Sherry's Case — Cause Disturbance — Dismissed at Trial

Between
Her Majesty the Queen, and Sherry S.

[2004] O.J. No. 3096

Ontario Court of Justice
Burlington, Ontario
Judge L.M. Baldwin

Charge Dismissed:  8 June 2004
(19 paras.)

¶ 1      BALDWIN J. (orally):  These are my Reasons for Decision in the matter of R. v. Sherry S. who is charged with cause disturbance by shouting.

¶ 2    The incident in question occurred on Halloween night, October 31st, 2003, at approximately 8:00 p.m. at the front doorstep of 330 Maple Crescent in Oakville, that being the residence of Ms Chelsea Varani.

¶ 3      Ms Virani testified that one of her children, Joseph, aged 12 years, suffers from a life-threatening allergy to peanuts. On October 12th, 2003, a latex glove containing peanut butter was thrown into the family swimming pool. Peanut butter was also found on the back patio and windows. The incident was highly upsetting to the Virani family and they made efforts to find out who had done this.

¶ 4      Based on information received from other neighbourhood children, Ms Virani believed that Ms Sherry S.'s son, Peter, was responsible for the incident. Police had been contacted and Peter had been interviewed in relation to the matter. Ms S believed that her son was not responsible for the incident. She testified that her son Peter was ridiculed at school and came home crying after being interviewed by the police. Both mothers were upset about the peanut butter incident when they came together this particular night.

¶ 5      Ms Virani testified that she was home with her mother shelling out candy when the accused and one of her sons, eight year old Nigel, came to her front door for trick or treating. At first she did not see the accused. As Ms Virani bent down to give Nigel his candies, the accused stepped out behind him and stated, "Peter didn't do it". The two mothers then began to discuss the matter. Shortly into this discussion, the accused became very angry and started yelling at Ms Virani. The accused was yelling about her son being slandered and about suing the Viranis in this regard. Much of what was yelled was a blur to Ms Virani. She testified that she was shocked that the accused had come to her front door to discuss this sensitive matter and then yell about the situation on Halloween night. Ms Virani testified that she was standing there shaking and not saying a word during the accused's outburst. She testified that she did not yell back or touch the accused in any way. After a period of time she closed the door. Her mother then went to the door to see who was doing the yelling.

¶ 6      Two of Ms Virani's neighbours heard the yelling from three houses away, a distance of approximately 150 feet. Ms Henderson and Ms Maharaj were sitting in the driveway of 330 Maple Crescent. They were also shelling out candy, it being Halloween.

¶ 7      Ms Henderson testified that when she heard the yelling coming from Ms Virani's house, she walked to the end of the driveway as she knew Ms Virani was home alone and she was concerned for her safety. From the end of the driveway she could see a female standing on Ms Virani's porch yelling, screaming and moving her hands around. She testified that the yelling went on for approximately five minutes. She testified that she did not hear Ms Virani yell. She thought the woman who was yelling was using a threatening tone. She testified that she was disturbed by the yelling.

¶ 8      Ms Maharaj testified that the woman's voice she heard was yelling louder and louder, and was eventually screaming. She, as well, went to the end of her driveway with Ms Henderson and observed the accused walk down Ms Virani's driveway and then march right back up to the front door before she left. Ms Maharaj estimated that the yelling went on for 10 to 15 minutes. She, as well, was concerned for Ms Virani's safety because she knew that she was home alone.

¶ 9      Ms Smith, Ms Virani's mother, was in the kitchen when the accused was yelling at the front door of the residence. She testified that her daughter was not yelling. After her daughter closed the front door, she could see that her daughter was upset. Ms Smith then opened the front door to see who had done all this yelling. The accused then turned around and began to yell at Ms Smith. Ms Smith closed the door and the accused left. Ms Smith testified that she was disturbed that someone had come to the home yelling and shouting on Halloween when there were children on the streets.

¶ 10    The accused testified and acknowledged that she was angry at the time in question. She agreed that she used a loud voice when she appeared on Ms Virani's door step with her son Nigel, that night. The accused testified that during the course of this incident on the front porch, Ms Virani assaulted her by grabbing her upper left arm with her right hand. The accused testified that after she was grabbed by Ms Virani, she then stumbled backwards and tore cartilage in her right leg. She did not report this alleged assault to police until December 1st, 2003.

¶ 11    Her eight year old son Nigel was called on this issue. He testified that his mother was grabbed by Ms Virani just above the elbow. His mother tried to get away and then she fell down to the ground on her kneecap. After that, they continued to trick or treat.

¶ 12    As I indicated on the last day, I totally reject the accused's allegation of an assault. I find that this was an after-the-fact fabrication devised to justify her behaviour on the night in question. I also find it disturbing that she would have eight-year old Nigel come to court in an attempt to corroborate this falsehood. Alas, poor little Nigel has his mother falling to the ground. The accused said she stumbled backward. In the end, the little one's story did not help his mother.

¶ 13    I accept as true the evidence of Ms Virani, her mother and the two neighbours that it was the accused who was acting aggressively, yelling, even screaming at times on the night in question. Ms Virani did not have an opportunity to say anything once the yelling began. I accept as true that all four Crown witnesses were disturbed by this situation. The issue is whether the disturbance created in these circumstances is contrary to the criminal law. The main issue is how the word "disturbance" in Section 175(1)(a) of the Criminal Code is defined. The Supreme Court of Canada decision in Lohnes, (1992) 69 C.C.C. (3d) 289, is instructive in this regard. This is a decision of Madam Justice Beverley McLachlin, where she writes:  

"Properly interpreted, Section 175(1)(a) required proof of an externally manifested disturbance of the public peace, in the sense of interference with the ordinary and customary use of the premises by the public. The disturbance may consist of the impugned act itself, as in the case of fighting interfering with the peaceful use of a barroom, or it may flow as a consequence of the impugned act, as where shouting and swearing produce a scuffle. An interference with the ordinary and customary conduct in or near the public place may consist in something as small as being distracted from one's work, but this interference must be present and must be externally manifested."

¶ 14    She also describes it as an essential element that there must be some overtly manifested disturbance of the public's use and enjoyment of the public place where the act takes place.

¶ 15    She further writes that:  

"Any interference with the ordinary and customary use by the public of a public place must involve something more than disturbing the peace and tranquility of the minds of those present."

¶ 16    She writes there are two elements that are required here:  one being the offensive act, such as the shouting, and the other being the separate resulting disturbance which must be something more than emotional disturbance. It must be something more than behaviour that produces annoyance, anxiety, emotional upset. There must be activity in the nature of a disorder.

¶ 17    Those are the essential elements of this offence. On these facts I find that it is clear that Ms Virani, her mother and her two neighbours were emotionally upset by the ranting and raving of the accused on the night in question, but on the evidence I find there was no evidence of an externally manifested disturbance as required by the Supreme Court of Canada in that case. It is clear the Crown witnesses were offended by the accused's conduct, but there was no separate resulting disturbance. There was no evidence, for example, of children and their parents running away from the house and creating chaos on the streets, or that the shouting resulting in a scuffle of some kind.

¶ 18    In the end, all Ms Virani had to do to stop the accused's ranting and raving on the night in question was to close her front door. She eventually did this and the shouting and ranting ended.

¶ 19    For those reasons, an essential element of the offence is missing. A finding of not guilty will be registered, and I will make the comment that this would have been an appropriate case for a Section 810 peace bond, in my view.

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