Bich, Marcotte, Weitzman

Appeal from a conviction. Dismissed.

The appellant appeals from two convictions rendered against him on charges of criminal harassment of his  former spouse and son and of breach of probation. The offence of harassment concerns an incident during which the appellant, who was under a no-contact order with respect to the victims because of his history of conjugal violence, called two schools where he thought his son might be a pupil. The appellant argues that the trial judge erred in concluding that he had displayed threatening conduct toward the vcitims because (i) his conduct was not directed at them and (ii) the judge assigned too much weight to the conjugal history in his analysis.

The first error alleged, that the judge erred in concluding that the evidence had established that the threatening conduct was “directed at” the victims, is based on an erroneous interpretation by the appellant of section 264(2)(d) of the Criminal Code (R.S.C. 1985, C. C-46) (Cr. C.). The judge concluded that the appellant had not acted with the intent of frightening the victims. That said, even in the absence of evidence indicating that the appellant wanted the victims to find out that he had called the school, such a subjective intention was not necessary to establish threatening conduct. The case law should not be understood to say that evidence of threatening conduct under section 264(2)(d) Cr. C. (a component of the actus reus) must include an element of subjective intent. It may be that R. v. Sauvé (C.A. Ont.), 2007-12-18), 2007 ONCA 888, SOQUIJ AZ-50471433, and R. v. McBride (C.A. (Ont.), 2018-03-29), 2018 ONCA 323, SOQUIJ AZ-51482482, of the Court of Appeal for Ontario, introduced a degree of confusion about the elements that must be proved to establish actus reus. In those two judgments, the evidence established that the accused knew that the victim would find out about his conduct and that he wanted the victim to find out. However, it would be wrong to conclude that this intentional element must necessarily exist. The emphasis must instead be placed on the feeling of fear that the conduct would awaken in a reasonable person placed in the victim’s situation, regardless of whether the accused intended the victim to find out about the conduct.

In this case, the judge did not err in concluding that the threatening conduct (the first element of the actus reus) had been proved: this conduct was “directed at” specific persons, that is, those who were the target of the conduct and were likely to feel threatened. The fact that the appellant did not address the victims directly and did not intend to cause them to feel fear does not make his conduct less threatening to them. His conduct concerned them directly and personally.

As for the second error alleged, the judge was right to take into consideration all the circumstances, including the appellant’s history of conjugal violence, to assess the feeling of fear that the appellant’s conduct might have stirred up in the victims.

The judge correctly identified all the elements to consider and the overall context, allowing him to conclude that the appellant’s conduct was threatening to the victims, and that the victims therefore reasonably feared for their safety and were harassed, and finally, that the appellant was reckless as to whether they were harassed.

Text of the decision: http://citoyens.soquij.qc.ca