Citation:

R. v. Marsden

Date:

20041012

2004 BCPC 0369

File No:

140482-1

 

Registry:

Vancouver

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

(Criminal Division)

 

 

 

 

REGINA

     

v.

     

RACHEL MARSDEN

 

 

 

 

REASONS FOR SENTENCE

OF THE

HONOURABLE JUDGE W. J. KITCHEN

 

 

Counsel for the Crown:

S. Smith

Counsel for the Defendant:

I. Donaldson, QC

Place of Hearing:

Vancouver, B.C.

Date of Hearing:

October 12, 2004

Date of Judgment:

October 12, 2004

 

[1] I must determine the appropriate sentence for Rachel Marsden who harassed another person two years ago. The prosecutor says that I should suspend sentence for a period of time and keep Ms. Marsden on probation, subject to various conditions. The defence argues that Ms. Marsden has paid the price, learned her lesson, and should receive an absolute discharge.

[2] Counsel have agreed on a statement of facts that I will not repeat here. It is exhibit #1 in these proceedings and attached as Appendix No. 1. The scenario is common and very simple; the victim rejected Ms. Marsden, with whom he had been romantically involved, and she could not accept this.

[3] Ms. Marsden harassed the victim mainly by repeated telephone calls and e-mail messages. There are aggravating circumstances. By a trick, Ms. Marsden obtained copies of e-mails that the complainant was sending to other people and therefore had knowledge of how he was responding to her harassment. She used this information to involve some of these other people. She continued with her harassment even after she was aware that police were involved.

[4] There are some mitigating circumstances. The complainant had previously rejected the accused and then resumed his relationship with her, sending mixed messages. However, he was unequivocal as to his intentions during a confrontation on October 7, 2002 and she persisted nevertheless. Her conduct was entirely inappropriate, but it must be kept in mind that this was the severing of a romantic relationship where responses are more emotionally charged than other situations.

[5] Ms. Marsden is now 29 years old, with no criminal record. Her antecedents are exemplary. She was an excellent student and has been successful in pursuing a career in the media and in politics. The writers of her letters of reference, ranging from present associates and family members to former school teachers, praise her in the highest terms. Dr. Eaves, who assessed her, saw that she is very extroverted and is immature in dealing with personal relationships. Those are the only factors in her past which might have predicted her behaviour toward the victim in this matter.

[6] The consequences to Ms. Marsden for committing this offence have been significant. She was arrested and held in jail for over 24 hours before being released on strict conditions of bail. The police issued a press release concerning the charge and as a result Ms. Marsden received very considerable adverse publicity. It may be argued that Ms. Marsden seeks such attention but there is no question that it has come at a high cost. When her employer in Washington, D.C., learned of the charge, she lost her employment. In the future, prospective employers will likely be concerned about her lack of judgment and her irrational response in this matter.

[7] These consequences should be considered by me when I determine what other measures are necessary for Ms. Marsden. Jail is not necessary and no one is suggesting it. Does the public need to be protected from Ms. Marsden? She has honoured her strict bail conditions for two years, without any difficulty. The public will be on notice that she has reacted inappropriately to upset and frustration and consider this when dealing with her in the future.

[8] Is it necessary that I emphasize the rehabilitation and deterrence of Ms. Marsden from this behaviour in the future? I conclude that she should have learned her lesson from all that has happened to her so far. The letters of reference and assessment of Dr. Eaves support me in that.

[9] I am left to consider general deterrence and denunciation of what she has done. In varying degrees, accused persons must be used as examples so that the values of our criminal law are reinforced. There are many rejections to be experienced in life. In this case, the message must be sent that responding in the manner of Ms. Marsden will not be tolerated. What has happened to Ms. Marsden should be enough to dissuade most thinking members of the public from acting as she did. I am satisfied that a discharge will equally serve the purposes of sentencing as will a suspended sentence. A discharge is in everyone’s interest.

[10] The defence has asked for an absolute discharge, with no conditions. I am satisfied that Ms. Marsden does not need monitoring. She has undertaken to the court and to the public that this will not happen again, and that she will have no contact with the complainant or anyone associated with him. Dr. Eaves says, and I accept, that assessment, treatment, or counselling are not necessary.

[11] I am concerned about the appearances of an absolute discharge. I have concluded that the offence has some aggravating features and some may see an absolute discharge as indicating that the incident is of no matter. I am also concerned that for future reference there will be an indication that this is more than a technical offence. Ms. Marsden could also benefit from having the matter hanging over her.

[12] Ms. Marsden, I grant you a discharge but it will be conditional. You will be on probation for one year, to keep the peace and be of good behaviour. You will not be bound by other specific conditions but you have undertaken to the public, continued good behaviour beyond that one year.

[13] I conclude that a weapons prohibition is not necessary, and I waive the victim fine surcharge.

 

_______________________________

The Honourable W.J. Kitchen, P.C.J.

 

 

 

 

 

Appendix 1

STATEMENT OF FACTS

Background Information

The accused, Rachel Marsden, and the complainant, Michael Morgan, met in 2001. Morgan was a talk show host at Vancouver radio station CFUN and Marsden had previously auditioned for shows on CFUN. Marsden is 29 years old while Morgan is 54.

The contact culminated in physical relationship in May 2002.

In August 2001 Marsden and Morgan were in frequent communication with one another and had spent time together. In October 2001, she sent flowers and a stuffed bear to his home, leading Morgan to call the West Vancouver police department. As a result, on 19 October 2001, Cst. Geoff Dyer of the West Vancouver police department attended Morgan’s residence. Morgan advised Cst. Dyer that no threats were made by Marsden and that he was not fearful for his safety. Cst. Dyer telephone Marsden and warned her that all contact with Morgan was unwanted. Marsden and Morgan had differing versions regarding the status of their relationship, but in any event Marsden agreed to stay away from Morgan.

After approximately April 2002, communication commenced again and in May 2002 Morgan invited Marsden to his home on several occasions. They commenced a physical relationship. On 9 June 2002, Morgan picked up Marsden from the Marsden family home where he met her mother and sister. He drove her to the airport the following day and Marsden went to the United States from 10 June to 26 July.

In late July 2002 Morgan began to date Cindy Wallace. Morgan was minimizing his contact with Marsden. He sent Marsden several e-mails which said that he preferred to deal alone with some ‘personal difficulties’. When Marsden telephoned him more than once; he did not respond, as he was ‘screening’ her calls.

On 7 October 2003 Marsden called Morgan’s residence. Mrs. Wallace answered the telephone and spoke with Marsden. Marsden told Wallace that she was Morgan’s girlfriend. Marsden reacted spitefully to this, and told Wallace that she was on her way over to see Morgan. Wallace left the apartment building. Morgan was approaching the building from the street and Wallace intercepted him with the information.

Morgan confronted Marsden and told her plainly and clearly that they were over and that he never wanted to see nor hear from her again. Marsden wanted to come into Morgan’s apartment or talk outside. Morgan said no, left Marsden on the sidewalk and went to meet up with Wallace. After returning to the apartment the telephone rang. Morgan unplugged his telephone.

After 7 October Marsden sent numerous e-mails and left telephone messages for Morgan and other people in his life. The e-mails and calls varied in content. Some were attempts to rekindle the relationship, and others somewhat caustic.

On 8 October, Marsden sent several more e-mails to Morgan. In the first e-mail she stated that his confrontation with her was unlike anything that she had known or expected from him. The next few e-mails expressed her ongoing love for Morgan and her willingness to resolve their issues. The latter e-mails from Marsden progressed to becoming more angry as she claimed that Morgan’s treatment of her was unfair, selfish and had hurt her deeply. Marsden also left several telephone messages for Morgan.

On both 9 and 10 October Marsden sent e-mails to Morgan and to his sister.

On 10 October, Morgan sent an e-mail to Marsden advising that he would be contacting the police with regards to her ongoing contact, and Marsden acknowledged his e-mail. She telephone Morgan many times, and on several of those occasions left messages. She sent several e-mails to him as well.

On 10 October at 11:45 PC 2137 attended at Morgan’s apartment to investigate a harassment allegation. PC 2137 listened to several recent voice mail messages identified by Morgan to be Marsden and described as vindictive and threatening. Subsequently the Detective Dawes was given 38 printed e-mail messages from Marsden to Morgan between 20 September and 10 October, and a paper copy of an e-mail message from Marsden to Morgan’s sister. From 11 to 17 October, Marsden sent Morgan between 1 and 3 e-mails each day. She contacted other persons including his son, sister, and business partner. Some of these people ‘blocked’ their email accounts to prevent receipt of more from her.

On 28 October Marsden called Detective Dawes on his direct line and said that she wanted to file a complaint against Morgan. Detective Dawes recorded that conversation with Marsden’s permission. Marsden agreed that her relationship with Morgan ended on 7 October, and that Morgan had told her to leave him alone.

Marsden agreed that she would come to the station with a written statement. On 4 November Marsden left a message for Detective Dawes saying she didn’t want to write a statement for him. Thereafter they communicated by e-mail to re-arrange their interview dates.

On 20 November Marsden voluntarily attended the VPD for an interview. Dawes arrested her on this charge. Her purse was searched, and copies of two of the e-mails that Detective Dawes had sent to Morgan were recovered. Morgan had once asked Marsden for help with his computer. She activated a function that automatically forwarded a blind copy of e-mails sent to him, to her. He was unaware of this. She read some of them. This function was cancelled on 29 October 2003.

On 20 November VPD attended Marsden’s residence to execute a search warrant. The police seized Marsden’s computer, a small stack of e-mail messages, a notebook with several names and telephone numbers and a piece of paper with a referenced to a gossip forum magazine.

Detective Constable Wray is a computer forensic investigator. On 16 January 2003 he received Marsden’s computer. He began recovering image files. Items of interest recovered were:

- several e-mails received and sent by Morgan to various people including Morgan’s friends and Detective Dawes.

After her arrest, Marsden provided a statement to the police. In the statement she said that Morgan had provided her with his computer passwords as he was having problems with his computer and wanted her assistance. She also admitted that she posted the article about Morgan on 2 magazine site, and that she e-mailed and telephoned Morgan for approximately 10 days after 7 October because she was angry and hurt.

On 11 November 2002 a mail forward from Morgan’s e-mail address to Marsden’s e-mail address was activated. This activation is usually done online by using the customer’s password. It can also be done via telephone. This forward was deactivated on 29 October 2003, although the mail forward address remained on their records.

This mail forward came to light when a person sent an e-mail to Morgan and received a reply that the copy of the message to Marsden was undeliverable. When Morgan was provided with this information and told by the friend what it appeared to mean, Morgan contacted the police to provide them with this information.

The confrontation between Morgan and Marsden on 7 October outside Morgan’s home should have made the state of the relationship and Morgan’s wishes of no contact abundantly clear. Despite that, Marsden repeatedly phoned and e-mailed Morgan and members of his family and friends. Marsden also accessed Morgan’s e-mail system which enabled her to obtain Morgan’s friends and family members e-mail addresses and to keep track of many events occurring in Morgan’s life.

In both her statement to police and the content of her e-mails show that Marsden was aware that Morgan did not wish further contact with her. The following are some examples:

- In Marsden’s e-mail to Morgan dated 8 October 2002 at 3:33 a.m. Marsden appears to recognize that Morgan is now with someone else. Marsden says "it really hurts that you would turn to a complete and total stranger before you’d turn to me.";

- During Marsden’s statement to police she said that Morgan had advised her that there could not be a serious relationship between them because of the big age difference;

- When Morgan told Marsden in October that he would be calling the police, Marsden’s response e-mail threatens to reveal things that she has on him if he calls the police; and

- In Marsden’s e-mail of 13 October 2002 at 00:27 Marsden acknowledges that Morgan hung up on her as she was talking to Wallace.