Manrique c. R., 2020 QCCA 1170
[31] The specific question in this appeal is whether there is a common meaning between the two sections with respect to the element of mens rea. The argument that there is or should be a common meaning cannot be sustained simply because the word “harass” is found in both. Attention must also be given to the points of difference between the two.
[32] As a preliminary point, Parliament cannot be presumed to have repeated itself in whole or in part when it enacted section 372(3) in 1969 and section 264 in 1993. It is now perhaps anachronistic to note that in 1969 the primary aim of the enactment was to sanction the abuse of telephones as a means of harassing others and that the deterrence of harassment was a corollary of that prohibition. Today it would be more appropriate to affirm that a purposive interpretation of section 372(3) is that Parliament seeks to deter harassment by any means of telecommunication. This shift is an important advance in the evolution of protection from harassment but it is not sufficient by itself to compel the conclusion that the interpretation of “harass” in sections 372(3) and 264 has merged with respect to the element of mens rea.
[33] The enactment of section 264 in 1993 marked a definitive shift toward enhanced protection of persons from harassing conduct, which explains its placement among offences against the person in Part VII of the Criminal Code.[25] This shift is apparent in a comparison between the sentencing options for the two offences. The offence of harassing communications in section 372(3) was originally punishable on summary conviction but was amended to create a hybrid offence that may be prosecuted on indictment with a maximum term of two years and allows a firearms order in the discretion of the sentencing judge but is not a primary or secondary designated offence for purposes of DNA testing.[26] Criminal harassment was enacted as a hybrid offence with a maximum of five years on indictment, which was later amended to provide for a maximum of ten years.[27] The Code was amended to remove a conditional sentence as an option for this offence and it compels the imposition of a firearms order.[28] It is also a secondary designated offence for purposes of DNA testing, as are the offences of uttering threats[29] and intimidation.[30] In short, a comparison of the sentencing options for the two offences plainly discloses that Parliament perceived between them a distinction in the degree of objective gravity.[31]
[34] A similar distinction is evident in the elements of the actus reus of the two offences. Section 372(3) creates an offence of transmitting a harassing communication by means of a telecommunication. Section 264 is not restricted to telecommunications but the harassment must be predicated on one of the four forms of conduct enumerated in subsection (2). One of those forms of conduct overlaps with the offence in section 372(3) by specifying repeated communication,[32] whether by telecommunication or other means, but the common element in all of the forms of harassing conduct in section 264 is a degree of close proximity.
[35] The differences between the two offences are also seen in another aspect of the actus reus in each. The offence in section 372(3) requires proof of the transmission of a harassing communication by means of a telecommunication. It does not require that the communication was received by another person. In Sabine[33] the accused made repeated telephone calls but disconnected each call as soon as the line was opened at the other end. It follows that section 372(3) also does not require proof of causing fear or any other effect in another person, as do the offences of uttering threats and intimidation.
[36] Section 264 requires proof of transmission, receipt of the transmission and the causal inducement in the recipient of fear for his or her safety or that of anyone known to him or her.[34] The requirements for proof of receipt and the inducement of fear clearly denote a higher degree of objective gravity in an offence that is colloquially identified as stalking. The offence of harassing communications by telecommunications does not include these elements and could seemingly be charged even in the absence of a known recipient, receipt of the transmission or the effect of a transmission.
[37] The element of mens rea in section 372(3) is the intent to transmit a harassing communication. It cannot be assimilated to the elements of mens rea that will suffice under section 264 without importing and adding into it a requirement of knowledge or recklessness of the effect that will be caused by the harassing conduct. Such an interpretation would change the substance of the actus reus and the mens rea of the offence and it would indirectly modify the objective gravity of the two offences so as to amend in effect section 372(3) in a manner contrary to Parliament’s intent.
[38] The trial judge acquitted the appellant of criminal harassment but found him guilty of making harassing communications. She did so in conformity with the elements of sections 264 and 372(3) and with the jurisprudence concerning the element of mens rea in each of them. The summary-conviction appeal judge dismissed the appeal from her decision for the same reasons. Neither committed an error of any kind.
[39] It is open for Parliament to amend the elements of section 372(3). If it chooses it can amend the element of mens rea of the section to conform with the interpretation of section 264 in Lamontagne and thereby reject the interpretation established in Sabine. That le
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