R. v. Kohl, 2009 ONCA 100
[4] This case raises the issue of whether a single incident of this nature can constitute harassment under s. 264(2)(d) of the Criminal Code, R.S.C. 1985, c. C-46. It also raises the issue of whether a sentence of three years in the penitentiary is a fit sentence.
[26] Counsel for the appellant submits that, for a single incident to constitute harassment under s. 264 of the Criminal Code, such incident must be linked to past conduct or "carry with it the threat of future contact". He relies upon this court's reasons for judgment in R. v. Kosikar, 1999 CanLII 3775 (ON CA), [1999] O.J. No. 3569, 138 C.C.C. (3d) 217 (C.A.), at para. 28, where Goudge J.A. said:
Moreover, while in this case the prior contact is important proof of the consequence caused to the complainant, it is possible to imagine a case where the complainant's feeling harassed would be proven not through the context of prior contact but by evidence of a single incident that carried the real future prospect of the continuing tormenting of the complainant. In other words, prior contact may not be the only way of proving the necessary consequence of a single act of threatening conduct.
[27] In Kosikar, the conduct relied upon by the Crown was an abusive letter sent after a previous conviction for harassing the [page248] complainant. The issue before the court was whether a single incident (the letter) could found a conviction under s. 264 given the harassment element of the offence. Goudge J.A. concluded that a single incident could be sufficient to support a conviction. He said, at para. 20:
As a matter of statutory interpretation I do not think that s. 264(2)(d) is limited to repeated threatening conduct to the exclusion of a single threatening act. Parliament expressly required repeated conduct in defining the prohibited acts in s. 264(2)(a) and (b). The absence of such a qualification in s. 264(2)(d) strongly suggests to me a legislative intention not to confine that prohibition to repeated threatening conduct, but to encompass a single threatening act as well. Goudge J.A. went on to say that the threatening conduct need not be repetitious provided that it produces in the complainant a state of being harassed. Relying in part on Sillipp, Goudge J.A. concluded that a state of being harassed involved the complainant being "tormented, troubled, worried continually or chronically, plagued, bedevilled and badgered".
[28] In a more recent judgment of this court, R. v. O'Connor, [2008] O.J. No. 1125, 2008 ONCA 206, Simmons J.A. appears to carry the analysis in Kosikar a step further. At paras. 4 and 5, Simmons J.A. said:
In Kosikar, evidence of prior contact between the accused and the complainant was used to show that as the consequence of a letter the complainant felt harassed. However, Goudge J.A. also stated, "it is possible to imagine a case where the complainant's feeling harassed would be proven . . . by evidence of a single incident that carried the real future prospect of the continuing tormenting of the complainant."
On the facts of this case, in my view, it was open to the trial judge to find that the complainant was harassed both because the appellant's behaviour during the incident was persistent and because the incident occurred while the appellant was subject to a probation order requiring that he have no contact with the complainant.
[29] I would adopt the approach taken by the court in O'Connor. Even though the conduct in this case occurred over a relatively short period of time and there was no prior contact, it was highly threatening and persistent. The appellant jumped out of the bushes, blocked the progress of the complainant with outstretched arms, chased her down the road where she fled from him, then stood outside the Montgomery residence and stared at her. The trial judge properly described the appellant's conduct as persistent:
When the persistence of his actions are taken into consideration with the fact that during this time he spoke no words to ease what obviously from his apology appeared to him to have an unfavourable effect on the complainant, his actions may, as previously described, appear as threatening conduct . . . [page249]
[30] During the encounter with the appellant, brief as it was, the complainant reasonably feared for her safety and was clearly in a state of being harassed.
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