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| John L. Hill |
Robert Barry Moore was convicted of criminal harassment under s. 264 of the Criminal Code for conduct directed at his neighbours, Jason Brasseur, Cheryl Cusack and their son Samson, between September 2021 and April 2023. The conflict arose after Moore believed that construction on the Brasseur family home near Brackley Bay had damaged his adjacent oyster lease.
Moore’s behaviour included repeated complaints to authorities, filming and photographing the complainants, following them by vehicle, and a notable incident where he dumped dead oysters at their driveway while yelling and accusing them of destroying his business. The trial judge found this pattern of conduct met the criteria of harassment under s. 264(2)(b), (c) and (d), and sentenced Moore to 90 days of intermittent imprisonment, which he has since served.
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The initial issue concerned the disallowance of cross-examination. At trial, the defence aimed to cross-examine the complainant, Jason Brasseur, on two matters relevant to his credibility:
(a) That a company he owned and controlled had pleaded guilty to criminal fraud; and
(b) That he had been found guilty of professional misconduct by the Professional Engineers of Ontario.
The trial judge disallowed this questioning, ruling that because the alleged misconduct involved a corporation and not Brasseur personally, it was irrelevant to his credibility. The judge refused to “pierce the corporate veil” and limited questions regarding the company’s actions or Brasseur’s regulatory discipline.
Both the Crown and defence agreed on appeal that this ruling was legally incorrect. Under Canadian law, an ordinary (non-accused) witness can be cross-examined about discreditable conduct, even if it did not result in a criminal conviction, to assess credibility (R. v. John, 2017 ONCA 622; R. v. Jerace, 2021 BCCA 94). The main issue was not corporate identity but whether the probative value of the evidence outweighed its prejudicial effect.
The appellate court held that the trial judge erred in law by preventing this line of cross-examination. The failure to permit such questioning curtailed the defence’s ability to challenge the complainant’s credibility, amounting to an error warranting appellate intervention.
The second issue concerned a hearsay error. The appellate court found that the trial judge erred in handling evidence characterized as hearsay. At trial, defence counsel attempted to introduce an out-of-court statement, not to prove its truth but to demonstrate its effect on the listener — specifically, its impact on the accused’s state of mind — in support of his defence of property argument.
The trial judge, however, refused to consider this purpose, treating the statement as inadmissible hearsay without first analyzing the use for which it was offered. Under established law (R. v. Starr, 2000 SCC 40; R. v. Camara, 2021 ONCA 79), evidence is hearsay only if it is tendered for the truth of its contents and where there is no opportunity to cross-examine the declarant. When a statement is offered for a different purpose — such as to explain a party’s motive, belief or reaction — it is not hearsay.
Both the Crown and the defence agreed that the trial judge failed to conduct this required analysis, which amounted to an error of law. The improper exclusion of the evidence limited the defence’s ability to present its property-related justification for the conduct.
The final issue concerned the misapprehension of evidence. Moore also argued that the trial judge’s misapprehension of the evidence resulted in a miscarriage of justice.
The appellate court reaffirmed that the test for misapprehension is stringent (R. v. Morrissey, [1995] N.J. No. 119; R. v. Lohrer, 2004 SCC 80; R. v. Sinclair, 2011 SCC 40). A new trial may only be ordered if the judge made an apparent, material mistake that tainted the reasoning process, not merely because an appellate court might have weighed evidence differently.
Moore contended that his conviction was based on his numerous complaints to government and regulatory authorities, which he believed were legitimate unless proven false or malicious. The court dismissed this argument, concluding that the trial judge had appropriately considered the entire conduct, including yelling, swearing, confrontations and the oyster-dumping incident, rather than just the complaints.
The appellant’s submissions were viewed as selective and out of context, focusing narrowly on one type of evidence and overlooking the broader behavioural pattern that supported the harassment conclusion. The appellate court determined there was no error or miscarriage of justice and dismissed this ground of appeal.
The Crown chose not to apply the curative proviso under s. 686(1)(b)(iii) of the Criminal Code, recognizing that the two legal errors made by the trial judge were too serious to be remedied. As a result, the conviction was overturned, and a new trial was ordered.
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books), was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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