Marcotte, Hamilton, Fournier
Appeal from a judgment of the Superior Court allowing the summary conviction appeal from a guilty verdict rendered by the Court of Quebec and entering an acquittal on the charge of criminal harassment. Allowed; the judgment is quashed and the guilty verdict is restored.
The respondent was convicted on charges of criminal harassment and harassing communications against the complainant regarding acts committed after their breakup. The complainant testified that she had received anonymous phone calls and emails from him as well as letters containing denigrating remarks about her. The respondent denied being the author of the anonymous letters or having made the phone calls. The trial judge accepted the complainant’s testimony, which was supported by video and documentary evidence, and found that the complainant’s remarks supported the conclusion that she feared for her safety and that a reasonable person in the same circumstances would have had similar fears. On appeal, the judge found that the analysis of the testimony did not reveal any error in the assessment of the respondent’s credibility by the trial judge. However, he found that the evidence did not establish the complainant’s subjective fear for her safety, noting that Lamontagne c. R. (C.A., 1998-08-24), SOQUIJ AZ-98011679, J.E. 98-1953, could not be interpreted to mean that the victim’s feelings of concern, anxiety, and distress could be considered fear for her safety.
The appeal judge exceeded his authority to intervene by setting aside the verdict of criminal harassment on the ground that there was no evidence of the complainant’s subjective fear for her safety, thereby committing an error of law justifying appellate intervention. He gave an unduly restrictive interpretation to the element of the criminal harassment victim’s subjective fear and substituted his assessment of the evidence for that of the trial judge. The latter was in the best position to assess the fear expressed by the complainant, however, and her assessment warranted deference.
Since Lamontagne, the courts have acknowledged that the victim’s subjective fear for his or her safety in criminal harassment cases extends not only to physical safety, but also to psychological and emotional safety. While it is true that mere concern or a feeling of discomfort is insufficient to convict a person of criminal harassment, the element of subjective fear does not require that the victim be terrified. A Court may thus infer, in light of all the circumstances and testimony, that a person subjectively feared for his or her safety even if the person does not use the words [translation] “fear” or [translation] “afraid” during their testimony. In this case, pursuant to the evidence adduced, the trial judge could reasonably infer that the complainant experienced actual fear and a violation of her psychological well-being as a result of the respondent’s harassing communications, not knowing what he was capable of. The complainant’s testimony, in particular her use of the word [translation] “anxiety”, describes a feeling of fear or apprehension that goes beyond mere concern, embarrassment, or discomfort and can be considered a state of fear.
Interpretation of section 264(1) Cr. C.
Text of the decision: Http://citoyens.soquij.qc.ca