Court File and Parties

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Sheldon Kaplan

Before: Justice Carol Brewer

Heard on: April 15, 2013

Reasons for Judgment released on: April 17, 2013

Counsel:

• Luke Schwalm, for the Crown
• Sheldon Tenenbaum, for the defendant, Sheldon Kaplan

Brewer J.:

Introduction

[1] Sheldon Kaplan is charged with criminally harassing David Panelas between March 3 and March 5, 2013 by watching or besetting at 4100 Bathurst Street.

[2] David Panelas is the superintendent of the building at 4100 Bathurst Street, where the defendant's mother and then the defendant lived in apartment 501. This charge arises out of visits the defendant made to the apartment building after his eviction.

The Evidence

[3] Mr. Panelas testified that during the fall of 2012 there began to be difficulties with the defendant's tenancy. In September Mr. Kaplan damaged his mailbox and the two adjacent boxes when he lost his mail key and tried to open the mailbox with a hammer. According to the complainant Mr. Kaplan admitted causing the damage but took the position that it was Mr. Panelas' fault for not changing the lock sooner. On October 14, 2012, the complainant heard banging coming from Mr. Kaplan's apartment as the defendant used a hammer to open a broom closet. The handle of the closet was damaged and there was a hole in the closet door. Mr. Kaplan acknowledged causing the damage but would not permit Mr. Panelas to enter the apartment to repair it. On November 1, 2012 the defendant paid $800 of his $1200 rent by way of a cheque that was returned for insufficient funds. Mr. Kaplan took the position that he was not responsible for the returned cheque because it was not cashed promptly. Further, Mr. Kaplan was of the view that his rent had been illegally increased and that he was owed money for back rent. In November and December of 2012, the defendant defaced the notices for an annual holiday party on three separate occasions, by writing that the building would have a new owner and new management and that Mr. Kaplan would be the new owner and manager. On the notices the defendant referred to himself as "King Shlomo".

[4] After the defendant's rent went into default, Mr. Kaplan was served with a Notice to End a Tenancy Early for Non-payment of Rent on November 21, 2012 along with a 10 Day Notice to Terminate a Tenancy. Annie Tencer testified that, after the notices were served, she went to the tribunal for an eviction order and made arrangements with the sheriff for the eviction, which was scheduled for January 24, 2013. Mr. Kaplan returned the notice with a note on it saying that he had removed the battery from his smoke detector.

[5] On January 24, 2013, two sheriffs arrived to enforce the eviction order. Mr. Kaplan said that the order was fraudulent and that the two sheriffs were actors hired by the complainant to unlawfully evict him. The defendant was agitated and was yelling at his fiancée. Eventually the police were summoned. Two officers and a sergeant spent a long time with the defendant and were able to convince him to leave. The officers gave Mr. Kaplan and his fiancée a ride to the court house, when they departed at 3:00 p.m. The complainant changed the lock on the apartment unit, as well as the locks to the front and rear entrances to the building.

[6] About two hours later the defendant returned to the building. Another tenant let Mr. Kaplan into the lobby. Mr. Panelas called the police and then went to the lobby. According to the complainant, Mr. Kaplan was agitated, loud, aggressive and verbally abusive. Mr. Panelas was told that he was a "bad person" and that "he would get his". The complainant advised Mr. Kaplan that he was not allowed in the building and that, if he did not leave, he would be charged with trespassing. This confrontation lasted for 30 to 60 minutes before the defendant went to the synagogue, leaving his fiancée behind. The police arrived about half an hour after the defendant's departure. They spoke with Mr. Kaplan's fiancée, who was permitted to attend the apartment with the police to get some of her belongings. The officers then drove the fiancée to her parents' home.

[7] Sometime between 7:00 and 8:00 p.m. the defendant came back to the building. A tenant advised Mr. Panelas of the defendant's presence. The complainant called the police. Mr. Panelas found Mr. Kaplan pacing on the fifth floor and knocking on the doors of other tenants. He told Mr. Kaplan that the police had been contacted and that, if he did not leave, he would be arrested for trespassing. The defendant sang the words, "na, na, hey, hey, goodbye" and told Mr. Panelas that Sheldon Kaplan would be taking over the building and the complainant would be fired and arrested. Police officers went to the fifth floor with the defendant. They spent an hour speaking with the defendant, including advising him that he should not return to the building. As the officers escorted Mr. Kaplan from the premises, he stated that he did not know why he had to leave. The police spent another 20 minutes explaining the situation to the defendant.

[8] On January 25, 2013, Mr. Panelas received a telephone call from a man who said that he was calling on behalf of the defendant, who was with him. The man asked the complainant if Mr. Kaplan could spend the Sabbath in his former apartment. Mr. Panelas refused.

[9] On the evening of January 26, 2013, Mr. Kaplan returned to 4100 Bathurst Street, accompanied by a friend. The defendant buzzed Mr. Panelas' unit on the intercom. After calling the police, the complainant went out to speak with Mr. Kaplan, and found him standing in the building's lobby. The defendant wanted to return to his apartment. Mr. Panelas said to leave and not come back, that he was trespassing and the police were coming. Mr. Kaplan was verbally abusive to the complainant for about 30 minutes. He told Mr. Panelas that he was a bad person, he would pay the price for his actions, and when the defendant took over the complainant would be arrested, evicted and out on the streets. Mr. Kaplan left the premises before the police arrived.

[10] On February 21, 2013 at about 1:00 p.m., Mr. Kaplan had a different friend buzz the complainant on the intercom, while he remained on the public sidewalk. Mr. Panelas came to the lobby and spoke with the friend for 15 to 20 minutes. Mr. Kaplan waited on the sidewalk, while making beckoning gestures and boxing motions towards the complainant.

[11] On February 26, 2013 about 9:00 p.m., the defendant entered the vestibule of the building and contacted Mr. Panelas on the intercom. Mr. Kaplan demanded to be let into his apartment, claiming he had a court order that gave him access. The complainant did not allow Mr. Kaplan to enter the lobby. The two men spoke for about 10 minutes. However, when the defendant prevented a female tenant from entering the lobby, Mr. Panelas went into the vestibule and told Mr. Kaplan to get away from the woman. Mr. Kaplan informed the complainant that he was in trouble and would be arrested. The complainant told Mr. Kaplan to leave.

[12] The defendant returned to the building two more times between February 26 and March 5, 2013, the date of his arrest. Once, a tenant let Mr. Kaplan into the lobby. The complainant called the police and then advised the defendant that he was not allowed in the building, he was trespassing and that he should leave and not return. Mr. Kaplan responded that Mr. Panelas would be arrested when the defendant took over. The defendant departed before the police arrived. During the second incident, Mr. Kaplan was not able to gain access to the lobby and, eventually departed.

[13] On March 3, 2013 the defendant left two voice mail messages for Mr. Panelas. In the first message Mr. Kaplan said that the building was under new management and the defendant had to leave his apartment by the following day at 5:00 p.m. or he would be arrested. The second message indicated that the complainant would be evicted as of 8:00 p.m. that day and if his property was not removed from the building he would be arrested. In addition, Mr. Kaplan came to the building, entered the vestibule and began writing down the names of the tenants. Mr. Panelas contacted the police and then advised the defendant to leave the building.

[14] On March 5, 2013 between 5:00 and 7:00 p.m., Mr. Panelas was in his office, which was located just off the lobby. He heard the defendant yelling from the lobby, "You're fired! I own the building. Get out!" Mr. Kaplan was seen on the fifth floor. He took the elevator to the main floor with Mr. Takars, another tenant. Mr. Panelas' wife, Moira Manoff, was in their unit on the first floor. Mr. Takars came to the door, looking for the complainant. Ms. Manoff spoke with Mr. Takars for a few minutes before seeing the defendant approaching. She advised Mr. Takars that she needed to close the door. Ms. Manoff described trying to push the door closed, as Mr. Kaplan tried to push it open. This lasted a few seconds until Mr. Takars intervened. Ms. Manoff was afraid for her physical safety because the defendant was using force to try and enter the apartment. Mr. Kaplan left through the front door. The police arrived and reviewed the security videotape of the incident. As they were leaving, the defendant returned to the building and was arrested.

[15] By contrast, Mr. Kaplan testified that he was never served with the eviction notices and that the eviction was illegal. According to the defendant, he won a lawsuit in Small Claims Court, which permitted him to return to his apartment. Mr. Kaplan stated that his rent was illegally raised in 2009 and that, as a consequence, Annie Tencer owed him money. The defendant said that he had a lien on the building. Accordingly, he claimed to own a piece of the property and stated that the complainant and his wife were not entitled to be there. Mr. Kaplan specifically denied pushing the door to the superintendent's apartment, as described by Ms. Manoff. The defendant also denied threatening anyone. Mr. Kaplan described the Crown witnesses as "liars" and "the scum of the earth". He acknowledged being angry with Mr. Panelas, who he described as "a wimp". Mr. Kaplan asserted that he did not care if he scared the complainant.

The Governing Principles

[16] In this case, Mr. Kaplan is presumed to be innocent, unless and until the Crown has proven each essential element of this offence beyond a reasonable doubt.

[17] Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence.

[18] It is not enough for me to believe that the defendant is possibly or even probably guilty. Reasonable doubt requires more. As a standard, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities. At the same time, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty.

[19] In assessing the credibility of the witnesses in this case, I remind myself of the principles articulated by the Supreme Court of Canada in R. v. D.W., 63 C.C.C. (3d) 397:

1st: if I believe the defendant's evidence, I must acquit.

2nd: if I do not believe the testimony of the defendant but am left in reasonable doubt by it, I must acquit.

3rd: even if I am not left in doubt by the defendant's evidence, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of Mr. Kaplan's guilt.

The Elements of the Offence

[20] In order to prove this offence, the Crown must establish five factors:

(a) the defendant engaged in the prohibited conduct, in this case besetting or watching the place David Panelas happened to be, namely 4100 Bathurst Street, without any lawful authority to do so;

(b) the complainant, Mr. Panelas, was harassed;

(c) the conduct caused the complainant to fear for his safety;

(d) Mr. Panelas' fear was reasonable, in all of the circumstances; and

(e) the defendant knew that Mr. Panelas was harassed or was reckless or willfully blind as to whether he was harassed.

Analysis

A. Watching or Besetting

[21] In R. v. Eltom, [2010] O.J. No. 3021 (S.C.J.) at ¶13, Trotter J. provided the following definition of this element of the offence:

The expression "watching or besetting" was defined in Everywoman's Health Centre Society v. Bridges, 109 D.L.R. (4th) 345 (B.C.S.C.), a civil contempt case. After examining a number of dictionary definitions of these terms, Low J. held at para. 26:

These definitions lead to the conclusion that watching is passive in nature and besetting is active. Watching is continually observing for a purpose and besetting has a physical element of approaching and, with respect to another person, importuning or seeking to argue with that person.

Further, in R. v. Downey, [2012] N.S.J. No. 500 (Prov. Ct.) at ¶52, Tax J. held that besetting required a "physical approach coupled with some persistent communication to demand or beg for something or to seek to argue and thereby harass the other person."

[22] In this case the information limits the time frame of the offence to between March 3 and 5, 2013. While the earlier incidents between Mr. Panelas and the defendant provide context for the interactions within the crucial time frame, they cannot constitute the requisite watching or besetting. Here, there is no evidence that Mr. Kaplan was watching, in the sense of continuously observing, the apartment building. Accordingly, in order to prove this element of the offence, the Crown must establish that Mr. Kaplan was besetting Mr. Panelas' home and workplace during the period specified in the charge. The two telephone messages on March 3, 2013 do not fall within the definition of besetting. The two visits between February 26 and March 5, as well as the attendance at the building on March 3, do not appear to have the persistent communication that was evident in earlier visits, such as the one on January 26, where the defendant was verbally abusive to Mr. Panelas for 30 minutes. Similarly, while the defendant's conduct on March 5 was disturbing, it was not directed at Mr. Panelas, nor did it involve persistent communication.

[23] Given the failure of the Crown to prove this essential element of the offence, the charge is dismissed.

[24] However, in light of Mr. Kaplan's persistence in disturbing Mr. Panelas, the duration of this conduct, and the reasonable nature of the fear Mr. Panelas and Ms. Manoff have due to the defendant's actions, I will exercise my common law authority to place Mr. Kaplan on a peace bond. I will hear submissions from counsel on the amount to be pledged, the duration and the terms of such an order.

Released: April 17, 2013

Signed: Justice Carol Brewer