[43] That the applicant was operating on a personal belief of what the law intended in that regard did not constitute a valid defence of mistaken belief or colour of right let alone an excuse, qualification or exemption: see s 19 of the Criminal Code; compare R v MacDonald, 2014 SCC 3 at paras 54 to 56, [2014] 1 SCR 37 which rejected the notion that even for a mens rea criminal offence the law required “the Crown to prove that the accused knew the law.” See likewise R v Allaby, 2017 SKCA 25 at para 42, 353 CCC (3d) 476:
42 The governing law respecting the characterization of the mistake is set out in R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37 (S.C.C.) [MacDonald], and R. v. Star Phoenix 911909, 2003 SKCA 108 (Sask. C.A.) at para 27, (2003), 2003 SKQB 108 (CanLII), [2004] 3 W.W.R. 639 (Sask. C.A.). An accused who erroneously believes that his voluntary action does not contravene a legal order or who is mistaken about the application of a legal order is mistaken in law. [Emphasis added]
[44] The interpretation of a statutory provision and particularly the definition of the essential elements of a criminal offence does raise a question of law with all that entails: see eg R v KRJ, 2016 SCC 31, [2016] 1 SCR 906; Allaby. While as a matter of general policy, ambiguities in offence definitions are read strictly, that does not mean that ambiguity should be injected into the essential elements of a crime definition in an effort to limit its scope.
[45] The object of the relevant provisions of the Criminal Code -- namely s 145(3) of the Code and s 515 of the Code -- are plainly to provide an enforceable means for a Court to supplement the entitlement of anyone to go about their lives being entitled to be left alone by another person particularly where that other person’s proximity frightens or concerns them. The applicant complains about his ability to attend church, but otherwise provides no rationale for his objection to the modest limitation on his freedom of movement created by the recognizance.
[46] As noted in a different context in relation to s 145(2) of the Criminal Code by the Court in R v Jerrett, 2017 NLCA 65 at para 18:
18 The purpose of section 145(2)(b) is to enable courts to control their own process. Failing to give effect to a judge’s order to a defendant to return for continuation of proceedings against him or her would undermine the judge’s authority to control the process of the court and render judges’ procedural orders ineffective and unenforceable, thereby impugning the integrity of the justice system.
See likewise Carey v Laiken, and also United Nurses of Alberta v Alberta, 1992 CanLII 99 (SCC), [1992] 1 SCR 901 at para 50 referring to contempt of court:
[50] Both civil and criminal contempt of court rest on the power of the court to uphold its dignity and process. The rule of law is at the heart of our society; without it there can be neither peace, nor order nor good government. The rule of law is directly dependant on the ability of the courts to enforce their process and maintain their dignity and respect. To maintain their process and respect, courts since the 12th century have exercised the power to punish for contempt of court.
[47] As noted above, the applicant disputes the reasonableness or validity or sincerity of the concerns or fears of AR. The trial judge was entitled to find otherwise. It was in any event not open to the applicant to gainsay the foundation of the condition included in the recognizance. Nor was it open to the trial judge to question it. The essence of the count under s 145(3) of the Code was to enforce a Court ordered restriction on the applicant’s behaviour vis a vis the complainant and her family. It did not require proof that his doing so would, to his knowledge, cause her fear or upset or do so without his knowledge.
[48] The no-contact restriction was not subject to collateral attack at the applicant’s trial: see eg R v Gibbons, 2015 ONCA 47 at para 9, 318 CCC (3d) 261. See also R v Walsh, 2016 SKCA 162 at paras 11 to 13, 345 CCC (3d) 298, that “[t]he rule against collateral attack on court orders has been consistently applied in criminal proceedings where the charge involves an alleged breach of a court order”; see also R v MacKinnon, 2017 ABCA 93 at paras 10 to 12, [2017] AJ No 260 (QL), leave denied [2017] SCCA No 174 (QL) (SCC No 37569). A person subject to a Court injunction is not entitled to not engage in cavils about its scope by a side wind.
[49] Nor should the applicant’s professed motive in attending the church be conflated with the level of volition and intent requisite to the offence under s 145(3) of the Code. Even for offences of specific intent such as obstruction of justice, the specific intent required should not be confused with the motive that the applicant might have: see eg R v Abdullah, 2010 MBCA 79 at paras 40 to 58, 323 DLR (4th) 275. As noted in Carey v Laiken at para 42, albeit for civil contempt:
42 The appellant correctly notes that civil contempt is quasi-criminal in nature, which he says justifies a higher fault element where contempt cannot be purged. But civil contempt is always quasi-criminal, so this provides no justification for carving out a distinct mental element for particular types of civil contempt cases. As I have already discussed, requiring contumacious intent would open the door to mistakes of law providing a defence to an allegation of civil contempt. It could also permit an alleged contemnor to rely on a misinterpretation of a clear order to avoid a contempt finding, which would significantly undermine the authority of court orders.
[50] Finding evidence of subjective foresight of the substantial likelihood of an outcome resulting from the accused’s volitional conduct is capable of supporting a finding that the outcome was intended by the accused: Abdullah at paras 39-41, citing inter alia R v Guess, 2000 BCCA 547, 148 CCC (3d) 321, leave denied [2000] SCCA No. 628 (QL) (SCC No 28303). That is what the trial judge found. There was to the knowledge of the applicant a substantial likelihood of his coming into contact with the complainants. That is tantamount to intent. Indeed, the trial judge reasonably inferred that he actually intended contact. Compare Procurator Fiscal v Murphy, [2015] HCJAC 78 (Scot HC) where the High Court observed on a non-contact provision that the Sheriff had “confused mens rea with motivation”.
[51] Motive is not an element of this offence. Indeed it is rarely an element of any offence even if evidence of it might be relevant to the proof of actual elements of the crime: compare R v Skeete, 2017 ONCA 926 at paras 77 to 84, [2017] OJ No 6261 (QL). There was nothing unreasonable about the fact findings of the trial judge on this point. There was nothing unreasonable about the affirmation of the trial judge’s conclusion in this respect by the appeal judge. No clear issue of law is involved, let alone an arguable one of importance.
[52] Returning to whether the count was given an inflated interpretation by the courts and whether the applicant was ambushed by its application to his situation, it is plain beyond doubt that the applicant’s duty to refrain from being in contact, directly or indirectly, had no “discretion” for the applicant built into it. Rather, it expressly provided for a narrow set of circumstances where the applicant could be in the vicinity of AR and the others within the recognizance’s intended zone of protection. The existence of those limited exceptions made even more clear to the applicant what the applicant was not entitled to do.
[53] In this count, the words “contact ... directly or indirectly” were plainly distinguished in the recognizance from “communication”. “Communication” happens to be the principal word used in s 515 of the Criminal Code. One can easily understand that indirect communication could cover a situation where a message is passed along. On the other hand, indirect contact could occur without direct communication. The concept of “contact” is not restricted to physical touching and it may include contacting the mind of the recipient without communication.
[54] It is noteworthy that even the offence of criminal harassment under s 264(1) of the Criminal Code can be made out by the accused making himself repeatedly visible to the complainant without evidence of direct communication: see the facts in R v Sillipp, 1997 ABCA 346 at paras 3 to 7, 120 CCC (3d) 384, leave denied [1998] SCCA No 3 (SCC No 26409).
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