Court File and Parties
Court File No.: Sudbury 11-1144 Date: 2012-07-19 Ontario Court of Justice
Between: Her Majesty the Queen — and — James Okkonen
Before: Justice Randall W. Lalande
Heard: June 13, 2012
Reasons for Judgment Released: July 19, 2012
Counsel:
- Kenrick Abbott, for the Crown
- The accused is self-represented and assisted by Gary McMahon
Reasons for Judgment
1: Introduction
[1] Mr. James Okkonen is charged on a single count information with the offence of criminal harassment contrary to Section 264(2)(b) of the Criminal Code.
2: Background
[2] The circumstances giving rise to the charge are said to have occurred between March 5 and March 27, 2011. The complainant is Ms. Penny Burnside (previously known as Penny Okkonen). She and Mr. Okkonen have a long history. They met in 1994 at Parry Sound. They became married in 1995 and moved to Sudbury in 1996. Mr. Okkonen has stood in loco parentis of Ms. Burnside's two children from an earlier relationship. The children are Melissa now 26 years old and Cory now 25 years old.
[3] The accused and the complainant separated in April 2010 and again in August 2010. There was a brief reconciliation attempt in September 2010. They have not lived under the same roof since October 2, 2010.
[4] Of some relevance is the fact that the relationship between the accused and the complainant did not always go smoothly. There was a heated incident in the year 2000 which led to a temporary separation of sorts. In 2005, the couple broke up for an extended period exceeding three months. On both occasions, according to the complainant, Mr. Okkonen made an effort to make amends and the steps he took resulted in reconciliation.
[5] The essence of the allegation against Mr. Okkonen is that he repeatedly communicated with Ms. Burnside either directly or indirectly or through persons known to her. In doing so, it is alleged that in all of the circumstances he caused her to fear for her safety. In terms of the nature of the communication and repetitiveness thereof, the following incidents were raised by the complainant in her examination in chief:
There was very little face to face contact between the complainant and Mr. Okkonen between October 2010 and March 2011. They did communicate by e-mail including e-mail sent to Mr. Okkonen by Ms. Burnside on March 5, 2011, where she asked him to take her off his e-mail list and leave her alone.
On March 7, 2011, Ms. Burnside was returning home from walking her dog. She neared the back entrance of her building. Adjacent to the parking lot area she saw Mr. Okkonen who was near her car. She did not stop. She entered the apartment building, went to her unit and locked the door. She only found out later that day or the next day why Mr. Okkonen had been there.
On March 10, 2011, Mr. Okkonen sent Ms. Burnside an e-mail. This e-mail contained religious overtones.
On March 20, 2011, Ms. Burnside was changing her car battery. She left the car and went into her residence. After she left the car, Mr. Okkonen placed his broken guitar on top of the car engine with a note stating "I love you this much". Ms. Burnside interpreted this as meaning that Mr. Okkonen would be prepared to give up his music in exchange for a reconciliation. She subsequently wrapped and packed the guitar. She turned it over to her daughter in order to have it returned to Mr. Okkonen.
On March 26, 2011, Ms. Burnside received a call from her daughter advising that flowers would be left on her car. She found the flowers right outside her apartment door. There was no indication at the time who sent the flowers. She became seriously upset and called police 1½ hours later.
[6] Ms. Burnside testified that her relationship with Mr. Okkonen was over, that she had basically told him to leave her alone and that she was not interested in him doing nice things for her. In her mind, Mr. Okkonen was getting bolder and braver and was invading her space and privacy.
[7] As might be expected, the court heard reference to other evidence relevant to the couple's history and relationship including Mr. Okkonen's participation in a Christian band, their mutual attendance at the same church (even after final separation) and their mutual exchange of e-mails (totalling approximately 16) after the final separation and prior to March 2011.
[8] Mr. Okkonen does not deny the contact he made or initiated. In testifying he made an effort to explain himself by providing background and context to his actions.
[9] Mr. Okkonen acknowledged receiving Ms. Burnside's e-mail dated March 5, 2011 where she asked that he leave her alone. He responded to that e-mail within 10 minutes and in part stated "God has good things in store for us, if only you can forgive, and accept love". He stated that he understood what Ms. Burnside wanted, however, interpreted this as meaning that she needed some personal space. He did not take this to mean that a reconciliation would never occur. Therefore, he was not dissuaded, at least up to this point at abandoning all prospects of a possible reconciliation.
[10] Mr. Okkonen indicated that after the separation, his daughter often requested that he drive her and the grandchildren to Ms. Burnside's residence. In his view, Ms. Burnside knew and accepted that he was doing so and that he was in the loop, so to speak.
[11] In terms of attending at the vehicle on March 7, 2011, Mr. Okkonen explained that he was worried about the state of the vehicle following a severe winter storm. He confirmed that the vehicle and insurance is registered in his name. He pays to keep the vehicle insured. He agrees that Ms. Burnside has exclusive use of the vehicle. He stated that he was worried that the tires of the vehicle may have become deflated. He was worried about Ms. Burnside damaging the aluminum rims. Because he felt responsible for the vehicle, he also wanted to insure that it was proper condition.
[12] Mr. Okkonen admitted leaving the guitar on March 20, 2011 together with a note. He indicated that he had seen Ms. Burnside at the coffee house located in the basement of the church. This affected the way that he was thinking. He decided that it would be reasonable to attempt to re-initiate contact with Ms. Burnside. In leaving the guitar and the note, he wanted to send the message that he was prepared to make sacrifices to be able to resume his relationship with her. Mr. Okkonen further explained that he thought the pattern of behaviour could be what it was before and that he could or should make an effort to reconcile. He specifically said "I just didn't want to let go, she left me without an explanation".
[13] Mr. Okkonen did buy flowers a day or two prior to March 26, 2011. He asked his step-daughter Melissa whether she thought her mother would like flowers. Melissa said yes, so long as someone else brought them to her. Melissa called her mother to advise that flowers would be brought. Her brother Cory actually delivered the flowers.
[14] Mr. Okkonen's position may be summarized as follows:
He knew that Ms. Burnside did not want him to contact her. He interpreted this as meaning she needed some space. Because of their history, he did not think that this meant that he should make no future efforts to reconcile.
Mr. Okkonen tried to provide an excuse for being at or near the car on March 7, 2011. In reality, his concern over the state of the car despite its registration status was not a sufficient reason for him to be in the parking lot. She had exclusive use of the vehicle and her corresponding obligation was to look after its operability. While the court does not completely discount his interest in the vehicle, it strongly appears that he was using this as an excuse to allow himself to be in her vicinity.
Mr. Okkonen's explanation about the guitar is more plausible. Although he knew she did not want further contact, he was making an effort to rekindle the relationship. His reference about thinking that this was the right thing to do because of the past was not unreasonable in view of Ms. Burnside's acknowledgement that he conducted himself in a not-dissimilar way in terms of making contact in an effort to broker a reconciliation after they had separated in the past.
Mr. Okkonen admits he purchased the flowers. Ms. Burnside's testimony did not fully coincide with that of her daughter Melissa or son Cory. Melissa and Cory's evidence was more specific. According to Melissa, Ms. Burnside was told that Cory would be bringing the flowers. There was no mention they would be left on her car. All indications are that she knew that both her children were involved and that flowers were on the way. This ought to have removed any element of surprise.
[15] Mr. Robert Decosse gave evidence on behalf of Mr. Okkonen. His evidence had to do with Ms. Burnside and Mr. Okkonen attending at the church coffee house at the same time on or about March 11, 2011. He confirmed that Mr. Okkonen was worried about being in Ms. Burnside's presence for the entire duration of time that they each planned at being at the church. Mr. Decosse spoke with Ms. Burnside and according to him, she indicated that there would be no issue with him being in the same room with her so long as he did not approach her. According to Mr. Decosse, the evening progressed nicely and no issue arose by virtue of the fact that Mr. Okkonen and Ms. Burnside remained in the same room at the coffee house church function.
3: Analysis
[16] This is not a case of blatantly intended harassment as is sometimes unfortunately seen by the court. Mr. Okkonen's conduct from his perspective was certainly not overtly meant to cause Ms. Burnside to fear for her safety. His motive, arguably misplaced, was geared to getting her back. In other words, he was desirous of a reconciliation.
[17] Mr. Okkonen likely pressed the envelope more than he should have in maintaining contact direct or otherwise with Ms. Burnside. The issue to be determined by the court is not so much whether he intended or knew that Ms. Burnside was harassed but whether he was reckless in engaging in the conduct he did as to whether she was harassed and in all the circumstances, feared for her safety.
[18] In looking at the evidence as a whole, the court may take into account the following factors:
That Mr. Okkonen's conduct in repeatedly communicating with Ms. Burnside may, to some degree, be measured against the backdrop of the lengthy relationship and his past conduct relating to efforts at triggering a reconciliation;
That Mr. Okkonen's response to the March 5, 2011 e-mail within 10 minutes or so was reactive or immediate. The Crown did not dwell on this point nor can the court place too much weight on this point of contact;
That Mr. Okkonen appeared to be looking for an excuse to find himself in Ms. Burnside's presence on March 7, 2011. It is very coincidental that his helping hand role took place just as Ms. Burnside was returning from walking her dog;
That the guitar incident appears to have been motivated by Mr. Okkonen having seen Ms. Burnside at church. For some reason, he thought that it would be a good idea to follow up with a memo containing religious or spiritual overtones. By leaving the guitar, he engaged in a symbolic gesture which he thought would impress Ms. Burnside and presumably get her to think about resuming the relationship;
That Mr. Okkonen purchased the flowers. At his prodding, his daughter concluded it would not be a bad idea for these flowers to get to her mother. She acted as a buffer by letting her mother know that flowers were on the way. Mr. Okkonen did not attend personally but Cory, with his knowledge, delivered the flowers.
[19] In the court's analysis, it should not be forgotten that Mr. Okkonen and Ms. Burnside have a long history together. By all accounts, the adult children who are attached to both parents appear to have been impacted by the separation. Mr. Okkonen and Ms. Burnside communicated fairly routinely. The court was told they exchanged approximately 16 e-mails up to March 5, 2011. He was sensitive to the fact that she wished to be left alone. When he attended at the church March 11, 2011 and knew she was there, he related this to Mr. Decosse. Mr. Decosse spoke to Ms. Burnside and obtained her permission for Mr. Okkonen to remain in the same room.
[20] Mr. Okkonen's other efforts at communication were intentionally indirect. When she found him in the parking lot March 7, 2011, he gave the excuse of maintaining the vehicle. The guitar was placed and left under the hood of the car but he did not remain present. He used the adult children as a buffer to bring the flowers.
[21] The court is also aware of Mr. Okkonen and Ms. Burnside each having registered on some type of dating website. There was communication between them as a result of the website. It is difficult for the court to determine whether the communication was fully initiated by the website dating facility or had to have input by the person noted as the sender. In the final analysis, the court cannot put much weight on the exchange or communication between them by virtue of the website testimonials and exhibits filed in that regard.
4: Conclusion
[22] What the Crown is required to prove under section 264 is highlighted in the decision of R. v. Sillipp, 1997 ABCA 346, [1997] 120 CCC (3rd) 384, adopted by the Ontario Court of Appeal in R. v. Kosikar, [1999] O.J. 3569. The Sillipp decision holds that the following must be established beyond a reasonable doubt:
That the accused has engaged in the conduct set out in section 264(2)(b) of the Criminal Code;
That the complainant was harassed;
That the accused who engaged in the conduct knew that the complainant was harassed or was reckless as to whether she was harassed;
That the conduct caused the complainant to fear for her safety; and
That the complainant's fear was in all of the circumstances, reasonable.
[23] On the facts, Mr. Okkonen does not deny that he engaged in the conduct referred to by Ms. Burnside in her evidence in chief.
[24] As indicated in the Kosikar case decided by the Ontario Court of Appeal, September 27, 1999, the offence requires the Crown to prove that as a consequence of the accused's conduct, the complainant was in a state of being harassed or felt harassed in the sense of feeling tormented, troubled, worried continually or chronically, plagued, bedevilled and badgered. The court also held that while being in a harassed state involves a sense of being subject to ongoing torment, a single incident in the right context can cause this feeling to exist.
[25] In this case, Mr. Okkonen was not under a court order although he had been warned by police. His primary focus was to attract Ms. Burnside's attention for purposes of reconciliation. That does not mean that repeated conduct in an effort to reconcile cannot constitute criminal behaviour. Taken, however, in the proper context on these facts, the court finds doubt on the issue of Mr. Okkonen knowing that the complainant was harassed or was reckless as to whether she was harassed.
[26] Prior to Ms. Burnside finding the flowers, matters appeared to have been at a standstill of sorts. Ms. Burnside by virtue of Mr. Okkonen having left his guitar obviously knew that he wanted communication with her. Her daughter called about the flowers. There is no indication that she rebuffed her daughter or questioned the issue of the flowers. The finding of the flowers on the heels of her daughter's telephone call causes the court to conclude that it may have been reasonable for Ms. Burnside to have felt annoyed (although this was not expressed) but, the court remains in doubt as to whether she was harassed or that her fear in all of the circumstances was reasonable as contemplated by the Criminal Code.
[27] In considering whether communication by Mr. Okkonen constituted criminal harassment, the court must have regard to both the content and the nature of the communication. A reasonable interpretation of Mr. Okkonen's conduct is that he wanted to reconcile and was prepared to communicate with Ms. Burnside in order to attempt to do so. As stated, his efforts may have been misguided but as can be seen by him seeking the help of the two adult children, this is not a case where his efforts in any form were of a menacing, threatening or abusive nature.
[28] The court remains mindful that Officer Megan Pawlowicz spoke to Mr. Okkonen November 21, 2010 and advised him that Ms. Burnside did not want further communication with him. Mr. Okkonen did discuss the status of his marital relationship to Ms. Burnside with Officer Pawlowicz. There is strong indication that he did not get the 'no communication' message to the extent of being deterred about making future attempts at reconciling as he had done in the past. On the other hand, they both engaged in exchanging e-mails subsequent to that date and up to March 5, 2011.
[29] Ms. Burnside is entitled to her privacy. There is no indication that Mr. Okkonen, since the charge was laid, has disrespected the order prohibiting him from further communication. On the facts of this case the court cannot conclude that all essential elements of the charge have been proved beyond a reasonable doubt and finds Mr. Okkonen not guilty. However, the court is satisfied that there is sufficient evidence to establish a basis for apprehending that Mr. Okkonen may commit a breach of the peace. Therefore, the court intends to require that Mr. Okkonen enter into a common law recognizance for a period of 12 months containing the following terms:
a) That he keep the peace and be of good behaviour; and
b) That he not associate or communicate directly or indirectly with Ms. Burnside.
[30] The court is prepared to give Mr. Okkonen an opportunity if he wishes to show cause why he should not be required to enter into this recognizance.
Released: July 19, 2012
Signed: "Justice Randall W. Lalande"