R. v. M.H., 2014 ONSC 36
[56] The Ontario Court of Appeal in R. v. Kosikar (1999), 1999 CanLII 3775 (ON CA), 124 O.A.C. 289 identified the elements of this offence. Goudge J.A. stated at para. 19:
I also agree with Proulx J.A.'s adoption, from R. v. Sillipp (1997), 1997 ABCA 346 (CanLII), 11 C.R. (5th) 71 (Alta. C.A.), of the following description of the five essential elements of the offence:
1) It must be established that the accused has engaged in the conduct set out in s. 264(2)(a), (b), (c), or (d) of the Criminal Code.
2) It must be established that the complainant was harassed;
3) It must be established that the accused who engaged in such conduct knew that the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassed;
4) It must be established that the conduct caused the complainant to fear for her safety or the safety of anyone known to her; and
5) It must be established that the complainant's fear was, in all of the circumstances, reasonable.
[Emphasis added.]
[57] The actus reus of the offence requires the accused to engage in one of the four elements set out in subsection 264(2) of the Code, (in this case, “engaging in threatening conduct”) in a manner that reasonably causes the victim, in all the circumstances, to fear for their safety or the safety of anyone known to them. Kosikar also establishes that the mens rea of the crime has two elements: (1) the intent to engage in the alleged prohibited conduct and (2) with i) knowledge ii) recklessness or iii) willful blindness that the conducted caused the victim(s) to be harassed.
[58] The question of whether the conduct is considered to be “threatening” or not is to be assessed from the perspective of the complainant. Section 264 of the Criminal Code simply requires that the threatening conduct caused the complainant to be harassed. In Kosikar the court stated, (at para. 22) “The threatening conduct can be constituted by a single act provided it carries as a consequence that the complainant is in a state of being harassed. The court adopted the statement of Proulx J.A. in R. v. Lamontagne (1998), 1998 CanLII 13048 (QC CA), 129 C.C.C. (3d) 181 (Que. C.A.) at p. 186:
Because of the distinction which Parliament made between the prohibited conduct within the meaning of s-s. (2) and the harassment as the ultimate consequence of the conduct, one cannot just equate the two, which thereby creates the necessity, as I previously pointed out, to consider the definition of the state of being "harassed", independently from the prohibited conduct which may cause this state and which is expressly provided for in s-s. (2).
[59] The court in Kosikar went on, at para. 23, to clarify that this element of the actus reus requires that the complainant be in a state of being harassed as a consequence of the prohibited conduct. It is not necessary for the Crown to prove that the accused intended the conduct to intimidate or cause fear. Also, given that the analysis of this element of the offence is centred on the effect of the conduct, the communications/interactions are not necessarily required to contain threats or violent behaviour.
[60] There is no definition of threatening conduct in the Criminal Code. In the case law threatening conduct has been defined as “a tool of intimidation which is designed to instil a sense of fear in the recipient.” In R. v. Burns, 2008 ONCA 6, 77 W.C.B. (2d) 402, the Ontario Court of Appeal set out the three criteria by which the conduct is to be interpreted:
1. “objectively”
2. “with due consideration for the circumstances in which they took place” and
3. “with regard to the effects those acts had on the recipient.”
[61] Spoken words are not required for a person’s conduct to offend ss. (2)(d), see R. v. Kohl, 2009 ONCA 100, 94 O.R. (3d) 241 leave to appeal to S.C.C. refused, [2009] S.C.C.A No. 149.
[62] It has been held that it is not sufficient that the complainant was “vexed, disquieted or annoyed” (see R. v. Petrenko, [2009] O.J. No. 5094 at para. 10 (S.C.J.)). In Kosikar the court stated (at para. 25) that “being in a harassed state involves a sense of being subject to ongoing torment.” As noted, the fact that the prohibited conduct harassed the complainant is established by the effect of the conduct on the complainant.
[63] The British Columbia Court of Appeal has held that “it is common ground that, in order to prove harassment, the Crown must establish that the prohibited conduct tormented, troubled, worried continually or chronically, plagued, bedeviled or badgered the complainant.” The Ontario Court of Appeal has explained that these words are not cumulative and are individually synonymous with the word “harassed” thus it would be harassment to be “plagued” in one context and “bedevilled” in another (see R. v. Kordrostami, 2000 CanLII 5670 (ON CA), 47 O.R. (3d) 788 at para. 11 (C.A.).
[64] As noted, with respect to the mens rea of the offence, the Crown must prove beyond a reasonable doubt that the accused knew or was reckless or wilfully blind as to whether the complainant was harassed. Durno J. in Petrenko explained the role of the trial judge in assessing this element of the offence as follows:
There need not be direct evidence of the accused's state of mind. Whether the accused had the requisite mens rea is a question of fact. The trial judge is entitled to draw inferences from the facts in assessing whether the requisite state of mind has been established beyond a reasonable doubt. The trial judge is also entitled to draw a reasonable inference that an accused was reckless as whether the complainant was harassed: R. v. Holmes, [2008] O.J. No. 3415 (C.A.).
[65] In R. v. Davis (1999), 1999 CanLII 14505 (MB KB), 143 Man. R. (2d) 105 at para. 35, aff’d 2000 MBCA 42, the Manitoba Court of Queen’s Bench outlined the mental element of the offence in the following way:
The mental element of the offence does not include a requirement that the accused foresee that his conduct will cause the complainant to be fearful. It is sufficient if it is proven beyond a reasonable doubt that the accused knew that the complainant would be harassed by his or her conduct, or was reckless or wilfully blind in that regard.
The court went on to explain that the accused’s pre-charge conduct and the history of the relationship between the parties is relevant and admissible for a determination of the accused’s intent and whether he knew or was wilfully blind or reckless as to whether his conduct harassed the complainant.
[66] Reasonable fear is governed by an objective standard. There must be evidence that the complainant reasonably feared for his or her safety. This fear is not restricted to fear of physical harm but also includes fear or mental, psychological or emotional safety. In Petrenko, Durno J. explained that it is not an essential element of the offence that there be a risk of physical violence and further that:
The complainant's fear for his or her safety may include psychological and emotional security. To restrict it narrowly, to the risk of physical harm by assaultive behavior, would ignore the very real possibility of destroying a complainant's psychological and emotional well-being by a campaign of deliberate harassment. If the accused engages in a course of conduct that causes a person to reasonably fear for his or her emotional or physical safety when viewed objectively the offence has been established: R. v. Gowling, [1994] O.J. No. 2743 (Gen. Div.), affirmed [1998] O.J. No. 90 (C.A.); R. v. Goodwin, [1997] B.C.J. No. 954 (B.C.C.A.).
[67] Similarly, in R. v. Szostak, 2012 ONCA 503, 111 O.R. (3d) 241 at para. 31, Rosenberg J.A. writing for the Ontario Court of Appeal adopted the trial judge’s finding that “fear for [one's] safety” included “a state of anxiety or apprehension concerning the risk of substantial psychological harm or emotional distress, in addition to physical danger or harm.” On the other hand it has been held that is not sufficient that the victim only fear for their financial well-being: see R. v. Lincoln, 2008 ONCJ 14, 777 W.C.B. (2d) 104.
[68] In R. v. Bates (2000), 2000 CanLII 5759 (ON CA), 134 O.A.C. 156 at para. 30 (C.A.), the Ontario Court of Appeal discussed the sentencing principles relating to criminal harassment. The decision of the court refers to the nature of the complainant’s fear in a domestic context. In Bates the court stated that “crimes involving abuse in domestic relationships are particularly heinous because they are not isolated events in the life of the victim. Rather, the victim is often subjected not only to continuing abuse, both physical and emotional, but also experiences perpetual fear of the offender.” The Bates decision has been summarized as follows:
Those [sentencing principles] apply with full force even where there is no physical violence. The absence of physical violence is not a mitigating factor on a conviction for harassment. The psychological violence done to the complainant and her friends over a prolonged period by the respondent's conduct is the very evil that Parliament sought to punish by creating the crime of harassment. The fact that the respondent did not commit additional crimes involving physical violence cannot mitigate his sentence on the harassment charge.
(R. v. Finnessey (2000), O.A.C. 396 at para. 16 (C.A.))
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