1.
Regina v. Elmer Raycroft
Reasons for Judgment
Wilson, J (Orally by Justice Fraser).
TUESDAY, June 9th, 2015
MS. KORTENAAR:
That leaves one matter, the
matter of Elmer Raycroft.
5
I understand that Your
Honour has a copy of Justice Wilson's decision?
THE COURT:
Yes, thank you.
Mr. March?
MR. MARCH:
And for the record, Your Honour, Mr.
Raycroft is present in the court seated, the
third row back.
10
THE COURT:
Yes.
Those involved with the
Raycroft matter will be aware of course then,
this was a trial in 2014, presided over by
Justice Wilson and Justice Wilson has been ill
for a number of months and off on sick leave and
15
I should also make reference, there is a Crown
application before the Court pursuant to 669.2
which I thank Ms. Kortenaar for.
It outlines
some of the points I'll touch on a little bit
later but we're in a situation now where Justice
20
Wilson has been off for some time and there is
some uncertainty as to whether or not she will be
returning and if so, when.
In the interests of
dealing with this matter in the most expeditious
fashion, counsel had generously agreed that the
25
decision of Justice Wilson, following the
conclusion of the trial, was ready to be
delivered, that I would be able to deliver it on
her behalf.
I'll speak up a little bit, Mr.
Raycroft may be struggling to hear me so I'll try
30
to be a little bit louder.
So we've come to the
point now where I do have a written decision that
was prepared by Justice Wilson.
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Justice Wilson
2.
Regina v. Elmer Raycroft
Reasons for Judgment
Wilson, J (Orally by Justice Fraser).
has authorized me to read that on her behalf and
there is a provision in the Criminal Code that
allows me to do that.
5
I gather there's no
objection from counsel that I do that, so I
propose to then proceed directly to read out
Justice Wilson's written decision on the Raycroft
matter.
MR. MARCH:
10
No objection, Your Honour, thank you.
MS. KORTENAAR:
THE COURT:
And none from the Crown
Thank you.
FRASER, H. (Orally):
Elmer Raycroft is charged as follows; one count
15
of assault pursuant to section 266 of the
Criminal Code from events arising in the Township
of McNab/Braeside between June 1st, 2011 and
April 8th, 2014.
One count of assault pursuant
to section 266 of the Criminal Code from events
20
arising in the Township of McNab/Braeside between
January 1st, 2012 and December 31st, 2012.
One
count of sexual assault pursuant to section 271
of the Criminal Code from events arising in the
Township of McNab/Braeside between January 1st,
25
2012 and December 31st, 2012.
One count of
assault pursuant to section 266 of the Criminal
Code from events arising in the Township of
McNab/Braeside between September 1st, 2013 and
September 30th, 2013.
30
One count of assault
pursuant to section 266 of the Criminal Code from
events arising in the Township of McNab/Braeside
between March 1st, 2014 and March 31st, 2014.
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3.
Regina v. Elmer Raycroft
Reasons for Judgment
Wilson, J (Orally by Justice Fraser).
One count of sexual assault pursuant to section
271 of the Criminal Code arising from events in
the Township of McNab/Braeside between May 1st,
5
2011 and July 1st, 2012.
One count of sexual
assault pursuant to section 271 of the Criminal
Code arising from events in the Township of
McNab/Braeside between May 1st, 2011 and April
8th, 2014.
10
Turning then to the evidence, Isabelle Raycroft
testified.
She's currently 74 years of age.
and Elmer Raycroft met online in 2009.
They
dated and were married on May 21st, 2011.
15
She
Ms.
Raycroft and Mr. Raycroft signed a prenuptial
agreement prior to their marriage.
They lived
together on a farm in the Arnprior area.
Ms.
Raycroft described several events during her
marriage.
20
In March 2014, after they returned from Florida,
Mr. Raycroft threw a mug at her as she was
standing on stairs.
The mug missed her but hit a
wall, creating an indentation.
25
Photographs of
the indentation were entered as an exhibit.
The
couple had been arguing as to whether or not Ms.
Raycroft would accompany her husband on a visit
to his son.
She was ill and did not wish to go.
After Mr. Raycroft threw the mug, Ms. Raycroft
30
went with him.
She discussed another incident where Mr. Raycroft
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4.
Regina v. Elmer Raycroft
Reasons for Judgment
Wilson, J (Orally by Justice Fraser).
threw an alarm clock at her.
She did not see him
throw it but he was behind her with only the two
of them in the house.
5
missed her ear.
The alarm clock just
That incident occurred in the
summer or fall of 2013.
Ms. Raycroft described her husband putting a
pillow over her face on several occasions during
10
the marriage.
She told the Court that it
occurred one time when she was sitting on a sofa,
shortly after the marriage.
Similar events
followed where Mr. Raycroft would walk over and
place a pillow over her face.
15
According to Ms.
Raycroft, this mostly happened when she was in
bed.
She would fight her way out of the
situation.
Ms. Raycroft gave evidence that
sometimes Mr. Raycroft was on the bed on his
knees, but most times he, "Just would come along
20
and smother me."
Ms. Raycroft told of a time when she was sitting
at her computer during the evening.
Mr. Raycroft
came from behind and pulled a belt around her
25
neck saying, "You know I could strangle you."
She managed to get her fingers between her body
and the belt.
Mr. Raycroft removed it.
The
witness posited that the belt was around the
chair as well.
30
This event occurred before the
couple left for Florida in December of 2013.
Ms. Raycroft told the Court that she kept a diary
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5.
Regina v. Elmer Raycroft
Reasons for Judgment
Wilson, J (Orally by Justice Fraser).
on her computer but deleted it.
She started
another one, in her words, "I didn't know what to
do or where to go."
5
Ms. Raycroft discussed a sexual assault which
occurred when the two were in a vehicle.
According to her, Mr. Raycroft often put his hand
above or near her vaginal area, over her clothes.
10
She would remove it, cover the area or turn away.
According to her, Ms. Raycroft was 'goosed' in
the kitchen and in other areas of the home.
She
described her husband as putting his hand, "Up my
15
bum."
On one occasion, she was cutting
vegetables when this occurred.
Ms. Raycroft described an incident in the fall of
2012, when the two came home from a varsity
20
football game in Kingston.
They had argued.
When she went to bed, Mr. Raycroft spread her
legs, allegedly wanting to check her body for
semen.
There was no attempt to remove her
underwear.
25
The next morning they went to church.
A similar incident happened after she returned
from an Ottawa shopping trip.
Mr. Raycroft
pushed her on the bed and tried to pull down her
30
underwear.
She held onto it, kicking and
screaming.
He wanted to check her for semen.
Ms. Raycroft said this incident happened in the
summer of 2012.
According to her, Mr. Raycroft
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6.
Regina v. Elmer Raycroft
Reasons for Judgment
Wilson, J (Orally by Justice Fraser).
was often in a rage and out of control.
She described an incident which occurred prior to
5
July, 2012 when Mr. Raycroft was diagnosed with
prostate cancer.
2012.
She thought it was in early
Ms. Raycroft was on the sofa, Mr. Raycroft
was on another couch.
She was reading.
She said
that Mr. Raycroft walked up to her and with his
10
hand over his pelvic area, he pulled off her
pyjamas and had sexual intercourse with her
against her will.
She described his actions as
robotic.
15
Ms. Raycroft told the Court that the two went to
Florida in the winter of 2014.
She described
having a wicker basket thrown at her.
returned, she was sick.
When they
At some point, her
daughter called her to ask for help with one of
20
the grandchildren.
Mr. Raycroft drove her to her
daughter, Janet's home.
When Ms. Raycroft
entered the home, all three of her children were
there.
They had, in fact, staged an intervention
so as to get Ms. Raycroft away from Mr. Raycroft.
25
Ms. Raycroft went to police a few days later.
She testified that she had been to police before.
On the first occasion, she was leaving her
husband but forgot her pills.
30
Arnprior police.
She went to the
The officer arranged for her
pills to be delivered.
She went to her
daughter's house and stayed three or four days.
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Regina v. Elmer Raycroft
Reasons for Judgment
Wilson, J (Orally by Justice Fraser).
She told the Court that she had also been to
police in Florida in the winter of 2012/2013.
She had her leg scraped when being dragged by Mr.
5
Raycroft.
Police came to their home but no
charges were laid.
Ms. Raycroft told the Court that she has an
outstanding charge for aiding and abetting a
10
breach.
She's called Mr. Raycroft three times
since April.
Once for her T-4, another to sing
to him and a third to ask why he did not plead
guilty.
15
Ms. Raycroft testified that she often had bruises
on her arms and legs when living with her
husband.
She testified that neither was
intoxicated when any of the incidents occurred.
20
Ms. Raycroft was cross-examined extensively.
She
advised that prior to marriage, she had a modest
income and a few assets.
She professed not to
realize that Mr. Raycroft had substantial assets
at the time of marriage however, she was shown
25
the prenuptial agreement dated May, 2011 which
revealed his assets.
Ms. Raycroft admitted to some difficulties during
the parties' courtship.
30
She told the Court that
she and Mr. Raycroft went to her doctor shortly
after marriage, then thought it could've been
before.
She denied that she wanted the doctor to
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8.
Regina v. Elmer Raycroft
Reasons for Judgment
Wilson, J (Orally by Justice Fraser).
explain her mood swings and temper tantrums.
She
told the Court that she takes Celexa, a 'happy
pill.'
5
Prior to their marriage, she denied kicking Mr.
Raycroft out of her apartment and threatening to
call police because he changed the television
channel.
10
Ms. Raycroft denied badgering her husband to sell
the farm in order to travel, go on cruises or buy
a condo in the city.
15
She had varying testimony with respect to Mr.
Raycroft's children, suggesting firstly that she
had a good relationship with them, and later that
they, "Just decided to keep hating me."
At some
point, Mr. Raycroft's children were estranged
20
from him.
Some of the children attended their wedding.
She
denied that she removed all of Mr. Raycroft's
previous wife's belongings from the home.
25
In
particular, Ms. Raycroft denied being upset that
Mr. Raycroft would not sell the farm.
Ms. Raycroft testified that she contacted police
on numerous occasions, with the first being on
30
June 28th, 2011.
At that point, she made contact
with Arnprior, Kanata and again Arnprior police
on June 29th.
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9.
Regina v. Elmer Raycroft
Reasons for Judgment
Wilson, J (Orally by Justice Fraser).
Ms. Raycroft gave confusing evidence as to
whether or not she told police that prior to her
leaving on June 28th, she had water thrown in her
5
face by her husband.
Ms. Raycroft gave evidence that she had been
pushed out of a wing chair by her husband.
She
was clear that this occurred after she had moved
10
into the farm but that the said chair was given
to Mr. Raycroft's nephew subsequently.
Ms. Raycroft seemed confused about the events
surrounding April 8th, 2014, the days after, and
15
her contact with police.
Two telephone messages
were replayed where Ms. Raycroft first relayed to
her husband that everything was 'hunky-dory' and
she would stay until Saturday with her daughter.
On the second message, she told Mr. Raycroft that
20
she was leaving him.
Ms. Raycroft told the Court that Mr. Raycroft had
a different personal persona than his public one.
She advised that she had helped him when he was
25
diagnosed with an aggressive cancer in July,
2012.
Ms. Raycroft was adamant that Mr. Raycroft had
raped her.
30
She could not recall the date, but
did recall the incident clearly.
off with her hands.
She fought him
She denied ever physically
abusing him.
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10.
Regina v. Elmer Raycroft
Reasons for Judgment
Wilson, J (Orally by Justice Fraser).
Ms. Raycroft was asked many questions about her
spending during the marriage and her purported
concern about her husband's assets, including the
5
farm.
She was clear that she did not want his
farm.
She acknowledged that she has commenced a
court action seeking to have the prenuptial
agreement set aside.
10
The Court had a chance to observe the alarm clock
in question.
It is the case that it had damage
on its inner and outer frame and to one of its
legs.
15
It is the case that Ms. Raycroft was a well
spoken, credible witness.
Janet Methot testified.
She is the oldest
daughter of Ms. Raycroft.
20
Prior to her
relationship with Mr. Raycroft, Ms. Methot saw
her mother frequently.
That changed at some
point after the relationship commenced.
Ms. Methot told the Court that during the time
25
that her mother was with Mr. Raycroft, she
observed bruising on her arms, hands and legs.
She assisted her mother in June or July of 2011,
when her mother reported physical abuse to the
police however, her mother decided to return to
30
her husband.
Ms. Methot and her sister were concerned about
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11.
Regina v. Elmer Raycroft
Reasons for Judgment
Wilson, J (Orally by Justice Fraser).
their mother in April, 2014.
They concocted a
ruse whereby Ms. Methot called Ms. Raycroft,
telling her that she needed her mother to come
5
immediately to assist with a granddaughter.
Some
two hours later, Ms. Raycroft arrived with Mr.
Raycroft.
leave.
Ms. Methot asked Mr. Raycroft to
As soon as her mother entered the house,
Ms. Methot and other family members told Ms.
10
Raycroft about the ruse.
Ms. Raycroft indicated
that she did not wish to return to Mr. Raycroft.
In the coming days, Ms. Methot and other family
members assisted their mother.
They went to
various locations including Legal Aid and the
15
courthouse.
At one point, police were called to Ms. Methot's
home because Mr. Raycroft had been seen banging
at her door.
20
The police told Ms. Raycroft to
phone her husband and tell him she was leaving
him.
The family were instructed to take Ms.
Raycroft to Arnprior to give a statement.
Following the instructions, the family assisted
their mother in preparing a written statement for
25
police.
On her second day of testimony, Ms. Methot was
further cross-examined.
She freely admitted that
the family planned the ruse in order to get her
30
mother alone.
She described the family as being,
"So bowled over" when her mother revealed the
extent of the abuse to them.
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She denied that the
12.
Regina v. Elmer Raycroft
Reasons for Judgment
Wilson, J (Orally by Justice Fraser).
genesis of the charges related to money issues
between her mother and Mr. Raycroft.
5
Elmer Raycroft testified.
He confirmed that he
met Isabelle Raycroft on a dating site on the
internet.
They married on May 21st, 2011.
Mr. Raycroft told the Court that prior to
10
marriage, the parties signed a prenuptial
agreement.
advice.
Ms. Raycroft had independent legal
He told the Court of ongoing discussions
with his wife around selling his farm.
He did
not wish to do so right away, whereas she was
15
continually asking him to sell it so that they
could purchase a condo near the city and travel.
According to Mr. Raycroft, he had concerns about
his wife's outbursts.
20
Prior to marriage, he
attended her doctor's with her, at her behest.
He told the Court of their health issues.
diagnosed with prostate cancer in 2011.
He was
He
described his wife as supportive during his
25
treatment.
It is the case that Mr. Raycroft denied each and
every allegation made towards him by Ms.
Raycroft.
30
With respect to the injury to her knees which led
to a complaint to the Kanata Police on June 28th,
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Regina v. Elmer Raycroft
Reasons for Judgment
Wilson, J (Orally by Justice Fraser).
2011, he denied it.
The chair in question was
given away shortly after their marriage.
He was
able to recollect two separate instances when his
5
wife could have injured her knee.
Mr. Raycroft testified that he loved his wife and
at no time was he jealous of her.
According to
him, two of his children were not friendly with
10
Ms. Raycroft.
Any intimacy was always consensual.
It is the
case that Mr. Raycroft was able to describe
certain matters in much detail.
15
An example would
be the incident when police were called in
Florida.
a.m.
He put the genesis of that at 10:15
Such exact recollections of times occurred
throughout his evidence.
20
Of interest was his testimony surrounding the
June 28th, 2011 incident.
He could remember what
happened during that week in great detail.
In cross-examination, Mr. Raycroft was clear that
25
it was his wife who wanted the prenuptial
agreement although he indicated that he did not
wish to get married unless he had one.
Of interest was his testimony about a
30
conversation with his wife's daughter, Debbie,
prior to their marriage.
Debbie's home.
The two were at
En route there, Mr. Raycroft had
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14.
Regina v. Elmer Raycroft
Reasons for Judgment
Wilson, J (Orally by Justice Fraser).
told Ms. Raycroft that he did not think their
relationship could continue.
privately about her mother.
Debbie spoke to him
5
her mother was a good person.
She assured him that
She revealed a
number of past boyfriends she had.
Mr. Raycroft
became agitated in this area of testimony,
expressing concern that he had no knowledge of
Ms. Raycroft's history prior to their
10
relationship.
Mr. Raycroft's cross-examination continued on the
second day.
Some of his testimony was
problematic for him.
15
For example, he spoke to
the incident in Florida, first stating that Ms.
Raycroft did not have his debit card that day.
When the incident report was shown to him and
indicated the contrary, he was not sure.
20
Likewise, he has some issues surrounding the
exact timings to which he had previously
testified.
For example, he previously gave
testimony that his wife returned to him after
leaving him on June 28th, 2011, on a Friday in
25
front of his coworkers, at his place of
employment.
When it was pointed out that the
date was Canada Day, he became less clear as to
when she had returned.
30
The Crown asked Mr. Raycroft about a certain
person who was in the courtroom supporting him.
Apparently that person was someone from Richmond
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15.
Regina v. Elmer Raycroft
Reasons for Judgment
Wilson, J (Orally by Justice Fraser).
who made Ms. Raycroft feel uncomfortable.
Mr.
Raycroft admitted that he did not have a close
relationship with that individual.
5
When re-
examined, he told the Court that he had
considerable contact with him.
Mr. Raycroft spoke to the abuse which he
suffered, caused by Ms. Raycroft.
10
He told the
Court that she would claw his face, pound his
chest and pull his hair.
Mr. Raycroft told the Court about three incidents
which he had reported to police after his arrest.
15
They included one on March 13, 2014 in Florida.
Ms. Raycroft had left the mobile home for some
hours.
She returned before midnight however, the
next day, as her husband was working on the
mobile home, she turned a knife into his stomach
20
stating, "I could run this into Mr. Raycroft's
guts."
Mr. Raycroft did nothing.
Some eight to
ten minutes later, she again held the knife up,
holding each hand on an end.
She told him that
she could cut his throat from ear to ear while he
25
was sleeping and he would not wake up.
On March 29th, 2013, after the couple returned to
Canada, Mr. Raycroft testified that Ms. Raycroft
put a knife into his stomach, such that he could
30
feel the tip of the knife.
She said, "I should
rip your guts out right here."
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16.
Regina v. Elmer Raycroft
Reasons for Judgment
Wilson, J (Orally by Justice Fraser).
Ronald Ellis testified.
He has known Mr.
Raycroft for over 45 years and Ms. Raycroft since
she started coming to Florida with her husband.
5
They were all part of a social network in
Florida.
He told the Court that he witnessed
conversations about the internet and internet
banking and prenuptial agreements from Ms.
Raycroft.
10
He heard her mention several times
that their farm needed to be sold.
Mr. Ellis
witnessed angry outbursts from Ms. Raycroft.
Willard Whitman testified.
He too is part of the
group which spends time in Florida.
15
He told the
Court that shortly after Ms. Raycroft called the
police, she told Mr. Raycroft that if she had him
charged, he would not be able to reenter the
United States and she would get the mobile home.
He testified that this conversation was on or
20
near January of 2012.
Mr. Whitman gave evidence
that Ms. Raycroft had a dual personality.
Joyce McCuaig worked with Mr. Raycroft at the
Arnprior Truck Centre.
25
She had discussions with
Ms. Raycroft about her dislike of the farm.
Ms.
Raycroft would come into the truck centre asking
her husband for his credit card or money.
She
testified that Ms. Raycroft did not use the
credit card for groceries although when
30
questioned, she indicated that she would not know
that.
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Regina v. Elmer Raycroft
Reasons for Judgment
Wilson, J (Orally by Justice Fraser).
Jack Murdock was the owner of the truck centre at
the time Mr. Raycroft worked there.
When he saw
Ms. Raycroft come to the centre, he found her to
5
be cross and condescending with Mr. Raycroft.
He
heard her say that she wanted to sell the farm
and travel.
Jeffrey Raycroft is Mr. Raycroft's nephew.
10
He
told the Court that he attended Isabelle
Raycroft's apartment in Richmond and helped move
her belongings.
He was offered a pink wing chair
for his efforts and he took it.
entered into evidence.
15
A photograph was
Mr. Raycroft indicated
that the move could have occurred as late as June
4th, 2011.
Sarah Brown is Mr. Raycroft's granddaughter.
In
August of 2013, she and her partner attended at
20
her grandfather's home to pick up a queen sized
bed and frame.
As they were moving the bed, the
frame hit the wall in the stairway.
dent.
Ms. Brown described the dent as being
halfway down the stairs.
25
It left a
When shown the exhibit
entered of a dent in that wall, she immediately
stated that the bed hit, "Right there."
Ms.
Brown took a picture of the part of the frame
which she thought hit the wall.
It is the case
that it is a completely different shape from the
30
dent pictured in the exhibit.
Ms. Brown told the
Court that she did not do anything to address the
damage in the wall.
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Regina v. Elmer Raycroft
Reasons for Judgment
Wilson, J (Orally by Justice Fraser).
Mr. Raycroft has been charged with four counts of
assault.
They relate to the following incidents;
throwing of mug in March, 2014, throwing of alarm
5
clock, placing belt around neck and placing
pillow over her face on numerous occasions.
It is the case that Mr. Raycroft has denied all
incidents.
10
The principles enunciated in R. v. W.(D.), [1991]
1 S.C.R. 742 are applicable to this case.
The
Court must examine the evidence carefully in this
regard.
15
The test is threefold.
Firstly, if the
Court believes the evidence of the accused, it
must acquit.
Secondly, if the testimony of the
accused is not believed but the Court is left in
reasonable doubt, it must acquit.
Thirdly, the
Court must determine whether on the basis of the
20
evidence which is accepted, it is convinced
beyond a reasonable doubt of the accused guilt.
Each count must be examined in the context of
these principles.
25
The Ontario Court of Appeal spoke to the
rejection of an accused evidence in certain
circumstances in R. v. J.J.R.D., [2006] OJ 4749
at paragraph 53 which states,
30
"The trial judge's analysis of the
evidence demonstrates the route he
took to his verdict and permits
effective appellate review. The
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Regina v. Elmer Raycroft
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Wilson, J (Orally by Justice Fraser).
trial judge rejected totally the
appellant's denial because stacked
beside A.D.'s evidence and the
evidence concerning the diary, the
appellant's evidence, despite the
actions of any obvious flaws in it,
did not leave the trial judge with
a reasonable doubt. An outright
rejection of an accused's 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 accused's
evidence as is a rejection based on
a problem identified with the way
the accused testified or the substance
of the accused's evidence."
5
10
15
Ms. Raycroft has alleged that in March, 2014, Mr.
Raycroft threw a mug at her.
Referring to the
trial transcript day 1, page 12, line 26,
"I was standing at the foot of
the stairs blowing my nose and all
of a sudden, Elmer just threw this
mug. I mean it just missed me and
it made a hole in the wall. I knew
when Elmer - when he got into these
rages, then everything would fly.
Everything would fly."
20
Again, the transcript day 1, page 16, line 28.
25
"Q. Was the mug intact or had it
broken? A. I know that the handle
came off, that's the only thing I'm
sure of, the handle came off. I
believe I picked up the mug. I don't
know what I did with it."
Photographic evidence was given of the dent in
30
the wall.
Mr. Raycroft maintained that the dent
was caused when his granddaughter and her fiancé
moved the bed from his home.
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However, when the
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Regina v. Elmer Raycroft
Reasons for Judgment
Wilson, J (Orally by Justice Fraser).
granddaughter, Sarah Brown testified, it was
evident that the mark that she said was produced
by the bed was not the mark in the photograph,
5
given the previously discussed issues.
The Court rejects the evidence of Mr. Raycroft
and Ms. Brown on the issue of the throwing of the
mug.
10
It does not raise a reasonable doubt in the
Court's mind, given the aforementioned evidence.
Defence counsel posited that Mr. Raycroft was
simply offering a possible explanation for the
dent.
15
With respect, that is not the case.
In
Mr. Raycroft's words, "I knew what happened,"
referencing the moving of the bed.
That's
transcript day 3, page 78, line 7.
Ms. Raycroft's account of the throwing of the mug
20
is supported by physical evidence.
The Court
accepts her version which does not appear
inflated or exaggerated.
According to her, Mr.
Raycroft threw the mug at her in anger while they
25
were arguing.
This is not a case where there was
no intention.
Clearly Mr. Raycroft attempted to
assault his wife.
There will be a conviction
entered with respect to this count.
The alarm clock incident was described by Ms.
30
Raycroft.
Transcript, day 1, page 18, line 12.
"I was standing in the doorway
of the kitchen. So the kitchen
is like this and there is like
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Wilson, J (Orally by Justice Fraser).
a round doorway and he was standing
in the living room behind me. I
had my back to him and it just
barely missed my ear, just zoomed
right by me and landed on the
kitchen floor. That is a steel
clock."
5
Mr. Raycroft testified to the alarm clock
incident.
10
He told the Court that it occurred on
November 30th, 2012, the day prior to his last
radiation treatment.
He told the Court that he
was going to make the bed and had the clock with
him with some comforters.
The clock fell to the
floor and was damaged.
15
Transcript day 3, page 75, line 27,
"I picked up the comforter,
wrapped it around my arm, I picked
up two pillows and put it in my arm
and I took the alarm clock by the
handle, the top handle and put my
fingers - these three fingers
because of carpal tunnel I had to
have surgery this year and they're
still numb. These fingers are numb.
I was walking to the door and I hit
the pillow on the side of the door
and that alarm clock flew out of my
hand and it flew about three, four
feet in front of me and hit on the
floor."
20
25
The clock was made an exhibit at trial.
It is
the case that there was visible damage to it.
When cross-examined, Mr. Raycroft appeared less
30
certain as to when the incident occurred.
It
required some prompting from the Crown Attorney
to assist his recall.
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Wilson, J (Orally by Justice Fraser).
The Court has concerns that the details of his
evidence are so precise given the time that has
passed.
5
That lends credence to a contrived
version of events.
The Court rejects Mr.
Raycroft's version of events, it does not give
rise to a reasonable doubt.
Ms. Raycroft's evidence however, does not
10
convince the Court to the requisite balance of
proof, which is beyond a reasonable doubt, that
the clock was thrown at her for the purpose of
assaulting her.
That is conjecture, given that
her back was turned.
15
The Court is most
suspicious however, it has a doubt which enures
to Mr. Raycroft's benefit.
There will be an
acquittal entered with respect to the count
relating to the alarm clock.
20
The remaining allegations relate to assaults with
a belt and a pillow, together with three sexual
assaults.
One respecting intercourse, one
respecting "checking for semen" by Mr. Raycroft
and another relating to touching in a vehicle.
25
In all of the cases, Mr. Raycroft issued flat
denials as to them.
Ms. Raycroft spoke to
specifics of each allegation in her testimony.
The Court must embark on an analysis pursuant to
30
R. v. W.(D.), [1991] 1 S.C.R. 742 with respect to
the evidence.
Although it will speak in general
to the evidence of Isabelle Raycroft, her
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Reasons for Judgment
Wilson, J (Orally by Justice Fraser).
evidence with respect to each allegation will
also be addressed, subsequent to the general
analysis.
5
The Court rejects Mr. Raycroft's evidence with
respect to the allegations involving a flat
denial.
There are several reasons for this;
Mr.
Raycroft exhibited interesting behaviour when Ms.
10
Raycroft went to the police on three occasions.
The first was shortly after the two were married
on June 28th, 2011.
Ms. Raycroft had left the
home and gone to the Arnprior Police.
forgotten her pills.
15
She had
She told the police that
there was no physical violence in the
relationship.
Ms. Raycroft went to stay with one
of her daughters.
She did go to the Kanata
Police however, when approached by the O.P.P. in
Renfrew, she indicated that she did not wish to
20
pursue the matter.
It is the case that she gave confusing evidence
on cross-examination as to whether or not Mr.
Raycroft had thrown water at her and/or tipped
25
her out of a chair.
She could not identify the
timing of either incident.
Interestingly, Mr.
Raycroft told the Court that on that occasion
when his wife first left the home, he had
followed her to Tim Horton's restaurant.
30
When he
did not find her there, he "happened" to be
driving past the O.P.P. station when he came upon
her car.
He recounted that day in very specific
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Wilson, J (Orally by Justice Fraser).
detail.
He could remember that he arrived back
at the house at 4:30 p.m.
He could recall that
he had $80 worth of groceries with him.
5
In reference to transcript day 3, page 116, line
26,
"I got back at 4:30. I walked in
the house. I bought about $80 worth
of groceries at the No Frills here in
Renfrew going through, and I come in
the house and I was carrying two bags
in each hand and Isabelle met me in
the kitchen and Isabelle said to me,
'what do you got to say to me?' I said,
'well I bought $100 worth of groceries.'"
10
15
The Court noticed his very specific memory of
insignificant details of an event which occurred
over three years ago.
His evidence appeared contrived and self-serving.
20
Mr. Raycroft went on to advise how he happened to
go to the police station that day, and this is
taken from transcript day 3, page 117, line 9,
"And I said 'Isabelle, please don't
do that.' I said 'listen, I said we'll
have supper, I'll take you out for
supper and we'll talk about it.' She
immediately left and said, 'I'm going
to Tim Horton's for a coffee.' I put
the perishable things in the fridge, I
jumped in my car and it was pouring
rain and a bad thunderstorm. I go
down to Tim Horton's, she's not there.
I go down the hill at Daniel Street in
Arnprior at William and the road is
blocked off, so I had to go over to
John Street and I go over to John
25
30
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Wilson, J (Orally by Justice Fraser).
Street and I look in for some reason
and her car is at the Ontario Provincial
Police station in Arnprior. I went in,
I knocked on the window."
5
The incident report generated by Officer Prince
with respect to this time period, it was
confirmed that Ms. Raycroft had attended police,
provided certain information but declined to give
a further statement.
10
She would not elaborate on
her claim that she had a sore knee.
Ms. Raycroft
explained why she did this, transcript day 1,
page 42, line 13,
"You know, I was always trying to
save my marriage. It was always in
the back of me that there would be
some kind of a miracle somewhere.
I loved my husband dearly. I was so
happy to have found him, I guess I
didn't really know what he was like."
15
Mr. Raycroft's testimony as to the specifics of a
day some three years ago is suspicious.
20
The Court questions his questions in apparently
accidentally arriving at the police station.
This couple did not live near the station.
The
Tim Horton's restaurant is not near the
25
detachment.
Mr. Raycroft had to deal with the
issue of his wife's attendance at the Arnprior
detachment given that it was independently
documented.
He had to deal with his attendance
there as well.
30
Unfortunately, his evidence for
his own appearance at the detachment was weak, at
best, completely lacking in credibility as to how
he just happened upon the detachment.
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Wilson, J (Orally by Justice Fraser).
Equally suspicious is his testimony respecting
Ms. Raycroft's attendance again at the O.P.P.
station in Renfrew where she recanted her
5
statement.
Transcript day 3, page 121, line 1,
"It was on the Saturday, I think,
about Wednesday at Laurier Optical.
Isabelle had ordered glasses there,
new glasses, so she got a call and
said 'would you drive to Renfrew with
me and pick up my glasses?' and I said
'yeah.' She said 'could we go shopping
at Walmart?' I said sure and then she
said to me at Laurier Optical, 'is
there an Ontario Provincial Police
station in Renfrew?' and I said yes,
there is, what do you want to do now
and she said I want to go in and
retract that statement that my daughters
forced me to sign against you because it
wasn't right, it's not right. So I
drove and parked on the side of the
building over here, right where the
entranceway is and she said, 'you coming
in?' I said, 'Isabelle, I can't go into
that police station with you because
they'll think I coerced you into doing
this. You do this if you want and I
don't care if you do it or not because
I did nothing wrong and I don't care if
you retract it. You do what you feel is
right and comfortable.' She went in
and come out about 20 minutes later
and said 'I feel good about this,
Elmer. It's retracted.'"
10
15
20
25
Mr. Raycroft had to deal with his wife's
attendance at the station to retract her
allegations.
Again, his evidence to the effect
that it did not matter to him if she retracted
30
her allegations appears disingenuous and lacks
credibility.
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Regina v. Elmer Raycroft
Reasons for Judgment
Wilson, J (Orally by Justice Fraser).
It is the case where there is recorded or actual
evidence which would support Ms. Raycroft's
allegations, Mr. Raycroft has very specific
5
recollections of events.
Where there is not, he
simply gives a blanket denial.
The specificity
of innocuous details of events far in time
detracted from his credibility.
10
The Court rejects his evidence as it relates to
the assault with the belt, the choking, the
sexual intercourse, the checking for semen and
the sexual assaults in the vehicle.
His evidence
does not give rise to a reasonable doubt in the
15
Court's mind.
The reasons for the rejection are as follows;
Mr. Raycroft's evidence with respect to those
allegations which have more specificity and
20
detail and which can be independently verified in
certain aspects from the recollection of Isabelle
Raycroft, lacks credibility.
It is far too detailed in terms of peripheral
25
matters.
In certain cases, it defies common
sense.
Mr. Raycroft's blanket denials in matters where
there is nothing other than the evidence of
30
Isabelle Raycroft are of concern.
An example
would be his evidence with respect to his wife's
use of his debit card, referred to in paragraph
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Regina v. Elmer Raycroft
Reasons for Judgment
Wilson, J (Orally by Justice Fraser).
52 of this decision.
However, when confronted
with evidence to the contrary and the police
report, Mr. Raycroft's blanket denial became
5
problematic.
Mr. Raycroft's behaviour in terms of involvement
with the police is most suspicious.
In 2011, he
followed his wife to the police station, yet
10
attempted to suggest that he happened to be in
the area.
He claimed to have little to do with
his wife's retraction at the O.P.P. station in
Renfrew which is suspicious.
He claimed to have
no interest one way or another in her actions.
15
That is incredulous.
The other defence witnesses do not assist Mr.
Raycroft in terms of the allegations relating to
the belt and many of the other allegations
20
relating to the case.
Many corroborate that the
Raycroft's did not always enjoy an amicable
relationship.
Many corroborate that Ms. Raycroft was indeed
25
interested in selling the farm however, their
evidence does not assist otherwise.
In most
cases, their evidence did not relate directly to
the allegations.
30
The Court must now examine the evidence of Ms.
Raycroft.
It is certainly the case that she too
did not always provide the Court with accurate
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Reasons for Judgment
Wilson, J (Orally by Justice Fraser).
information on peripheral matters.
Most
particularly surrounding her wish to have the
farm sold.
5
However, her general demeanour in her
testimony was more consistent with an accurate
recitation of events.
She was clear that she had contacted Mr. Raycroft
after his arrest and was charged as a result.
10
Although it is clearly the case that she
minimized her attempts and/or requests to have
her husband sell the farm, her actions in
contacting police, together with her testimony
respecting the assaults, was credible.
15
It is
apparent that she has, and continues to struggle
with issues surrounding her affection for Mr.
Raycroft and his actions towards her.
Defence counsel has argued that Ms. Raycroft had
20
ample opportunity to extricate herself from the
situation.
That is very true.
Indeed, she made
at least one attempt to do so early in the
marriage when she went to the police in June of
2011.
25
She chose to return to her marriage.
Her
daughters' concerns remained such that they
eventually staged a ruse to give their mother the
opportunity to leave Mr. Raycroft if she chose to
30
do so.
Ms. Raycroft wanted her marriage to work.
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Her
30.
Regina v. Elmer Raycroft
Reasons for Judgment
Wilson, J (Orally by Justice Fraser).
actions in staying with her husband cannot negate
his assaultive behaviour towards her.
Likewise,
counsel has argued that Ms. Raycroft had a
5
volatile personality with mood swings.
certainly may be the case.
That
She presented as a
feisty witness at times however, her unique
personality traits did not derogate from her
evidence and its quality.
10
Ms. Raycroft's testimony was given in a clear,
straightforward manner, albeit at times animated.
Her personality did not affect the quality of her
evidence.
15
The defence has argued that witnesses
observed her personality.
That may well be the
case however, her outbursts as described by Mr.
Whitman and Mr. Ellis are consistent with a
victim of previous assaults, who is upset with
the perpetrator.
20
The Court finds her to be a credible witness with
respect to the allegations.
Her account of
events is detailed, yet not overdone.
There was
no attempt to embellish the allegations.
25
It is the case that the evidence of Ms. Methot
cannot be applied to any of the specific
allegations against Mr. Raycroft.
witness any of them.
30
She did not
However, her evidence as to
the intervention of the family on more than one
occasion does, to a degree, support the
allegations of Isabelle Raycroft.
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Wilson, J (Orally by Justice Fraser).
It is evident that Ms. Raycroft's daughters had
serious concerns about their mother's welfare at
the relevant times.
5
Ms. Raycroft spoke to the belt incident in her
testimony.
This happened only once.
The
transcript from day 1, page 22, line 25,
"It was in the evening and I was
just minding my own business,
checking my email and he just came
behind me and just put the belt
around me and around the chair.
He pulled it up around my neck and
he said 'you know, I could knock
your head off, or I could strangle
you with this.' I said 'oh, okay.'
He was holding it there for quite a
long time, it seemed to me. I
managed to get my fingers between
the belt and you know, I was
beginning to struggle and I was
beginning to sweat and I managed to
get my fingers in and he removed it
and I was upset that I was crying
and he said was 'that was nothing.'"
10
15
20
Mr. Raycroft denied having put any type of
ligature around his wife's neck.
When the
incident respecting the belt was put to him, he
responded, referencing the transcript day 3, page
25
124, line 1, "It's completely fabricated.
I did
not do this with my wife."
For reasons discussed, the Court rejects the
evidence of Elmer Raycroft.
30
It does not raise a
reasonable doubt in the mind of the Court.
The
evidence of Isabelle Raycroft with respect to the
belt is credible.
She does not embellish the
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Reasons for Judgment
Wilson, J (Orally by Justice Fraser).
incident, stating that it only occurred once.
There will be a conviction entered with respect
5
to this count.
Ms. Raycroft spoke to having a pillow placed over
her face on several occasions.
She testified
about the first occasion which was followed by
10
many others.
Transcript day 1, page 20, line 26,
"Then he started doing it many times,
especially if I was in bed. He would
just pick up a pillow and just walk
over to my side of the bed and put the
pillow over my face. I almost got used
to it a little bit but there was sometimes
when he was really pressing, I would have
to, you know, struggle and wiggle out of
it. It wasn't a joke anymore. I begged
him to stop doing that."
15
She told the Court that this occurred at least
five times but less than ten.
20
Again, Mr. Raycroft had a flat denial for this
allegation.
In reference to the transcript day
3, page 124, line 1, "It's completely fabricated.
I did not do this with my wife."
25
For the same reasons enunciated above, the Court
rejects the evidence of Mr. Raycroft on this
point.
The evidence of the defence does not
raise a reasonable doubt in the Court's mind.
30
For the same reasons enunciated above, it accepts
the evidence of Isabelle Raycroft given on the
point.
It is detailed, but not overly so.
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Wilson, J (Orally by Justice Fraser).
She had no reason to fabricate this evidence.
There will be a conviction entered with respect
5
to this count.
Mr. Raycroft is also charged with three counts of
sexual assault.
These referred to intercourse
without consent, checking for semen and
10
assaultive behaviour in a vehicle.
Ms. Raycroft testified about one incident where
Mr. Raycroft had intercourse with her without her
consent.
15
It occurred prior to his cancer
diagnosis in July of 2012.
detailed.
Her testimony was
She could describe where she was, what
she was wearing and what she was doing.
Transcript day 1, page 35, line 2,
"Elmer was watching television and
this is in the living room. I was
on the long sofa here and the
television was in the corner.
Elmer was sitting on a two-seater
sofa and there was a long sofa here.
Elmer liked me to be in the living
room when he was watching something.
I picked up a book. I had taken a
bath. I put on a nightie, like a
big flannel nightie. I had also put
on some pyjamas. I got myself a pillow
and I was lying on the sofa and I was
really engrossed in my book. I was
reading The Book Thief and I was
really getting into it and I wasn't
paying any attention to anything. I
don't know if Elmer left the room or
what happened. I was just lying there
and I had an afghan over me, over my
legs. Elmer walked up to me and didn't
20
25
30
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Wilson, J (Orally by Justice Fraser).
say a word. He walked up to me and he
had his hand like that. I guess he was
- I looked at him and I said 'no, Elmer.
Don't.' I said 'don't do anything, I
don't want to do anything.' Then he
proceeded to pull off my pyjamas and
you know, I said 'no, I don't want to
do this, stop. I'm reading my book, go
back to your television.' Then he had
his way with me and then he got off and
left. He never said a word. I got up
and sat up and I'm sure there was a tear
rolling down my cheek at this point and
I just gathered myself together and then
I started in on Elmer."
5
10
Mr. Raycroft denied ever having sexual relations
with his wife without her consent.
was not qualified.
15
This denial
Referring to the transcript
day 3, page 81, line 24,
"A. Never happened, I never did that.
Q. Have you ever had sexual intercourse
with Isabelle Raycroft without her
consent, sir? A. Never. Any intercourse
or any intimacy we had with Isabelle
was always consensual."
20
Mr. Raycroft however, did recall a few times
where he would have had sexual intercourse with
his wife on the couch.
His evidence on the point
of pre-coital activity was more specific.
Transcript volume 4, page 57, line 10,
25
"Q. Now just so I understand, so
Ms. Isabelle Raycroft testified about
sexual intercourse on the couch, okay?
Do you remember having sexual intercourse
with Isabelle Raycroft on the couch? A.
On the couch? Possibly, yes. Possibly,
yes. Q. Okay, so do you have a good
recollection of any particular
incidents on the couch? A. Not any
particular, no, I don't but it probably
occurred a couple times. Q. And in
30
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Wilson, J (Orally by Justice Fraser).
these particular times that it might
have happened on the couch, I'm going to
suggest you would remove Ms. Raycroft's
clothing. A. I never removed any item
of clothing from my wife at any time.
Any time sexual activity was there,
Isabelle removed her own clothing and
she removed her entire clothing, so I
never had to remove any clothing if we
were going to have sexual intercourse."
5
Mr. Raycroft went on to indicate that there were
10
at least two occasions where he was willing to
have sexual relations but his wife was not.
For the reasons set out above, the Court has
rejected Mr. Raycroft's testimony.
The defence
evidence does not raise a reasonable doubt in the
15
Court's mind.
Isabelle Raycroft's testimony with
respect to the alleged intercourse is credible
and detailed in nature.
It is not embellished.
It is correct that the Court has impugned Mr.
20
Raycroft's credibility where he presented too
many details.
However, it is the case that one
is very likely to recall the details of a sexual
assault where one is the victim, including
peripheral details.
25
Ms. Raycroft recalled what
she was doing when the event happened.
That is a
likely scenario in terms of a victim's
recollection.
Defence counsel has argued that it is problematic
30
that Ms. Raycroft could not pinpoint the date of
the events.
She did know that the event occurred
in the winter and prior to Mr. Raycroft's cancer
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Reasons for Judgment
Wilson, J (Orally by Justice Fraser).
diagnosis in July of 2012.
Defence also argued that she waffled on what Mr.
5
Raycroft was wearing as underwear.
It is the
case that she testified that he was wearing,
"Probably a pair of underwear, you know, men's
underwear or boxers."
That's from transcript day
1, page 35, line 22.
10
Ms. Raycroft did tell Constable Patterson that he
was wearing, "Slacks with a slit" but clarified
that she meant underwear with a slit.
Again, the
evidence on this point is not clear however, it
15
is peripheral to a great degree.
It does not
impact Ms. Raycroft's credibility.
There will be a conviction entered with respect
to this count.
20
According to Isabelle Raycroft, her husband would
check her for evidence of semen if he suspected
that she was with another man.
It is the case
that this is an unusual allegation, one which
25
would be difficult to allege if it had not
occurred.
She described an incident at a varsity football
game in Kingston in the Autumn of 2013.
30
Ms.
Raycroft left the stands to sit in the car to get
warm.
hug.
En route, a young man gave her a quick
She testified that when she told Mr.
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Wilson, J (Orally by Justice Fraser).
Raycroft, he badgered her about the incident,
claiming she had sex with someone.
Transcript
day 1, page 30, line 31,
5
"He continued - he continued at home
When we went to bed, he continued.
So then when we were in bed, he went
like this with my legs. Q. You're
indicating spreading your legs. A.
Yes and he said 'okay, let's see if
there is any semen there from whoever
this man was that you met.' Well of
course he didn't actually put his
hand there but he bruised me. I had a
bruise on the inside of my thighs. I
was absolutely - I don't know how to
explain it, like I was just devastated."
10
15
Mr. Raycroft spoke about the football game.
He
testified that his wife did leave to sit in the
car.
When he arrived back at the vehicle, she
was crying.
She told him that a man about 65
years of age had grabbed, squeezed and kissed
20
her.
Mr. Raycroft told the Court that he was not
upset but that he did ask his wife why she did
not report the matter to security so the man
could be charged.
Mr. Raycroft denied that he
checked his wife for semen.
25
With respect to this incident, the Court rejects
Mr. Raycroft's evidence as to what he reaction
was at the game.
It defies reason that a spouse
would not be upset about his wife being
30
assaulted.
It defies reason that he would not
assist her in reporting the incident.
Mr.
Raycroft went on in cross-examination to talk
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Wilson, J (Orally by Justice Fraser).
about their uneventful drive home after the
incident.
According to him, his wife was often
volatile, yet in a circumstance where she would
5
have a legitimate reason to be upset, he
maintains that she was not.
Ms. Raycroft spoke to a similar checking
incident.
10
She had been to Ottawa shopping.
When
she returned, she went to take a shower.
Transcript day 1, page 32, line 28,
"I had taken my slacks off. I was
going to take a shower. He said
'oh, you're taking a shower? Why
are you taking a shower? Who were
you with?' He's following me and
I'm in the bedroom and I'm backing
away from him and he pushed me on
the bed and I said 'stop it, Elmer,
stop it. I wasn't with anyone, like
you're crazy. Just relax and get a
grip.' You know he just kept at me
and he tried to pull down my underwear.
So I was lying in bed and I hung onto
my underwear here."
15
20
Ms. Raycroft indicated that she hurt her finger
in the incident.
Mr. Raycroft denied ever
checking his wife for semen.
25
With respect to
this allegation he responded, which is shown on
transcript day 3, page 124, line 9, "That never
happened, I did not do that."
The Court rejects his evidence in this respect.
30
The reasons for so doing have been illustrated
above.
Mr. Raycroft's credibility with respect
to most of the allegations is suspect and does
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Reasons for Judgment
Wilson, J (Orally by Justice Fraser).
not raise a reasonable doubt in the Court's mind.
That applies to these specific allegations.
5
Of particular note is his position with respect
to the Kingston incident.
He told the Court that
he did not take any action with respect to his
wife's concerns when he learned of them and that
they did not discuss the matter on the way home
10
from Kingston.
That position seems implausible
given Mr. Raycroft's own testimony with respect
to Ms. Raycroft crying in the car and her
volatile nature in general.
Isabelle Raycroft
was credible and detailed with respect to her
15
allegations concerning checking for semen.
She
again does not embellish, indicating that her
genital area was not injured on either occasion.
The allegations are unusual and somewhat unique
in nature.
20
Her evidence on the points will be
accepted.
There will be convictions entered with respect to
these counts.
25
Ms. Raycroft testified that Mr. Raycroft would
place his hand over her pelvic area when driving.
Transcript day 1, page 26, line 15,
"Well, whenever we drove anywhere,
whenever I would get in the car
with Elmer and we were all settled
in, Elmer would take his hand
and he would put it on my - right
here, he would put his hand right
here."
30
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Reasons for Judgment
Wilson, J (Orally by Justice Fraser).
Ms. Raycroft told the Court that she would remove
his hand.
Eventually she placed her purse in the
area to avoid contact.
5
She testified that she
would also move his hand away and he would, "Come
back" such that she would, during a long drive,
get, "Into kind of a fetal position so that he
wouldn't be able to do that."
10
Mr. Raycroft denied that he ever touched his wife
in the vaginal area.
Transcript day 3, page 84,
line 1,
"I don't ever recall of any area
that I actually at any time - I'd
actually would touch her on the, um,
vagina area or any area while I was
driving the car but a number of times
going to Florida or going on a trip
somewhere or if we were going to
Toronto somewhere and, um, Isabelle
would feel, you know, she'd take my
hand, my right hand, I used to always
drive with my hand on the console.
My elbow on the console, my hand on
the gear shift. It was very comfortable,
and she'd take my hand and place it on
her left knee or left leg or thigh and
she'd put her hand on my hand and hold
my hand maybe for 10, 15, 20 minutes at
a time."
15
20
25
The Court accepts that Mr. Raycroft's version of
events is plausible.
He admitted to touching his
wife ostensibly with her consent however, he
denied touching his wife's vaginal area.
30
Mrs. Raycroft's evidence is credible.
While she
did continue to drive with her husband, that
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41.
Regina v. Elmer Raycroft
Reasons for Judgment
Wilson, J (Orally by Justice Fraser).
cannot negate his actions.
It is most certainly
the case that some of their many arguments
evolved around her expressed refusal to accompany
5
her husband on car trips.
The Court, for the reasons enunciated, rejects
the evidence of Elmer Raycroft.
The defence
evidence does not raise a reasonable doubt.
10
The
evidence as a whole, presented by the Crown is
credible, again for reasons discussed.
There will be a conviction entered on this count.
15
I believe that addresses all the counts that
pleas were entered and if I'm not mistaken,
counsel can correct me, there was an acquittal on
one count and a conviction registered on the
others.
20
MS. KORTENAAR:
MR. MARCH:
That's correct.
By my calculation, Your Honour, there
was an acquittal on the alarm clock, convictions
on the remaining counts.
THE COURT:
25
Yes, correct.
MS. KORTENAAR:
Your Honour, I did file an
application under section 669.2, Your Honour.
I
alluded to it, not knowing what the verdict would
be, originally I wasn't sure if it would be
needed.
30
In the circumstance where there are some
convictions, there will need to be a sentence in
this matter.
So I'm not sure if my friend is
prepared to argue the 669.2 application today.
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Regina v. Elmer Raycroft
Reasons for Judgment
Wilson, J (Orally by Justice Fraser).
did give a copy of the materials to my friend.
Essentially the Crown's position is that Justice
Wilson has been ill since December 9th, which is
5
exactly six months today.
As stated in the
affidavit, there's no sign of a return date.
We
simply don't have enough information on when she
will return, it could be months.
The Crown is
very concerned that matters proceed expeditiously
10
in this case, so to protect the accused's 11(b)
rights, the Crown thinks the best way, the most
expeditious way forward is for a different judge
to impose sentence, having read the decision.
There are transcripts of all four days of trial,
15
a different judge could read through those and
read the decision and be the one to impose
sentence in this matter.
I think that's the
preferable way, rather than adjourning what could
be indefinitely or several months to see whether
20
Justice Wilson returns or not.
Let me hear
perhaps from Mr. March if he wants to fully argue
it today.
MR. MARCH:
The application was served on me
yesterday, Your Honour, at 1:21:06 p.m.
25
I
obviously haven't had time to prepare any
response in writing.
I did have a chance to look
at Supreme Court of Canada's decision in R. v.
MacDougall, [1998] 3 SCR 45, 1998 and it's clear
from reading then Justice McLachlin's decision
30
for a unanimous court, now Chief Justice
McLachlin, it's preferable for the judge who saw
all of the witnesses, conducted a lengthy trial,
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Reasons for Judgment
Wilson, J (Orally by Justice Fraser).
it would be preferable and that judge is in the
best position to sentence the accused, Your
Honour.
5
We don't know when Justice Wilson will
be returning or if she'll be returning as a
result of her health condition.
I don't know
when she is next expected to preside over any
court in Renfrew County.
I don't know if there's
another status check date, for lack of a better
10
term, on when she may be capable of presiding
again, Your Honour, but it would certainly be my
preference, given that she saw the witnesses,
appreciated the full dynamic of the trial, having
heard from all of the Crown's witnesses and the
15
defence witnesses, she is the person in the
absolute best position to pass sentence upon the
accused, my client, Mr. Elmer Raycroft.
What
Your Honour may consider is ordering a presentence report today, which I would have asked
20
for in any event, in light of the nature of the
convictions, to then come back and see where we
are with Justice Wilson's status in terms of her
health and whether she's able to preside over the
matter at that point in time, when the pre-
25
sentence report would likely be available, Your
Honour.
I don't know, I certainly don't wish to
lead to Your Honour astray and ask you to do
something that you might not have jurisdiction to
do but I don't think there's any impediment under
30
the Criminal Code to you as the agent, so to
speak, Your Honour, for Justice Wilson today,
ordering the preparation of a pre-sentence report
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Wilson, J (Orally by Justice Fraser).
and then returning a couple of months hence, to
see where we are with her health and where we're
going with the case. I will state, Your Honour,
5
that my client is elderly, has been battling a
serious illness over the course of the entire
trial and awaiting the verdict, which was
extraordinarily long, the six month wait for the
release of the decision, and I'd ask Your Honour
10
to take that into account - if you're prepared to
order a pre-sentence report today, to have the
matter return fairly expeditiously.
The
turnaround time in this jurisdiction for a presentence report, Your Honour, would be six to
15
eight weeks, I don't know if it differs too much
in Ottawa and see where we go from there.
I
certainly want to maintain and preserve my
client's rights under section 11(b) of the
Charter.
20
Thank you, Your Honour.
THE COURT:
Yes, thank you, Mr. March.
Ms.
Kortenaar, what do you think of those
suggestions?
MS. KORTENAAR:
I think that a pre-sentence
report is necessary in this case, regardless of
25
which judge imposes the sentence.
I see 669.2(2)
gives another judge the power to make any order
that the original judge could've made so in
essence, Your Honour is stepping into that role
under 669.2 to make the pre-sentence report
30
order.
I'd simply ask that if we do put it off
six to eight weeks, that that day be a date for a
hearing under 669.2.
So we'll see what the facts
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Reasons for Judgment
Wilson, J (Orally by Justice Fraser).
are based on Justice Wilson if there is a date of
return but at that time, perhaps if we set a date
in front of Your Honour, the Crown will be making
5
a motion for Your Honour to impose sentence on
that day and part of the reason, Your Honour will
have a pre-sentence report to have a better idea
of the accused on that date and I just wanted to
echo what Mr. March said, part of the reason for
10
the 669.2 application is that both the victim,
who's here today, Isabelle Raycroft and Mr.
Raycroft are elderly.
I think it would be nice
to have a sentencing imposed expeditiously and if
that means that a different judge has to do it, I
15
think that's the appropriate outcome, especially
where Mr. March has himself emphasized that 11(b)
is a factor here.
I think probably the right
approach if we again don't have a return date for
Justice Wilson is to proceed with sentencing in
20
front of a different judge.
THE COURT:
Yes, thank you.
I think that
approach makes sense from my perspective.
Mr.
March had posed the question earlier with regards
to any status check or update, my best
25
information right now is that we may have a
further update on Justice Wilson's status in
terms of any potential return the first or second
week of August, so we're now at the 9th of June.
Maybe it's a little bit less in this
30
jurisdiction, I know we're running at about eight
to ten weeks for pre-sentence reports and I
imagine I can say with some confidence that
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46.
Regina v. Elmer Raycroft
Reasons for Judgment
Wilson, J (Orally by Justice Fraser).
Justice Wilson, if she were sitting here right
now, would probably have ordered a pre-sentence
report in any event so I think it makes sense to
5
do that at this point.
I have a couple of
thoughts, I see that I am set to preside in
Renfrew on August 14th, that takes us a little
bit more than eight weeks.
MS. KORTENAAR:
10
I'm just checking - I had brought
my calendar, I'm just trying to find it.
THE COURT:
If there's any thought that maybe
that didn't work and you wanted to move it
forward a couple of weeks, we could probably find
a date that I could deal with it.
15
MS. KORTENAAR:
Sorry, Your Honour, I just seemed
to have misplaced my calendar.
it downstairs.
THE COURT:
I wouldn't mind just checking...
Yes.
MS. KORTENAAR:
20
I might have left
...let's see if Mr. March is
available but I should just check if I'm
available that date.
MR. MARCH:
I have a J.P.T. scheduled in the
Superior Court here the afternoon of August 14.
That's a Federal Crown matter and I could
25
probably move that.
THE COURT:
Is there any alternative?
Yes, I could suggest some alternative
dates and you said earlier they could do them in
six weeks here?
MS. KORTENAAR:
30
Six, seven weeks?
That's my understanding is they
can.
THE COURT:
Okay.
Let me suggest some other
dates then because I probably have the most
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Regina v. Elmer Raycroft
Reasons for Judgment
Wilson, J (Orally by Justice Fraser).
flexibility here right now.
Is there a
particular day of the week as well that works
better?
5
I'm thinking that Friday, July 24th is
another day that I would be available but there
may be other days that week.
MS. KORTENAAR:
I wonder if I shouldn't just run
and get my calendar now.
THE COURT:
10
We could take a break, let's do that
if you wish.
MS. KORTENAAR:
MR. MARCH:
Friday, July 24th does work for me.
MS. KORTENAAR:
15
I'm sorry about that.
I'll just be right back.
THE COURT:
That would work for you, Mr. March?
MR. MARCH:
It does.
THE COURT:
Okay, so we'll see if it works for
Ms. Kortenaar then.
MS. KORTENAAR:
Thank you for that.
I have my
calendar now.
20
THE COURT:
Okay.
The last day I had suggested
was Friday, July 24th.
MS. KORTENAAR:
THE COURT:
Yes, that works for me.
Okay, so I'm advised that there would
be courtroom space in Pembroke here on that date
25
and we can certainly consider the returnable date
for the pre-sentence report but obviously a
potential hearing date of the 669.2 application
as well.
We'll see obviously whatever updates
the Court can have at that time, I'll provide as
30
well.
MS. KORTENAAR:
THE COURT:
That's agreeable then, thank you.
Very well, I think that completes our
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Reasons for Judgment
Wilson, J (Orally by Justice Fraser).
matters, thank you.
MS. KORTENAAR:
MR. MARCH:
5
Thank you, Your Honour.
Thank you.
**********
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