COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Verdon, 2014 ONCA 807

DATE: 20141117

DOCKET: C58234

Weiler, Gillese and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeffrey Verdon

Appellant

Diane Condo, for the appellant

Michelle Campbell, for the respondent

Heard: November 7, 2014

On appeal from the conviction entered on May 4, 2012 by Justice J. F. Réginald Lévesque of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant appeals from his conviction for criminal harassment contrary to s. 264 of the Criminal Code. He asserts that the trial judge erred in finding him guilty after failing to consider all of the necessary elements of the offence, and that the verdict was unreasonable. For the reasons that follow, the appeal is dismissed.

[2] The appellant was charged with a number of offences arising out of a sequence of events that occurred on November 4, 2011. The appellant, aged 34 at the time of the events, lived in an apartment with the tenant, Tammy Samson, who was his girlfriend. Ms. Samson was engaged in a landlord-tenant dispute with the owner and landlord of the building, Ljudmila Valencic.

[3] On the day in question, the caretaker of the building, Mahmoud Moussa, aged 63, attended at Ms. Samson’s apartment to make some repairs. While he was there the appellant accused him of listening in on an argument between himself and his girlfriend. The appellant assaulted Mr. Moussa and threatened to kill him and his family if he went to the police.

[4] While this was occurring, Ms. Valencic, who was 78 years old, arrived at the building to give Ms. Samson a 24-hour notice to view her apartment in relation to the landlord-tenant dispute. The appellant let Ms. Valencic in the door and she gave Ms. Samson the notice. Then the appellant became very angry, raising his voice to Ms. Valencic, and challenging her need to view the apartment. Ms. Valencic began to cry, said she wanted to leave, and attempted to exit the building. The appellant blocked her way by putting his hand on the door. After she was able to leave, the appellant repeated his threat to Mr. Moussa and his family and stated that he would also kill Ms. Valencic if Mr. Moussa did not stop her from going to the police. Mr. Moussa and the appellant followed Ms. Valencic down the street. The appellant reached out and grabbed Ms. Valencic’s shoulder with enough force to cause her pain for a few hours. She told him to let go, and he did so. He then apologized. Mr. Moussa and Ms. Valencic reported the events to the police.

[5] The appellant was charged with several offences arising out of his conduct towards the two complainants. Following his trial by judge alone, the appellant was convicted of assault on Mr. Moussa and Ms. Valencic, intimidation and two counts of uttering a death threat. He was acquitted of criminal harassment and forcible confinement in relation to Mr. Moussa, but convicted of criminal harassment by threatening conduct in relation to Ms. Valencic. He appeals only his criminal harassment conviction.

[6] As this court noted in R. v. Kosikar (1999), 138 C.C.C. (3d) 217 (Ont. C.A.), leave to appeal to S.C.C. refused, (2000), 142 C.C.C. (3d) vi, at para. 19, to make out the offence of criminal harassment contrary to s. 264 of the Criminal Code, the Crown must prove beyond a reasonable doubt each of the following elements:

(a) The accused engaged in the conduct prohibited under s. 264 (a), (b), (c) or (d);

(b) The complainant was harassed by the prohibited conduct;

(c) 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;

(d) The conduct caused the complainant to fear for his or her safety, or the safety of anyone known to him or her; and

(e) The complainant’s fear was, in all the circumstances, reasonable.

[7] The appellant contends that the trial judge failed to make specific findings on the second and third elements of the offence and that his conclusion that the fifth element of the offence had been made out was not supported by the evidence. We disagree.

[8] While the trial judge’s reasons do not specifically advert to each element of the offence, it is apparent from a review of his reasons as a whole that he was aware of what the Crown was required to establish in order to support a conviction for criminal harassment. Indeed, he acquitted the appellant of the charge of criminal harassment in relation to Mr. Moussa, after observing that evidence that Mr. Moussa feared for his personal safety was lacking, not meeting the onus beyond a reasonable doubt.

[9] In relation to the second element of the offence, the appellant contends there was no evidence that Ms. Valencic was harassed by his conduct. Ms. Valencic testified about being afraid, which is not the same as being “tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered”, words adopted to describe the state of being harassed in Kosikar, at para. 25.

[10] In our view, there was sufficient evidence for the trial judge to conclude that the appellant’s conduct was in fact harassing to Ms. Valencic. When Ms. Valencic attended the building to deliver a notice to Ms. Samson, she was confronted by the appellant who was angry and intimidating. The appellant initially blocked Ms. Valencic’s escape from the building. Instead of leaving Ms. Valencic alone after she left, the appellant escalated the situation by pursuing and then assaulting her. The appellant’s conduct amounted to harassment. The appellant’s apology was delivered after the fact and does not cure his conduct.

[11] With respect to the third element of the offence, mens rea, the trial judge accepted the evidence of Mr. Moussa that the appellant threatened to kill Ms. Valencic if Mr. Moussa did not stop her from going to the police. Although Ms. Valencic did not hear the threat, the trial judge was entitled to take it into consideration when determining whether the appellant possessed the requisite mens rea for the offence. The fact that the complainant began to cry as a result of the appellant’s actions was an indication that she was frightened. Yet, the appellant escalated the situation by pursuing her. The words and conduct of the appellant are sufficient evidence to establish beyond a reasonable doubt this element of the offence.

[12] With respect to the fifth element of the offence, the appellant contends that there was a reasonable doubt as to whether it was reasonable for Ms. Valencic to fear for her safety, where the events occurred in the presence of Mr. Moussa, and when Ms. Valencic did not hear the appellant threatening her. We disagree. The evidence entirely supports the conclusion that the complainant’s fear was objectively reasonable in the circumstances, having regard to the disparity in age between the complainant and the appellant, the context of Ms. Valencic attending to provide a notice in an ongoing landlord-tenant dispute, the appellant’s conduct towards her in the building, and the escalation in his behaviour as the events unfolded.

[13] It is clear that the trial judge was aware of the essential elements of the offence and applied them to the evidence in this case. There was ample evidence to support his factual findings and the conclusion that the appellant criminally harassed Ms. Valencic.

[14] The appellant’s submissions with respect to the reasonableness of the verdict are linked in large measure to his other arguments on appeal. In view of our disposition of these grounds, we conclude that the verdict was reasonable and supported by the evidence. Accordingly, this ground of appeal must also fail.

[15] The appeal is therefore dismissed.

“K.M. Weiler J.A.”

“E.E. Gillese J.A.”

“K. van Rensburg J.A.”