Regina v. Kordrostami [Indexed as: R. v. Kordrostami]

47 O.R. (3d) 788

[2000] O.J. No. 613

2000 5670

No. C31088

Court of Appeal for Ontario

Carthy, Charron and Sharpe JJ.A.

March 1, 2000

Criminal law -- Criminal harassment -- Meaning of "harassment" -- Accused making explicit sexual comments to 14-year-old complainant at restaurant and when he first telephoned her -- Complainant telling him not to call again in strong terms and called police -- Complainant receiving several hang-up calls from accused over next several days -- Complainant fearing for her safety -- Complainant "harassed" within meaning of s. 264(1) of Criminal Code -- Complainant's fear reasonable in circumstances -- Accused knowing that hang- up calls amounted to harassment -- Accused properly convicted of criminal harassment -- Criminal Code, R.S.C. 1985, c. C-46, s. 264(1).

The accused was charged with criminal harassment. He met the 14-year-old complainant at a restaurant. She gave him her telephone number. He made sexually explicit comments, and when he left, the complainant had a friend note his licence plate number and spoke to the manager of the restaurant. The accused telephoned the complainant the next day and made further sexual overtures. She called him a "sick pervert" and told him that if he called again he would be "in a lot of trouble". She was sufficiently concerned that she called the police. Over the next few days, she received several hang-up calls from the accused. She testified at trial that she feared for her safety. The trial judge found that the accused made the hang-up calls. The accused was convicted. He appealed.

Held, the appeal should be dismissed.

The elements of the offence of criminal harassment are that, (1) the accused has engaged in conduct set out in s. 264(2) (a), (b), (c) or (d) of the Criminal Code, (2) the complainant was harassed, (3) the accused knew that the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassed, (4) the conduct caused the complainant to fear for her safety or the safety of anyone known to her, and (5) the complainant's fears were, in all the circumstances, reasonable.

The trial judge found that the accused repeatedly communicated with the complainant. This fell within s. 264(2) (a). The accused continued to contact her after she told him that he was a pervert and that she wished no further contact with him. The trial judge's factual findings fully supported the conclusion that the complainant was harassed within the meaning of s. 264(1). The hang-up calls could not be seen in isolation from other relevant facts, including the earlier conversation at the restaurant, the first telephone call made by the accused, and the complainant's strong statement that he would be in trouble if he continued to call her, she told him not to call back, and she called the police. After the first telephone call, the accused knew that any future contact would amount to harassment. The evidence fully supported the trial judge's finding that the complainant feared for her safety, and there was no reason to interfere with his finding that her fear was reasonable, in light of her age, t he nature of the sexually charged conversation at the restaurant, and the very explicit direction she had given the accused to leave her alone.

APPEAL by the accused from a conviction for criminal harassment.

R. v. Kosikar (1999), 1999 3775 (ON CA), 178 D.L.R. (4th) 238, 138 C.C.C. (3d) 217 (Ont. C.A.); R. v. Lamontagne (1998), 1998 13048 (QC CA), 129 C.C.C. (3d) 181 (Que. C.A.); R. v. Sillip (1997), 1997 ABCA 346, 55 Alta. L.R. (3d) 263, [1998] 2 W.W.R. 653, 120 C.C.C. (3d) 384, 48 C.R.R. (2d) 160, 11 C.R. (5th) 71 (C.A.), apld Other cases referred to R. v. Krushel, 2000 3780 (ON CA), [2000] O.J. No. 302 (C.A.); R. v. Lafreniere, [1994] O.J. No. 437 (Prov. Div.); R. v. Riossi (1997), 1997 12447 (ON SC), 6 C.R. (5th) 123 (Ont. Gen. Div.); R. v. Ryback (1996), 1996 1833 (BC CA), 105 C.C.C. (3d) 240, 47 C.R. (4th) 108 (B.C.C.A.); R. v. Sousa, [1995] O.J. No. 1435 (Gen. Div.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 264, 372(3)

Brian H. Greenspan, for appellant. Lisa Joyal, for the Crown, respondent.

The judgment of the court was delivered by

[1] SHARPE J.A.: -- The appellant, a 39-year-old man, met the complainant, a 14-year-old girl, at a McDonald's restaurant. The appellant made certain sexually explicit comments. He asked the complainant whether she had ever modelled topless, whether she was sexually active or had ever engaged in a "threesome". The complainant testified that the appellant knew her name and telephone number. She denied giving the appellant her telephone number. It was the appellant's evidence that the complainant was receptive to his comments and that she had given him her telephone number. He thought the complainant was older than 14. The conversation ended when the complainant saw a friend and waved him over to the table. The appellant left and she told her friend what had happened. The complainant's friend went outside and took the appellant's licence plate number and the complainant spoke to the McDonald's manager.

[2] The appellant telephoned the complainant the next day and made further sexual overtures. She told him that if he called again he would be "in a lot of trouble" and that he was a "sick pervert". The complainant noted on her call display the name of the company from which the call originated. That company was the appellant's employer. The complainant was sufficiently concerned about the appellant to call the police.

[3] While the appellant denied making any further calls, the complainant testified that she received several hang-up calls over the next several days. The caller said nothing and hung up after she answered. The complainant testified that her call display indicated that several of the calls came from the appellant's place of employment. She testified how she felt as a result of these calls:

Scared, frightened, I didn't know what was going to happen. I thought he was stalking me.

[4] The trial judge found that the complainant had given the appellant her telephone number. However, he also found that the appellant had made the hang-up calls, that the calls made the complainant fear for her safety, and that "the accused knew that any future contact would amount to harassment". He convicted the appellant and imposed a suspended sentence of 18 months.

Issues

[5] The appellant submits before this court that on the evidence, there is not a proper basis for a conviction for criminal harassment under s. 264(1) of the Criminal Code, R.S.C. 1985, c. C-46. In particular, it is the appellant's position that the complainant was not "harassed" and that she did not "reasonably" fear for her safety. The appellant also argues that the trial judge's finding that he knew that the complainant was harassed by his conduct cannot be supported by the evidence.

Analysis

[6] Section 264(1) and (2) provides as follows:

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:

(a) repeatedly following from place to place the other person or anyone known to them;

(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;

(c) 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

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

[7] The trial judge did not have the benefit of this court's decision in R. v. Kosikar (1999), 1999 3775 (ON CA), 138 C.C.C. (3d) 217, 178 D.L.R. (4th) 238 adopting the analysis of R. v. Lamontagne (1998), 1998 13048 (QC CA), 129 C.C.C. (3d) 181 (Que. C.A.) and R. v. Sillip (1997), 1997 ABCA 346, 120 C.C.C. (3d) 384, 55 Alta. L.R. (3d) 263 (C.A.), identifying and explaining the elements of this offence. Accordingly, he did not analyze the case precisely in the language of those cases. In my view, however, a fair reading of the evidence and of the trial judge's findings demonstrates that all of the elements of the offence were established.

[8] As set out in Kosikar, supra, Lamontagne, supra, and Sillip, supra, the elements of the offence are as follows:

(1) it must be established that the accused has engaged in the conduct set out in s. 264(2)(a), (b), (c), or (d) of the Criminal Code;

(2) it must be established that the complainant was harassed;

(3) it must be established that the accused who engaged in such conduct knew that the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassed;

(4) it must be established that the conduct caused the complainant to fear for her safety or the safety of anyone known to her; and

(5) it must be established that the complainant's fear was, in all the circumstances, reasonable.

(1) Conduct defined in s. 264(2)(a) to (d)

[9] The trial judge found that the appellant had repeatedly communicated with the complainant. This falls within s. 264(2) (a).

(2) Harassment

[10] Mr. Greenspan submits that the finding that the complainant was "harassed" cannot be sustained. In his reasons for judgment, the trial judge adopted a dictionary meaning of "harassed" as repeated communication with the complainant that is unwelcome. In Sillip, supra, Lamontagne, supra and Kosikar, supra, "harassed" is defined as "tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered". Mr. Greenspan submits that these words must be read cumulatively, so that a conviction could not be sustained unless it has been proven beyond a reasonable doubt that the complainant experienced the mental state expressed by these words as a whole. It is submitted that the failure of the trial judge to advert to this stricter standard is fatal to the conviction. It is also submitted that making a few hang-up calls falls short of conduct of sufficient gravity to warrant a conviction for criminal harassment. It was pointed out that calls of this kind are covered by another, less serious offence of harassing telephone calls, under s. 372(3).

[11] I do not view the list of words used in Lamontagne, supra and Kosikar, supra as cumulative. Nor do they replace the word "harassed" in the Criminal Code. In their origin in R. v. Sillip, supra, at p. 393, they were stated to be individually synonyms for "harassed": see also R. v. Ryback (1996), 1996 1833 (BC CA), 105 C.C.C. (3d) 240 at p. 248, 47 C.R. (4th) 108 (B.C.C.A.), where this point is made. Thus, it would be harassment to be "plagued" in one context and "bedeviled" in another.

[12] While I agree that the trial judge appears to adopt a less strict meaning of harassed, it is my view that his factual findings fully support the conclusion that the complainant was harassed within the meaning of s. 264(1). The hang-up calls cannot be seen in isolation from other relevant facts. In order to appreciate the impact of the calls and the gravity of the wrong committed by the perpetrator of the calls, the entire factual context must be considered. In Kosikar, supra, the court took into account the entire history of the relationship between the parties in finding that a single incident was found to be a sufficient basis to establish harassment: see also R. v. Riossi (1997), 1997 12447 (ON SC), 6 C.R. (5th) 123 (Ont. Gen. Div.).

[13] In the present case, the factual context includes the earlier conversation at the restaurant and the first call made by the appellant. The trial judge found that the complainant had called the appellant a "pervert" and that she explicitly told him that if he called her back he would be in a lot of trouble. She was sufficiently alarmed by the appellant's conduct at the restaurant to speak to the manager. After receiving the appellant's first call, she called the police. The trial judge found that the calls made by the appellant caused the complainant to fear for her safety.

[14] In my view, on these findings, the complainant was harassed within the meaning of s. 264(1). To the extent the synonyms adopted from Sillip, supra, serve to elucidate the meaning of harassment, I have no difficulty in concluding on the findings of the trial judge that the complainant was "tormented", "troubled", "plagued" or "bedeviled" as a result of the appellant's conduct. Where a 39-year-old man persists in making several hang-up calls to a young girl after having invited her to engage in a threesome and having been told that she regards him as a "pervert" on account of his unwanted overtures, the young girl has been harassed.

(3) Knowledge or recklessness

[15] I see no reason to interfere with the trial judge's finding that on these facts, "the accused knew that any future contact would amount to harassment". On this point as well, the hang-up calls cannot be viewed in isolation. Their impact on the complainant, and the appellant's perception of the impact they would have, must be seen in light of the earlier exchange and the first call when he was unequivocally told to leave her alone: see R. v. Krushel, 2000 3780 (ON CA), [2000] O.J. No. 302 (C.A.) at para. 26, where Catzman J.A., citing R. v. Ryback, supra, and R. v. Kosikar, supra, states that this is a proper use of such prior conduct.

(4) Fear for safety

[16] The complainant testified that she was "scared" and "frightened" by the appellant's calls and that she thought that she was being "stalked". This evidence fully supports the trial judge's finding that she feared for her safety.

(5) Reasonableness of fear

[17] Nor do I see any reason to interfere with the finding that this fear was reasonable, in light of the age of the complainant, the nature of the "sexually charged" conversation they had at the restaurant, and the very explicit direction she had given him to leave her alone: see, for example, R. v. Lafreniere, [1994] O.J. No. 437 (Prov. Div.) at para. 23 and R. v. Sousa, [1995] O.J. No. 1435 (Gen. Div.) at para. 6, where similar personal characteristics were used to assess the reasonableness of the complainant's fear. See also R. v. Krushel, supra, at para. 26 where pre-charge conduct was stated to be relevant to the reasonableness of the complainant's fear.

Conclusion

[18] For these reasons, I would dismiss the appeal.

Appeal dismissed.