Court File and Parties

Court File No.: East Region - Picton - 12-1860 Date: 2013-07-18 Ontario Court of Justice

Between: Her Majesty the Queen — and — E.M.S.

Before: Justice Peter Tetley

Counsel:

• Ms. Elisabeth Foxton, for the Crown
• Mr. Leo Kinehan, for the Defendant E.M.S.

Heard: June 19-21, 2013 Released: July 18, 2013

Reasons for Judgment

Overview

[1] The defendant, E.S., is charged with the offence of criminal harassment contrary to section 264(1)(2)(c) of the Criminal Code of Canada. In particular, it is alleged that between September 1, 2010 and July 20, 2012, the defendant beset or watched the dwelling house of S.C.

[2] The prosecution asserts that the defendant was without lawful authority to engage in such conduct and knew that by so doing, S.C. would be harassed. Alternatively, the Crown contends the defendant was reckless or wilfully blind as to whether or not this conduct caused S.C. to be harassed.

[3] The defendant is also charged, during the same timeframe, with committing a breach of trust in connection with his duties as a police officer with the Belleville City Police. In relation to this offence, it is alleged the defendant used his office to secure access to computer data systems in order to facilitate a crime (the aforementioned offence of criminal harassment) contrary to section 122 of the Criminal Code of Canada.

[4] Section 122 provides as follows:

Breach of Trust by Public Officer

122. Every official who, in connection with the duties of his office, commits fraud or a breach of trust is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years, whether or not the fraud or breach of trust would be an offence if it were committed in relation to a private person.

[5] The Crown asserts that the defendant engaged in repeated unauthorized computer searches of police databases, particularly Ministry of Transportation records, to secure information as to where S.C. was residing with a view to attending at that address in furtherance of the offence of criminal harassment.

[6] In support of these allegations, the Crown called four witnesses: the complainant, S.C., her spouse W.B., the investigating officer, Detective Constable Caissie of the Picton O.P.P. and the Deputy Chief of the Belleville City Police Force, Paul VandeGraaf. No witnesses were called by the defence.

Factual Summary

[7] The complainant, S.C., is 37 years of age and was, at the time, a mother of two teenage children. Ms. C. dated the defendant, E.S., who is 36, from November 2005 until December 2008. During that period of time, the parties dated exclusively although they did not cohabit, apart from the brief period of time when the complainant stayed at the defendant's home while her house was being renovated.

[8] During the referenced timeframe, the defendant became a Belleville City police officer with the rank of Constable.

[9] In September 2010, the complainant formed a new relationship with W.B., who is a member of the Canadian Armed Forces. W.B. and S.C. have resided together as spouses in Prince Edward County, since March 2012. W.B. and S.C. are the parents of an infant child.

[10] While the count of criminal harassment spans a period of almost two years, the charges in issue were laid following events which took place in July, 2012. The trial record reflects that the relationship between Ms. C. and the defendant remained cordial following the discontinuation of the parties' intimate relationship in December, 2008. The parties continued to exchange text messages and other forms of electronic communication. They also continued to communicate by way of periodic telephone calls and remained on relatively friendly terms.

[11] During this time, the complainant advised that it was apparent to her that the defendant was having difficulty, in her words, "letting go". Ms. C. advised she felt sorry for the defendant during this early post-separation period. According to the complainant, the frequency of the defendant's communications, primarily through email and text messages, far exceeded her responses.

[12] It was during this period of time (the Fall of 2010 through 2011) that S.C. became concerned with respect to the frequency of times that she observed the defendant to be driving by her residence and the residence of Mr. B. At that time, both the complainant and W.B. were residing in a small town located some distance from the defendant's own residence. These periodic "drive-bys" had an unsettling effect on S.C. as she believed that the defendant was effectively engaged in a course of conduct designed to monitor her whereabouts and affiliations.

[13] The complainant's concern regarding what she perceived to be the display of excessive interest in her affairs by the defendant was heightened by an incident in February 2011, when Ms. C. was at a local bar enjoying an evening out with her friends. The defendant, who appeared to be on duty at the time, was observed to be at the same location. This circumstance was found to be unsettling by Ms. C., who ignored the defendant. Later that evening and over the course of the next day, S.C. received a continuous series of texts from the defendant wherein the defendant commented on the fact that Ms. C. had not said "Hello". These texts also made reference to Ms. C.'s teenaged son. The unexpected presence of the defendant at this social gathering, the ensuing texts and the reference to Ms. C.'s son, left the complainant feeling both concerned and angry.

[14] By the early part of 2012, the complainant had made it clear, in no uncertain terms, that she did not wish to engage in further contact of any kind with the defendant. The complainant texted a request to the defendant to stop driving by both her home and the home occupied by W.B. Ms. C. also requested that the defendant have no contact with her children.

[15] Prior to that time, the defendant would periodically forward text messages in relation to a variety of subjects. These text messages included reference to the relative merits of the sport of rock climbing, the life circumstances of friends of mutual acquaintance or other innocuous subjects. None of the emails or other communications received from the date of separation of the defendant and complainant (December 2008) to February, 2012, when the electronic communications came to an end, were objectively threatening.

[16] Following the complainant's request that communications cease in the early part of 2012, the defendant respected that request and all forms of electronic communications, including periodic telephone calls, came to an end. The defendant did not, however, discontinue his involvement in the complainant's life.

[17] On the Family Day holiday in February, 2012, the complainant was operating her motor vehicle in the City of Belleville, when she was stopped by the defendant, who was on duty. At the time, S.C. recalled that she was using her cell phone. S.C. also acknowledged that the plate affixed to the rear of her motor vehicle, a vehicle that was known to the defendant, was bent. No reference was made by the defendant, on speaking to S.C. during the course of the stop, with regard to the fact she had been observed operating a cell phone while driving her car. The rationale for the stop was indicated to be the bent licence plate. During the stop, which would appear to be authorized or justified in law by virtue of the provisions of the Highway Traffic Act, the defendant was recalled as advising that he believed the automobile that he had stopped belonged to the complainant but could not be certain given the state of the rear licence plate.

[18] S.C. indicated that she felt that she had been stopped primarily because the defendant had recognized her automobile and not in relation to the bent plate. That said, she conceded the plate was bent in a fashion that may have obscured the ready ascertainment of the licence plate number of her car.

[19] Approximately a week later, the complainant's concerns were again heightened by the fact that she observed the defendant to be operating a motor vehicle in the vicinity of a village not far from the place where the complainant resides. At the time, S.C. was in the company of W.B. Together, they endeavoured to follow the motor vehicle being driven by the defendant. This "pursuit" was not successful.

[20] Concerned by the fact that the defendant was in such close proximity to W.B.'s residence, Ms. C. texted the defendant to inquire why he had been in the vicinity. In response to this text inquiry, the defendant falsely replied that he was not in the area and was, in fact, at work. This prompted further direct inquiries by the complainant with the Belleville City Police. As a result of those inquiries, the complainant was subsequently able to confirm that the defendant's representation regarding his whereabouts was untrue.

[21] Following this incident, text messages were exchanged. In these messages, the defendant indicated a desire to meet with W.B. and cautioned S.C. to "watch herself" when she was within the confines of the City of Belleville.

[22] The two incidents in February were sufficiently disconcerting to S.C. that she contacted Staff Sergeant Chris Barry of the Belleville City Police. She indicated that her purpose for doing so was to ensure that the defendant's conduct was made known to his employer, that it was officially documented, and that steps might be taken by the local police service to stop the defendant's unwanted contact. S.C. indicated that she hoped E.S.'s superiors would talk to him and that the unwanted contact could be resolved without making a "fuss". At this point in time, she advised that she was concerned that the defendant was acting, in her words, "illogically".

[23] Reportedly, Staff Sergeant Barry indicated that the complainant's concerns would be directed to Deputy Chief VandeGraaf. Ms. C. was advised that she could expect a call from the Deputy Chief of the Belleville City Police Service.

[24] In the absence of a timely response, as promised, S.C. again contacted the Belleville City Police Service and asked to speak to a senior female police officer. At this time, the complainant indicated she wished to report the fact that she was finding the defendant's conduct in February to be unacceptable and to be bordering on stalking. The complainant was advised by an unidentified member of the local police service to record or document any concerning conduct by the defendant.

[25] Approximately one month after her initial concerns were conveyed to Staff Sergeant Barry, the complainant advised that she received a call from Deputy Chief VandeGraaf. She indicated that the Deputy Chief was very supportive and similarly advised her to keep notes of any unwanted contact. She acknowledged telling Deputy Chief VandeGraaf that she was frustrated, annoyed and angered by the defendant's contact and was assured that the defendant would be given a "stern talk" regarding his conduct and that the conduct would be documented.

[26] No follow-up of any significant nature arose as a consequence of the complainant's expressed concerns. Deputy Chief VandeGraaf asked the defendant as to whether or not he was aware of any reason why Ms. C. might be endeavouring to contact him prior to returning S.C.'s telephone call. After the complainant's conversation with the Deputy Chief, there was no follow-up by anyone within the senior ranks of the Belleville City Police in relation to the identified concerns.

[27] The telephone call between the Deputy Chief and S.C. was not memorialized in a note. The content of that conversation, even in summary form, was not shared with the defendant. The concerns expressed therein were not brought to the attention of the defendant's supervising officers. No report of the incident was made either officially, or unofficially, to the senior ranks of the local Police Association of which the defendant was an executive member. There was no "stern talk" between the defendant and his supervisors and no referral to a presumably readily available employee assistance program. The matter was treated as resolved. Unfortunately, as the events that were about to unfold would clearly demonstrate, the matter was far from resolution.

[28] At trial, in retrospect, Deputy Chief VandeGraaf conceded that timely intervention and a more concerted and meaningful response to the concerns expressed by the complainant might well have prevented those concerns from ultimately manifesting themselves in a criminal complaint.

[29] After the aforementioned sighting of the defendant's motor vehicle, there was no reported contact between the defendant and the complainant until the middle of July 2012. Mistakenly, as it turns out, the complainant believed that the absence of any form of contact during this period of time was as a consequence of the direct intervention of Deputy Chief VandeGraaf. The complainant did not know that her concerns had not been conveyed, either formally or informally, to the defendant.

[30] In mid-July, 2012, following several incidents of vandalism, where screws had been scattered in the driveway of the C.B. residence, W.B. installed a hidden "deer" camera, or motion detecting camera, at the end of the driveway to his residence. At the time, Mr. B. suspected a disgruntled cyclist might have been responsible for the acts of mischief relating to the scattered screws.

[31] Shockingly, when the recorded images were checked later in the month, the defendant's image was captured as he sat in his truck at the end of the driveway to the complainant's home. The first image, recorded shortly after noon on July 19, 2012, indicates that the defendant sat in his vehicle looking toward the complainant's residence for a period of 19 seconds. On July 25, 2012, shortly after 1:00 p.m., a two-second stop of the defendant's motor vehicle on the roadway immediately adjacent to the laneway to the complainant's home was recorded.

[32] This revelation was extremely distressing to the complainant, who expressed concern for the wellbeing and safety of both her spouse and her son. As a consequence of this incident, the complainant reported her security concerns to the Ontario Provincial Police detachment of Picton. At the suggestion of that police service, S.C. and W.B. spent the evening of July 25, 2012 at the home of S.C.'s parents for the sake of preserving their own security.

[33] On July 26, 2012, the defendant was arrested on the charges before the Court. These charges were formalized in an information that was sworn on August 15, 2012.

The Complainant's Reaction

[34] S.C. advised that she was variously annoyed, concerned and frustrated by the defendant's continuing efforts to involve himself in her life through repeated communications and the referenced "drive-bys". Initially, as indicated, she felt sorry for the defendant and believed that he was simply having a difficult time coping with the end of the parties' relationship. Later, she indicated the unwanted attention caused her stress.

[35] Ms. C. also expressed anger toward the defendant in relation to the text she received which mentioned her son. She also expressed concern for her son's welfare and general wellbeing as the defendant and her son had not gotten along well during the course of the parties' relationship.

[36] W.B., the complainant's spouse, indicated that he had been made aware that the defendant was having a difficult time with the fact that his relationship with the complainant had come to an end. While he was not aware that some communication was continuing between the defendant and complainant into early 2011, he knew that the defendant had maintained contact with the complainant subsequent to their parting in 2008.

[37] Mr. B. confirmed S.C.'s evidence that there was reason to believe the undesired contact had come to an end following the incidents in February 2012 and the subsequent involvement of the local police service. This belief was shattered by the revelation of the digital images depicting the defendant's motor vehicle at the end of the complainant's driveway in July, 2012.

[38] The disclosure of the fact the defendant had attended on two occasions and stopped, or driven slowly past the end of the driveway of the C.B. residence, prompted W.B. to express concern for his wellbeing and that of his family. Security concerns prompted Mr. B. to sleep with a baseball bat in the corner of the room, for security purposes, thereafter.

[39] Mr. B. also advised that he and S.C. had previously seen the defendant as a "heartbroken" or "lovelorn former boyfriend". The events of July 19 and July 25, 2012 drastically changed that perception. The complainant, upon being advised of the images and after having viewed them, indicated "I was very scared". The call to the Picton O.P.P. followed immediately thereafter.

[40] The events of July, 2012 were reported by Ms. C. to evoke fear. Both Ms. C. and Mr. B. indicated they were concerned with respect to their own security in the face of what was viewed as escalating invasive conduct by the defendant. As noted, concern was also expressed by Ms. C. with respect to the security of her children. The expressed concerns were exacerbated by the fact S.C. believed that the "issue" had been resolved by the intervention of the management of the Belleville City Police and the long hiatus between the incidents of contact that had ensued thereafter.

[41] The revelation that the defendant's conduct had not been deterred and the fact the defendant had situated his vehicle, for varying periods of time, at the end of their Sprague Road driveway, prompted a number of restless nights and a generalized concern for the wellbeing and safety of both the complainant, her spouse and the complainant's children.

The Defendant's Statement

[42] In a July 26, 2012 videotaped interview, conducted by Detective Constable Mathew Caissie of the Ontario Provincial Police, the defendant confirmed that in November 2011, the defendant had dropped off a number of items of personal property at the complainant's previous residence without advance notice or authorization. He acknowledged having received a message from the complainant that directed that he not attend at the complainant's home or contact the complainant.

[43] The defendant also acknowledged pulling over the defendant while she was operating her motor vehicle within the confines of the City of Belleville in February, 2012. He indicated that he was not certain that the vehicle belonged to the complainant at the time. He further acknowledged that the complainant reiterated, during the course of that traffic stop, that she did not wish him to bother her, talk to her, or drive by her house.

[44] When confronted regarding the sighting of his automobile in a village near the complainant's home, the defendant initially denied having driven by the complainant and Mr. B. as they were driving through that village. The incident and the defendant's false representation regarding being on duty at the time, was acknowledged in the statement.

[45] In the same statement, the defendant disavowed any direct knowledge as to current location of S.C.'s residence. This representation was also false as the defendant had conducted a "check" of the Ministry of Transportation records in March of 2012. The results of that computer search confirmed S.C.'s address.

[46] In his statement, the defendant acknowledged that it was obvious to him that Ms. C. did not want to talk to him and that he had attended in the vicinity of her home in order to variously check out the state of construction of a garage which was being built on the property by Mr. B.; to get a glimpse of the complainant; to see the house where the complainant and W.B. were living; to see what was going on with their lives; and, to see if the complainant was physically present at that address.

[47] The defendant acknowledged that he did not know anyone in the area where S.C. lives and apart from "driving by to see what's going on…to see what's up…anything new with her…" or to check on the progress of the garage that was being built on the property, there was no other rationale for his attendance at that location.

Police Searches Performed By E.S.

[48] An audit of the police data bank searches performed by E.S. between August 25, 2010 and May 23, 2012 was conducted at the request of the Ontario Provincial Police as part of this investigation. This audit revealed that from August 25, 2010 to May 23, 2012, search inquiries were made on 15 separate days by the defendant in relation to W.B. and/or S.C.

[49] On August 25, 2010, while the defendant was on vacation, he ran a criminal records check in relation to W.B. During the course of cross-examination, the complainant could not recall or deny that this search may have been conducted by the defendant at her request. The defendant's July 26, 2012 statement and his numerous subsequent MTO database searches in relation to W.B. serve to help confirm that this search was likely conducted by the defendant on his own volition. On October 25, 2010, the defendant, while on duty, ran a check of the Ministry of Transportation ("MTO") records with a view to ascertaining information regarding the licence plate number and owner's address in relation to W.B.'s automobile. This check was repeated on October 26, 2010 with an additional request being made for vehicle history information.

[50] On March 26, 2011, while working nights, MTO inquiries were made with a view to obtaining W.B.'s address. These inquiries were repeated on June 29, 2011 and July 6, 2011. On both of these occasions, the defendant was at work on the day shift. On December 1, 2011, while working nights, the defendant again made MTO inquiries with a view to obtaining the address history of any motor vehicle owned by Mr. B. and licensing information relating to Mr. B. On February 14, 2012, three inquiries were made by the defendant, with a view to securing licence information and vehicle history in relation to W.B., while the defendant was working as a Belleville City police officer on the night shift. Finally, on May 23, 2012, during a regularly scheduled day off, a further MTO inquiry of W.B. was made by the defendant in order to secure licence information. None of these inquiries were made for legitimate, investigative, administrative or operational purposes.

[51] The defendant also made inquiries with the intent to securing information regarding the address of S.C. The first inquiry took place on October 20, 2010. This involved an MTO search designed to secure information regarding the state of Ms. C.'s driving abstract, her address and the status of her motor vehicle licence. Subsequent address inquiries, by virtue of an MTO search, were effected by the defendant on July 8, 2011 and September 27, 2011. On both of these occasions, the defendant was working as a police officer with the Belleville City Police Service on the night shift.

[52] On December 1, 2011, while the defendant was again working nights, further MTO inquiries were made in order to secure licence information in relation to S.C. and information relating to her address and address history.

[53] On February 4, 2012, while working the day shift, the defendant made a further licence information inquiry, by virtue of the MTO database, in the interest of securing licence information in relation to S.C. This search was repeated on February 20, 2012 when two further inquiries of a like nature were made while the defendant was working as a police officer on the day shift.

[54] On March 12, 2012, which was a scheduled day off for the defendant, three searches were made of the MTO database in an attempt to secure information regarding S.C.'s address, the state of her driving abstract and vehicle history information. This search is of significance because it resulted in the revelation that S.C.'s address had changed effective March 11, 2012, from her former residence into another address. It is also of significance, as noted, because it confirms that the defendant was being disingenuous when he indicated at page 10 of his July 26, 2012 statement, that he did not know where S.C.'s house was located. The March 12, 2012 MTO record search would have confirmed, effective March 11, 2012, exactly where Ms. C. was residing.

[55] Deputy Chief Paul VandeGraaf testified that the officers of the Belleville City Police are made aware of the policies and procedures related to the databases in issue in this case and that these databases are only to be accessed for business purposes. Deputy Chief VandeGraaf noted that authorized access to these databases was restricted to official police business which he indicated would include investigations, administration, and operational concerns.

[56] Deputy Chief VandeGraaf testified that the officers of the Belleville City Police were not authorized to conduct searches of either the Canadian Police Information Computer or the MTO databases for personal reasons not related to official police business or record keeping.

[57] In his July 26, 2012 statement, the defendant acknowledged that he ran searches of the MTO records, only accessible to him in his capacity as a police officer, in relation to both S.C. and W.B. His rationale was indicated to be because he was "Just curious".

[58] In order to facilitate these inquiries, E.S. indicated that he memorized the licence plate numbers of the vehicles driven by both S.C. and W.B. He acknowledged that he would note the particulars of the plate and subsequently run the referenced searches.

[59] In addition to satisfying his curiosity, he advised at page 25, line 2-3 of his statement, that he was interested in finding out who S.C. was dating.

Applicable Legal Considerations

(i) Particularization of the Breach of Trust Charge

[60] I accept the defence representation that the Crown must prove the breach of trust count as particularized. This count alleges that the defendant committed a breach of trust in connection with the duties of his office as a police officer by using access to computer databases, available to the defendant by virtue of his public office, in order to facilitate the offence of criminal harassment.

[61] As reiterated by Chief Justice McLachlin, on behalf of the Court, as delineated in R. v. Boulanger, at paragraph 5:

…it is a fundamental principle of criminal law that the offence, particularized in the charge, must be proved.

[62] The rationale for this principle is based on the fact that to the defendant's ability to make full answer and defence and the potential impairment of his entitlement to a fair trial could arise if the Crown were allowed to prove the offence alleged by establishing particulars other than those expressly delineated in the charging document.

[63] Accordingly, I accept the defence representation, that in relation to count 2, the Crown must establish that E.S. breached his position of trust as a police officer, by improperly accessing computer data systems that were only available to him as a result of his employment as a police officer for the purpose of facilitating the offence specified in count 1 of the information.

The Offence of Criminal Harassment

[64] The constituent elements of the offence of criminal harassment are detailed by Ontario Court of Appeal in R. v. Kosikar. This case adopts the analysis of that offence as set out in the Quebec Court of Quebec decision R. v. Lamontagne and the Alberta Court of Appeal decision R. v. Sillipp. These elements are reiterated in a subsequent Ontario Court of Appeal decision R. v. Kordrostami.

[65] In Kordrostami, Sharpe J.A., references the elements of the offence 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.

Analysis and Conclusion

[66] As indicated, in order for the defendant to be found guilty of the offence of criminal harassment as delineated in count 1, it must be concluded, on the basis of proof beyond a reasonable doubt, that:

(i) The defendant engaged in the harassing conduct alleged (watching or besetting the complainant's house);

(ii) The complainant was harassed as a result;

(iii) That the defendant knew, was reckless, or alternatively, was wilfully blind as to the fact such conduct would harass S.C.;

(iv) That the defendant's conduct caused S.C. to fear for her own safety or the safety of others known to her; and,

(v) The complainant's fear, on consideration of all of the factual circumstances was reasonable.

[67] If all of these inquiries are answered in the affirmative, a verdict of guilty to the offence, as alleged, will follow.

[68] Applying these analytical steps to the facts in issue, the trial record would confirm that during the time period specified in the information, the defendant engaged in acts of physical surveillance of the complainant's residence on at least four separate occasions. By his own admission, the defendant's attendance at that address was for the expressed purpose of observing the complainant and the circumstances of her life. The defendant acknowledged in his statement that he had no other reason or alternate justification to be in that location and that he had not attended there for any lawful purpose relating to his duties as a Belleville City police officer.

[69] At the time of the attendances at the end of the driveway of the complainant's home in July of 2012, the defendant, again by his own admission, acknowledged that he was aware that his continued involvement in the life of the complainant was undesired. Based on previous direct communications, as noted earlier in this judgment, the defendant must also have been aware that any form of continued contact with the complainant would be found by the complainant to be upsetting. The events of February, 2012, including the defendant's direct verbal exchange with the complainant during the course of the Belleville traffic stop and the circumstances of his observed driving in the vicinity of the complainant's residence would have surely apprised or informed the defendant that the complainant found his presence in her life to be most unsettling and undesired.

[70] In view of all that had transpired up until the incidents in July, 2012, it is apparent that the defendant either knew, or ought to have known, that his acknowledged attendances at the C.-B. residence constituted an act of harassment. In reaching this conclusion, I am mindful of the fact this offence is not intended to criminalize conduct that might otherwise be regarded as innocuous or "within the freedoms cherished in this society". In view of the parties' unsettled, post-separation, history and the defendant's acknowledged rationale for his repeated attendances at the complainant's residence, it is evident that attendance by the defendant, at the complainant's address, was neither an innocuous act or the exercise, or expression, of his right to freedom of mobility or movement. These attendances reflect the depth or scale of the defendant's apparent pre-occupation with the complainant. The repeated attendances are concluded to constitute the kind of oppressive watching section 264(1)(2)(c) was enacted to prohibit.

[71] I accept the representations of the complainant that she was troubled by the persistent and undesired contact by the defendant that appeared to have come to a conclusion as at February 2012. The completely unexpected confirmed attendances of the defendant at the end of the complainant's lane, on two occasions in the month of July, 2012, is concluded to have reasonably caused the complainant to fear for her own safety and the safety of her family, including her son and spouse. In all of the circumstances, the defendant's attendances near the complainant's home are concluded to have created a reasonable basis for the complainant to be fearful for her safety.

[72] In my view, the complainant's fear was reasonable and not borne of an unfounded "hyper-sensitivity" toward the defendant generally as suggested by the defence. This fear is concluded to be reasonably based as a consequence of the fact the defendant would apparently not be deterred from his efforts to maintain involvement in and vigilance of the complainant's life. These safety concerns were reasonably heightened by the practical reality associated with the fact the defendant is a police officer, who is by law, entitled to carry a firearm. It was also warranted based on the defendant's apparent unabated pre-occupation with the complainant. The defendant acknowledged his continuing desire to see the complainant in his July 26, 2012 statement as a motivating consideration for his attendances at her residence.

[73] In my view, the complainant's fear was also reasonable given the parties' post-separation history and the acknowledged explicit request she had directed to the defendant and his employers in February, 2012, wherein she asked that he leave her alone. In these circumstances, the defendant's pre-charge conduct is relevant to the assessment of the reasonableness of the complainant's fear. A similar circumstance regarding the assessment of the reasonableness of a complainant's fear based on past conduct is reviewed in R. v. Krushel at paragraph 26.

[74] As in every criminal case, the Crown must establish the constituent elements of the offence alleged on the basis of proof beyond a reasonable doubt. In relation to the offence of besetting or watching the dwelling house in issue, contrary to section 264(1)(2)(c), it is not sufficient for the Crown to simply establish that the defendant besetted or watched the complainant's residence. This section also requires that the acts complained of be accompanied by knowledge on the part of the accused that the complainant was harassed as a consequence. In the alternative, as indicated, it is sufficient for the Crown to establish on the basis of proof beyond a reasonable doubt that the accused was reckless or wilfully blind as to whether or not his actions caused the complainant to be harassed.

[75] Section 264 requires something more, by way of proof, than the complainant being concluded to have been "troubled", "worried", "badgered", "vexed", "disquieted" or "annoyed". As indicated by Berger J. on behalf of the Alberta Court of Appeal in Sillipp, that additional requirement requires that the conduct of the accused, in all of the circumstances, cause the complainant to reasonably fear for her safety or the safety of anyone known to her. Within the context of the facts in this case, it is evident to me that the complainant's February, 2012 representations to the defendant and her known contact with the defendant's employer would have revealed to the defendant that his conduct was a matter of serious concern to the complainant. Viewed in this light, within the context of the entirety of the defendant's aforementioned post-separation conduct, it is apparent to me that, at the very least, that the defendant's conduct in repeatedly attending at the complainant's residence during the period commencing February, 2012 through to July of that year was "reckless" as the defendant was indifferent to the complainant's known security concerns.

[76] The complainant's expressed fear for her safety and the welfare of her family is also well-founded in my estimation. The evidence supports the complainant's conclusion that the defendant was actively involved in stalking her. In these circumstances, I conclude it has not unreasonable for the complainant to fear for her safety and the safety of her family, even in the absence of any prior incidents of overtly threatening conduct by the defendant.

[77] In concluding that the repeated attendances of the defendant at the complainant's residence during the period of February 2012 to July, 2012 constitutes the offence of criminal harassment of the complainant as a consequence of the fact the defendant beset or watched her dwelling house, I am mindful of the constituent elements of section 264(2)(c) as defined in Telus Communications Inc. v. Telecommunications Workers' Union, a decision of Hughes J. of the Alberta Court of Queen's Bench and the British Columbia Supreme Court decision of Low J. in Every Woman's Health Centre Society v. Bridges. These cases arose within the context of a request of injunctive relief in a labour dispute involving picket lines. These cases indicate that watching is a more passive activity and can be accomplished simply by observing with continuous attention with a view to keeping a person or thing in sight or to observe any actions, movements or changes that may occur.

[78] Besetting is seen as requiring a greater degree of activity which might include setting upon, surrounding or hemming in an individual with intent to assail that individual or the closing in, blocking or occupying of a place.

[79] On consideration of the actions of the defendant in attending at the complainant's address, I conclude the offence as particularized has been established on the basis of proof beyond a reasonable doubt. The mens rea of the offence, as noted by Brown J. in the case of R. v. Mandel, is also concluded to have been established as there is evidence that the accused knew that his actions were causing the complainant to be harassed as reflected in his own statement, or alternatively, as previously noted, was reckless or wilfully blind as to whether the complainant was being harassed. This is not a case where one needs to speculate as to the issue of intention. The defendant's own statement and the acknowledgements contained therein as to the fact that his contact with the complainant was being viewed in that context is sufficient to establish the mens rea for the offence of criminal harassment.

Breach of Trust by a Public Officer

[80] In order to establish this offence, the Crown must prove, on the basis of proof beyond a reasonable doubt, the following elements:

(a) The accused is an official;

(b) The accused was acting in connection with the duties of his office;

(c) The accused breached the standard of responsibility and conduct demanded of him by that office;

(d) The conduct of the accused constitutes a serious and marked departure from the standards expected of an individual in the accused's position of public trust; and,

(e) The accused acted with the intention to use his office for a purpose other than the public good.

[81] On the facts adduced at the defendant's trial, it is established that during the time frame set out in the information, the defendant was a police constable and a member of the Belleville City Police Service. As a police officer, the defendant is subject to an oath of office in which he pledged to uphold the Constitution of Canada and the laws of Canada and to fulfill the duties of his office faithfully, impartially and according to law.

[82] By his own admission, the defendant made a CPIC check and a number of MTO vehicle checks which were facilitated by virtue of the access he had to such databases as a consequence of his employment as a police officer. These checks were not made again, by the defendant's own admission, while he was acting in connection with the duties of his office. They were not made in relation to any ongoing investigative purpose. They were not made in relation to any administrative duties that may have been assigned to the defendant in his capacity as a police officer. These inquiries had no connection to any operational initiatives related to the defendant's employment.

[83] In his own statement, the defendant acknowledged that the purpose of the inquiry was to ascertain background information with a view to securing knowledge as to the location of S.C.'s residence.

[84] In paragraph 50 of Boulanger, McLachlin C.J. notes that a breach of the public's trust will not be occasioned by "… every breach of the appropriate standard of conduct, no matter how minor…". This consideration is illuminated further in paragraph 52 of the judgment where the Court notes "mistakes" and "errors in judgment" are excluded in the consideration of criminal culpability by a public official. In order to establish a criminal offence of breach of trust by a public officer, the conduct "…must be sufficiently serious to move it from the realm of administrative fault to that of criminal behaviour…". In the words of the Chief Justice: "What is required is 'conduct so far below acceptable standards as to an amount to abuse of the public's trust in the office holder'" (Attorney General's Reference, at para 56). As stated in R. v. Creighton, [1993] 3 S.C.R. 3: "…[t]he law does not lightly brand a person as a criminal" (page 59).

[85] In addition to consideration of the nature of the conduct or actus reus of the offence, the mens rea of the offence "…lies in the intention to use one's public office for purposes other than the benefit of the public. In practice, this has been associated historically with using one's public office for dishonest, partial, corrupt or oppressive purpose, each of which embodies a non-public purpose with which the offence is concerned."

[86] The mens rea or criminal intention may be inferred from the circumstances. Factors such as an attempt to conceal one's actions and receipt of a significant personal benefit as a consequence of those actions are considerations from which the Court may infer the necessary criminal intent. The offence, as noted in paragraph 57 in Boulanger, may also be made out in circumstances where no personal benefit is involved.

[87] At paragraph 58, the Court delineates the elements of the offence that must be established by the Crown on the basis of proof beyond a reasonable doubt in order to establish that a breach of trust by a public officer has occurred.

Application of the Law to the Facts in Issue

[88] E.S. is a police officer, and as such is a public officer or "official" for the purposes of section 122 of the Criminal Code.

[89] The defendant has acknowledged accessing computer databases that were only available to him as a consequence of his position as a police officer. Access to these databases, as particularized previously in this judgment, primarily, but not exclusively, occurred while the defendant was on duty as a police officer.

[90] The defendant, in his capacity as a police officer, is subject to a sworn oath of office and subject to the policies and procedures that govern his role as a peace officer. That oath and those standards of professional conduct and responsibility require that the defendant access the Canadian Police Information Computer database and the Ministry of Transportation for Ontario driver and motor vehicle registration databank for official purposes only.

[91] The accused, by his own admission, repeatedly accessed the MTO database with a view to ascertaining personal information regarding his former girlfriend, S.C., and her spouse W.B. None of these searches were related, in any way, to a legitimate police initiative. In so doing, the defendant breached the standard of responsibility and conduct demanded by him by virtue of his office.

[92] The trial record, supported by the defendant's own acknowledgment of the repeated computer searches, is concluded to be for a purpose other than the public good.

[93] In his statement, the defendant effectively acknowledged that he wished to know where both S.C. and W.B. were living. The evidentiary record indicates that he wished this information so that he could attend at that address for the purpose of observing the complainant and her spouse. In these circumstances, I conclude the defendant acted with the intention to use his public office "…for a dishonest, partial, corrupt or oppressive purpose which, along with his actions, represents a serious and marked departure from the standards expected of an individual in his position".

[94] In considering the issue of the defendant's criminal intent or mens rea, the defendant is concluded not to have acted in good faith in conducting the repeated searches of the Ministry of Transportation records relating to S.C. and W.B.

[95] In my view, this was not a circumstance akin to that reported in R. v. Krdzalic, where Cooper J. dealt with an Ontario Provincial Police officer who was charged with the same offence. That charge arose from the officer's MTO search of a licence plate at the behest of a relative and disclosure of the confidential information resulting from the search. The disclosure pertained to the identification of registered plate owner of a motor vehicle. This information would not be commonly accessible by the general public. In Krdzalic, the breach of trust allegation was founded on a singular licence plate check. The defendant was unaware that his cousin, who had made the request, was at the time being investigated by the Royal Canadian Mounted Police and that her telephone conversations and text messages were being monitored.

[96] The defendant did not ask his cousin why she wished the name and address of the individual related to the licence plate. The trial record was such that the Court was unable to ascertain why the officer failed to request a reason for his cousin's request, with the Court unable to infer any criminal intent as a consequence of the fact that inquiry was not made.

[97] In acquitting the defendant, Cooper J. noted that there are few reported cases involving police officers being prosecuted for searching and releasing MTO data or CPIC data. This was viewed as being a likely consequence of the fact that most situations involving those considerations lead to internal police disciplinary proceedings. In the circumstances at issue, in Krdzalik, the trial judge concluded that the release of information by the defendant to his cousin, while not for the public good, could not be concluded to be for a dishonest, corrupt or oppressive purpose.

[98] In paragraph 30 of the judgment, Cooper J. noted "At its highest, it was for a 'partial' purpose and that he was doing a favour for his cousin".

[99] In concluding the facts in the case did not constitute "…a serious and marked departure from the standards expected of an individual in the accused's position of public trust.", Cooper J. noted that "given the right fact situation, a police officer releasing MTO or CPIC information could be found guilty of this offence".

[100] In my view, the factual circumstances referenced in Krdzalic are markedly different from those under consideration here for the following reasons:

(a) The defendant's conduct involved repeated searches of the MTO database and on one occasion, the Canadian Police Information Computer database, over a period of almost two years;

(b) None of these searches was effected for an official or legitimate purpose relating to the defendant's duties as a police officer;

(c) Each of these searches were made for the express purpose of providing information of interest directly to the defendant and not for the benefit of anyone else;

(d) The information sought by the defendant was desired for the purpose of facilitating a criminal offence.

[101] The conduct of the defendant, given the number of inquiries (25 in all on 15 separate occasions) and the purpose for which they were made, constitute a serious and marked departure from the standards expected of an individual in the accused's position of public trust. The defendant's intention, as confirmed by his own admission and demonstrated by his subsequent conduct, was to use the information secured as a consequence of his public office as a police officer, for a purpose far removed from the public good. The disclosure of the complainant's address as a consequence of the MTO search conducted by the defendant on March 12, 2012 facilitated the defendant's subsequent attendance at the C.-B. residence. The improper use of the information secured, for the defendant's own illegitimate purposes, is concluded to constitute an intentional use of his public office "for a dishonest, partial, corrupt, or oppressive purpose" as that term is defined in Boulanger.

[102] As a result, I conclude this is "the right fact situation" where a police officer releasing MTO or CPIC information could and should be found guilty of the section 122 offence, even though that information was used for the defendant's own purposes.

[103] I am satisfied, on consideration of the entirety of the trial record, that the Crown has established the five elements referenced in Boulanger on the basis of proof beyond a reasonable doubt.

Verdict

[104] E.S., please stand. For the aforementioned reasons, I am satisfied that the Crown has adduced evidence that establishes your criminal culpability in relation to each of the two offences with which you have been charged on the basis of proof beyond a reasonable doubt. Accordingly, you shall be found guilty of the two offences with which you have been charged.

P.D. Tetley J.

Released: July 18, 2013