WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.5

(1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

(4) An applicant for an order shall

(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

(7) In determining whether to make an order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;

(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(d) society's interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expression of those affected by it; and

(h) any other factor that the judge or justice considers relevant.

(8) An order may be subject to any conditions that the judge or justice thinks fit.

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or

(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings.

486.6

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.

Court of Appeal for Ontario

Date: 2017-11-08

Docket: C63535

Panel: Laskin, Feldman and Blair JJ.A.

Between

Her Majesty the Queen

Respondent

and

Darrin Sim

Appellant

Counsel:

Eric Granger, for the appellant

Andrew Hotke, for the respondent

Heard: October 23, 2017

On appeal from the conviction entered on October 19, 2016 by Justice Mitch Hoffman of the Ontario Court of Justice, sitting without a jury.

Reasons for Decision

Laskin J.A.:

[1] Introduction

[1] After a judge alone trial, the appellant, Darren Sim, was convicted of criminal harassment by engaging in threatening conduct contrary to s. 264(1) and (2)(d) of the Criminal Code. The conviction arose out of Sim's creation of a private Yahoo! Group website, which portrayed the complainant in a false and sexually degrading manner.

[2] Sim appeals his conviction. His sole ground of appeal is that the trial judge erred in finding that the unlawful act or actus reus of the offence had been established.

A. Background

[3] By any standard, Sim's conduct was morally reprehensible.

(a) Sim's relationship with the complainant

[4] Sim met the complainant sometime around 2001, when he was almost 30 years old. He worked in property maintenance in the complainant's apartment building. Sim regularly saw the complainant around the building, and at one point invited her for coffee, an invitation she accepted. They developed a friendship and got together from time to time to watch a movie or go skating.

[5] At some point Sim developed romantic feelings for the complainant, which he expressed to her. His feelings were not reciprocated. The two remained friends however, and continued to get together occasionally until 2003 or 2004. Then, the complainant decided she wanted to find a romantic partner, and realizing that Sim still harbored romantic feelings for her, told him it was best that they not see each other. Her decision disappointed and frustrated him.

[6] In the years that followed, Sim and the complainant married other people, and each started a family.

[7] Later, Sim and the complainant began emailing each other a few times a year to provide brief updates on their respective lives and families. Around 2009, Sim began asking the complainant for photos of herself, which she sent to him.

(b) Sim's Yahoo Group website

[8] In November 2010, without the complainant's consent, or even her knowledge, Sim created his Yahoo! Group website, which included an online internet forum dedicated, according to the website's home page, to "the degradation and online spreading" of the complainant. He recruited at least 150 members to his website.

[9] Sim posted extensive biographical details and photos of the complainant on the website. He authored false, degrading, vile, and grotesque sexualized commentary about her on the website's messaging forum. He encouraged group members to post their own vile comments about the complainant, to author and share crude sexual fantasies involving her, and to alter photographs of her in a sexually degrading way and share those as well. He also encouraged members to ejaculate on the pictures of the complainant he had posted, and to upload photos of these semen covered pictures to the website – all as part of a campaign to make the complainant "look like the cock slobbering little slut she is".

(c) The complainant's discovery of Sim's Yahoo Group website

[10] In April 2013, the complainant received an email, which led to her discovery of Sim's Yahoo! Group website. By then the website had over 1500 members. The email the complainant received contained a link to the website's home page. The complainant opened the link and was shocked and frightened by what she saw. The home page contained a picture of her from her wedding next to the caption "CUM SLUT". The home page also listed biographical details of the complainant, including her name, age, weight, height, bra size, underwear size, hobbies, education, occupation, and number of children.

[11] The following day, using a username and password created for her by a co-worker, the complainant gained full access to the website. She took screenshots of the home page, the photos of her, and the multiple perverted and sexual message strings about her. She took the screenshots to the police. Eventually Sim was charged with criminal harassment and publishing defamatory libel. He was convicted of the former charge and acquitted of the latter.

B. Discussion

[12] Subsection 264(1) of the Criminal Code sets out the offence of criminal harassment, and s. 264(2) specifies that the conduct amounting to criminal harassment can be committed in one of four ways:

(1) Criminal harassment – 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) Prohibited conduct – 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.

[13] Sim was convicted under paragraph (2)(d) – "engaging in threatening conduct directed at the other person". In lengthy reasons, the trial judge found that the Crown had established the mental element or mens rea of the offence:

The Crown has also established well beyond a reasonable doubt that the accused's threatening conduct towards the complainant was done while he was at least reckless as to whether she was harassed. The mens rea of count one is made out as well.

[14] Sim does not challenge this finding. He does, however, challenge the trial judge's finding that the actus reus had been made out. The trial judge found:

I have found that the actus reus of threatening has been made out on the basis of all the evidence I accept. In particular the accused's recklessness at least about the link being made between the real-life [P.L.] and the on-line [P.L.]. As well as the recklessness about the complainant finding out about the home page and the whole website, as she eventually did.

[15] Sim submits that the trial judge erred in law in making this finding because establishing the actus reus of the offense requires proof that the accused subjectively intended to engage in threatening conduct. The trial judge acknowledged that if the actus reus imports a requirement to prove an accused's subjective intention, then Sim was entitled to be acquitted. But the trial judge held that there was no such requirement. I agree. For that reason, I do not accept Sim's submission.

[16] 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.

[17] In support of his submission, Sim focuses on the word "designed" in the phrase "tool of intimidation which is designed to instill a sense of fear in the recipient". I do not read this phrase or the word "designed" in the way Sim does for two main reasons.

[18] First, Sim's submission is inconsistent with s. 264(1) of the Code and thus is contrary to Parliament's express intent. Subsection 264(1) specifies that the mens rea component of criminal harassment can be met by an accused's knowledge or recklessness. To suggest that the actus reus of threatening conduct requires a specific intent to instil fear is contrary to the plain language of s. 264(1).

[19] Second, as this court said in Burns, under s. 264(2)(d) the conduct in question must be viewed objectively. In other words, would the accused's threatening conduct cause a reasonable person in the complainant's situation to fear for her safety? The word "designed" does not require the Crown to prove the accused's subjective intention. And, in assessing whether an accused's conduct is threatening under s. 264(2)(d), a judge is not required to get into the accused's mind.

[20] Instead, the word "designed" is meant to focus on the effect of the accused's conduct on a reasonable person in the shoes of the target of the conduct. In Burns, this court clarified that the objective assessment must consider the circumstances in which the conduct took place, and the effects that the conduct actually had on the complainant. Although an accused's threatening conduct may not affect every target of that conduct, in every conceivable situation, it could well instill fear in a reasonable person in the complainant's specific situation, particularly when the actual effects of the conduct on the complaint are considered. That is the case here. The trial judge did not err in finding that the Crown had established the actus reus of the offence.

[21] I would dismiss the appeal.

Released: November 8, 2017

John Laskin J.A.

I agree. K. Feldman J.A.

I agree. R.A. Blair J.A.