Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2024 01 12 COURT FILE No.: Durham Region 22-28101334

BETWEEN:

HIS MAJESTY THE KING

— AND —

Shakara Walker

Before: Justice J. De Filippis

Heard on: November 6 – 7; December 27, 2023 Reasons for Judgment released: January 12, 2024

Counsel: Mr. C. Villacci, counsel for the Crown Mr. O. Said, counsel for the defendant

De Filippis, J.:

Introduction

1Ms. Shakara Walker and Mr. Nathan Skinner met on a dating site. Each one has a child from another relationship. A business was incorporated in both their names. Two motor vehicles were held by the business. The parties separated and the motor vehicles became part of a larger dispute and criminal proceedings. I heard from the complainant and defendant and reviewed screen shots of social media postings as well as a family law decision in the Superior Court of Justice. The authenticity of this material is not in dispute.

2This trial began with the defendant facing charges of publishing a defamatory libel (s. 301) and criminal harassment (s. 264). The offences are said to have occurred between June 30, 2021, and February 12, 2022, at the Town of Whitby and elsewhere in Ontario. At the conclusion of the evidence, the matter was adjourned for the receipt of written submissions. I was to give judgment on Dec 27, 2023. However, on Dec 8, I advised the parties that I wanted further submissions with respect to the charge of publishing a defamatory libel, including whether the constitutionality of the section was called into question. Moreover, on Dec 19, the defendant filed a motion that her lawyer be removed from the record and that the trial be re-opened so that the complainant could be cross-examined about his alleged perjury. Attached to the motion was material that purportedly disclosed prior statements by the complainant that are inconsistent with trial testimony.

3On December 27, 2023, I explained to the defendant why I would not re-open the case. I pointed out that it is arguable whether the examples she cited are, in fact, prior inconsistent statements and, in any event, they are not a basis for a finding of perjury. Moreover, on this date the Crown directed a stay of proceedings with respect to the charge of publishing a defamatory libel.

4These reasons explain why the remaining charge of criminal harassment is dismissed.

Criminal Harassment

5Section 264 of the Criminal Code provides that the offence of criminal harassment requires proof that the defendant knowingly or recklessly engaged in one or more of the following prohibited conduct that causes the other person to reasonably fear their or another person’s safety: Repeatedly following from place to place the other person or anyone known to them; Repeatedly communicating with, either directly or indirectly, the other person or anyone known to them; Besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business, or happens to be; or Engaging in threatening conduct directed at the other person or any member of their family.

Evidence

The Social Media Postings and Court Decision

6The Crown tendered five social media postings as evidence:

1. A screenshot of a video posted by the complainant on her Instagram account including her nephew and the defendant’s son surrounded by haystacks in a pumpkin patch, with the caption: “These #Two #Boys gave me the #Experience of what it’s like to be a #BoyMom & I’ll forever be grateful… they’ve had so many #FirstTimeExperience with me… I was & will always be the #one #cheering them on to do whatever they want to do. Be #Fearless always !! … The #Bond we #Created can never be #Broken no matter how many #seconds #minutes #hours #days #weeks #months #years #decades go by & we don’t see or speak to each other. Just know if you ever #Need me, #call n I’ll come #unning… #RamoneJr x #Cairo #Nephew #Son my lil #BestFriends #FlashBack #Memories”.

2. A screenshot of a video shared on the complainant’s Instagram account portraying the defendant’s son, in a motor vehicle, driving by his aunt, with the caption: “Why is MY #Son’s hair not comb & u guys have him out in public & posting him? It’s so obvious what u guys are doing. & clearly u n him #love me off that’s why u guys posts things for ppl to send me… like it’s been 8 months! Doesn’t he love her yet? Isn’t she happy sleeping in the bed I cum all over? Walking around the whole house he made memories in with me n my daughter? This guy has his #Son around every bitch that sells pussy for him. His sister post things cause she knows how attached to his son I am, before she goes and look about her career and get of #CERB #NATHANIEL Go marry the #JLeno looking bitch and stop embarrassing her, she waited 13 years for this position. Ur son is 9 no? u guys are whack AF… #FREE me so we can all move on from this dumb shit!”

3. A screenshot of a photo of the defendant shared on the complainant’s Instagram account, with the words “Popcorn Pimp of the Century” over the middle of the photo.

4. A screenshot posted by the complainant on the defendant’s account showing a home with the caption: “Nathaniel, all day everyday imma be at every address OceanPearl, Friary Court, Station Street, Dundas Street, Buttermill Ave. You wanna be #Petty I can dance with you idiot! Let’s show your son just how dumb you are.”

5. A brief video of the defendant and complainant arguing at the latter’s residence in the presence of police.

7The Crown also filed an electronic copy of a Family Court decision. After the parties separated, the defendant applied for an order allowing her to maintain a relationship with the complainant’s son. Justice L.E. Fryer denied the application, having found that the defendant did not have a significant legal relationship with the child. The Court also ordered that the defendant must seek leave prior to bringing any further legal proceedings involving the defendant or his son.

The Complainant’s Testimony

8Mr. Skinner is 37 years old. He is in the music business and, when asked, added, “I have another job that I’d rather not say for obvious reasons”. He met the defendant in 2020 on the Kinder website. At the time he was also having an “on/off relationship with Lucia”. When asked about his relationship with the defendant he said it was “not romantic but we had slept together if that’s what you are asking” and that, “everything went left with Shakara when she knew I didn’t want to be part of her life”. Before this separation, the defendant had incorporated a company in their joint names and purchased two vehicles, a Range Rover and Mercedes, in the company name. These motor vehicles became a source of dispute after the separation. According to the complainant, the defendant was “bothering Lucia” and posted online that Lucia was a prostitute and the defendant a pimp. The “Popcorn Pimp of the Century” post caused him to lose 70% of the clients in his music business. The defendant explained that “I’m part of a small urban black community and many approached me asking why she is posting these messages”.

9The defendant went to the complainant’s residence numerous times in their dispute over the motor vehicles. On one occasion, he called the police as she once sat in his car outside for an hour. When the police arrived, the complainant reported that she had come to retrieve a blanket. On another occasion, the defendant arranged for a tow truck to come to the school attended by the complainant’s son. He said she did so as she knew he regularly picked up his son. The car was towed away.

10The complainant was frightened by the defendant’s social media posts depicting his house and the name of his street and noted that the post also contained the names of the streets in which Lucia and his mother had homes. Her other social media posts and Family Court application also adversely affected him as he saw this action as an assertion that his son was also hers. The defendant’s actions caused the complainant to go through “a very bad time”. He was anxious and his “music studio shut down”. He went to a psychiatrist but did not follow through as he did not want to talk about himself.

11The complainant said that his relationship with the defendant lasted about nine months. He agreed that they spent much time together with their two children. He rejected the suggestion that the defendant’s Family Court application is proof of how much she was attached to his son. He added that the dismissal of her application confirms that the relationship with his son was not legally significant. The complainant agreed that since the Family Court decision he has “not been bothered” by the complainant and that after being warned by police she stopped posting social media messages about him.

12Defence counsel referenced social media post no. 2 and asked, “Is it possible referring to your son as hers shows her affection for him?”. The complaint replied, “No, she’s fucking crazy”. After some additional questions, the complainant called Defence counsel “a goof”. I pointed out that the cross-examination, which had only begun, had been fairly conducted and instructed the complainant not to repeat such rude behaviour.

13The complainant said the “Popcorn Pimp of the Century” message “went viral” but he conceded it was “taken down” within a week of its initial posting. He added that “something made this woman snap, it could be because of the car dispute, who knows”. The business incorporated by the defendant listed the complainant as a co-owner and the two motor vehicles are corporate property. According to the complainant it was agreed that each owner would use and pay the costs of one car. When pressed on this issue, the complainant conceded that he and the defendant had the right to both vehicles and that since their separation, she has paid for both vehicles. When asked to confirm that the car he was using had been driven to each street mention in the social media post number 4 noted above, the complainant at first agreed and then said he did not know. He agreed that the defendant had property at his home after the separation, but not a blanket.

14When asked why he did not want to reveal his “other job”, the complainant replied that he did not want the defendant to know. He denied telling the defendant that he was “a pimp” and “worked with prostitutes”.

The Defendant’s Testimony

15Ms. Walker is employed as a “night nurse, taking care of babies at night”. She confirmed meeting the complainant on Kinder in March 2020. She added that in May she and her daughter moved into the complainant’s home. She shared a bedroom with the complainant and each child had their own room. The defendant developed a strong relationship with the complainant’s son and noted that the two adults and two children often went out together. She testified that this explains social media posts no. 1 and 2, in which she referenced a maternal relationship with the boy, as well as the Family Court application for access to him.

16The defendant vaguely understood that the complainant operated certain businesses and heard rumours that he worked as a pimp. She testified that when she confronted him about this, he admitted that he was a pimp. She added that later the same day, she went through the complainant’s phone and found confirmation of his admission by way of text messages involving him and several women in which money and locations was discussed. Consequently, the defendant no longer believed the complainant’s prior assertions for leaving his son in her care most nights because he had to work in his music studio.

17Notwithstanding this, the defendant stayed with the complainant because she did not want to cause further abandonment issues with either of their children. In addition, the complainant told her that he would achieve his financial objective within six months and would cease this work. However, by March 2021, well over six months, the complainant had not given up this activity and the parties had their “loudest argument, in front of the kids”. The defendant left the complainant’s home with her child. She added that the parties “continued to co-parent for about three months”.

18On June 19, 2022, the co-parenting arrangement ended after a dispute arose between the parties. The defendant wanted to recover the company motor vehicle used by the complainant as he had not paid for the associated costs and retrieve her possessions from his home. She asked the police for assistance but was told they could do nothing. The complainant explained that this is the background for social media post number 4. The motor vehicles had tracking apps and the complainant learned that the defendant had frequently parked the car on the streets listed in the posting. The purpose of her post was to make clear to the defendant that she could track the vehicle.

19While the complainant was in Florida, the defendant found the motor vehicle in question at “Lucia’s house” and drove it away. She testified that after the complainant returned to Canada, he had the vehicle towed back to his home. The defendant received, and paid, the invoice from the towing company.

20The defendant testified that she posted the “Popcorn Pimp of the Century” message because the complainant and his family “were terrorizing me online and torturing me” and the defendant kept dissolving the company. She added that the posting was an emotional response because she knows the complainant does not like to be embarrassed. She repeated the defendant had admitted he was a pimp.

21In cross-examination the defendant conceded she had posted several messages about the complainant and explained her actions as follows:

I shouldn’t have done the things that I did. I was extremely emotional and frustrated...and he refused to let me move on with my life. I agree I should not have posted the photo and street names and understand why someone would be scared by that, but I did not post his address, just the street names as I was trying to find my car. I did this so he would say to himself let me be done with this girl and let me move on with my life but he wouldn’t.

22When asked why, if she wanted to move on, she would post the message referencing the complainant’s son as her own, the complainant replied, “I had an emotional moment and expressed it in that post”. She rejected the suggestion that the Family Court application was “completely unreasonable” and stated, “I went the legal route”.

Submissions

23The Defence position is that the complainant’s actions do not amount to harassment, that she did not intend to do so, and that, in any event, it cannot be said that the defendant reasonably feared for his safety or the safety of anyone known to him. Written submissions filed by the Defence includes the following excerpts:

The first image tendered is a screenshot of an Instagram video involving Ms. Walker’s nephew and Mr. Skinner’s son. The video was taken and posted at a time when Mr. Skinner and Ms. Walker were still engaged in a romantic relationship. The caption to the post is entirely positive; there is no aspect to the photo which could be construed as insulting, harassing, or threatening to the safety of any individual.

The next image shown was another screenshot of an Instagram video involving Mr. Skinner’s son. The video was taken by a member of Mr. Skinner’s family but was shared by Ms. Walker on her Instagram account. This post was shared after the relationship between Mr. Skinner and Ms. Walker ended. The caption included a line stating, “Why is MY #Son’s hair not comb & u guys have him out in public & posting him?” In her testimony, Ms. Walker admitted that she grew attached to Mr. Skinner’s son and referred to him as her son as a reflection of her affection. Later in the caption, Ms. Walker refers to the child as Mr. Skinner’s son and clarifies that Mr. Skinner’s sister “knows how attached to his son I am.”

Ms. Walker also states that “This guy has his #Son around every bitch that sells pussy for him” and closes the caption by stating “#FREE me so we all can move on from this dumb shit!” Ms. Walker testified that when she wrote “#FREE me” she meant that Mr. Skinner should so by returning all of Ms. Walker’s possessions that he had either taken or held on to following the end of their relationship….There is no aspect of this photo that would constitute criminal harassment; Mr. Skinner cannot reasonably fear for his safety or the safety of anyone known to him as a result of this post. Any suggestion that Mr. Skinner may have reasonably feared for the safety of his child is unfounded.

The next image shown was a photo of Mr. Skinner shared on Ms. Walker’s Instagram account. The photo included the words “Popcorn Pimp of the Century” over the middle of the image. Mr. Skinner testified that the photo went “a little viral” on various rumour mills, which got much more attention than posts on Ms. Walker’s Instagram account, and that it “basically shut [his] studio down.” Mr. Skinner provided no other screenshots of the post on any other supposedly viral accounts, nor any evidence of his business suffering as a result of this post or any others.

Mr. Skinner did not elaborate as to whether or how the image would have caused him to fear for his safety. Ms. Walker testified that Mr. Skinner admitted that he was a pimp to her during their relationship and that she believed that was true.

The final (sic) image was of a home shared on Ms. Walker’s Instagram account with various street names listed in the caption….Mr. Skinner’s suggestion that he feared for his safety because of this post is unfounded. The image itself does not show any identifying factors of the home photographed; it does not indicate which street the home is on, the house number, or who it belongs to. The caption lists street names, but never provides a specific address including a street number. Ms. Walker testified that she had posted the particular streets in the caption because these were the locations frequented by Mr. Skinner according to a Range Rover application she had access to. Her intention was to indicate that she would persist in her attempts to reacquire the vehicle she believed she was entitled to.

The final media shared by the Crown was a brief video showing Ms. Walker at Mr. Skinner’s address during an attempt to reobtain some of her possessions that were still at his residence. Ms. Walker was accompanied by police. Mr. Skinner stated that Ms. Walker had been waiting outside his address until he called police. In reality, it was Ms. Walker who had called the police to accompany her as she attempted to regain her things. The occurrence report tendered as Exhibit 2 confirms this. Any suggestion that an individual feels unsafe because an individual is coming to pick up their belongings with the presence of police to keep the peace cannot hold merit.

The [Family Court] endorsement referred to an application made by Ms. Walker for an order for contact with Mr. Skinner’s son. Ms. Walker testified that she had enjoyed taking care of Mr. Skinner’s son and that her daughter had developed a bond with his son… . Following the ruling, Ms. Walker made no further attempts to contact or initiate legal proceedings involving Mr. Skinner or his child.

24The Crown argues that the actus reus of criminal harassment has been established because the defendant admits posting the messages in question and attending at the complainant’s home. Counsel added that the complainant testified he became fearful because of the defendant’s actions, especially the one that included a photograph of his house and street name. This must be seen in context; the defendant also posted photographs referencing the complainant’s son as her own and went to Family Court for an order allowing access to him. The Crown asserts that in all the circumstances, the complainant’s fear was reasonable.

25With respect to mens rea, the Crown submitted that:

The mens rea of the offence is also made out. Ms. Walker testified that her motivation for making these Instagram posts was so that she could cause Mr. Skinner to leave her alone. When asked to explain her plan, as it did not make sense to the Crown, she stated that she knew Mr. Skinner was a private person, and this exposure might cause him to do what she wanted, namely, to give her vehicles back. This evidence is, of course, contradictory to itself. It cannot be that by making Instagram posts about someone that you cause them to leave another person alone. What does make sense is that Ms. Walker intended to do all these things for the sake of perhaps getting her vehicles (she testified she paid for them) back to her. She has, in essence, admitted that she engaged in a course of conduct for an express purpose. Even if the Court does not find that she intentionally harassed Mr. Skinner for the purpose of getting those vehicles back (on her own evidence), the Court should have no difficulty finding that she was at least reckless to whether Mr. Skinner was harassed.

Analysis

26The Crown carries the burden of proving guilt beyond a reasonable doubt. This fundamental principle of law means that if the defendant has called evidence, there must be an acquittal where the testimony is believed or where the testimony is not believed but raises a reasonable doubt. An acquittal will follow even if the defence evidence is rejected, but the remaining evidence fails to convince, beyond reasonable doubt, that the defendant is guilty (R. v. W(D), [1991] 1 S.C.R. 742).

27Probable guilt is not the criminal law standard of proof - it is closer to certainty. A reasonable doubt is a doubt based on reason and common sense which must be logically based on the evidence or lack of evidence (R. v. Villaroman, 2016 SCC 33). In applying the standard, I can accept some, part, or none of what a witness states. The testimony of a witness is assessed based on the person’s sincerity and accuracy.

28The elements of the offence of criminal harassment were discussed by the Court of Appeal for Ontario in [R. v. Kosikar 1999) and [R. v. Kordrostami 2000). Applying those principles to this case, the offence is proven if it is established that: (1) The defendant repeatedly communicated, directly or indirectly, with the complainant; (2) The complainant was harassed; (3) The defendant knew the complainant felt harassed (or, was reckless or willfully blind as to whether the complainant was harassed); (4) The defendant's conduct caused the complainant to fear for the safety of his wife or daughter; (5) The complainant's fear was reasonable.

29In addition, I note the following legal principles: Conduct that causes a person to be "vexed, disquieted, or annoyed" does not amount to harassment. A person is harassed if they are "tormented, troubled, worried continually, or chronically plagued, bedeviled, and badgered". These words are not cumulative. If anyone of them properly describes the effect of one's conduct on another, that other person is harassed (Kordostrami, paragraphs 10 and 11). The phrase "to fear for their safety" is not limited to a fear of physical safety. Parliament also intended to address psychological safety. This means a fear of mental, emotional, or psychological trauma. R. v. Ryback.

30The complainant and defendant presented as markedly different witnesses and I take this into account in assessing their evidence. The former was excitable and verbose. He was occasionally sarcastic toward both counsel and rude to Defence counsel. The complainant was polite, calm, and answered questions appropriately. She readily conceded that some of her social media posts were intended to embarrass the complainant and expressed regret that her emotional reaction to the end of the relationship and dispute over the motor vehicles caused her to act this way.

31The defendant was upset by how the parties separated and understandably angry that the complainant continued to use the motor vehicle while she carried the cost. Her response to this was immature and petty. However, it does not rise to the level of harassment. In this regard, I accept the submissions of Defence counsel about the content of the social media posts. The defendant’s Family Court application was unreasonable and properly dismissed. She had no right to expect her relationship with the complainant’s son to continue. However, again, taking this legal action does not rise to the level of harassment.

32It is understandable that the complainant would be upset and annoyed by the defendant’s conduct but it cannot be reasonably said that this would cause him to be tormented or chronically plagued, to use some of the examples offered by the Court of Appeal. In this regard, I note that there are five social media posts over several months, as well as the Family Court application. Even assuming the defendant intended to harass the complainant with these few communications, and succeeded in doing so, I do not accept his assertion that her conduct caused him to fear for his physical or emotional safety. The offence of criminal harassment is not an answer to the incivility displayed by the defendant in this case.