Court File and Parties

Date: December 17, 2014

Court File No.: 13-8960

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Roger Alvarez-Gongora

Before: Justice Paul F. Monahan

Heard on: October 6 and November 24, 2014

Judgment Released on: December 17, 2014

Counsel:

Ms. J. Mathurin for the Crown

Ms. L. Dubin for the defendant Roger Alvarez-Gongora

MONAHAN J.:

Introduction and Overview

[1] Roger Alvarez-Gongora is charged that on or about March 29, 2013 and on or about June 26, 2013 that he knowingly or recklessly harassed Tanya Porter by repeatedly communicating directly or indirectly with her, thereby causing her to reasonably fear for her safety contrary to s. 264(2)(b) of the Criminal Code (the "Code").

[2] In addition, on May 16, 2013, Ms. Porter swore an information pursuant to s. 810 of the Code. In that information she stated that she had reasonable grounds to fear and did fear that Mr. Alvarez-Gongora would cause personal injury to her or cause damage to her property. She therefore seeks an order for a recognizance against Mr. Alvarez-Gongora requiring him to, among other things, keep the peace and be of good behaviour for up to 12 months.

[3] The criminal harassment and peace bond proceedings were heard together and the Crown took carriage of both proceedings. It is the Crown's position that the Court should find Mr. Alvarez-Gongora guilty of the criminal harassment charge and that in those circumstances it would not be necessary to deal with the peace bond proceeding. The Crown submitted that if the Court did not find Mr. Alvarez-Gongora guilty of the criminal harassment charge then the Court should proceed to deal with the peace bond proceeding and order that a peace bond be entered into.

[4] It was the position of the defence that the criminal harassment charge had not been made out and that the facts necessary to support the exercise of the Court's discretion to order a peace bond be entered into had also not been made out.

Facts and Credibility

[5] The Crown called one witness, Ms. Tanya Porter. The defence called a work colleague of the defendant, Mr. Kyle Pullen; the defendant's adult son, Mr. Christopher Villanuva; and the defendant's ex-wife, Ms. Diana Boomsluter. Mr. Alvarez-Gongora did not testify.

[6] I am not going to review the evidence of each witness. Rather, I am going to set out the facts as I have found them. Where there are contested or disputed facts, I will give reasons for why I have found the facts I have.

[7] Ms. Porter and Mr. Alvarez-Gongora met online through a friendship/dating website. They met some time around the end of November or early December 2012. It is apparent from Ms. Porter's testimony that she saw the relationship as a friendship but that Mr. Alvarez-Gongora hoped that the relationship would become a romantic one. He gave her numerous gifts in the months that followed.

[8] Ms. Porter and Mr. Alvarez-Gongora did not have a sexual relationship. I note as well that there was no physical violence in the relationship.

[9] The defence argued that Ms. Porter was not credible. The defence pointed to at least four areas of her testimony to suggest she had not been forthright in her testimony.

[10] First, the defence said that she was not straightforward as concerns her evidence about her grandmother's bank account. The cross-examination and evidence on this point was irrelevant but that did not become apparent until all of the evidence was in. Ms. Porter was somewhat guarded in her testimony about her grandmother's bank account but that is understandable as it had nothing to do with these proceedings. She was not untruthful on this subject.

[11] Second, it was also argued that Ms. Porter was not credible because she testified that she never slept in Mr. Alvarez-Gongora's bed when the evidence of Mr. Alvarez-Gongora's son was that he had seen her sleeping in his father's bed on one occasion. I accept the evidence of Mr. Alvarez-Gongora's son that Ms. Porter did sleep in his father's bed on one occasion. That occurred when she was at his home and she had consumed some alcohol and did not wish to drink and drive. I do not fault Ms. Porter for her evidence that she had not slept in Mr. Alvarez-Gongora's bed. I find that she was simply mistaken or perhaps the effect of the alcohol was that she did not accurately recall the event. I do not think that her testimony in this regard undermines her credibility.

[12] Third, it was implied by the defence that Ms. Porter's testimony regarding Mr. Alvarez-Gongora buying certain items from her was not truthful. Ms. Porter testified that she needed money and that Mr. Alvarez-Gongora helped her by buying two items from her for $400. The items were some speakers and a sewing machine. Mr. Alvarez-Gongora's son, Christopher, testified that he never saw the speakers or a sewing machine in the apartment where he lived with his father. Mr. Pullen testified that Mr. Alvarez-Gongora had told him that he loaned money to Ms. Porter. The implication of this evidence from the defence was that Ms. Porter had been untruthful about this evidence and that there had never been an arrangement for Mr. Alvarez-Gongora to buy some items from Ms. Porter. I reject this argument by the defence. I accept Ms. Porter's evidence that there was an arrangement for her to receive $400 from Mr. Alvarez-Gongora for the two items. This evidence was not directly contradicted by the evidence of any other witness and made sense in the context of the evidence as a whole. The fact that the speakers and the sewing machine did not end up in Mr. Alvarez-Gongora's apartment is of no moment. Ms. Porter never said that they did. Notwithstanding that I have found that there was an agreement to give Ms. Porter money for two items of hers, it is also clear that Mr. Alvarez-Gongora thought that Ms. Porter owed him money. Whether she in fact owed him money or not is not relevant and I make no finding in this regard. It appears clear to the Court that there was some financial dispute between them. However, all that matters for this Court's purposes is that Mr. Alvarez-Gongora genuinely thought he was owed some money by Ms. Porter.

[13] Fourth, it would appear that the defence is arguing that the content of the March 29, 2013 call (discussed below) was not as Ms. Porter said it was because Ms. Boomsluter testified that she overheard what Mr. Alvarez-Gongora said during the call and it did not accord with Ms. Porter's evidence. I do not accept Ms. Boomsluter's evidence on this point and this will be further discussed below. For the most part, I do accept Ms. Porter's evidence as concerns the March 29 call except that, as explained below, I consider that part of the call did concern Mr. Alvarez-Gongora's allegation that he thought he was owed money from Ms. Porter. I also point out at this stage that Ms. Boomsluter's evidence was inconsistent with Mr. Alvarez-Gongora's own characterization of the March 29 telephone conversation. He acknowledged in his June 26, 2013 email that he had used "harsh language" in the March 29, 2013 telephone call while Ms. Boomsluter suggested otherwise.

[14] In summary, for the foregoing reasons and as is further explained below, I find Ms. Porter to be a credible witness and I largely accept her evidence save where stated elsewhere in these reasons. In arriving at this conclusion, I have considered her evidence and the evidence of all of the other witnesses including Ms. Boomsluter as well as the written evidence from Mr. Alvarez Gongora in the form of the June 26, 2013 email and texts (discussed below). In arriving at this conclusion, I have considered whether I believe conflicting evidence and, if not, whether it raises a reasonable doubt relating to essential elements of the offence. As indicated in these reasons, I have believed some of the conflicting evidence and in other cases I have found that it has raises a reasonable doubt on some questions or issues. Although I have found Ms. Porter to be credible, that does not mean that the criminal charge has been proven or that the requirements for a peace bond been established. I note as well that in some cases Ms. Porter's memory failed her and she was mistaken about a few points. Finally, as will be explained below, I do not accept that it has been proven beyond a reasonable doubt that Ms. Porter reasonably feared for her safety or that of her daughter but I do accept that it has been proven on the balance of probabilities that she reasonably feared (and continues to fear) personal injury by Mr. Alvarez-Gongora against her.

The March 29, 2013 Text Messages

[15] On March 29, 2013, Ms. Porter was having lunch with a friend. She and Mr. Alvarez-Gongora had discussed the possibility of going for a jog together later on in the day. Ms. Porter was having a problem with her cell phone (apparently due to a drained battery) and Mr. Alvarez-Gongora was trying to reach her. When Ms. Porter got home later in the day she plugged in her phone to recharge it and she said the phone began to vibrate as she received numerous text messages from Mr. Alvarez-Gongora.

[16] Ms. Porter was asked during her evidence in-chief to "guess" how many text messages there had been and she said 30 to 32. She then firmed up that evidence and said that there were "around 30" messages. She testified that upon receiving these text messages she texted Mr. Alvarez Gongora and said words to the effect "30 f-ing messages - seriously".

[17] The text messages were not put into evidence. They were apparently not available. As to the content of the messages, Ms. Porter testified "I can't remember all the messages". Moreover, she stated that it was the telephone call the same day that followed the text messages between her and Mr. Alvarez-Gongora that was troublesome. She did not testify that she felt harassed or feared for her safety as a result of the text messages nor in the Court's view would there be any reasonable basis for her to feel harassed by these text messages alone.

[18] I am satisfied that there were a substantial number of text messages sent by Mr. Alvarez-Gongora to Ms. Porter on March 29 but I am not satisfied on the evidence that there were in fact 30 to 32 messages. There may have been less. Further, as indicated, there is no material evidence as to the content of those messages other than it can be inferred that Mr. Alvarez-Gongora was trying to reach Ms. Porter.

March 29, 2013 Telephone Conversation between Ms. Porter and Mr. Alvarez-Gongora

[19] Ms. Porter telephoned Mr. Alvarez-Gongora after receiving the text messages on March 29 and she said she told him never to contact her again and to leave her alone. It is apparent that this was an upsetting call for both Ms. Porter and Mr. Alvarez-Gongora and I find that he made comments to her during this conversation that were very troublesome. The first related to Ms. Porter's ex-husband. Ms. Porter had previously confided in Mr. Alvarez-Gongora that her ex-husband had physically abused her. Mr. Alvarez-Gongora made the comment in the March 29 telephone conversation with Ms. Porter that she got what she deserved from her ex-husband. In addition, he made a comment that he knew where she lived and worked and that she was not going to get away that easily and that he was going to "hunt her down".

[20] As indicated briefly above, the defence contested the content of the March 29 telephone conversation. She called Mr. Alvarez-Gongora's ex-wife, Ms. Boomsluter, who stated that she was present when Mr. Alvarez-Gongora was speaking on the phone to Ms. Porter on March 29. Ms. Boomsluter said that she and Mr. Alvarez-Gongora were driving in a car when Mr. Alvarez-Gongora was speaking on the phone to Ms. Porter. Ms. Boomsluter was driving.

[21] I have concerns about the evidence of Ms. Boomsluter. She involved herself in the dispute that Mr. Alvarez-Gongora was having with Ms. Porter and even attended Ms. Porter's place of business on March 30 in order to help Mr. Alvarez-Gongora attempt to collect money from Ms. Porter. Accordingly, she had a reason to minimize her own involvement and to suggest that Mr. Alvarez-Gongora had acted appropriately as she became a partner with him in his attempts to collect money from Ms. Porter.

[22] In cross-examination, rather than answer the Crown's questions directly as to what she could recall about the March 29 telephone conversation, she simply blurted out on a number of occasions that she didn't really remember the conversation but that there were no threats made. She stated there was "no violence or anything". She wasn't even asked if there were threats made or violent words used. She simply kept repeating this proposition in her testimony. In this sense, her testimony was lacking in credibility and less than straightforward. Further, Ms. Boomsluter had to acknowledge that she was not necessarily paying attention to everything that was being said between Mr. Alvarez-Gongora and Ms. Porter during the March 29 telephone conversation and she obviously could not hear what Ms. Porter was saying.

[23] In addition, the testimony of Ms. Boomsluter was inconsistent with the June 26, 2013 email for Mr. Alvarez-Gongora in which he acknowledged that he had used "harsh language" in the March 29 call.

[24] Accordingly, in light of Mr. Alvarez-Gongora's own characterization of the March 29 conversation in his June 26 email and in light of the testimony of Ms. Porter considered in context, I accept the testimony of Ms. Porter that Mr. Alvarez Gongora made the comment about Mr. Porter's ex-husband and the hunt you down comments in the March 29 telephone conversation. I believe Ms. Boomsluter was in error when she suggested in her evidence that no such type of statements were made and I am not left in a reasonable doubt by Ms. Boomsluter's evidence in this regard. However, I find that the "hunt you down" comment arose in the context of statements made by Mr. Alvarez-Gongora that he thought he was owed money by Ms. Porter. Ms. Porter testified that money was not the subject of the March 29 telephone conversation but I believe that she is mistaken in this regard. It is notable that all or virtually all of the contacts which Mr. Alvarez-Gongora initiated with Ms. Porter subsequent to March 29 namely the March 30, 2013 meeting, the small claims court action commenced in April 2013, and the June 26, 2013 communications involved Mr. Alvarez-Gongora asserting that he thought he was owed money by Ms. Porter. This supports the Court's finding that money was also at least part of the subject matter of the March 29 conversation.

[25] To summarize with respect to the March 29 telephone conversation, I find that Mr. Alvarez-Gongora did make the reference to Ms. Porter deserving the violent treatment she suffered at the hands of her ex-husband and he did make the "hunt you down" comment. The hunt you down comment was made in the context of Mr. Alvarez-Gongora believing that he was owed money by Ms. Porter. He was signaling to her that he was going to come after her for the money he thought he was owed.

The March 30, 2013 Attendance at Ms. Porter's Place of Business and the April 1, 2013 Call

[26] On March 30, Ms. Boomsluter and Mr. Alvarez-Gongora decided to attend Ms. Porter's place of business. Ms. Boomsluter went first and spoke to Ms. Porter. They did not know one another. Ms. Porter was involved in a credit card promotion at her place of business and was speaking to customers. Upon speaking to Ms. Porter, Ms. Boomsluter then telephoned Mr. Alvarez-Gongora who was nearby and Mr. Alvarez-Gongora then showed up and spoke to Ms. Porter. Ms. Porter said that Mr. Alvarez-Gongora said words to the effect "I told you that I would hunt you down". Ms. Boomsluter said that no such words were spoken and that all that was said was that Mr. Alvarez-Gongora wanted to know when he was going to get the $500 he thought he was owed by Ms. Porter. Ms. Porter turned and walked away and phoned the police. No charges were laid at this time.

[27] Importantly, in re-examination, Ms. Porter acknowledged that during the March 30 conversation at her place of business, Mr. Alvarez-Gongora said that he was owed money by Ms. Porter. This is an important piece of evidence and puts the various interactions between Mr. Alvarez-Gongora and Ms. Porter in context.

[28] As I indicated above, I have concerns about the credibility of Ms. Boomsluter. She had reasons to minimize her own involvement in this matter. She should not have involved herself in the breakdown of the relationship between Ms. Porter and Mr. Alvarez-Gongora or participated in what was in effect a ruse when she and Mr. Alvarez-Gongora attended at her place of business. Ms. Boomsluter telephoned Mr. Alvarez-Gongora to give him the signal that she thought she had found Ms. Porter. This was obviously part of a pre-planned approach to surprise Ms. Porter and get her to agree to pay Mr. Alvarez-Gongora some money. Notwithstanding that I have concerns about Ms. Boomsluter's credibility, based on her testimony and Ms. Porter's admission that money was part of the subject matter of the March 30 conversation, I have a reasonable doubt as to whether Mr. Alvarez-Gongora repeated the "hunt you down" comment on March 30. I am not satisfied that he did say that that day. Even if he did say it, it was in the context of his pursuit of money that he thought he was owed.

[29] There was also evidence that Ms. Porter received a call from a man on April 1, 2013 that she thought was Mr. Alvarez-Gongora who said "is Tanya there" and then said "Bye". I attach little significance to this call.

[30] To summarize, the March 29 and 30 interactions were in part about a civil dispute over money and included spiteful comments by Mr. Alvarez-Gongora in the context of a relationship breakdown. On March 30, 2013 I find that Mr. Alvarez Gongora went with Ms. Boomsluter to Ms. Porter's place of business and demanded money that he thought he was owed. I also find that based on the March 29 telephone conversation and the March 30 meeting, it is more probable than not that Ms. Porter was reasonably concerned about her personal safety. This meets the balance of probabilities of standard. The criminal standard of beyond a reasonable doubt is a much higher standard and I am not satisfied on that standard that Ms. Porter feared for her safety.

The Small Claims Court Action

[31] Sometime between March 30 and before May 16, 2013, Mr. Alvarez Gongora commenced a small claims court action against Ms. Porter. The pleadings from that action were not put before this court but it is apparent from the June 26, 2013 email from Mr. Alvarez-Gongora to Ms. Porter that the claim was for money that he thought he was owed by Ms. Porter. Apparently, the small claims court action was recently dismissed after some sort of a hearing. Suffice it to say that there was clearly a civil dispute between Mr. Alvarez-Gongora and Ms. Porter and it was initiated by Mr. Alvarez Gongora and known to Ms. Porter before May 16, 2013.

May 16, 2013 Peace Bond Proceeding

[32] On May 16, 2013, Ms. Porter swore an information seeking a section 810 peace bond against Mr. Alvarez-Gongora under the Code. I infer from the evidence that Mr. Alvarez-Gongora became aware of the peace bond proceedings shortly after May 16, 2013.

June 26, 2013 Texts and Email

[33] On June 26, 2013 Mr. Alvarez-Gongora sent a number of text messages and an email to Ms. Porter. This was not a replay to the March 29 multiple text messages episode. It appears that he sent her four texts and one lengthy email. Unlike the March 29 text messages, the June 26 text messages and email were available for the Court's review and consideration and were marked as exhibits at trial.

[34] The Crown relied upon the June 26 texts and the email to support the criminal harassment charge. Much of the email is about the small claims court action and Mr. Alvarez-Gongora's view that he was owed money by Ms. Porter. There is a lot of bragging or puffery in the email about what great civil claims he thinks he has against Ms. Porter. English is not Mr. Alvarez-Gongora's first language and the email is grammatically wrong in many respects but it is nevertheless easily understood. I note the following further points regarding the June 26 email from Mr. Alvarez-Gongora to Ms. Porter. First, Mr. Alvarez-Gongora states in the email that he wants Ms. Porter to "accept my apologies for having said harsh words on 29 March 2013." He also said "I think it is safe to say that I do not need all that money and that as a reasonable parent that we both are come to reasonable terms (sic)". As mentioned earlier, the point here is that Mr. Alvarez-Gongora acknowledged that he used "harsh language" during the March 29 call which supports the Court's finding that he made the comments about Ms. Porter's ex-husband and the "hunt you down" comment on March 29. The email also makes it plain that these comments arose in the context of Mr. Alvarez-Gongora seeking money back from Ms. Porter. Second, the Court's view of the email June 26, 2013 as a whole is that there was nothing threatening or harassing about it. It is largely about the small claims court claim. He made specific statements in the email that "I will never hurt...you... I'm a Christian person who will respec (sic) you and those you care about." Third, Mr. Alvarez-Gongora foolishly sought to have Ms. Porter drop the peace bond proceedings and he comes close in that email to suggesting that he will compromise a civil debt to have her do that.

[35] To summarize, the June 26 email and related texts sent by Mr. Alvarez-Gongora that day were not harassing in nature. In fact, they support the Court's conclusion that the breakdown in the relationship led, in part, to a civil dispute between the parties.

Issues

[36] Accordingly, the following two issues arise in this case:

Issue 1 – Has the Crown proved beyond a reasonable doubt that Mr. Alvarez-Gongora committed the offence of criminal harassment contrary to s. 264(2)(b) of the Code?

Issue 2 – Has the Crown proved on the balance of probabilities that Mr. Alvarez-Gongora should be required to enter into a peace bond/recognizance?

Issue 1 – Has the Crown proved beyond a reasonable doubt that Mr. Alvarez-Gongora committed the offence of criminal harassment contrary to s. 264(2)(b) of the Code?

The Law with Respect to Criminal Harassment

[37] In order to consider whether the Crown has proven the offence of criminal harassment, I will briefly set out the law with respect to criminal harassment.

[38] The operative Code provision is s. 264(2)(b) which provides as follows:

264. (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

(2) The conduct mentioned in subsection (1) consists of

(a) repeatedly following from place to place the other person or anyone known to them;

(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;

(c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or

(d) engaging in threatening conduct directed at the other person or any member of their family.

[39] As in any criminal case, the Crown must prove all of the elements of the offence beyond a reasonable doubt. The burden is on the Crown throughout and it never shifts to the accused.

[40] In a case of criminal harassment contrary to s. 264(2)(b), the elements which the Crown must prove beyond a reasonable doubt are as follows:

1. It must be established that the accused has engaged in the repeated communication referred to in s. 264(2)(b) of the 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 of the circumstances, reasonable.

[41] The Ontario Court of Appeal has held that in order to meet the "repeatedly communicating" requirement of s. 264(2)(b), more than one instance of unwanted conduct will be necessary but there is not and should not be any minimum number of instances of unwanted conduct beyond this to trigger these subsections. Provided the conduct occurs more than once the actus reus can be made out. That is not to say that if there are only two events, the actus reus will be proven. It will depend upon the circumstances.

[42] For the complainant to have been harassed or to have felt harassed, it is not enough for the complainant to have been "vexed, disquieted or annoyed". To have been harassed means to have been "tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered". I note that these terms are not cumulative. It can be enough for harassment if any one of these terms is established.

[43] The definition of "lawful authority" in the context of criminal harassment means nothing more than rendering legally permissible that which would otherwise be prohibited conduct.

[44] When the Court is considering whether the elements of the offence have been made out, the approach is a contextual one. It is a question of fact for the Court to determine in each case. The Court must consider the conduct that is the subject of the criminal harassment charge against the background of the relationship and the history between the complainant and accused.

[45] The Court also considers that it is important to keep the words of Justice Doherty of the Ontario Court of Appeal in mind from the case of R. v. McDougall where he said that "conduct which is mean, petty, uncooperative and spiteful is not the stuff of the criminal law".

Application of the Law to the Facts

[46] The Crown's case was largely based on four events: (i) the text messages of March 29, 2013; (ii) the telephone conversation of March 29, 2013; (iii) the meeting at Ms. Porter's place of business on March 30, 2013; and (iv) the June 26, 2013 text messages and email. The Crown argued that taken together, the four events constituted criminal harassment contrary to s. 264(2)(b) of the Code. It is understood by the Court that the Crown's position was that it might not succeed in proving that each one of the four events were harassment and that some lesser combination of the four events might constitute harassment.

[47] While the evidence must be considered as a whole, it is also necessary to examine the events on an individual basis. As I have signaled in the Court's review of the facts above, I do not view the March 29, 2013 text messages in and of themselves as constituting criminal harassment, nor do they offer much support for the criminal harassment charge considered in the context of the other events. The text messages are not before the court in paper or electronic form and there is virtually no evidence as to the content of the text messages. In these circumstances, it would not be fair to the defendant to give significant weight in a criminal harassment proceeding to the simple fact that multiple text messages were sent, although they provide some limited background evidence as to the events that followed on March 29 and 30 and June 26, 2013.

[48] Similarly, I have reviewed the four text messages of June 26, 2013 and the email of June 26, 2013. There is nothing on the face of those documents or communications that constitute criminal harassment, considered narrowly and in the context of the communications and relationship as a whole. Mr. Alvarez-Gongora would not know or be willfully blind or reckless to the fact that the June 26 communications might be seen to harass Ms. Porter. In addition, I do not believe that the June 26 communications caused Ms. Porter to feel harassed or to reasonably fear for her safety or that of her family.

[49] In the Court's view, the real issue in this case is whether the telephone conversation of March 29, 2013 and the meeting of March 30, 2013, considered in the context of the evidence as whole, constitute criminal harassment contrary to s. 264(2)(b) of the Code.

[50] To return to the facts, I have found that on March 29, 2013 Mr. Alvarez-Gongora made a comment to Ms. Porter to the effect that she got what she deserved when she was physically abused by her ex-husband and that Mr. Alvarez-Gongora said to her that he would "hunt you down". The comment about her ex-husband was obviously a despicable statement to make. However, as the case law indicates, the Court's assessment of the criminal harassment claim must be contextual. The relationship between Ms. Porter and Mr. Alvarez-Gongora was breaking down and as often happens in relationships that break down, mean and spiteful things are said and disputes about money sometimes arise. Such conduct is not necessarily a contravention of the criminal law. The statement about her ex-husband, as despicable as it was, was not a threat as against Ms. Porter, nor was it harassment.

[51] In the Court's view, the "hunt you down" comment was directed at Ms. Porter and could potentially support the harassment charge. However, it too must be considered in context and the Court considers that what Mr. Alvarez-Gongora was saying was that he was going to pursue her for money he thought he was owed.

[52] I find that on March 30, 2013, Mr. Alvarez-Gongora and his ex-wife attended Ms. Porter's place of business and again Mr. Alvarez-Gongora sought money that he thought he was owed. For the reasons set out above, I have a reasonable doubt as to whether he repeated the "hunt you down" statement on March 30.

[53] The question for the Court is whether the March 29, 2013 telephone conversation and March 30, 2013 meeting constitute criminal harassment, considered in the context of the evidence as a whole. After careful consideration, I am not prepared to make a finding of criminal harassment for three reasons:

1. I do not believe that in context the statements made by Mr. Alvarez Gongora on March 29 and March 30 rose to a level of Ms. Porter reasonably having felt harassed. In particular, I do not believe that she reasonably felt that she was "tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered." Mr. Alvarez-Gongora made the "hunt you down" comment once on March 29. It was a despicable thing to say but it was not repeated on the facts as I have found them. The conduct on March 30 in a public place was also ill advised but did not cross the line and support the charge of criminal harassment. As indicated above, the relationship was breaking down and people often say hurtful, spiteful and mean things to one another when relationships break down. They also often pursue one another for money. Mr. Alvarez-Gongora did all of that here. Such conduct is not necessarily criminal harassment. In the end, the Court is not satisfied that the actus reus for criminal harassment is made out beyond a reasonable doubt;

2. I am not satisfied that it has been proven beyond a reasonable doubt that Mr. Alvarez-Gongora knew that his conduct was harassing to Ms. Porter or that he was reckless or willfully blind in this regard. He behaved badly and became preoccupied with trying to recover money he thought he was owed. He made hurtful statements but I do not consider that the mens rea requirement for harassment is made out; and

3. Finally, the dispute about money underlying the interactions between Ms. Porter and Mr. Alvarez-Gongora leads the Court to find that it has not been proved beyond a reasonable doubt that Ms. Porter feared for her safety. It is the Court's finding that it is more probable than not that she did reasonably fear for her safety. This meets the civil standard (balance of probabilities) but not the criminal one (beyond a reasonable doubt).

[54] Let me also be clear that I do not find that Mr. Alvarez-Gongora had any "lawful authority" to act as he did. One can pursue another person for money one thinks is owing but that does not constitute lawful authority within the meaning of s. 264(2)(b).

[55] The conduct by Mr. Alvarez-Gongora was improper and he has brought himself perilously close to having committed criminal harassment. But in the end, I am not satisfied that the case against him has been proven beyond a reasonable doubt either from an actus reus or mens rea perspective.

Issue 2 – Has the Crown proven on a balance of probabilities that Mr. Alvarez-Gongora should be required to enter into a peace bond/recognizance?

[56] Ms. Porter swore an information pursuant to s. 810 of the Code on May 16, 2013. Pursuant to that information she stated that she had reasonable grounds to fear and did fear that Mr. Alvarez-Gongora would cause personal injury to Ms. Porter or cause damage to her property. She refers to a threat made on or about March 29, 2013 and she alleges that caused harassment.

[57] S. 810 of the Code provides, in part, as follows:

(1) An information may be laid before a justice by or on behalf of any person who fears on reasonable grounds that another person will cause personal injury to him or her or to his or her spouse or common-law partner or child or will damage his or her property.

(3) The justice or the summary conviction court before which the parties appear may, if satisfied by the evidence adduced that the person on whose behalf the information was laid has reasonable grounds for his or her fears,

(a) order that the defendant enter into a recognizance, with or without sureties, to keep the peace and be of good behaviour for any period that does not exceed twelve months, and comply with such other reasonable conditions prescribed in the recognizance, including the conditions set out in subsections (3.1) and (3.2), as the court considers desirable for securing the good conduct of the defendant; or,

(b) commit the defendant to prison for a period not exceeding twelve months if he or she fails or refuses to enter into the recognizance.

[58] Justice Allen of the Alberta Provincial Court in R. v. Soungie gave a comprehensive judgment on peace bonds and his statement of the applicable legal principles in that case have been followed by the Ontario courts. Justice Allen summarized the applicable legal principles as follows:

(1) Section 810 is preventive in nature protecting the applicant in appropriate circumstances from future harm to the applicant, the applicant's spouse, the applicant's common law partner, the applicant's children, or future damage to the applicant's property. The Court is allowed to intervene to prevent a breach of the peace prior to an actual offence being committed.

(2) Section 810 restrains the liberty of the defendant to live his or her life free from restraint of that liberty.

(3) The Judge must balance the two competing interests in determining whether to place the defendant on a recognizance. That is, the Judge must balance the right of the defendant to privacy or to be left alone against the right of the applicant to a protective intervention in appropriate circumstances. Certainly, the Judge must be cautious in exercising discretion to affect the liberty of the subject, but this caution must be tempered with a view to the protection provided to the applicant where grounds have demonstrated the need for the recognizance.

(4) The applicant must actually fear that the defendant will cause personal injury to the applicant, the applicant's spouse, the applicant's common law partner, the applicant's children, or will cause damage to the applicant's property.

(5) The Judge must find that the applicant's fears are reasonable, i.e., that an objective person armed with the same knowledge as the applicant would agree that the applicant's fear are reasonable. The reasonable fear must be triggered by some action of the defendant.

(6) Evidence of the defendant's previous misconduct is admissible to determine the basis for the beliefs held by the applicant. This evidence can be used by the Judge in determining whether the applicant's fears are reasonable.

(7) The Judge is not asked to predict future behaviour; rather, the Judge must be satisfied from the evidence the likelihood of future harm or damage. The quality and strength of the evidence must be sufficient to satisfy this likelihood.

(8) The onus of persuasion is upon the applicant. The applicant must satisfy the Judge on the balance of probabilities of the grounds for the issuance of a recognizance.

Application of the Law to the Facts

[59] I have not made a finding of criminal harassment for the reasons set out above. However, I wish to make it clear that I believe Mr. Alvarez-Gongora behaved improperly in the statements that he made on March 29 and attending at Ms. Porter's place of business on March 30. In addition, his June 26 email, while not criminal harassment, disregarded Ms. Porter's desire to be left alone and improperly sought to have her drop the peace bond proceeding. Mr. Alvarez-Gongora could legitimately pursue the small claims court action but he should have left contact with Ms. Porter to contact via the court supervised processes.

[60] When the Court is considering whether to require the entering into of a peace bond, the Court must look to past misconduct in order to prevent future misconduct. In this case, I have found on a balance of probabilities that Ms. Porter was justifiably scared for her personal safety on March 29 and 30 and the Court considers that she remains in that position today. Her perspective is reasonable in the Court's view.

[61] Accordingly, I am going to exercise the jurisdiction of this court to require Mr. Alvarez-Gongora to enter into a recognizance without a surety for up to 12 months. He is to have no contact with Ms. Porter during the time that the recognizance is outstanding and he is to keep the peace and be of good behavior. I will hear further submissions from both counsel as to the precise terms of the peace bond.

[62] I wish to be clear that by exercising the Court's jurisdiction to require the entering into of a peace bond, there is no finding of criminal misconduct being made. The exercise of the Court's jurisdiction to require the entering into of a peace bond is preventative in nature.

Conclusion

[63] In conclusion, I find that the case for criminal harassment has not been proven beyond a reasonable doubt against Mr. Alvarez-Gongora. I also conclude that this is an appropriate case for the Court to exercise its jurisdiction to require Mr. Alvarez-Gongora to enter into a recognizance and during period of the recognizance to keep the peace and be of good behavior and have no contact with Ms. Porter. As indicated, I will hear submissions on the precise terms of the recognizance.

Released: December 17, 2014

Justice Paul F. Monahan