R. v. Cromwell (E.A.), 2008 NSCA 60

• Judge: Bateman, Saunders and Oland, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: July 03, 2008
• Jurisdiction: Nova Scotia
• Citations: 2008 NSCA 60;(2008), 266 N.S.R.(2d) 268 (CA)

R. v. Cromwell (E.A.) (2008), 266 N.S.R.(2d) 268 (CA);

    851 A.P.R. 268

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. JL.006

Eric Alan Cromwell (appellant) v. Her Majesty The Queen (respondent)

(CAC 290470; 2008 NSCA 60)

Indexed As: R. v. Cromwell (E.A.)

Nova Scotia Court of Appeal

Bateman, Saunders and Oland, JJ.A.

July 3, 2008.

Summary:

The accused was convicted of criminal harassment and breach of probation. While incarcerated for offences including criminal harassment of his common law wife, he sent a series of letters to her contrary to court orders prohibiting him from doing so. The accused was sentenced to four years' imprisonment for harassment, less 10 months' credit for pre-trial custody. He was sentenced to six months' imprisonment (concurrent) for breach of probation. The accused appealed against conviction and sentence.

The Nova Scotia Court of Appeal dismissed the conviction appeal, but allowed the sentence appeal by reducing the four year sentence for harassment to three years.

Criminal Law - Topic 39.5

General principles - Mens rea or intention - Motive - The Nova Scotia Court of Appeal stated that "the appellant appears to be confounding intent with motive. In the criminal law the two terms are distinct. An innocent motive to reconcile is not dispositive of the required mens rea on a charge of criminal harassment. It is well established in the criminal law that the mental element of a crime ordinarily involves no reference to motive. For example, while motive, or the absence of motive, may be compelling evidence to prove identity, it is legally irrelevant to criminal responsibility." - See paragraph 40.

Criminal Law - Topic 1592

Criminal harassment - Intention or mens rea - While the accused was incarcerated for offences including criminal harassment of his common law wife, and subject to court orders prohibiting any contact with her, he had five letters delivered to her, two of which he sent anonymously - The trial judge convicted the accused of criminal harassment and breach of probation, rejecting the accused's submission that he lacked the requisite intent because he had an honest but mistaken belief that his wife was amenable to reconciliation - The Nova Scotia Court of Appeal affirmed the conviction - The trial judge made no error in concluding that the five requisite elements of the offence were established - Clearly, the accused repeatedly communicated with his wife, she was harassed, his letters caused her to fear for her safety, and her fear was reasonable - The only contentious issue was mens rea; whether the accused knew, was reckless, or was wilfully blind as to whether his wife was harassed - An innocent motive to reconcile, even if accepted, was not determinative - The requisite mens rea was the intention to engage in the prohibited act with knowledge, recklessness or wilful blindness that the wife would be harassed - Motive was irrelevant to that determination - Since the evidence supported the trial judge's conclusion that the accused "knew" that his conduct harassed his wife, it was unnecessary to determine whether he was reckless or wilfully blind - The trial judge also did not err in rejecting the accused's explanation for sending two of the letters anonymously - See paragraphs 20 to 51.

Criminal Law - Topic 5969

Sentence - Criminal harassment - While the accused was incarcerated for offences including criminal harassment of his common law wife, and subject to court orders prohibiting any contact with her, he had five letters delivered to her, two of which he sent anonymously - The trial judge convicted the accused of criminal harassment and breach of probation, rejecting the accused's submission that he lacked the requisite intent because he had an honest but mistaken belief that his wife was amenable to reconciliation - The trial judge, in sentencing the accused to four years' imprisonment (before credit for pre-trial custody), used an Ontario trial decision (five years' imprisonment) as a baseline - On appeal, after this sentencing, that sentence was halved to 30 months - The Nova Scotia Court of Appeal reduced the accused's sentence from four years to three years - Had the trial judge known of the ultimate sentence imposed in her baseline case, she would have imposed a lesser sentence than four years' imprisonment - Four years' imprisonment, with the benefit of hindsight, was unreasonable - See paragraphs 56 to 66.

Criminal Law - Topic 6203

Sentencing - Appeals - Variation of sentence - Grounds for varying sentence imposed by trial judge - [See Criminal Law - Topic 5969 ].

Cases Noticed:

R. v. Sillipp (E.F.) (1997), 209 A.R. 253; 160 W.A.C. 253; 120 C.C.C.(3d) 384 (C.A.), leave to appeal denied (1998), 228 N.R. 195 (S.C.C.), refd to. [para. 20].

R. v. Krushel (M.) et al. (2000), 130 O.A.C. 160; 142 C.C.C.(3d) 1; 31 C.R.(5th) 295 (C.A.), refd to. [para. 31].

R. v. Lewis, [1979] 2 S.C.R. 821; 27 N.R. 451, refd to. [para. 40].

R. v. Chartrand (J.), [1994] 2 S.C.R. 864; 170 N.R. 161; 74 O.A.C. 257, refd to. [para. 40].

R. v. Gagnon (L.) (2006), 347 N.R. 355; 2006 SCC 17, refd to. [para. 47].

R. v. MacDonald (C.D.) (2008), 267 N.S.R.(2d) 186; 853 A.P.R. 186; 2008 NSCA 53, refd to. [para. 47].

R. v. Shropshire (M.T.) (1995), 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37; 102 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 56].

R. v. C.A.M. (1996), 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81; 105 C.C.C.(3d) 327 (S.C.C.), refd to. [para. 56].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161, refd to. [para. 56].

R. v. Longaphy (J.F.) (2000), 189 N.S.R.(2d) 102; 590 A.P.R. 102 (C.A.), refd to. [para. 56].

R. v. Oliver (P.G.) (2007), 250 N.S.R.(2d) 296; 796 A.P.R. 296; 2007 NSCA 15, refd to. [para. 56].

R. v. O'Connor (M.), [2006] O.J. No. 3017 (Ct. J.), refd to. [para. 59].

R. v. O'Connor (M.) (2008), 234 O.A.C. 135 (C.A.), refd to. [para. 62].

Counsel:

Brian V. Vardigans, for the appellant;

Mark A. Scott, for the respondent.

This appeal was heard on May 29, 2008, at Halifax, N.S., before Bateman, Saunders and Oland, JJ.A., of the Nova Scotia Court of Appeal.

On July 3, 2008, Saunders, J.A., delivered the following judgment for the Court of Appeal.