning of her cross-examination, she returned and continued to testify,
    unlike Ms. Lamabe. While it is apparent from the transcript that C.S.T. became
    frustrated with the repetitious defence questioning over minor differences
    between her testimony and her statement to the police, she ultimately completed
    her evidence.

[123]

Fifth, and lastly, the appellant submits that the trial judge
    unfairly criticized Haley Holmes, the appellants daughters best friend, for
    her self-serving" memory. The trial judges characterization finds
    support in the record. I see no palpable and overriding error.

[124]

Consequently, I would not give effect to any of these fact and
    credibility-related grounds of appeal.

D.
Legal
    error concerning the elements of criminal harassment

[125]

The appellant was charged with one count of criminal harassment by
    way of repeated communications with C.S.T. causing her to fear for her safety
    contrary to ss. 264(1) and (2)(b) of the
Criminal Code
. The appellant
    contends that in determining whether the charge was made out, the trial judge
    adverted to only two of the five constituent elements of the offence. His
    failure to consider all ﬁve elements was an error of law.

[126]

I am not persuaded by this submission. The elements of the offence
    are: (i) the accused engaged in the conduct set out in s. 264(2)(a), (b), (c),
    or (d); (ii) the complainant was harassed; (iii) the accused knew the
    complainant was harassed or was reckless or wilfully blind as to whether the
    complainant was harassed; (iv) the conduct caused the complainant to fear for
    her safety or the safety of anyone known to her; and (v) the complainants fear
    was, in all the circumstances, reasonable:
R. v. Kordrostami
(2000),
    47 O.R. (3d) 788 (C.A.), at para. 8. The jurisprudence considers a complainant
    as being in a harassed state when by reason of the conduct the complainant
    feels tormented, troubled, worried continually or chronically, plagued,
    bedeviled and badgered:
R. v. Kosikar
(1999), 178 D.L.R. (4th) 238
    (Ont. C.A.), leave to appeal to S.C.C. refused (2000) 142 C.C.C. (3d) vi, at
    para. 25.

[127]

A fair reading of the trial judges reasons and the evidence
    demonstrates that all of the elements of the offence were established. The
    trial judge expressly found that the appellant communicated repeatedly with
    C.S.T. and those communications made her fearful. The trial judge accepted
    C.S.T.s evidence that the appellant almost hit her with his car, a sufficient
    basis in itself to find that C.S.T.s fear of the appellant was reasonable. And
    the evidence left no doubt that C.S.T. felt harassed and the appellant, at a
    minimum, was reckless or wilfully blind as to whether she was harassed.

VII.    SUMMARY

[128]

By way of summary, I am not persuaded that the trial judges reasons
    were insufficient, demonstrated an uneven scrutiny of the evidence or failed to
    apply the principles in
W.D
. He provided lengthy reasons, which
    explained in detail the basis for his findings. As my review above of the trial
    judges assessment of the credibility issues discloses, I see no uneven
    scrutiny of the evidence on his part. Finally, he expressly self-instructed on
    the principles in
W.D.
and I see no misapplication of those
    principles.

[129]

For the reasons set out above, I am not persuaded that the trial
    judge made any of the errors submitted by the appellant.

VIII.   DISPOSITION

[130]

Accordingly, I would dismiss the appeal from the convictions for the
    offences that proceeded by way of indictment. In respect of the summary
    conviction offences, I would grant leave to appeal but dismiss the appeal.

Released: DW APR 25 2019

David
    Brown J.A.

I
    agree. David Watt J.A.

I
    agree. K. van Rensburg J.A.


