Court File and Parties

Date: 2018-11-30

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Christina Vrentas

Before: Justice Susan M. Chapman

Heard on: July 24 and October 25, 2018

Decision re: Motion for a Directed Verdict released on: November 30, 2018

Counsel:

• I. Sunderland, counsel for the Crown
• H. Gonzalez, counsel for the accused

CHAPMAN, J.:

Overview

[1] Ms. Christina Vrentas stands charged with mischief and criminal harassment as a result of her interactions with police during which she raised concerns in relation to her son being abused by his father. The Crown called two witnesses: the complainant (the accused's former spouse Mr. Di Paola) and the officer in charge of the investigation. There was an agreement between counsel that the officer could testify in relation to previous occurrence reports involving Ms. Vrentas for the purposes of demonstrating what complaints were made by her and what was done by the police as a result of them. However, the hearsay statements found in those reports are not admissible for the truth of their contents.

[2] At the conclusion of the Crown's case, the defence brought a motion for a directed verdict. These are my reasons for granting that motion.

Nature of the Allegations

[3] Ms. Vrentas stands charged with two offences:

Count 1

Christina VRENTAS

On or about the 24th day of February in the year 2017 at the City of Toronto in the Toronto Region did, with intent to mislead, cause a peace officer to enter and continue an investigation by reporting that the offence of Sexual Assault had been committed when it had not been committed, contrary to Section 140, subsection (1), clause (c) of the Criminal Code of Canada.

Count 2

AND FURTHER THAT Christina VRENTAS

On or about the 24th day of February in the year 2017 at the City of Toronto in the Toronto Region did, without lawful authority and knowing that another person, namely DI PAOLA, PASQUALE, was harassed or recklessly as to whether that person was harassed, engage in conduct set out in Section 264, subsection (2) of the Criminal Code and cause the said DI PAOLA, PASQUALE to reasonably fear for personal safety and the safety of someone known to that person, namely DI PAOLA, JULIAN, son, contrary to Section 264, subsection (3) of the Criminal Code.

The Evidence

The Complainant's Evidence

[4] The Crown's first witness was Mr. Pasquale Di Paola, the former spouse of the accused. He testified pursuant to a subpoena and made clear that this was the only reason he had attended court. He testified at the outset that "I am not here to give evidence to convict in any manner…. I do hope that this Court can help the situation but not through convictions."

[5] Mr. Pasquale testified that he first met Ms. Vrentas 23 years ago and that they were married in 1998. They have one son, Julian, who was born on July 20, 2000. The couple separated approximately 5 years after getting married, so sometime around 2003. Julian would have been 2½ or 3 years old at the time of their separation.

[6] Originally Julian was living with his mother, Ms. Vrentas. After their separation Mr. Pasquale had access to his son but at one point Ms. Vrentas resisted access and the matter went to family court. This was early on following their separation. In family court there were allegations of sexual and mental abuse of the child. As for the custody arrangement over the years, apparently Julian lived with his mother until he was in grade 7 and then lived with his father between grades 7 and 11 and is now back living with his mother.

[7] Mr. Pasquale testified that he may have first learned of the sexual abuse allegations through the family law proceedings but he wasn't sure. When the allegations of abuse were first made, the police, the CAS and the child's doctor were all involved in the investigation. Mr. Pasquale was questioned by these various entities as was the child. What exactly they said during these interviews was not put before me. What other witnesses were also interviewed and/or what other investigation was done by the police or other authorities was also not thoroughly canvassed in the evidence. What we do know is that Mr. Pasquale was never charged with an offence.

[8] Mr. Pasquale testified that he was told that the allegations came from Ms. Vrentas. Six months after the first set of allegations, some time back in approximately 2004, there was a second set, also alleging sexual abuse. Again, Mr. Pasquale was not charged in relation to either incident or incidents – it's not clear what the scope or nature of the allegations were at that time. These investigations were conducted in a period of about one year.

[9] Mr. Pasquale testified that in more recent years the police have continually been at his house following up on concerns for the safety of Julian apparently being raised by Ms. Vrentas. Though there was an ebb and flow to police attendances at his home, there were times when the police were showing up unannounced 2 or 3 times a week during the approximately 5 years that Julian lived with him. As for the nature of the allegations that caused the police to attend at his home, Mr. Pasquale testified: "…I don't know exactly full extent of what's being claimed but it had to do with safety, safety of the child." The police were coming to check up on Julian. This gave Mr. Pasquale concern. The nature of his concern is articulated by him in the following exchanges with counsel:

Q: Did you have any concerns for Julian's safety or wellbeing?

A: When you got someone at your front door with a gun pounding on the door and your child is safe on the one side and they're demanding that he comes to the front veranda, yeah.

Q: This is a police officer you're talking about?

A: Yeah, yeah, it's a person with a gun.

Q: Yes.

A: You know you've got your son.

Q: Yes

A: And you've got someone with a gun, they're demanding that you come outside that house, yeah of course.

Q: Okay so …

A: It's petrifying.

[10] Mr. Pasquale testified that the police would park their cruiser in front of his home and that this was causing him embarrassment in the neighborhood. He now avoids the police. When asked in-chief to expand upon his safety concerns, Mr. Pasquale testified as follows:

A: You know, your mind goes wild when you're the only one responsible for a child and there's someone outside, but you know when I was there the police would come typically in two, which is fair, but, you know, they're not, and I understand the police I meant they are coming to a house where they don't know what's behind the door and they need to protect themselves I mean this is life, I, I get it. But boy oh boy they come with their hand directly over the pistol, within two inches of the pistol which what they should do. It's fine when I'm there, you know, I make it very clear I show my face. Even if I don't want to go out and see them I'll show my face through a window but my little boy I, you know, he's not, he's a smart kid he learned really quick, he didn't have to learn this stuff but he learned it, but you know, I mean, who knows what could happen. Look I, I just, I don't know what happens with guns and bullets, I, I don't want to be part of this.

Q: Okay.

A: And I don't want my son part of this.

[11] Apparently, police, CAS, school board and family court involvement have been going on for over 15 years, though it has ebbed and flowed over time, and was most intense during the five years that his son was living with him. He has understandably found this to be emotionally draining to say the least. Mr. Pasquale testified that he has not had a visit from the police in the past year.

[12] As for the impact on Julian, Mr. Pasquale testified that it has been brutal and that:

A: If anybody has suffered it was him. That kid took a beating in elementary school because of this situation it was, it was brutal. High school was much better for him. Switched school boards and I'm not here to blame the school board they were dealing with something they didn't know how to deal with but the way they dealt with it really took my son as a pri (sic) --- it was brutal.

[13] Mr. Pasquale described in broad strokes problems he and Julian have had with the school board, apparently resulting in the removal of several teachers from the school, though the details are vague. He elaborated upon the harm done to Julian in these terms:

A: He was definitely wronged I mean it got to the point where he even was wronged by the police, like the police put a record, a juvenile record on him by allegations made by a student.

[14] Though again the details of this are not clear, according to Mr. Pasquale's testimony a false allegation of sexual abuse was also made against Julian by another student at the school, though it would seem no charges were laid.

[15] The Crown asked Mr. Pasquale during his evidence-in-chief:

Q: So let's just look at the, the police calls and the police attending your address. If that were to continue into the future what type of impact might this have on you?

A: I don't think I will able to handle that too much longer. I don't think that was, I don't think that was easy on the relationship between my son and myself at all. My son and the outside world, myself and the outside world, like our immediate outside world.

[16] And as for his concerns about police attendance at his home, Mr. Pasquale elaborated as follows:

A: And you know, then of course you've got the police who are frustrated because they know he's there and they need to put a check mark on a list and say he's okay and that's part of their job.

Q: Yeah.

A: And he [Julian] won't open the door ad it's escalating like I, at least the explanation I got so you know what I heard, you know, Julian was frustrated and he would just not answer or answer sarcastically at times and, you know, the police must see him as far as I understand, they must see that he's visually see him… so I explained, yeah, I could see this escalating definitely some, certainly some of the officers involved were a little short of fuse then others and ..

Q: Escalating to what point?

A: Well I mean I don't know I mean the police do they have to, I mean, what's it take to break down a door? Say oh I thought he was in danger and break down a door, you know and come rushing in, I thought he was in danger break down the door and come rushing in and what happens to your psychologically when your door is broken down. I was petrified that, you know, my son, you know, he was behind a wall, he kind of felt safe as long as the door wasn't open….

[17] Mr. Pasquale testified that it was his concern that the police would break down the door and even perhaps shoot his son, though he thought the latter possibility remote. In cross-examination he explained that we have an SIU unit in this province for a reason but agreed that the police never actually did break down his door or even threaten to do so.

[18] The Crown asked Mr. Pasquale if he thought Ms. Vrentas had mental health problems, and after qualifying his answer by pointing out he is not a psychiatrist, he testified as follows:

A: I have experience, experience, that is Christina can be a very wonderful person at times and I'm not sure what causes that very calm and very straight thinking actually, very intelligent and but it's maybe a little rare then then someone who is a little more scared or a little overly scared and anxious about things that maybe most people wouldn't be anxious about or at least not to that level. I, I suspect that she could use some help psychologically is my suspicion.

[19] As to what occurred on February 24, 2017 [the date particularized in the information] Mr. Pasquale candidly admitted that "I don't even remember that one". He agreed that though he had no memory of talking to police at that time it was possible that he did.

[20] In cross-examination Mr. Pasquale agreed that Ms. Vrentas has never threatened to physically harm him. On occasions when she could not reach Julian she would leave abrasive voice mail messages asking for him to return her calls. She would threaten to take him to court but she never threatened to physically hurt him or Julian. Mr. Pasquale testified that Ms. Vrentas has never done anything to cause him to believe that she would harm him or Julian. His fear was that the police would breach the home.

The Officer's Evidence

[21] D.C. Shawn Kinghorn testified that he has been with Toronto police for 13 years and is currently attached to 13 Division. He has personally been involved in incidents involving complaints made to the police by Ms. Vrentas. As well, he has looked through the police computer system to find related occurrence reports and ICAD reports in relation to complaints made to police by Ms. Vrentas on other occasions. He provided a summary of the history, most of the relevant parts of which are as follows:

February 22, 2005 – the police get a call from the C.A.S. reporting that they have received a mandatory report of abuse from a doctor concerning the possible sexual assault of Julian by his father. Julian is approximately 4 ½ years old at the time. An investigation is done at this time. The child reports that his father has touched his "dickie" and bum but the police conclude that the mother has coached the child. Ms. Vrentas was originally cooperative with the police but became upset with the nature of the police questioning and apparently cuts off the interview. No record of what was actually said during that interview was put in evidence. No charges were laid.

November 17, 2005 – a lawyer on Ms. Vrentas' behalf calls the police concerning allegations of sexual abuse of Julian by his father. Officer Kinghorn related what the lawyer told the police at that time which was apparently that Julian had disclosed the sexual abuse to the mother. Ms. Vrentas attends for a police interview but again becomes upset with the police response and cuts it short. What exactly she told the police at this time was not put in evidence. Apparently no formal statement was taken. The father refused to be interviewed by police at that time and no charges were laid.

November 16, 2014 – Julian is now 14 years old. Though Ms. Vrentas actual statement to police was not put in evidence, she apparently attended at 13 division that day to report "another domestic incident". The officer testified that:

"I believe she attended 13 division in person, came to the front desk advised officers that when she was at home with her son the prior day that the son had made a comment that his dad had did it with him."

Upon further questioning by police, she again walked out of the station without providing a more detailed report. The police attended at Mr. Di Paola's home on this occasion and tried to speak to him and his son. What they told the police on this occasion is not in evidence. No charges were laid.

December 4, 2014 – Ms. Vrentas calls police to follow up on her previous concerns (i.e. those from November of 2014) and accuses them of not doing their job. She refuses to come in for an interview. No police action was taken.

July 31, 2016 – Ms. Vrentas contacts police and tells them that her son is at his father's home, she has not been able to have contact with him, and asks that they check up on him. In the call she mentioned the previous allegations of sexual assault. The police attend at Mr. Di Paola's home and find nothing of concern. This sort of occurrence was referred to in the evidence as a "wellbeing check".

August 25, 2016 – Ms. Vrentas can't reach her son and calls police seeking a well-being check. The police attend and learn that the child is not contacting his mother because he does not want to.

September 4, 2016 – Ms. Vrentas calls police seeking a well-being check on her son. They attend at Mr. Di Paola's home and there are no concerns. Again, her son simply does not want to talk to her.

September 25, 2016 – Ms. Vrentas seeks another well-being check on her son. The police attend the home and there are no concerns.

November 5, 2016 – another request for a well-being check. Mr. Di Paola is frustrated and uncooperative with the police.

November 20, 2016 – another request for a well-being check. The police attend and Mr. Di Paola refuses to open the door.

November 29, 2016 - the police call Ms. Vrentas to follow up on her earlier calls. The police call Mr. Di Paola and he expresses his frustration with police involvement. The police are unable to speak to Julian. Ms. Vrentas calls the police later that day and tells them that she was sexually assaulted at the mall but refuses to give details and refuses to be transferred to a call taker to have units dispatched. She told the police that she wanted nothing more to do with them. This allegation has nothing to do with Mr. Di Paola.

December 3, 2016 – Ms. Vrentas calls police for a well-being check, the police follow up but don't make contact with Mr. Di Paola or Julian.

December 6, 2016 – Ms. Vrentas calls police for a well being check. She also now alleges that she believes Julian's tutor is sexually assaulting him. The police do not conduct a well-being check. Nor do they investigate the tutor.

December 10, 2016 – Mr. Di Paola calls police and tells them that Ms. Vrentas is banging on his door. The police attend but she is no longer present.

December 15, 2016 – the police contact Ms. Vrentas to follow up on the December 10th incident. She is cautioned not to attend Mr. Di Paola's home unless pre-arranged. She is told she could be subject to criminal charges. That evening Ms. Vrentas calls the police back and asks to meet with them at the library. She tells them that she is still concerned about the sexual abuse and that her ex-husband had, in the past, threatened to kill her. She expressed fears for her son's safety and again requests a well-being check and they decline. Mr. Di Paola calls the police and tells them that Ms. Vrentas is at his door. The officer's evidence on this was not clear – but it would seem that after being cautioned by police, Ms. Vrentas does not attend again at her ex-husband's home.

December 17, 2016 - Ms. Vrentas calls police and requests a well-being check. They don't follow up.

December 21, 2016 – she calls requesting a well-being check and the police do attend at Mr. Di Paola's home but he is not there and there is no further follow up.

December 23, 2016 – D.C. Kinghorn calls Ms. Vrentas and warns her about attending at her ex-husband's home. Later that day she calls police requesting a well-being check because she cannot reach her son. Police attend the Di Paola home and though people appear to be home they did not answer the door.

December 25, 2016 – she seeks another well-being check and mentions her suspicions about a tutor. The police do not conduct a well-being check.

December 26, 2016 – Ms. Vrentas calls police and asks for a well-being check. The police attend at the Di Paola home and knock on the door but there is no answer. They follow up with phone calls.

December 27, 2016 – the police contact Ms. Vrentas and inform her that they will no longer be following up on her requests for well-being checks on her son.

There are some subsequent requests for well-being checks and follow up calls made by Ms. Vrentas to the police on January 2, 8, 13 and 21, 2017. The police are no longer attending the Di Paola home after late December. The police put an alert in their system requiring Staff Sgt. approval prior to any attendances at the Di Paola home. During the past few years Mr. Di Paola has complained to the police about their attendances at his home.

January 12, 2017 – the police attend at the Vrentas family home in order to mediate the situation. Ms. Vrentas leaves upset. Her family discusses mental health issues with the police.

February 4, 2017 – Ms. Vrentas calls police wanting to report sex crimes and mental health crimes and states that her son is living with a dangerous person. No details are provided and there is no police follow up.

February 14 and 26, 2017 – Ms. Vrentas calls police for a well-being check and there is no police follow up. On February 26 and 27 Ms. Vrentas calls the police alleging something about a murder and suggests that she and her son are the victims. This complaint is not about Mr. Di Paola.

[22] In cross-examination the officer agreed that the vast majority of calls that Ms. Vrentas made to the police were requests that they check up on the well-being of her son with no allegations being made. The police – for the most part – stopped responding to these requests in later December of 2016. Further, Ms. Vrentas was clear from the beginning of her involvement with the police that she believed that her son was being abused by his father and she never wavered.

The Motion for Directed Verdict

[23] It is undisputed that if there is some evidence upon which a reasonable jury properly instructed could find guilt, the motion must be dismissed. It is not my role at this stage to assess the quality, credibility or reliability of the evidence: R. v. Charenski, [1988] 1 S.C.R. 679 at para. 19; R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828 at paras 21, 30.

Public Mischief

[24] The Crown alleges that Ms. Vrentas falsely reported to the police that her ex-husband was sexually assaulting their young son. The allegation is particularized to the date of February 24, 2017 and references s.140(1)(c) of the Criminal Code.

[25] Section 140(1)(c) of the Criminal Code states that:

Every one commits public mischief who, with intent to mislead, causes a peace officer to enter on or continue an investigation by

(c) reporting that an offence has been committee when it has not been committed.

[26] There is relatively little jurisprudence under this section. The existing case law demonstrates that the actus reus of the offence is a statement falsely accusing another of having committed an offence, which thereby causes a peace officer to investigate; the mens rea is the intent to mislead a peace officer by so doing: R. v. Stapleton, [1982] O.J. No. 49 (C.A.); R. v. J.(J.), [1988] O.J. No. 1247 (C.A.).

[27] The public mischief provisions under section 140 of the Code cover a range of criminal misconduct. All four subsections – sections 140(1)(a), (b), (c) and (d) – require an intention to mislead that causes police to enter on or continue an investigation. The intentional misleading can be perpetrated in a variety of ways. As observed by Justice Derrick (as she then was) in R. v. Thompson, 2016 NSPC 75 at para. 28:

As I have discussed, section 140(1)(a) requires a false statement being made that accuses "some other person" of having committed an offence. Section 140(1)(c) requires reporting that an offence has been committed when it has not been committed. Section 140(1)(d) requires the false reporting of a death that has not occurred. And, to reiterate what I said earlier in these reasons, section 140(1)(b) criminalizes the doing of "anything intended to cause some other person to be suspected of having committed an offence that the other person has not committed, or to divert suspicion from himself."

[28] Public mischief is often perpetrated by intentionally misleading the police with an accusation of criminal wrongdoing against an innocent person. For example, R. v. Delacruz, [2009] O.J. No. 5536 (S.C.J.), is a case of a false report by Mr. Delacruz to the Children's Aid, who then contacted the police, that his teenage daughter was being sexually abused by the boyfriend of his ex-wife. Mr. Delacruz was charged under section 140(1)(c) of the Criminal Code. That section makes it an offence to intentionally mislead the police by reporting that an offence has been committed when it has not been. In the context of dismissing a motion for a directed verdict in Delacruz, Baltman J. quotes from an Ontario Court of Appeal decision in R. v. J.J., [1988] O.J. No. 1247 (an appellate decision dealing with the same section of the Code), and states at para. 11:

"The purpose of s. 140 is not difficult to ascertain; it is intended to protect innocent persons 'from the grievous and fearful consequences that can flow from false accusations.'"

[29] As noted by Justice Baltman in her sentencing decision in the same case, R. v. Delacruz, [2010] O.J. No. 2425, there are essentially two categories of pubic mischief cases that fall under s.140(1)(c) – false accusations against an anonymous individual so as to evade liability and false accusations against an identified individual for purposes of revenge or punishment. It must be the Crown's position in this case that Ms. Vrentas falls into the latter category.

[30] The basis for the mischief claim is that Ms. Vrentas made a complaint to the police that she believed her ex-husband was sexually abusing their then young son when in fact no such crime had been committed. The Crown was therefore required to adduce some evidence with respect to each of the following elements of the offence:

1. That the accused made an allegation of an offence, in this case sexual assault, to the police;
2. That no offence, in this case sexual assault, took place;
3. That in making the allegation the accused intended to mislead the police;
4. That the accused's false allegation caused the police to enter into an investigation;
5. That the police officer was, in fact, misled by the statement.

Analysis of the Evidence re Mischief

No Evidence of the Actus Reus

[31] What were the specific allegations Ms. Vrentas made to the police concerning Mr. Pasquale that are said to constitute the actus reus of the offence of mischief? Upon reviewing the evidence it is not at all clear what statement or statements the Crown points to as forming the subject matter of the allegation. This is obviously significant given that it is her statement that must constitute the actus reus of the offence.

[32] This is a motion for directed verdict so I need to take a generous view of the evidence from the point of view of the Crown's case against the accused. Even so, there is no evidence with respect to the actus reus of the offence. What exactly is the false allegation that is the subject of the charge? In this case, the count is particularized to February 24, 2017. Mr. Pasquale testified that he had no recollection of that day but that it was possible the police attended on this occasion.

[33] As for what was actually said on that date, it was originally suggested by the officer's evidence in chief that Ms. Vrentas made some non-specific allegation of sexual abuse involving her son that date, with no particulars, and then in cross-examination the officer agreed that he had been mistaken:

Q: So that, February 24th [2017] was not a call regarding sexual abuse allegations it was to check on Julian because she [Ms. Vrentas] went to the school and he wasn't there and she was concerned.

A: That appears to be the case I made an error on that on my thing here I apologize.

No Evidence of Falsity

[34] Further, assuming the offence relates to an allegation made by Ms. Vrentas to police that her ex-husband is sexually abusing their child in some manner or another, there is no proof of the falsity of her allegation.

[35] Though the evolution was not entirely clear from the evidence, it would seem that the allegation first arose when the child made a disclosure to a doctor when he was a very young child. The doctor made a mandatory report to the C.A.S. and they in turn notified the police. The officer testified that Ms. Vrentas was the source of the complaint to the doctor. However, this is multi-layered hearsay and there are no specifics whatsoever as to what she purportedly told the doctor. The police did interview the child at the time and he told them that his father had touched his dickie and his bum. Apparently he told them that his father had put a flower in his bum and this is not an expression that appears in any of the police interactions with Ms. Vrentas. Ms. Vrentas did not have contact with the police concerning sexual abuse allegations until after this initial disclosure.

[36] D.C. Kinghorn testified that the police concluded that the mother had coached the child, though again the basis for that opinion is not put in evidence. Further, years later in school, Julian was himself subjected to allegations that he acted out sexually and inappropriately in relation to another child. Mr. Pasquale testified that the allegations against Julian are false but they are nonetheless the kind of allegations that might reasonably cause a parent concern.

[37] Against this backdrop, the Crown points only to the fact that the police conducted an investigation and determined the concerns to be unfounded as evidence of falsity. What the nature of that investigation involved was not made clear in the evidence. There is no suggestion of a recantation of the allegations. There is no suggestion that Ms. Vrentas purported to observe something that could not possibly have happened in relation to Julian and is father. The complainant testified before me and was not asked whether the allegation was true or not. The child did not testify. What the Crown points to as some evidence of falsity is the opinion of the police that the allegations are unfounded. This of course is an opinion and not an expert opinion. This point is made clear by D.C. Kinghorn when he testified as to what is meant by "unfounded" in the following terms:

A: I guess the best way I can describe it is unfounded would be that nothing was found to support the allegation that we would pursue on any further investigation on it … Doesn't quite so far for us to say completely that it did not happen it's just that we have nothing to indicate it actually did.

[38] Mr. Pasquale is not on trial. Ms. Vrentas is. The Crown must therefore adduce some evidence of the falsity of her allegations. A review of the case law suggests that normally the Crown relies on a recantation or an obvious contradiction to objectively discernable facts to prove falsity. None of that is before me. I would also allow for the possibility that some allegations might be outlandish enough so as to be inherently suspect. But again that is not this case.

[39] In this case what I am left with is the bald assertion that the police determined that the complaint of sexual assault was unfounded. This opinion is not the subject of expert evidence. It is mere opinion. There would need to be some evidence adduced with respect to the basis upon which the police arrived at their opinion on the truth or falsity of the allegations in order to find some evidence of falsity. The fact that the police determined a sexual assault complaint to be unfounded is not on its own proof of the falsity of that complaint. Accordingly, on this record, there is no evidence whatsoever of the falsity of the claim.

[40] To be clear, I am not to be taken as saying in any that Mr. Pasquale is guilty of anything much less sexual assault. What I am saying is that the Crown has failed to adduce any evidence whatsoever in this case of the falsity of the allegation.

No Evidence of Mens Rea

[41] Perhaps even more importantly, there is no evidence whatsoever of Ms. Vrentas knowledge or belief that her allegations are false. It is for the Crown to adduce some evidence of Ms. Vrentas knowledge of the falsity of her allegations and there is none on this record. The complainant was a reluctant and fair minded witness. He did not want to see Ms. Vrentas convicted of anything. He did, however, want to be left alone. Nonetheless, he did not testify to anything that would suggest Ms. Vrentas knowingly pursued false allegations against him. Nor did anyone else.

[42] When the complainant testified, he described his ex-wife as a very kind and intelligent person but one that was prone to undue suspicion and fear. He was asked about whether or not Ms. Vrentas had been diagnosed with any mental health issues and he didn't know for sure but thought that she had been seeing a therapist. Indeed, there was also some evidence from the police reports that they too had suspicions of some mental health issues involving Ms. Vrentas and leading to the conduct in question. I point to this evidence only for the purpose of showing that there is no evidence whatsoever of mens rea in this case and indeed some cogent evidence pointing away from it.

Criminal Harassment

[43] The Crown also alleges that Ms. Vrentas criminally harassed her ex-husband and caused him to fear for his safety and the safety of their son by engaging in the conduct described in s.264(2) of the Code. The precise conduct alleged is not particularized in the information and subsection (2) sets out 4 different ways in which the offence can be committed:

(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.

[44] There are many cases considering s.264(2) and they emphasize the importance of factual context: see, R. v. Kordrostami, [2000] 47 O.R. (3d) 788 (OCA); R. v. Mandell, unreported, April 11, 2008, S.C.J.; R. v. Moss, 2011 ONSC 5143, [2011] O.J. No. 4470; R. v. Wisniewska, [2011] O.J. No. 5026; R. v. Vandoodewaard, [2009] O.J. No. 5099. Given a proper context, a single incident can in some cases constitute the offence: see R. v. Kosikar, unreported, May 21, 1999, S.C.J. Further, conduct that causes one to reasonably fear for one's emotional and psychological safety could suffice to make out the offence: R. v. Gowing, [1994] O.J. No. 2743 (S.C.J.). An act of violence is not required to make out the offence: R. v. Finnessey, [2000] O.J. No. 3316.

Analysis of the Evidence re Criminal Harassment

[45] The allegations are not based upon any suggestion that Ms. Vrentas made any direct contact with the named complainant or anyone known to him. She did not follow him from place to place. Though she knocked aggressively on his door a couple of times in December of 2016 when she couldn't get ahold of their child on the phone, when she was told not to do so by police she did not attend there again. She did not watch or beset his home or place of employment or anywhere else he happened to be. Nor is the basis for the allegation that she engaged in any threatening conduct directed to the complainant or any member of his family.

[46] Rather, as I understand it, the Crown's theory is that by contacting the police about her concerns, Ms. Vrentas caused the police to attend at her ex-husband's home so as to check up on their child and this caused him (the father) concern for his safety and the safety of their son. This is a rather novel theory of liability. In essence, it's the Crown's position that it is the mere attendance by the police at the home of the complainant that caused him to reasonably fear for his safety or the safety of his son. Further, on the Crown's theory, the police were conscripted as the agents of Ms. Vrentas' criminal harassment of Mr. Pasquale.

[47] In order to avoid a directed verdict, it is necessary for the Crown to adduce some evidence that Mr. Pasquale reasonably feared for his safety due to Ms. Vrentas' repeated indirect communications with him – if they can even be considered that. Is there any evidence on this record that Ms. Vrentas engaged in any of the four (4) forms of prohibited conduct? If she believed that her son was being abused – and there is no evidence that she did not – she had the lawful authority to call the police and report that abuse.

[48] Though the police had a duty to follow up and investigate allegations of child abuse, the manner in which that was to be accomplished is the subject of discretion. There was no evidence adduced of any legal or factual compulsion that required the police to repeatedly turn up at Mr. Pasquale's home once they had determined that Ms. Vrentas' allegation against him were false. Indeed, by December of 2016 they simply stopped responding to her calls altogether and did not attend at the complainant's home or anywhere else at her behest. The police are not her agents in relation to this offence.

[49] Further, there is no evidence of a concern for the personal safety of the complainant as that notion is understood in the context of s. 264 of the Code. The Crown points to the police attendances at the home and Mr. Pasquale's concerns about those attendances as some evidence of fear for his safety. However, I find that Mr. Pasquale's evidence on this point, set out in some detail above, simply does not provide an evidentiary basis for the suggestion that he reasonably feared for his safety or the safety of his child within the meaning of s. 264 of the Code. His concerns were simply too speculative, remote and unreasonable to constitute some evidence of the crime. While reasonable fear of psychological harm may suffice, a mere police attendance at the home, in the circumstances described in this case, simply does not amount to some evidence of criminal harassment within the meaning of the Criminal Code.

Conclusion

[50] I have sympathy for the frustration the police must have given the numerous interactions with Ms. Vrentas. I sincerely hope that Ms. Vrentas will stop calling the police concerning the same matters, particularly now that her son is a young adult and living with her. However, in this case, there is not some evidence with respect to each of the ingredients of the offences alleged. Accordingly, I grant the application and direct verdicts of acquittal on both counts.

DATED: November 30, 2018

Justice Susan Chapman