Court File and Parties

Court File No.: Toronto Date: 2014-01-10 Ontario Court of Justice

Between: Her Majesty the Queen — and — Nagy Riad

Before: Justice Fergus O'Donnell

Heard on: 8 May, 4 June, 13 August and 4 & 29 November, 2013

Reasons for Judgment released on: 10 January, 2014

Counsel:

• Mr. M. Thomaidis, for the Crown
• Mr. S. Lyon, for the defendant, Nagy Riad

O'Donnell, J.:

Overview

[1] "No good deed should go unpunished." This is the lesson the complainants in this case must surely have learnt by now. Having agreed to help Mr. Nagy Riad with a computer problem, the complainants found themselves with a passel of woes, including attending repeatedly as witnesses on these criminal charges and one of the complainants being the object of a criminal complaint and a civil action by Mr. Riad. My task is to determine whether or not the two charges of criminal harassment laid against Mr. Riad have been proved beyond a reasonable doubt.

[2] Dr. Sameth Nasid had been a casual acquaintance of Mr. Riad for a few months at the time of these events. One day in late 2011 Mr. Riad approached Dr. Nashid at Fairview Mall and asked if Dr. Nashid knew someone who could help him with a broken computer. Dr. Nashid eventually introduced him to Hans Felix, a friend of his who lived in the same building as Dr. Nashid.

[3] Mr. Felix is an IT contractor who did some freelance work in his spare time. He testified that Dr. Nashid brought Mr. Riad to his apartment on Sunday, 29 January, 2012 and that they spent about four hours together.[1] He identified multiple problems with Mr. Riad's computer including a problem with the impact of a malfunctioning fan on the computer's motherboard. They discussed options and costs for repair and for data recovery. The following day the three men spent another hour or two at Mr. Felix's apartment. Mr. Felix testified that Mr. Riad told him to start the repair and tentatively agreed to pay. The cost would be between $200 and $400 depending on the cost of parts. Mr. Riad had a particular concern with respect to the recovery of data and Mr. Felix testified that he managed to retrieve encrypted data files from the hard-drive and downloaded them to a disk, which he kept for Mr. Riad to pick up.

[4] The following morning, Tuesday, Mr. Riad showed up at Mr. Felix's apartment building unannounced and called from downstairs. He attended at Mr. Felix's apartment with an external hard drive to copy data to. Mr. Felix told him that he had already put it on a disk, which Mr. Felix believed he gave to Mr. Riad, who then left. Mr. Felix kept working on the computer repair.

[5] The next day, Wednesday, around five or six p.m., Mr. Riad again showed up unannounced at Mr. Felix's apartment, saying he wanted to see his computer. Mr. Felix said he could not see him because he had to go to work. Mr. Riad said he had another computer and wanted to have Windows 7 installed on that computer and to get the original computer back. Mr. Felix said that Mr. Riad would have to pay $125 for the work done to date and testified that Mr. Riad then became upset and somewhat belligerent, insisting that he should not have to pay.

[6] At some point a third party mediator got involved, an engineer friend of Mr. Riad's. He met with Dr. Nashid and Mr. Felix and, according to Dr. Nashid, appeared to have authority to pay up to $150 for the work done and the return of the computer, but that deal was aborted because Mr. Riad failed to give his final approval to the mediator.

[7] After that interaction with Mr. Riad, Mr. Felix testified that he started to receive a lot of telephone calls from someone at an "unknown number" who said nothing in response to him repeatedly saying "hello". All he could hear was breathing until the person hung up after a few minutes each time. This sort of thing had never happened to Mr. Felix before. There were about fifty such calls up to 22 February, when Mr. Felix went to the police. There were more such calls until some time in March. For one of the calls it came not from an unknown number but from a phone number Mr. Riad had provided to Mr. Felix as a contact number. One call to Mr. Felix came in as he was at the police station; the call was from a blocked number but Mr. Felix received a simultaneous text from Mr. Riad demanding his computer back.

[8] Dr. Nashid also started getting calls from Mr. Riad, starting around mid-February. Mr. Riad blamed Dr. Nashid for the failed referral to Mr. Felix and was very "aggressive". Thereafter, Dr. Nashid received several other calls from Mr. Riad, often originating from an unknown number. Dr. Nashid received one of the earliest calls while en route to the hospital for emergency care, including the comment, "you sons of dogs and cursed in religion will be punished". Dr. Nashid said Mr. Riad was speaking very loud and in a very insulting manner. Mr. Felix appears to have been present for this call and although he does not speak Arabic, the language of the call, he also characterized the tone as aggressive.

[9] Dr. Nashid testified that in other conversation Mr. Riad insisted that he and Mr. Felix were doing wrong, would not get away with it and that they had to surrender the computer peacefully or by force and that, "you both will got a hit on your head if you don't return my computer immediately".

[10] At some point it appears that Mr. Riad gained access to Dr. Nashid's and Mr. Felix's apartment building and put the disk of data that Mr. Felix had given him in Dr. Nashid's mail slot; Dr. Nashid saw Mr. Riad by the elevator when he opened the door after the disk was put in. Mr. Riad agreed that he had attended for that purpose and had left the disk after getting no answer at the door and had seen Dr. Nashid come out to retrieve it after he walked away from the door. Dr. Nashid said the disk was returned to him on a weekend. Mr. Riad had testified that he had originally picked up the disk from Dr. Nashid on Friday, 5 February, insisting that he was right about that even after the Crown confronted him with which day of the week was which. He eventually testified that he had picked the disk up on Friday, 3 February.

[11] Mr. Riad testified and generally agreed that he met Mr. Felix through Dr. Nashid in an effort to fix a "minor" computer problem. He said that the first meeting was about half an hour long, but said that he had taken both the broken laptop and a new laptop and an external hard drive to Mr. Felix's apartment for the first meeting, leaving them all with Mr. Felix that day. He said that he told Mr. Felix that if the problem with the old laptop was just a virus he should fix it, but if it was going to cost $200 for a motherboard issue, not to bother. Mr. Riad said he was told to return the following day for an update.

[12] On Monday, 30 January, 2012 Mr. Riad said he returned to Mr. Felix's apartment but was told the data transfer was ongoing. When it was not done by 1 p.m., he left, expecting to hear back from Mr. Felix. When he had not heard back by 6 p.m., he called Mr. Felix's home and mobile numbers but did not get an answer.

[13] Mr. Riad said he managed to get the new laptop back from Mr. Felix. Mr. Felix told him he wanted $150 for the data transfer and said that while the data transfer to the external hard drive was still ongoing, he had given a disk of the data to Dr. Nashid. Mr. Riad said he got that disk from Dr. Nashid but it had nothing on it except someone else's pictures. He confirmed the contents of the disk with an engineering professor friend of his, the man who eventually became the intermediary. Mr. Riad testified that he had been told that when the engineer went to meet Mr. Felix with the $150 to pay him, Mr. Felix demanded $200.

[14] Mr. Riad testified that he never threatened Mr. Felix. He did send a couple of text messages to him, but they just stressed that he needed the computer back for work. He specifically denied the "heavy breathing" phone calls to Mr. Felix. He said that his phone number always appears on the recipient's screen when he makes a phone call. He denied calling Dr. Nashid in the car and telling him in Arabic that the sons of dogs cursed in religion would be punished. First of all, with his significant hearing issues it would be hard for him to hear someone on a phone in a car with the engine noise and, second, the comment would make no sense because he and Dr. Nashid were the same religion.[2] He said that he and Dr. Nashid were still friends.

[15] Mr. Riad admitted to certain criminal convictions put to him by the Crown. Having regard to the convictions he admitted (and the potential for some of the other convictions put to him by the Crown being potentially too prejudicial), the convictions of particular note are his convictions for fraud over in 2003 and his conviction for providing a false statement in relation to a passport in 2005.

Has The Crown Proved Its Case Beyond A Reasonable Doubt?

[16] Mr. Riad is presumed innocent on these charges and has no obligation to prove anything. The burden is on the Crown to prove the charges beyond a reasonable doubt. In this case, the principal components of that burden are first, whether or not the evidence of Dr. Nashid and Mr. Felix is to be believed and, second, whether that evidence makes out the constituent elements of the offence.

[17] Mr. Riad faces two charges, each alleging criminal harassment in relation to Dr. Nashid and Mr. Felix between 3 and 22 February, 2012, one count alleging harassment by repeated communication and the other alleging harassment by threatening conduct.

[18] The offence of criminal harassment is a relatively recent offence, filling what was until then a problematic void in the criminal law. Given the myriad ways by which human beings manage, intentionally or recklessly, to cause other human beings to fear for their safety[3], the criminal harassment provision is an essential component of the Criminal Code. Like many important tools, however, it is susceptible to over-use. It was not the purpose of the criminal harassment section to criminalize every annoying, obnoxious, petty, selfish, ignorant act or series of acts. If it were, the jails would be overflowing. The dangers of over-application of the criminal harassment provision must always be kept in mind by police officers, prosecutors and judges.[4]

[19] The elements of the offence of criminal harassment as alleged in this case are:

a. That Mr. Riad knew Dr. Nashid and/or Mr. Felix was harassed by his conduct or was reckless in that regard;

b. That he:

i. Repeatedly communicated with them; and/or

ii. Engaged in threatening conduct towards them;

c. That his conduct caused Dr. Nashid and/or Mr. Felix to fear for their safety;

d. That any such fear was reasonable in all the circumstances;

e. That Mr. Riad did not have lawful authority to do as he did.

[20] I shall address the three witnesses first. I have tremendous difficulty accepting Mr. Riad's testimony generally. First, I found him to be remarkably evasive, obstinate and non-responsive, including in relation to his status as a pharmacist and although I think many of his alleged criminal convictions are not material for any decision I have to make, his testimony about what he was or was not convicted of and about the status of his legal affairs did not fill me with confidence. The criminal record Mr. Riad did admit to does demonstrate a history of dishonesty, which is directly relevant to his credibility. He testified in examination-in-chief about the discussions he had with Mr. Felix about the cost of repairs but then testified in cross-examination that there had been no such discussion before moving on to contradict himself again. This testimony about the whole issue of the cost of repairs and software installation did not inspire confidence in the least.

[21] Mr. Riad was also inconsistent about the dates relating to when he received the data disk. It is not a matter of great significance that a witness is confused about such a matter. It is sometimes the mere reality of human nature. However, the great confidence with which Mr. Riad stood his ground when faced with what could have been an innocent mistake was unimpressive. Other than where his testimony was corroborated by another witness, I have great difficulty accepting anything he said. I do not believe it and it does not create reasonable doubt in my mind about what happened.

[22] I found that the evidence of Mr. Felix and of Dr. Nashid was generally very impressive. Each seemed consistent with the other in that general way that inspires confidence arising out of consistency without being so consistent as to suggest coaching or scripting or collaboration on their parts. Neither was materially contradicted in cross-examination. Each of them testified without any apparent exaggeration or even any appreciable animus towards Mr. Riad; indeed, Dr. Nashid testified with a graciousness that was greatly to his credit and that struck me as entirely genuine. Dr. Nashid testified in a fairly formal and flowery fashion, but I attributed that entirely as a cultural and social artefact. His description of the offence and discomfort he felt at the language used by Mr. Riad, and of the possibility of him having to repeat that language in court, seemed entirely true to Dr. Nashid's nature. Ultimately I had the feeling that Dr. Nashid felt aggrieved by a genuine sense of an assault on his dignity and a genuine disappointment insofar as he felt that the way Mr. Riad had allegedly treated him and Mr. Felix, the friend he had recruited to help someone who was a complete stranger to him, was not the way good people treat one another. Mr. Felix testified with significant precision about the technical aspects of his work on Mr. Riad's computer, which one might well expect from a person with a technical bent, but conceded some uncertainty about dollar amounts, which seemed fair. They seemed to lack Mr. Riad's apparent self-righteous certainty about almost everything.

[23] On a particular point, I accept entirely Dr. Nashid's testimony that the calls he received from Mr. Riad in February were from an unknown number. This contradicts the evidence of Mr. Riad that he did not use a phone with a blocked or unknown number. This is only one of many, many points on which the evidence of Dr. Nashid (or Mr. Felix for that matter) is far preferable to that of Mr. Riad.

[24] At the end of the day, I cannot be absolutely certain of the chronology of events. I am confident, however, that the events played out almost exactly as described by Dr. Nashid and Mr. Felix. Dr. Nashid agreed to help out an acquaintance from his homeland by referring him to Mr. Felix. Mr. Felix agreed to help with Mr. Riad's computer as part of his sideline business. Mr. Riad was a difficult customer, unwilling to pay for the value of Mr. Felix's time and effort. They could not agree on a suitable figure, even with the involvement of the mediator; I accept the more direct evidence of Dr. Nashid that Mr. Riad was the stumbling point for resolution of the dispute at that point as being more likely than Mr. Riad's version. Mr. Riad was not at that meeting. I am satisfied beyond a reasonable doubt that Mr. Riad was behind the numerous "unknown number" calls that ensued.

[25] I think Dr. Nashid probably summarized Mr. Riad most concisely when he described him as being immature, concentrated on the same fixed idea, not wanting to move an inch, feeling that he is always correct and insisting on having things go his way.

[26] Ultimately, this case falls to be decided on the issue of reasonable fear. Mr. Felix spoke of Mr. Riad being belligerent, but broke that down into a more precise meaning. I do not believe Mr. Felix ever adverted to being afraid. It must be kept in mind that the question is not whether or not the conduct, such as the "heavy breathing" calls might have caused fear in anyone, but rather whether it actually caused fear on the complainants' part and also whether that fear was reasonable, all things considered. I have no doubt that Mr. Felix had better things to do than spend his time listening to crank calls. I am sure that he wishes that Mr. Riad had never darkened his door. I do not believe that it can be said that he feared for his safety, even in the broadest definition of that term.

[27] I think the same can be said in relation to Dr. Nashid. He did testify to Mr. Riad's hostility and to him threatening to him that he and Mr. Felix were doing wrong, that they wouldn't get away with it and that they had to surrender the computer, that they had to surrender the computer peacefully or by force and that "you both will got a hit on your head if you don't return my computer immediately".[5] He said he did not open his door when Mr. Riad came to return the disk because he felt threatened. However, the evidence with respect to Dr. Nashid feeling that his safety was in danger struck me as being quite soft. It is entirely possible that a person could utter a threat without the object of that threat feeling that their safety was at risk. I think that the greatest injury to Dr. Nashid was to his inherent sense of dignity and civility and his world view, which I applaud, of how mature people should relate to one another.

[28] There is no doubt that Mr. Riad treated both Dr. Nashid and Mr. Felix rudely and with a blatant disregard for the most basic norms of civility. His behaviour came very close to crossing the line of criminal liability. Indeed, the same behaviour in relation to a more vulnerable complainant might well have caused a reasonable fear for safety, thereby making out a criminal offence. I am not satisfied, in all of the circumstances of this case, that he has crossed that line here.

Conclusion

[29] Accordingly, I find Mr. Riad not guilty of the two counts of criminal harassment before me. Given the evidence, however, it does seem to me that this may be a case in which a common law peace bond would be justified and I shall hear submissions from both parties on that issue.

Released: 10 January, 2014

Footnotes

[1] Dr. Nashid estimated the duration of this first meeting at around 1 ¼ hours but said his memory was not that sharp on such matters.

[2] I agree with the proposition that the comment would make no sense between two co-religionists. However, the fact that a statement from Mr. Riad would make no sense does not strike me as in any way relevant to whether he would say it or not.

[3] Which includes psychological safety.

[4] This should not be taken as a criticism of the launching or continuation of the present criminal charges. Sometimes the precise lay of the land is clear only after a trial and it is inherent in the system that each actor applies a different standard at each stage of the process.

[5] Ironically, if a charge of threatening had been laid rather than the more complex offence of criminal harassment, a conviction would likely have resulted.