R. v. Burns, 2008 ONCA 6
[2] 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 (2002), 2002 YKCA 2 (CanLII), 162 C.C.C. (3d) 337 (Y.T. C.A.) 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 regard to the effects those acts had on the recipient.
[3] In brief, the conduct in question is as follows. The appellant and the complainant knew one another but had virtually no contact in the three years prior to the incident. The incident took place in broad daylight in downtown North Bay while the complainant was walking down Main Street with her five-year old daughter, after having left a bank. The appellant was dressed in full police uniform and also on foot on Main Street. He wolf-whistled at the complainant, said “nice butt” or “nice ass” and then, after the complainant sped up to get away from him, called out “are those pants painted on”.
[4] While the appellant’s conduct was clearly inappropriate and unwanted, we do not see the incident as amounting to threatening conduct within the meaning of those words in s. 264(2)(d). Although the complainant justifiably felt upset and scared by the appellant’s conduct, viewed objectively, we do not see it as rising to the level of a “tool of intimidation designed to instill a sense of fear”.
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