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Posts from the ‘case law’ Category

Criminal harassment and the word “repeatedly”

A creepy guy stalks the same woman for thirty minutes every day for three days in a row.

A creepy guy stalks a woman for ninety minutes continuously on a single day.

Which scenario – if any – constitutes criminal harassment?  Section 264(1) of the Criminal Code describes a range of harassing behaviour:

264 (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

Prohibited conduct

(2) The conduct mentioned in subsection (1) consists of
(a) repeatedly following from place to place the other person or anyone known to them;
(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;
(c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or
(d) engaging in threatening conduct directed at the other person or any member of their family.

So what does the word “repeatedly” mean in the context of criminal harassment? Does it mean at least twice?  Three times?  Well, in R. v. Venn, 2014 ABPC 284, the Court expressed a more nuanced view:

[26] The Ontario Court of Justice (General Division) in R. v. Belcher (1998 CarswellOnt 192), 50 O.T.C. 189, considered the nature of the ‘following’ that is required to found the charge under the subsection in question. At paragraph 20 the court summarized the authorities stating that the repeated ‘following’ contemplated by the section describes conduct that occurs more than once.

[27] However, the ‘following’ need not occur over and over again separated by any particular amount of time. Rather, the meaning in the criminal law context means “persistently” following. The court stated that focussing on persistent following “which demonstrates resolve to do so”, would help avoid criminalizing innocuously following another person even if annoying or prolonged.

In R. v. Ohenhen, 2005 CanLII 34564 (ON CA), the Court of Appeal for Ontario found that sending two letters over the span of 18 months constituted “repeatedly communicating”. In examining past case law, the Court rejected suggestions that “repeatedly” meant three or more:

[17] I do not interpret these reasons to say anything other than that in the circumstances of that case the three incidents which were the subject of the charge were sufficient to meet the charge of “repeatedly communicating”. The statement that “three communications would seem to be the minimum number sufficient to justify being described as ‘repeatedly'” was nothing more than a Crown submission and was not specifically adopted by the court.

The Court went on to examine Belcher and other cases in a detailed manner, and ultimately reached this conclusion:

[31] In my view, the dictionary definitions of the words “repeat” and “repeated”, from which the adverbial form “repeatedly” is derived, lead me to conclude that conduct which occurs more than once can, depending on the circumstances of the case, constitute “repeated” conduct or conduct which is “repeatedly” done and the section is met. In my view, it is unnecessary that there be a minimum of three events or communications. “Repeatedly” obviously means more than once but not necessarily more than twice.

[32] While one instance of unwanted conduct can be sufficient to satisfy s. 264(2)(c) and (d), it will not be sufficient to satisfy s. 264(2)(b). More than one instance of unwanted conduct will be necessary to meet paragraph (b); however, in my view, there is not and should not be any minimum number of instances of unwanted conduct beyond this to trigger these subsections. Provided the conduct occurs more than once, in my view, the actus reus can be made out. It will be a question of fact for the trier in each case whether there has been repeated conduct. The approach is a contextual one. The trier will consider the conduct that is the subject of the charge against the background of the relationship and/or history between the complainant and accused. It is in this context that a determination will be made as to whether there has been repeated communication. On the facts of this case, it was clear that neither of the communications could be characterized as i nnocuous or accidental. In the context in which they were made, these two communications would be [page581] sufficient to constitute “repeatedly” communicating as set out in s. 264(2) (b). In my view, it was entirely appropriate for the trial judge to use the standard charge language on this point.

[33] Although not in issue on the facts of this case, trial judges should be cautious in using the standard charge language in all cases. It seems to me that defining “repeatedly” as being more than one communication is not always appropriate. In some cases, the jury will have to consider the context in which the communications were made, the intent of the accused and possibly other factors to determine whether the communications were repeatedly made or were innocuous or accidental. Perhaps a more appropriate instruction would be to advise the jury that communication that occurs more than once can constitute repeated communications depending on the context and circumstances in which they were made.

The Court of Appeal for Ontario upheld the conviction for criminal harassment and found the sentence to be appropriate:

[41] Lastly, the appellant requests leave to appeal his sentence and if leave is granted, appeals on the basis that in all the circumstances, his sentence is overly harsh. Counsel advised the court that he has served his sentence.

[42] The appellant was sentenced, in effect, to three years’ imprisonment. After being given credit for the time he spent in pre-trial custody, he was required to serve a further 18 months. The sentence was to be followed by two years’ probation. The appellant has an extensive record dating back to 1990; it includes weapons offences, aggravated assault, assault with a weapon and at least four convictions for uttering threats. In my view, the sentence was manifestly fit in all the circumstances and I would not interfere with it. In view of the fact, however, that the sentence has been served, I would deny leave to appeal sentence.

My takeaway from all of this? There is no magic number of incidents required for criminal harassment to have occurred.  Victims do not have to be followed for a minimum of three separate times. Nor do there have to be a minimum of three separate communications.

Using 810.1 and 810.2 peace bonds to reduce violence in Canada

The document Handbook for High-Risk Offenders – A Handbook for Criminal Justice Professionals was published in 2001 by Public Safety Canada. Although dated, it provides a basic description of 810.1 and 810.2 peace bonds:

On August 1, 1997, Bill C-55 came into effect and created the section 810.2 order. The 810.2 order focuses on violent offenders, including sexual offenders. Both of these sections are designed to be preventative and not punitive, hence, it is not necessary for an offender to have a previous criminal record in order to qualify for one of these orders.

These orders can be made for a maximum of one year [this has since been extended, in some circumstances, to two years]. Conditions can be attached to these orders and a breach of an 810 order constitutes an offence. These orders are quite broad in their application, as a crime need not have been committed and the potential victim need not be named. Should a defendant refuse to enter into an 810 order they can be imprisoned for up to one year.

Two of these orders, 810.01, (When fear of a criminal organization offence); and 810.2, (Where fear of a serious personal injury offence) require the consent of the Attorney General of the province, or if in the territories the consent of the Attorney General Canada, to proceed. Each of the 810 orders has standard conditions set out in the Code. In each case the court will consider whether to impose these conditions based on the interests of society and the interests of the safety of the potential victims. The court also has the discretion to impose any additional conditions it sees fit as long as these conditions meet the test of reasonableness. Additional conditions are commonly applied to 810.1 orders (Where Fear of a Sexual Offence) and to 810.2 orders (Where Fear of a Serious Personal Injury Offence).

The British Columbia Supreme Court ruled in R. v. Baker (1999) [B.C.J No. 681 (B.C.S.C.)] that it is not necessary for the informant (the person who has the fear) to have had contact with the defendant in order to lay an information under section 810.2.

Generally, while the conditions associated with 810 orders do impose some restrictions on the defendant, they should not prevent the defendant from leading a reasonably normal life. See R. v. Budreo (1996), 104 C.C.C. (3d) 245, 45 C.R. (4th) 133 (Ont. Ct. (Gen. Div.)), affd (unreported, January 19, 2000, Ont. C.A., Court File No. C23785).

In my view, these peace bonds are an important tool. Used properly, they can reduce violence and keep potential offenders out of jail.

Here are some of the more important cases I’ve been able to find about 810.1 and 810.2 orders:

R v. Boone, 2007 MBPC 15
This case is useful for its examination of various conditions that can be applied under 810.1 and 810.2 orders.

R. v. J. S. H., 2017 BCPC 12
The Court declined to order an 810.2 for the defendant. Most of the Defendant’s criminal record was as a youth, and his last criminal conviction was five years ago. He spent 14 months on a recognizance of bail pending the 810.2 hearing, and his conduct during that time was upstanding. Of note, at para 21, there is a list of examples in case law where orders have been made under section 810.2 even though the Defendants had similar periods of compliance with their bail orders.

R. v. Nikal, 2016 BCSC 29
This was a provincial court decision appealed to the BC Supreme Court. The BC Supreme Court found that the original judge did not have to articulate imminent harm (para 42). All that was necessary was for the evidence to show that apprehension of the risk is reasonably grounded and is neither speculative nor remote (para 40).

R. v. Fendley, 2013 BCPC 194
The Court granted an 810.1 order even though the Defendant had no criminal record for sexual offences (para 5). The Court also found there was no requirement for the Informant to prove “serious and imminent danger” (paras 20 – 28). The reason this language is important is that a much earlier court decision from another province suggested that “serious and imminent danger” was required (even though this language was not present in the Criminal Code).

R. v. Baker, 1999 CanLII 15135 (BC SC)
The hearing judge need only find on the balance of probabilities that there are reasonable grounds that the appellant will commit a personal injury offence (para 44).

R. v. R.H.G.M., 2010 BCPC 434
This case resulted in a peace bond with comprehensive conditions, including a curfew, a red zone and a no alcohol condition (paras 31 – 34). The Defendant had a criminal record dating back to 1988. He had amassed approximately 30 convictions, including a three year federal sentence for aggravated assault.

R. v. Penunsi, 2015 CanLII 64020 (NL SCTD)
Section 515 of the Criminal Code (judicial interim release) applies to proceedings on an Information laid pursuant to s. 810.2 of the Criminal Code.

R. v. Burton, 2013 ONSC 4531
This case resulted in a substantial sentence for breaching an 810.2 order. In addition to a lengthy jail sentence, the offender also received a probation order with a comprehensive and innovative list of conditions.

Testifying by video conference

This is a post that I’m going to try to update over time with new case law.

I saw this article on the Toronto Star – Prosecutor blames Toronto police vacation plans as impaired driving case collapses:

She explained in court that a trial notification for next month’s trial had been sent to Toronto police on June 23, 2016, but it was only in January that the officer in charge of the case emailed Kromm to say he didn’t believe many of the officers requested to testify were necessary.

“I told him there was a charter application before the court and it was my opinion that those officers were necessary and I required them to be here for trial,” Kromm told Horkins, according to a court recording obtained by the Star.

She said she then received a further email informing her that two of the officers were “unavailable for trial because they were going on vacation to Florida.”

One point that could have saved these charges from being stayed was Section 714.2(1) of the Criminal Code:

714.2 (1) A court shall receive evidence given by a witness outside Canada by means of technology that permits the witness to testify in the virtual presence of the parties and the court unless one of the parties satisfies the court that the reception of such testimony would be contrary to the principles of fundamental justice.

This section mandates the Court to receive testimony from an out-of-country witness, unless Defence or Crown can show it is contrary to the principles of fundamental justice (ie. unfair). This appears to have been an option for the prosecutor and the judge in the case above. Or, if you give 714.2(1) a strict interpretation, it was not an option but a requirement.

Here are some cases where the witness was permitted to testify pursuant to 714.2(1) of the Criminal Code. It’s worth noting that, in every case I could find, out of country witnesses were  allowed to testify pursuant to 714.2(1) of the Code:

Witness allowed – R. v. Galandie, 2008 BCPC 6

Witness allowed – R. v. D’Entremont, 2009 ABPC 374

Witness allowed – R. v. Turner, 2002 BCSC 1135

Witness allowed – R. v Al-Enzi, 2017 ONSC 304

Witness allowed – R. v. Schertzer, 2010 ONSC 6686

Witness allowed – R v Nguyen, 2015 SKQB 382

Witness allowed – R v Singh, 2015 ONSC 6823

Witness allowed – R. v. M.M., 2012 ABPC 73

Witness allowed – R. v. Stevenson, 2012 BCSC 800

If the witness is located inside Canada, but away from the location of where court proceedings are being held, then 714.1 of the Criminal Code allows for a witness to testify by video conference:

714.1 A court may order that a witness in Canada give evidence by means of technology that permits the witness to testify elsewhere in Canada in the virtual presence of the parties and the court, if the court is of the opinion that it would be appropriate in all the circumstances, including

(a) the location and personal circumstances of the witness;

(b) the costs that would be incurred if the witness had to be physically present; and

(c) the nature of the witness’ anticipated evidence.

Under this section, the courts have been generally open to some witnesses testifying by video conference, where there is a good reason for it. But they have not been inclined to allow police officers or correctional officers inside Canada to testify remotely. Here are a few cases. I hope to update these over time:

Officer denied – R. v. Munro, 2009 YKTC 125 (CanLII)

Officer denied – R. v. Fleury, 2004 SKPC 53 (CanLII)

Officer denied – R. v. Ross, 2007 BCPC 244 (CanLII)

Officer denied – R. v. Munro, 2009 YKTC 125 (CanLII)

Officers allowed – R. v. Kim MacNearney and Craig MacNearney, 2010 NWTSC 77 (CanLII)

Videoconference capabilities have improved since these sections of the Criminal Code were introduced in 1999. It is likely they will get even better in the future.