Pour déterminer si une conduite vise à susciter un sentiment de crainte chez son destinataire, on doit s'intéresser à l'effet que produirait la conduite de l'accusé sur une personne raisonnable se trouvant dans la même situation que la personne visée par la conduite

R. v. Sim, 2017 ONCA 856

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[15]      Sim submits that the trial judge erred in law in making this finding because establishing the actus reus of the offense requires proof that the accused subjectively intended to engage in threatening conduct. The trial judge acknowledged that if the actus reus imports a requirement to prove an accused’s subjective intention, then Sim was entitled to be acquitted. But the trial judge held that there was no such requirement. I agree. For that reason, I do not accept Sim’s submission.

[16]      In R. v. Burns, 2008 ONCA 6, 77 W.C.B. (2d) 402  – relying on the judgment of the Yukon Territory Court of Appeal in R. v. George, 2002 YKCA 2, 52 W.C.B. (2d) 530 – this court endorsed an objective standard for determining the actus reus of harassment by engaging in threatening conduct. At para. 2, the court wrote:

To establish harassment under s. 264(2)(d) of the Criminal Code, the Crown had to establish that the appellant engaged in “threatening conduct”. We accept the definition of threatening conduct given in R. v. George at para. 39 that, in order to meet the objectives of s. 264, the threatening conduct must amount to a “tool of intimidation which is designed to instill a sense of fear in the recipient”. The impugned conduct is to be viewed objectively, with due consideration for the circumstances in which they took place, and with regards to the effects those acts had on the recipient. [Citation omitted.]

[17]      In support of his submission, Sim focuses on the word “designed” in the phrase “tool of intimidation which is designed to instill a sense of fear in the recipient”. I do not read this phrase or the word “designed” in the way Sim does for two main reasons.

[18]      First, Sim’s submission is inconsistent with s. 264(1) of the Code and thus is contrary to Parliament’s express intent. Subsection 264(1) specifies that the mens rea component of criminal harassment can be met by an accused’s knowledge or recklessness. To suggest that the actus reus of threatening conduct requires a specific intent to instil fear is contrary to the plain language of s. 264(1).

[19]      Second, as this court said in Burns, under s. 264(2)(d) the conduct in question must be viewed objectively. In other words, would the accused’s threatening conduct cause a reasonable person in the complainant’s situation to fear for her safety? The word “designed” does not require the Crown to prove the accused’s subjective intention. And, in assessing whether an accused’s conduct is threatening under s. 264(2)(d), a judge is not required to get into the accused’s mind.

[20]      Instead, the word “designed” is meant to focus on the effect of the accused’s conduct on a reasonable person in the shoes of the target of the conduct. In Burns, this court clarified that the objective assessment must consider the circumstances in which the conduct took place, and the effects that the conduct actually had on the complainant. Although an accused's threatening conduct may not affect every target of that conduct, in every conceivable situation, it could well instill fear in a reasonable person in the complainant’s specific situation, particularly when the actual effects of the conduct on the complaint are considered. That is the case here. The trial judge did not err in finding that the Crown had established the actus reus of the offence.