Court of Appeal for Ontario

Date: 2018-03-29

Docket: C61065

Judges: Watt, Brown and Roberts JJ.A.

Between

Her Majesty the Queen Respondent

and

Rita Kathleen McBride Appellant

Counsel

Erin Dann, for the appellant

Mabel Lai, for the respondent

Heard

November 2, 2017

Appeal

On appeal from the findings of the commission of criminal harassment made on November 15, 2012, by Justice George J. Brophy of the Ontario Court of Justice, and from the verdict of not criminally responsible on account of mental disorder entered on March 27, 2013, with reasons reported at 2013 ONCJ 390.

Endorsement

Brown J.A.:

I. OVERVIEW

1The appellant, Rita McBride, was charged with five counts of criminal harassment, which alleged that between 2005 and 2012 she harassed Mark McBride by (i) following him from place to place, (ii) repeated communication, and (iii) threatening conduct and, further, harassed Mr. McBride's wife, Donna McBride, by (iv) repeated communication, and (v) threatening conduct.

2On November 15, 2012 the trial judge found two counts of criminal harassment proven beyond a reasonable doubt on the basis that, given the history between the parties, by legally changing her last name from Boyd to McBride, the appellant had engaged in threatening conduct against the McBrides. The trial judge acquitted the appellant of the other three counts.

3On March 27, 2013 the appellant was found not criminally responsible on account of a mental disorder ("NCRMD") in respect of the two counts of criminal harassment by threatening conduct. Since that time, the appellant has been detained under the jurisdiction of the Ontario Review Board.

4The appellant appeals the findings that her acts constituted criminal harassment and the NCRMD verdicts.

5For the reasons that follow, I would allow the appeal from the NCRMD verdicts. I would set aside those verdicts and, in their place, substitute findings of guilt on the two counts of criminal harassment by threatening conduct under s. 264(2)(d) of the Criminal Code. I would impose a conditional discharge on both counts, with a one-year period of probation.

II. FACTS

6The McBrides and the appellant lived in Ripley, a small town of about 800 people.

The appellant's 2005 convictions

7Around 2000 or 2001, the appellant became enamoured of Mark McBride, who was married. She approached him and expressed her love. He rebuffed her. She persisted with efforts to make Mr. McBride take an interest in her. Those efforts included: attending at Mr. McBride's places of employment; depositing items in his vehicle; and leaving items on the porch of his home, where he lived with his wife and children.

8In May 2005, the appellant peered through a window of the McBrides' residence, scaring a pregnant Donna McBride. The following month, Mr. McBride found the appellant outside his residence in the early morning hours with a step ladder.

9The appellant was charged with and pled guilty to criminal harassment and prowling by night. In September 2005, she was sentenced, and her probation order included a term prohibiting her from contacting the McBrides for two years.

The 2012 charges for criminal harassment by repeated following and communication: ss. 264(2)(a) and (b) of the Criminal Code

10In September 2007, when her probation expired, the appellant phoned the McBrides and told them she wanted to be step-mother to Mark's three children.

11In the fall of 2011, Mr. McBride thought the appellant was following him on the main road through the village. There were several other incidents in late 2011 and 2012: while Donna McBride was walking with her children, the appellant slowed her car and waved at them; the appellant showed up at the first communion program of one of the McBride children, although there was evidence she occasionally attended the parish; the appellant attempted to engage Mr. McBride in conversation at a community centre in a nearby town, but he rebuffed her; and while Mr. McBride was cutting his lawn, the appellant passed back and forth in her car, stopped, and engaged him in a brief conversation.

12Those incidents formed the basis of the charges against the appellant of criminal harassment by following Mr. McBride and repeatedly communicating with him and his wife. She was acquitted of those charges.

The name change

13Until their divorce in 2006 or 2007, the appellant was married to Dan Boyd. In February 2012, the appellant legally changed her last name to McBride.

14At the time, she was working at a restaurant in a town near Ripley. In April 2012, the appellant told the restaurant's bookkeeper that she had changed her last name to McBride. The bookkeeper asked for proof. The appellant provided a copy of the change of name certificate.

15The bookkeeper made two copies of the certificate: one for restaurant payroll purposes, and the other she took to her friends, Mark and Donna McBride. The bookkeeper did not tell the appellant that she knew the McBrides or intended to provide them with a copy of the certificate.

16About two weeks later, Donna McBride contacted the Ontario Provincial Police and told an officer about the appellant's name change. Further investigation by the OPP revealed the appellant had purchased a wedding dress in 2006. Neighbours advised that the appellant had been looking into wedding venues.

17The OPP obtained a warrant to search the appellant's apartment for a wedding dress, journals, and other materials. No challenge was made to the warrant at trial.

18The search revealed the appellant continued to have a significant interest in Mark McBride. The police found: a picture of Mark on her bedside table; newspaper clippings about his children; and a body pillow with his picture attached to it. Journals recorded the appellant's sightings of Mark and Donna McBride. Also uncovered was draft language for invitations to a wedding between the appellant and Mark McBride.

19At some point prior to the hearing of the appeal, the appellant changed her last name back to Boyd.

III. APPEAL FROM THE FINDINGS OF CRIMINAL HARASSMENT

A. The offence of criminal harassment by threatening conduct

20Sections 264(1) and (2) of the Criminal Code set out the elements of the offence of criminal harassment by threatening conduct:

264. (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

(2) The conduct mentioned in subsection (1) consists of

(d) engaging in threatening conduct directed at the other person or any member of their family.

21In R. v. Sim, 2017 ONCA 856, 41 C.R. (7th) 416, at para. 16, this court summarized what constitutes threatening conduct for the purpose of s. 264(2)(d):

In R. v. Burns, 2008 ONCA 6, 77 W.C.B. (2d) 402 – relying on the judgment of the Yukon Territory Court of Appeal in R. v. George, 2002 YKCA 2, 52 W.C.B. (2d) 530 – this court endorsed an objective standard for determining the actus reus of harassment by engaging in threatening conduct. At para. 2, the court wrote:

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 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 regards to the effects those acts had on the recipient. [Citation omitted in original. Emphasis added.]

B. The reasons of the trial judge

22The trial judge held the appellant's conduct "in changing her name and then taking it to her place of employment and effectively releasing it to the public" constituted "threatening conduct" within the meaning of s. 264(2)(d). He found the appellant consciously and purposefully changed her last name to that of Mark McBride "for whom she had great affection and interest."

23The trial judge concluded the appellant's conduct had harassed the McBrides, in the sense that they felt tormented, troubled, worried continually or chronically, plagued, bedevilled, and badgered: R. v. Kosikar, 138 C.C.C. (3d) 217, at para. 25, leave to appeal refused, [1999] S.C.C.A. No. 549.

24He then considered whether the appellant knew the complainants were harassed and held that she "was at best wilfully blind" and "clearly" reckless.

25He then considered whether the McBrides in fact feared for their safety or the safety of anyone known to them and, if so, whether that fear was reasonable in all the circumstances. He stated the evidence clearly showed the McBrides "feared for their safety and the safety of their family generally." He found their fear reasonable in the circumstances because the appellant's continuous pursuit of Mark McBride for over a decade had created uncertainty in the complainants about what the appellant might do: R. v. Wisniewska, 2011 ONSC 6452, at para. 38. As a result, the trial judge found the appellant had committed the two counts of criminal harassment by threatening conduct.

C. Analysis

26On her appeal from those findings, the appellant advances two submissions as to why her behaviour was not "threatening conduct" within s. 264(2)(d) of the Criminal Code.

Was the conduct "directed" at the complainants?

27First, she submits that her acts were not "directed" at the complainants. She informed her employer, not the McBrides, of her name change. They only learned about the name change because the restaurant's bookkeeper passed the information on to them. Since her conduct was not directed at the McBrides, the appellant argues it could not amount to threatening conduct.

28I do not accept this submission. Threatening conduct can be "directed at" a person where the communication was made to a third party with the knowledge and intent that it would be passed on to the targeted person: R. v. Sauvé, 2007 ONCA 888, at para. 2, leave to appeal refused, [2008] S.C.C.A. No. 149.

29In the present case, the appellant and the McBrides lived in the same small community. In her statement to the police, which was filed as an exhibit at trial, the appellant acknowledged that she knew and intended Mark McBride would learn about her name change:

Officer: Okay. So, yeah, you took Mark's name, that's ah, that's a choice that you made.

Appellant: It is a choice, yeah. And I wanted to tell him, and I said no, because you know what, he'll find out.

Officer: Mm-hmm.

Appellant: On his own.

Appellant: But I thought it would be better for (sigh), I thought it would be better to come from me than someone else. Um, and then I thought no.

Officer: Mm-hmm.

Appellant: I'll just keep that to myself.

Officer: [A]nd that's what I'm trying to understand…

Appellant: It's better to…

Officer: … is the motive behind the name change.

Appellant: It's trying, I try to be so honest with him.

Officer: So is this a way of um, of expressing your feelings towards him, by taking his name?

Appellant: Not so much feelings as um, where I stand. This is what I believe and it's final.

Officer: So you …

Appellant: And I'm not, I'm not, I'm not gonna waiver.

Appellant: It tells, I want Mark to under … it tells Mark that this is Rita's decision and choice.

Officer: Mm-hmm, mm-hmm. Okay. It tells him sort of …

Appellant: Where I stand.

Officer: Where you stand with him.

Appellant: Without saying too much. Without saying anything to him.

Officer: And that's your way of telling him …

Appellant: Yeah, yeah, I'm here.

Officer: Mm-hmm, okay. Um …

Appellant: I know I probably should have said something.

Officer: Mm-hmm.

Appellant: At the time, no, he'll figure it out.

30That evidence provided ample support for the trial judge's findings that by formally changing her name and telling her employer, the appellant effectively released it to the public, knowing and intending that Mark McBride would find out about it.

Did the conduct amount to a "tool of intimidation"?

31Second, the appellant contends her name change could not be construed as threatening in the sense of being a "tool of intimidation." She argues that the trial judge failed to explain how, viewed objectively and in the context of the history of the parties, obtaining a lawful name change would convey a message meant to intimidate the McBrides.

32I am not persuaded by this submission.

33For the purposes of s. 264(2)(d), threatening conduct "must amount to a tool of intimidation which is designed to instill a sense of fear in the recipient": R. v. Burns, 2008 ONCA 6, at para. 2, citing R. v. George, 2002 YKCA 2, 162 C.C.C. (3d) 337, at para. 39. Instilling a sense of something undesirable to come constitutes engaging in an act designed to instill a sense of fear: George, at para. 41. To determine whether conduct is designed to instill a sense of fear in the recipient requires focusing "on the effect of the accused's conduct on a reasonable person in the shoes of the target of the conduct": Sim, at para. 20.

34That is precisely what the trial judge did, as his reasons disclose where he stated:

[The appellant] consciously and specifically chose the name McBride. Which in the context of this case, is an action on her part which with everything that has happened with the prior criminal harassment convictions, with the anger that she knew that Mr. McBride was experiencing, that she agrees in the transcript … she knew how Mr. McBride would feel upon finding out about this name change, with the reality … knowing that she is doing this and being willfully blind or careless or reckless with reference to the impact it was going to have. Given the overall context, it seems to me that this act on her part knowing as she testified or states in her statement that Mr. McBride will find out about it and knowing that he will be upset and angry about it. When I look at all of that and put it all together, it seems to me that she has engaged in conduct which is of a threatening nature and is to be looked at in that regard.

35The trial judge then went on to find that the "uncertainties in the minds of Donna and Mark McBride about what Rita McBride is capable of", in light of the factual context, gave rise to a fear that "was in all of the circumstances reasonable." As noted by the trial judge, this factual context included the appellant's past unwanted presence on the McBrides' property, her "completely undue" and "obsessive interest" in Mark McBride and her comment about wanting to be step-mother to the McBride children, made soon after her completion of probation.

36The trial judge's reasoning does not disclose any error in law. He properly took into account the course of events that had led to the appellant's name change. I see no error in his finding that the Crown had established the actus reus of the offence. Consequently, I would dismiss the appeal from the findings that the appellant committed the acts of criminal harassment.

IV. APPEAL FROM THE FINDING OF NOT CRIMINALLY RESPONSIBLE ON ACCOUNT OF A MENTAL DISORDER

The finding of NCRMD

37The Crown raised the issue of whether the appellant was not criminally responsible on account of a mental disorder. The defence opposed the making of such an order. At the NCRMD hearing, the Crown called Dr. Hillary Mantle, who was accepted as an expert in forensic psychiatry. The defence did not call any expert evidence. However, the appellant testified at the hearing.

38In attempting to rebut the statutory presumption that a person does not suffer from a mental disorder so as to be exempt from criminal responsibility, the Crown relied solely on the second branch of s. 16(1) of the Criminal Code – that is, the Crown argued the appellant suffered from a mental disorder that rendered her incapable of knowing that the act was wrong. The Crown did not lead evidence from its expert witness on, nor did it make any submissions about, the first branch of s. 16(1), whether the appellant was incapable of appreciating the nature and quality of her act.

39The trial judge accepted Dr. Mantle's opinion that the appellant suffered from a mental disorder, Delusional Disorder, Erotomanic Type, which the trial judge found was a disease of the mind within ss. 2 and 16(1) of the Criminal Code. The central theme of Delusional Disorder, Erotomanic Type, is that another person is in love with the individual who has the delusion.

40The trial judge, at para. 83, concluded that "the mental disorder that she suffered from caused her to not know that it was wrong to take the actions she took."

The position of the appellant

41The appellant submits the verdict of NCRMD was tainted by legal error. She does not take issue with the trial judge's finding that, at the time of the offences, she was suffering from a mental disorder. Nor does she suggest her conduct was unrelated to a mental disorder. However, the appellant contends the NCRMD verdict should be set aside because it was not supported by evidence that, by reason of her mental disorder, the appellant was incapable of knowing her conduct was wrong.

42In this regard, the appellant advances two arguments.

43First, the factual findings made by the trial judge about her mens rea for the offence of criminal harassment are irreconcilable with the findings he made in support of the NCRMD verdict.

44Second, the trial judge improperly focused on the appellant's subjective belief that she did not do anything wrong by changing her last name to McBride. The appellant's subjective belief in the legitimacy of her actions was not the proper focus for a s. 16(1) inquiry. In support of this submission, the appellant relies on the decision of this court in R. v. Campione, 2015 ONCA 67, 321 C.C.C. (3d) 63, where, at para. 31, the court, citing R. v. Ross, 2009 ONCA 149, 246 O.A.C. 201, at para. 27, stated that "a subjective belief by the accused that his conduct was justifiable will not spare him from criminal responsibility even if his personal views or beliefs were driven by mental disorder, as long as he retained the capacity to know that it was regarded as wrong on a societal standard."

45Instead, the trial judge should have inquired into whether a mental disorder rendered the appellant incapable of understanding the moral wrongfulness of her conduct. Although the appellant may have been mistaken about whether changing her name could make out the offence of criminal harassment, the evidence demonstrated the appellant understood society would view any continuing efforts on her part to pursue a relationship with Mark McBride as morally and legally wrong.

The position of the Crown

46The respondent Crown submits that although the trial judge did not use the most precise language when conducting his analysis on the second branch of s. 16(1), his reasons correctly stated the law and, when read as a whole and in their proper context, demonstrate that he properly focused on the appellant's inability to rationally evaluate her conduct. The evidence entitled the trial judge to conclude that the appellant both did not, and could not, rationally evaluate her conduct and recognize, as any "ordinary citizen" who knew "the lengthy history" would, that it was morally wrong.

47The Crown disagrees with the assertion that the trial judge's factual findings regarding the commission of the acts cannot be reconciled with those made in the NCRMD decision. While the trial judge found the appellant formed the necessary appreciation for the factual impact of her conduct on the McBrides, he concluded she was unable to appreciate the moral quality of that impact. The two findings can coexist without difficulty.

Analysis

48The Crown sought to establish, on the balance of probabilities, that the appellant was not criminally responsible for her acts because at the time she was incapable of knowing that her acts were wrong: Criminal Code, s. 16(1). Under this second branch of s. 16(1), the court must determine "whether an accused was rendered incapable, by the fact of his mental disorder, of knowing that the act committed was one that he ought not have done": R. v. Chaulk, [1990] 3 S.C.R. 1303, at p. 1354. Or, as put in R. v. Oommen, [1994] 2 S.C.R. 507, at p. 520: "The issue is whether the accused possessed the capacity present in the ordinary person to know that the act in question was wrong having regard to the everyday standards of the ordinary person."

49The trial judge was satisfied the Crown had met its burden under the second branch of s. 16(1). He set out his analysis at para. 82 of his reasons:

The question is did she know that what she was doing was wrong in terms of what an ordinary member of society would appreciate was wrong, whether it was legally permissible or not. Surely an ordinary citizen would understand that with the lengthy history that was in place, with the previous conviction for criminal harassment and with the extended time on probation that had been imposed on Ms. McBride that there was something wrong about continuing to pursue this man against all logic and common sense. Her delusion with respect to his relationship with her caused her to not understand what she was doing was wrong. She did not have that insight. She thought it was acceptable because it was legal, in her mind, and the consequences simply did not occur to her. It was not being willfully blind, which implies knowledge but not caring, but rather she was simply unaware of the implications of her actions. She did not know it was wrong. [Emphasis added.]

50The Crown acknowledges that in this analysis the trial judge used language that appeared to focus on the appellant's knowledge, not her capacity to know. Nevertheless, the Crown submits the trial judge's linguistic imprecision did not reflect legal error.

51I am not persuaded by this argument, for several reasons.

52First, although the trial judge properly directed himself on the law, identifying the applicable principles as those summarized by this court in R. v. Szostak, 2012 ONCA 503, 111 O.R. (3d) 241, his reasons disclose that when applying those principles he misdirected his attention to the question of whether the appellant knew her act was wrong, instead of focusing on the principal issue of whether the appellant's mental disorder rendered her incapable of knowing her act was wrong.

53That amounted to an error of law. The second branch of s. 16(1) focuses on the capacity of the accused to understand that her act was wrong at the time of committing the act: Oommen, at p. 520; and Szostak, at para. 56. As stated in Oommen, at p. 518: "The crux of the inquiry is whether the accused lacks the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice about whether to do it or not."

54Second, the trial judge's treatment of the evidence does not signal that the language of his analysis merely reflected linguistic imprecision, as opposed to conceptual confusion.

55His treatment of Dr. Mantle's evidence seemed to shift the focus of analysis back and forth between whether the appellant knew her name change was wrong and whether her mental disorder rendered her incapable of knowing it was wrong. This conflation of the issues can be seen in paras. 32, 40 and 41 of his reasons:

Dr. Mantle then says that she is of the view that the second arm of the test in section 16, that is to say with respect to wrongfulness, is applicable. Ms. McBride knew that there were some things she was not supposed to do because of previous experience. For example, she knew she should not phone Mr. McBride or go on to his property. But because of her fixed delusions she was not able to think about the behaviour she was engaging in, that is to say the name change, and see that it was wrong. From a moral standpoint something sanctioned by the Lord could not be wrong. Her delusion clouded her ability to understand that what she was doing was morally wrong and would cause harm to the victims.

In cross-examination Dr. Mantle confirmed that Ms. McBride knew that she was changing her name, but in Dr. Mantle's opinion Ms. McBride did not understand that what she was doing by changing her name was wrong. She could not work through the consequences of what she was doing and how it would impact on other people and could be seen as threatening. She could indeed understand that some things were wrong from a legal perspective, for example by going to the victims' property or calling them on the telephone, and she also knew that the victim would react to the name change and that if she asked him about it he probably would have said not to do it.

Ms. McBride told Dr. Mantle that she wanted the name change out of love for Mr. McBride and also said that it was to be about closure. Dr. Mantle does not believe that Ms. McBride understood that the name change was wrong. Ms. McBride did not see her behaviours as threatening and did not understand that the average person would think that the name change was threatening. [Emphasis added.]

56Further, the trial judge did not advert to the following equivocal evidence about the appellant's capacity to know her act was wrong elicited from Dr. Mantle on cross-examination:

Q: She was capable of knowing that he might be upset by the name change. Wasn't she?

A: She, she may well have been. She indicated that she knew that he was going to find out about it.

Q: So she was capable of knowing that he would find out about it?

A: At that time she had indicated to me … that she knew that he would find out about it or figured he would find out about it ….

Q: And she was capable of knowing that her action might be wrong. Wasn't she?

A: Which action?

Q: Her action in changing her name.

A: I, I don't believe that she understood that that was wrong. She was taking the name for this man out of love … and … I don't believe that she understood that that could be wrong in terms of how it could, the, the impact that could have on other people and be seen as a threat. In fact, at, it's my understanding she did not see her behaviour as threatening. That was not her intent was to be threatening from what she explained. [Emphasis added.]

57Finally, I accept the appellant's submission that the trial judge's findings regarding the appellant's capacity to know whether her act was wrong are difficult to reconcile with the factual findings he made in concluding she had committed criminal harassment by threatening conduct. At para. 82 of his NCRMD ruling, the trial stated:

Her delusion with respect to his relationship with her caused her to not understand what she was doing was wrong. She did not have that insight. She thought it was acceptable because it was legal, in her mind, and the consequences simply did not occur to her. It was not being willfully blind, which implies knowledge but not caring, but rather she was simply unaware of the implications of her actions. She did not know it was wrong. [Emphasis added.]

58Yet, in concluding the appellant had committed the act, the trial judge had stated, in part:

[S]he knew how Mr. McBride would feel upon finding out about this name change … knowing that she is doing this and being wilfully blind or careless or reckless with reference to the impact it was going to have. Given the overall context, it seems to me that this act on her part knowing as she testified or states in her statement that Mr. McBride will find out about it and knowing that he will be upset and angry about it. When I look at all of that and put it all together, it seems to me that she has engaged in conduct which is of a threatening nature and is to be looked at in that regard.

And without dealing with issues that will arise under Section 672 if we get there, it clearly seems to me that [the appellant] was at best wilfully blind as to what this meant from Donna and Mark McBride's perspective and clearly it was reckless as to what that would do to them. [Emphasis added.]

59The Crown submits that those findings can co-exist on the basis that the trial judge's findings in respect of whether the appellant committed the act related to her understanding of the factual impact of her conduct, whereas those made at the NCRMD hearing went to her understanding of the moral quality of the impact. I cannot accept this submission. Those findings overlap far too much to support the fine distinction the Crown advances. In my view, the comments indicate confusion by the trial judge both about: (i) the distinction between the issues of capacity to know that an act is wrong and knowing that an act is wrong; and (ii) the effect of prior findings regarding the appellant's mens rea on the subsequent inquiry under s. 16(1).

60For these reasons, I conclude the NCRMD verdict was tainted by legal error and should be set aside.

V. REMEDY AND SENTENCE

61The parties agreed that if the appellant did not succeed on her appeal from the findings she committed criminal harassment and if the verdict of not criminally responsible by reason of mental disorder were set aside, then pursuant to s. 686(4)(b)(ii) of the Criminal Code this court should substitute convictions on the charges under s. 264(2)(d). I think that is the proper order. Accordingly, I would set aside the NCRMD verdict and enter convictions against the appellant on the two counts of criminal harassment by threatening conduct under s. 264(2)(d).

62The appellant, relying on R. v. Guidolin, 2011 ONCA 264, 280 O.A.C. 387, and R. v. Evans, 2012 ONCA 412, 294 O.A.C. 63, submits that, given the lengthy time spent in custody, no further sentence is appropriate, and therefore a sentence of time served should be entered.

63The respondent argues that the appropriate sentence would be a conditional discharge, with a one-year period of probation. A term of the probation order would require the appellant to have no contact with Mark and Donna McBride.

64I am satisfied that the almost six years the appellant has spent in custody far exceeds the range of any sentence the appellant would have received had she pled guilty to the charges upon her arrest in May 2012. No further incarceration can be justified on any applicable sentencing principle. A conditional discharge with a one-year probation order would be a fit sentence in the circumstances, one that is in the best interests of the appellant and not contrary to the public interest.

VI. DISPOSITION

65For the reasons set out above, I would allow the appeal from the verdict of not criminally responsible on account of mental disorder. I would set aside the NCRMD verdict and, in its place, substitute findings of guilt on the two counts of criminal harassment by threatening conduct under s. 264(2)(d) of the Criminal Code. I would impose a conditional discharge on both counts, with a one-year period of probation, to be served concurrently. The probation order shall contain the terms set out in s. 732.1(2) of the Criminal Code, with the non-communication term to include Mark McBride, Donna McBride and their children.