ONTARIO COURT OF JUSTICE
CITATION: R. v. Rato, 2019 ONCJ 119
DATE: 2019 03 01
COURT FILE No.: Brampton 18-535
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
CARLOS MARCELO RATO
Before Justice P.T. O’Marra
Heard on February 13, 2019
Reasons for Judgment released on March 1, 2019
Michael Morris..................................................................................... counsel for the Crown
Riaz Timol............................................. counsel for the defendant Carlos Marcelo Rato
O’Marra P.T. J.:
The Introduction:
[1] Mr. Rato is charged with the following offences;
(a) That between December 17 and December 20, 2017 he uttered a threat to cause death to Rose-Marie Gimeno, contrary to section 264.1(1)(a) of the Criminal Code of Canada (hereinafter referred to the “Code”) and,
(b) That on or about January 11, 2018 he uttered a threat to burn down Ms. Gimeno’s dwelling house, contrary to section 264.1(1)(b) of the Code and,
(c) That on or about January 13, 2018 he criminally harassed Ms. Gimeno by repeatedly communicated directly or indirectly with Ms. Gimeno and thereby caused her to reasonably, in all of the circumstances, fear for her safety, contrary to section 264(2)(b) of the Code.
[2] The trial was held on February 13, 2019. The Crown’s only witness that testified was Ms. Gimeno. The Crown filed a translator’s statement marked as Exhibit #1. Annexed to the statement were twelve (12) pages that contained a series of undated text messages between Mr. Rato and Ms. Gimeno that was translated from Spanish into English. Contained within the text messages was a picture of an automatic or semi-automatic rifle and a small handgun that resembled a “Glock” handgun.
[3] Mr. Rato testified in his own defence. Counsel filed a series of text messages between the parties dated January 28 and January 29, 2018 marked as Exhibit #2, that were translated during the trial by a qualified Spanish interpreter. These communications occurred after Mr. Rato was arrested on January 14, 2018 and subsequent to his release on bail.
Evidence:
The Relationship:
[4] In the summer of 2017, Ms. Gimeno, a real estate agent hired Mr. Rato through Kijiji as a handyman in order to carry out various repairs and modifications to certain areas of her house.
[5] Within a very short period of time, Ms. Gimeno and Mr. Rato developed a romantic relationship. However, according to Ms. Gimeno, Mr. Rato quickly became controlling and angry with Ms. Gimeno. This led to a tumultuous relationship. But, according to Mr. Rato, he wanted out of the relationship but Ms. Gimeno would not leave him alone and he felt compelled to remain in the relationship. Mr. Rato had a very different perspective on the relationship than Ms. Gimeno.
[6] According to Ms. Gimeno, she tried to break up with Mr. Rato several times, however, he never accepted her wishes. Notwithstanding Ms. Gimeno’s desires to terminate the relationship, they did, however, often engage in sex. However, Ms. Gimeno felt scared and controlled by Mr. Rato throughout the majority of the relationship.
The call to the police October 2018:
[7] According to Ms. Gimeno, in November 2018 the relationship really started to go “downhill”. Before that, however, Mr. Rato exhibited flashes of anger and became increasingly controlling. When she discussed with him ending the relationship he threatened to hurt Ms. Gimeno in a public place such as a real estate open house. Ms. Gimeno testified that often when she felt scared or threatened by Mr. Rato, she threatened to call the police. Mr. Rato told her that she was going to die if she called the police.
[8] Ms. Gimeno testified that during the course of an argument in her home, Mr. Rato pulled a knife out of a butcher’s block and threatened her with the knife. Ms. Gimeno called 911. The police attended, however, Ms. Gimeno told the police a contractor had pulled the knife on her and fled. She told the police that she could not remember the contractor’s name. According to Ms. Gimeno, after she called the police she ushered Mr. Rato out of his house and told him to wait. After the police left the area, Ms. Gimeno drove Mr. Rato home. Ms. Gimeno testified that she only called the police in order to demonstrate to Mr. Rato that she was not afraid to call the police when she felt threatened and wanted him out of the house.
[9] In cross-examination, Ms. Gimeno was pressed that if she was so afraid of Mr. Rato why did she not call the police when he returned to the house. Ms. Gimeno responded that “it was an abusive relationship” and that she even continued to talk to Mr. Rato while the police waited outside of her house. Furthermore, she testified that she was terrified to tell the police at that time how he was abusive.
[10] In cross examination, Ms. Gimeno realized that the incident actually occurred in October 2017 as she had gone to Miami, Florida for work in November.
[11] Mr. Rato testified that he was present at her house when Ms. Gimeno called the police. He claimed that Ms. Gimeno had picked him up earlier and drove him to her house. He testified that he asked Ms. Gimeno to be more “professional” and stop coming to his home unannounced. Mr. Rato agreed that when the police were called, Ms. Gimeno asked him to go wait in the park down the street and told him that “everything will be fine”. Mr. Rato testified that Ms. Gimeno was “doing some kind of drugs” on this occasion. However, he was never asked to elaborate.
The threat to kill Ms. Gimeno:
[12] Sometime between December 17 and 20^th^ 2018, while at a Holiday Inn hotel in Mississauga, there was an argument between the two of them in the hotel room after having sex. After the police were called in October, Ms. Gimeno testified that she and Mr. Rato regularly met at a hotel to have sex. She also testified that one of her closet friends did not approve of the relationship, so she decided to keep it more private.
[13] During the course of the evening, Ms. Gimeno attempted to end the relationship. Ms. Gimeno attempted to leave the hotel room but was stopped by Mr. Rato. He took a shoe lace from his boot and held it up to Ms. Gimeno’s face and angrily said “I could use this to kill you”. Ms. Gimeno testified that she felt like a prisoner in the hotel room during the incident and was very fearful. Eventually she calmed down Mr. Rato and diffused the situation. She was able to leave the room and Mr. Rato followed. After they both entered the hotel elevator, Mr. Rato kicked the elevator door. As well, according to Ms. Gimeno another verbal argument occurred in the hotel lobby.
[14] In cross-examination, Ms. Gimeno conceded that she could not provide the precise date of the threat. She could only give a range. Ms. Gimeno admitted that they both had been drinking previously in a bar and using cocaine in the hotel room. She testified that she could not recall the colour of the lace when Mr. Rato held it in front of her face and threatened to kill her. She testified that she was not “100% sure” whether or not the boot lace was brown. Moreover, she conceded that in her statement to police she omitted to tell the police that Mr. Rato both kicked the elevator wall and argued with her in the lobby. In cross examination, Ms. Gimeno agreed that after the incident she did drive Mr. Rato to his home. However, she really wanted to drive him to the police station.
[15] Mr. Rato denied that he threatened to strangle Ms. Gimeno in the hotel room with his boot lace that night. He also denied using cocaine that night but commented that Ms. Gimeno “probably” used cocaine. He agreed that they were at a bar drinking before going to the hotel and engaged in sex. He testified that they argued however, it was an argument about several issues including, her dangerous electrical renovations, the cost of hiring someone other than Mr. Rato and phone calls from a “guy” that she met in Miami. He testified that there was no argument in the lobby but rather they simply “talked” outside of the hotel. Mr. Rato testified that after they talked outside, he did not want to go to her house and that he “didn’t want to talk to her anymore”. Ms. Gimeno drove Mr. Rato to his residence.
The threat to blow up Ms. Gimeno’s house:
[16] While Ms. Gimeno was away visiting her parents over Christmas, the pipes burst in her home that caused damage. Ms. Gimeno advised Mr. Rato that she was not going to hire him to clean up the mess. She intended to hire other workers. Ms. Gimeno hired three (3) Latinos workers. This agitated Mr. Rato given that he was Latino as well, originally from Argentina. There was an angry dialogue between the parties. At which point on or about January 11, 2018 Mr. Rato threatened to either blow up her house or set the house on fire. Concerned about the safety of herself and her tenants, Ms. Gimeno fired the three workers and hired a secondary crew of polish workers.
[17] Ms. Gimeno testified that Mr. Rato texted and verbally threatened to blow up her house. She testified that during this period of time and leading up to January 13, Mr. Rato repeatedly threatened to blow up her house or set it on fire.
[18] Mr. Rato denied that he threatened to blow up Ms. Gimeno’s house. He testified that any reference to Ms. Gimeno’s home blowing up or catching fire was in relation to Ms. Gimeno’s request to move an electrical panel in her house. Mr. Gimeno testified that he was not licenced to perform this sort of electrical work and that the job would require a city permit. According to Mr. Rato’s testimony, he was very concerned about Ms. Gimeno’s reckless decision to just hire anyone to do this kind of job and without the necessary permit. His text to Ms. Gimeno on or about January 11 that stated “this house is going to explode” was in reference to his opinion that cutting corners will lead to an explosion. Mr. Rato explained that his reference to the Hollywood movie character “Jhon [sic] Rambo” in a text was in relation to how the character was able to repair many items. Mr. Rato testified that the meaning behind the text was that he could not be John Rambo and help Ms. Gimeno with the electrical problem if she did not have the permit.
The criminal harassment, the test messages and the photos of the firearms:
[19] In the days that followed there were repeated text messages from Mr. Rato to Ms. Gimeno. However, before he made the alleged threat to blow up the house to Ms. Gimeno by text, Mr. Rato sent Ms. Gimeno a photograph of an automatic or semi-automatic rifle and a hand gun. This was sent to Ms. Gimeno, while she was again, in the midst of breaking up with Mr. Rato. Ms. Gimeno texted that she was “taking this to the police…you went too [sic] far dude, I don’t know what is going on in your head”. Mr. Rato continued to text Ms. Gimeno about the relationship and repeatedly contacted her. He texted about how she had ruined his life, that he was “crazy”, threatened to damage her real estate career, and warned her not to “fuck” with him. Ms. Gimeno asked him to stop texting her and that she was scared. She stated on several occasions that she wanted to call the police. On January 14, 2018, Ms. Gimeno contacted the police. Subsequently, Mr. Rato was arrested.
The Break in:
[20] In cross-examination, counsel showed Ms. Gimeno a series of text messages from herself to Mr. Rato dated January 28 and 29^th^, 2018. Ms. Gimeno confirmed that over the two day period she sent to Mr. Rato eight (8) text messages, two photographs with messages and attempted seven (7) voice calls. Mr. Rato did not respond.
[21] In cross-examination, Ms. Gimeno testified that her home was broken into the previous evening. She felt that Mr. Rato was either directly responsible or hired someone to break into her home since the only item stolen was a BB gun that he had previously given to her as a gift. Although she was very frightened, she never called the police to report the break and enter.
[22] In cross-examination, Ms. Gimeno agreed that she asked that Mr. Rato call from a different phone number. She also confirmed that the texts show that she went to a restaurant and waited for him. The text messages also showed that she was very upset and scared that either Mr. Rato or someone directed by Mr. Rato, entered her home. She testified that notwithstanding she previously called the police regarding Mr. Rato’s conduct she did not call the police this time. Ms. Gimeno confirmed that she was fully aware that since Mr. Rato had been arrested that he was prohibited from contacting Ms. Gimeno.
[23] In cross-examination, Ms. Gimeno stated that she contacted Mr. Rato directly as he had the power to stop any further break-ins. She testified that she was fearful then of Mr. Rato and is presently still fearful.
Analysis:
Credibility: Mr. Rato’s evidence:
[24] This, of course, is a case that involves an assessment of the reliability and credibility of the evidence given by Ms. Gimeno and Mr. Rato.
[25] The leading case on assessing credibility and the standard of proof is R. v. W.D. (1991), 1991 CanLII 93 (SCC), 63 CCC (3d) 397 (S.C.C.). I must apply the following test: First, if I accept Mr. Rato’s evidence then he must be acquitted. Secondly, if I do not believe Mr. Rato’s testimony, I could still be left with a reasonable doubt, and again I must acquit Mr. Rato. Thirdly, even if Mr. Rato’s evidence does not raise a reasonable doubt, I have to consider all of the evidence including the evidence adduced by the Crown to satisfy myself that the Crown has met its high burden and proven beyond a reasonable doubt all of the essential elements of the offences against Mr. Rato. This does not mean that defence evidence must be viewed in isolation. In fact, to the contrary the defence evidence is to be assessed in the context of the entire case. I must assess the evidence of Ms. Gimeno, other crown evidence and Mr. Rato, in light of the totality of the evidence, which includes and permits comparing and contrasting the evidence of those witnesses. See: R. v. Hull, 2006 CanLII 26572 (ON CA), [2006] O.J. No. 3177 (C.A) at para. 5. I am also entitled to rely on none, some or all of a witness’s evidence.
[26] A non-exhaustive list of factors that I can use in assessing witness’s credibility include:
i. The quality of the witness’s memory (e.g. impact of alcohol/drug consumption).
ii. The consistency or inconsistency with the testimony of other witnesses, and/or objective evidence such as video footage.
iii. The inconsistencies within the witness’s own testimony including prior inconsistent statements.
iv. The ability to make accurate observations at the time of the events.
v. The inherent reasonableness or implausibility of the testimony.
[27] In his submissions, counsel stated that the first prong of W.D. is “out the window” and that standing alone Mr. Rato’s evidence should not be believed. Not surprisingly the Crown concurred.
[28] I agree. I found most of Mr. Rato’s evidence not worthy of belief. He was an untruthful witness. Moreover, with the most straightforward questions Mr. Rato paused for long periods of time before he answered and often asked the Crown to repeat a simple question.
[29] His testimony at times was border lined absurd and farcical. For example, Mr. Rato testified that the purpose that he sent to Ms. Gimeno the image of two highly powerful and lethal firearms, at a moment in time that Ms. Gimeno was attempting to end the relationship, was to see if she wanted a “present” from him. Mr. Rato’s testimony and his credibility were further undermined on this point by the fact that the image did not contain a text message that suggest that the firearms were “presents” for Ms. Gimeno. Furthermore, Mr. Rato sent the image immediately after Ms. Gimeno texted to Mr. Rato that he was “…acting creepy”. In fact, I find without any reservation that Mr. Rato sent this image to intimidate, threaten and instill fear. Ms. Gimeno’s concern over her safety and Mr. Rato’s instability was clearly stated in her immediate response: “I’m done I’m taking this to the police…You went too far, dude…I don’t know what is going on in your head”.
[30] I completely reject his evidence that Mr. Rato wanted to leave the relationship and that his text messages were in regards to unsafe renovations and electrical work. The text messages in Exhibit #1 never referenced his overarching concern regarding the requirement of permits. In fact, his text messages were consistent with Mr. Rato’s burning jealously that she hired other men to do the remaining work. For example, the following texts exhibited his concern about other men being involved:
“Do you think THAT you’re going to tell me GOODBYE and then bring trades people okay do it and then I will do my own stuff”
“no way”
“Rosie I don’t want any Guy doing Renovations”
[31] Ms. Gimeno responded:
“I’m going to the cops with these messages…You’ve been warned
[32] Mr. Rato not willing to stop forwarded the following text message:
“You cannot be in real estate then”
“If I cannot be Jhon Rambo [sic]”
“Do not underestimate people”
[33] Ms. Gimeno responded:
“Talking like that I will go the cops…I’m done with this shit…Who the fuck do you think you are”
[34] Mr. Rato messaged back to Ms. Gimeno:
“And for what”
“What are you getting out of it”
[35] In the following next text message response Ms. Gimeno clearly demonstrated her palpable concern, fear and frustration with Mr. Rato’s messaging and his state of mind:
“Because you tell me you’re going to burn down my house, kill and shoot me, you are fucken [sic] crazy and I don’t trust you”
“I need to protect myself because a person that talks like that is seriously sick”
[36] Later in the conversation Mr. Rato texted the following to Ms. Gimeno:
“NOT a good person at all”
“I am not doing you wrong, it is doing me wrong”
[37] Ms. Gimeno responded incredulously:
“I am doing you wrong??”
[38] Mr. Rato responded ominously:
“NO”
“But us Latin Americans are crazy”
“Don’t fuck with me”
[39] He continued without interruption by Ms. Gimeno and issued a series of veiled threats to damage her real estate career by speaking to her manager “Joe” and taking her to court when he text the following:
“Tomorrow I’m going to the office to talk to Joe”
“Don’t you worry”
“You playing with my life I will send you to court”
“You are going to lose your real estate licence”
[40] Ms. Gimeno responded:
“I don’t want to see you”
“I am going to call the cops today enough is enough”
“You’re going to get yourself arrested”
“Are you testing me or what What is going on with your”
[41] Mr. Rato’s responded with comments such as:
“Ok”
“Go”
“Be ready”
“Do you want to test me?”
“OR WHAT is going on with you”
[42] At this point in the conversation, Mr. Rato demanded several times that Ms. Gimeno call him. Ms. Gimeno indicated that it would be “wrong” to call him and that the entire stressful situation has given her a headache. Again, she repeated to Mr. Rato that she was scared of him. Mr. Rato responded with the following final messages:
“You don’t know about a mission with me stop”
“Afraid I never went to far”
“You don’t know me when I’m crazy”
[43] In my view, Mr. Rato embarked upon a course of conduct to intimidate Ms. Gimeno and to remain in the relationship by threatening both her real estate career, and personal safety. Mr. Rato’s evidence that he wished to leave the relationship was completely undermined by this text message conversation. There was very little evidence that accepted from Mr. Rato beyond his testimony that he worked for Ms. Gimeno and that he was involved in a romantic and physical relationship with Ms. Gimeno. I am not left in a state of reasonable doubt by any of Mr. Rato’s evidence. He was wholly an unbelievable witness and therefore, Mr. Rato fails on both grounds as set out in the W.D. test.
Credibility: Ms. Gimeno’s evidence:
[44] In my view, Ms. Gimeno’s was a credible witness. She gave her evidence in a straightforward and no nonsense manner. Although the demeanour of a witness must be treated carefully and cannot be solely relied upon in assessing a witness’s credibility, it is one of several factors that can be taken into consideration. She did not over exaggerate her evidence. In fact, she made admissions regarding her drug use. She conceded that she was using cocaine that evening that she was threatened in the hotel room by Mr. Rato. She made other admissions that were contrary to her interests. For example, she admitted that she knew she was inviting or encouraging Mr. Rato to commit a breach of the terms of his bail by repeatedly contacting him after his arrest and asking that they meet. However, that was for the purpose of ensuring her safety due to the break in that she felt Mr. Rato was responsible for. I want to be clear that I do not hold Mr. Rato responsible for the break-in into Ms. Gimeno’s house. There is no reliable proof that he was responsible. However, it did demonstrate that she had another reason to reasonably fear for her safety.
[45] She also conceded that she omitted to tell the police that Mr. Rato had kicked the elevator wall and that they argued in the lobby of the hotel in December. She was uncertain regarding the colour of the boot lace that Mr. Rato used to threaten her life. However, I find these were minor omissions and did not undermine her credibility.
[46] With respect to the incident in October, and Ms. Gimeno misleading the police regarding the true identity of the culprit that pulled a knife on her, I find that she did this for the reasons that she stated in her evidence. I find her explanation for doing so wholly credible. She wanted to send a message to Mr. Rato that she was prepared to stand up for herself and that she was not afraid to call the police to get Mr. Rato to leave. She was not prepared to reveal his identity at that time to police for fear of his retribution. He had taunted her to call the police previously and warned her of the dire consequences if she did so.
[47] I find that overall Ms. Gimeno was a very credible, and generally, a reliable witness. However, I do have some reservations accepting her evidence entirely on the events that occurred in the hotel room.
Conclusion:
[48] Turning now to the first charge on the Information that Mr. Rato uttered a death threat to Ms. Gimeno in the hotel room in December 2017, I am left only with Ms. Gimeno’s evidence. Ms. Gimeno admitted that she drank alcohol that evening and ingested cocaine. Her perceptions of the events may have been affected. This is a factor that weighs against Ms. Gimeno’s reliability as a witness, however, only on this occasion. Having said that, I believe that Mr. Rato was probably aggressive and menacing towards Ms. Gimeno in the hotel room as she testified about, however, that falls well short of the standard of proof beyond a reasonable doubt required in a criminal trial. Therefore, I cannot be satisfied beyond a reasonable doubt that Mr. Rato uttered a threat to Ms. Gimeno to cause death. Count #1 is dismissed.
[49] With respect to the second charge that Mr. Rato uttered a threat to blow up Ms. Gimeno’s house, I accept Ms. Gimeno’s evidence on this point. Moreover, her evidence is corroborated by the text message sent by Mr. Rato that references that her house “is going to explode” and her response where she cited the fact that he was “going to burn down” her house. This text was sent immediately after Mr. Rato mentioned the house exploding. I also accept her evidence that Mr. Rato threatened to blow up her house more than on one occasion in order to intimidate Ms. Gimeno from leaving the relationship. Moreover, it made no difference in my assessment of Mr. Rato’s text that counsel submitted that he never texted “I am going to blow up your house”. The text was sent after he sent a threatening photograph of firearms. Furthermore, the text was also sent while she was trying to break off her relationship with Mr. Rato. Therefore, I find that the Crown has proven beyond a reasonable doubt that Mr. Rato threatened to cause damage to Ms. Gimeno’s property. There will be a finding of guilt on count #2.
[50] In R. v. Elliott, [2016] O.J. No.310, Justice Knazan outlined the essential elements and the law of criminal harassment as follows:
42 Section 264 of the Criminal Code reads:
- (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.
(3) Every person who contravenes this section is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction.
(4) Where a person is convicted of an offence under this section, the court imposing the sentence on the person shall consider as an aggravating factor that, at the time the offence was committed, the person contravened
(a) the terms or conditions of an order made pursuant to section 161 or a recognizance entered into pursuant to section 810, 810.1 or 810.2; or
(b) the terms or conditions of any other order or recognizance made or entered into under the common law or a provision of this or any other Act of Parliament or of a province that is similar in effect to an order or recognizance referred to in paragraph (a).
(5) Where the court is satisfied of the existence of an aggravating factor referred to in subsection (4), but decides not to give effect to it for sentencing purposes, the court shall give reasons for its decision….
43 In R. v. Kosikar,1 Justice Goudge, following Justice Proulx in the Quebec Court of Appeal in R. v. Lamontagne,2 agreed with this description of the five elements of the offence that originated in a 1997 decision of the Alberta Court of Appeal in R. v. Sillipp:3
It must be established that the accused has engaged in the conduct set out in s. 264(2) (a), (b), (c), or (d) of the Criminal Code;
It must be established that the complainant was harassed;
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;
It must be established that the conduct caused the complainant to fear for her safety or the safety of anyone known to her; and
It must be established that the complainant's fear was, in all of the circumstances, reasonable.
44 The description essentially rearranges the elements in the offence that emerge from the section. In Lamontagne,4 Justice Proulx rejoins the fourth and fifth elements as they are in the section, while adopting the Sillipp description, and organizes the actus reus into three elements, from which I take the following:
Actus Reus - the culpable behaviour and consequences
45 The three elements of the actus reus are:
*the act prohibited under subsection (1), in this case repeatedly communicating directly or indirectly under subsection (2)(b),
*the fact that the victim is harassed and
*the effect that this act provokes in the victim.
46 Harassment means causing someone to be tormented, troubled, worried continually or chronically plagued, bedevilled and badgered. It is not sufficient that the complainant be "vexed, disquieted or annoyed." (Kosikar, paragraph 21)
Mens Rea - the mental element
47 With respect to the mental element of the offence, all of the appeal courts resort directly to subsection (1) - the defendant must know or be reckless as to whether the complainant is harassed - and add wilful blindness.
48 While addressing this mental element, the specific statutory state of mind, the authorities from three of the provinces (Sillipp, Lamontagne and Kosikar), were dealing with the prohibited behaviour in subsection (d), threatening. Only R. v. Rybak5 in the British Columbia Court of Appeal dealt with (b), repeatedly communicating. That case involved delivery of a package, a dinner invitation and a personal appearance at the complainant's house on Valentine's Day.
49 Those courts did not address the mens rea of communicating directly or indirectly. While in most cases the general intent required for committing that part of the actus reus will be self-evident, since the case involves Twitter I address the mental element in relation to the actus reus of repeatedly communicating. This is because some of the communication that is alleged to constitute the repeated communication is tweets using hashtags that could have been conveyed to the complainants or that they could have seen, but Mr. Elliott did not necessarily intend or know that.
50 The mental element that the charging section and the charge specify relates to the part of the actus reus that involves awareness of the complainant being harassed. Justice Proulx makes clear in Lamontagne that the complainant must be harassed in fact as a consequence of the prohibited act, and Justice Goudge in Kosikar accepts that the complainant must be in a state of being harassed as a consequence of the prohibited contact.
51 Further, judicial interpretation of the section establishes that the defendant must be responsible for the harassment that the complainant is experiencing. At paragraphs 15 and 16 of Lamontagne, Justice Proulx states as follows:6
Ce deuxième élément de l'actus reus, à savoir que la plaignante soit harcelée, ressort plus clairement de la version anglaise du texte qui exige la connaissance que la plaignante "is harassed", alors que la version française réfère à la connaissance que la plaignante "se sente harcelée". Dans l'arrêt R. v. Ryback, (1996), 1996 CanLII 1833 (BC CA), 105 C.C.C. (3d) 240, la Cour d'appel de la Colombie-Britannique a aussi interprété l'art. 264 comme exigeant la preuve de la connaissance par l'accusé que la plaignante a été de fait harcelée, concluant que le premier juge n'avait pas erré "in finding that appellant knowingly or recklessly harassed the complainant". (Rybak as spelled in original) D'ailleurs, quand dans la version française il est stipulé que la connaissance ou l'insouciance que la plaignante se sente harcelée cela implique que l'auteur, par son fait, a contribué au harcèlement de la plaignante puisqu'on pourrait difficilement lui imputer une connaissance d'un état dont il n'est pas responsable.
52 English version from 1998 CanLII 13048 (QC CA), 129 C.C.C. (3d) 181:
The second element of the actus reus, that is the complainant was harassed, appears even more clear in the English version of the text which requires knowledge that the victim "is harassed", whereas the French version refers to knowledge that the complainant "feels harassed". In R. v. Ryback (1996), 1996 CanLII 1833 (BC CA), 105 C.C.C. (3d) 240, the British Colombia Court of Appeal also interpreted s. 264 as requiring proof of the accused's knowledge that the complainant was in fact harassed, concluding that the trial judge had not erred "in finding appellant knowingly or recklessly harassed the complainant".
Furthermore, when in the French version it is stipulated that there be knowledge or recklessness that the complainant feels harassed, that implies that the perpetrator, by his own act, contributed to the harassment of the complainant because one can hardly impute to him knowledge of a state of being which he is not the cause of. (Emphasis only in English translation)
53 I rely on the original as well as the translation because in my opinion it is arguable whether or not the apparently unofficial English version fully conveys Justice Proulx's "on pourrait difficilement lui imputer une connaissance d'un état dont il n'est pas responsable." Also, the translation has emphasis that does not appear in the online original.
Knowledge
54 Knowledge means actual knowledge; as the Ontario Court of Appeal stated in R. v. Zundel,7 the accused must know. A specific state of mind is specified in this section, which does not admit of anything less than knowledge, or recklessness as contemplated by the section and the form of charge in the Criminal Code. Don Stuart argues8 that Zundel is wrong and that the ruling is moot because the Supreme Court declared the section in question unconstitutional. But I hold, following the reasoning in Zundel, that knowledge requires that the accused actually knew. This also flows directly from the word without resort to authority: "knowing" requires that someone knows.
55 Kosikar includes wilful blindness, which is a narrow, specific state of mind. In R. v. Brisco, the Supreme Court said wilful blindness can "substitute for actual knowledge whenever knowledge is a component of the mens rea."9
A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realised its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge.10
56 The specific mental element of this offence has another feature: it requires knowledge of the mental or emotional state of another. A defendant's state of mind is always to be inferred, by either circumstantial evidence or their statements. Here, the specified intent has an unusual feature because it is a mental element of a crime that requires knowledge of another's mental or emotional state. To determine what the defendant knew, I must analyze what he must have inferred about the complainants' states of mind.
Recklessness
57 Recklessness means actual foresight of risk, according to Don Stuart, who cites R. v. Sansregret (1985). It has an element of the subjective. Courts have defined it in different ways but essential to all is an awareness of risk and a decision to act notwithstanding it. As Justice McIntyre said in Sansregret:11
"It is found in the attitude of one who, aware that there is a danger that his conduct could bring about the results prohibited by the criminal law, nevertheless persists, despite the risk."
Fear for Safety
58 The final requirement of this offence is that the complainant have a fear for her safety that is reasonable in all of the circumstances. The fear must be proven as a fact, though this is subjective to the complainant. The fear must be for her safety. The fear must be reasonable in all of the circumstances.
59 The word "reasonable" imports an objective evaluation of another person's - the complainant's - feeling, however real and genuine that feeling might be.12
60 And the word "all" is as much a part of the section as every other word in it. Thus I must objectively evaluate the complainants' fears in view of all of the circumstances. In a charge of criminal harassment by means of Twitter, when there can be multiple tweets between the complainant and the defendant within a few minutes, and many tweets from others, some of which contribute to the circumstances, that can amount to a lot of circumstances to consider.
[51] As set out earlier, the Crown must prove five elements of the offence in relation to each charge: repeated communication, that Ms. Gimeno was harassed, that Mr. Rato knew she was harassed, that the communication caused her to be fearful for her safety, and that the fear was reasonable in all the circumstances. The prosecution must prove each element beyond a reasonable doubt.
[52] While it may be convenient to list the elements separately, they intertwine and interact in section 264 and the charge. The repeated communication explicitly must cause the fear, and implicitly must be the reason that the person is harassed, by either the nature or the frequency of the communication.
Did Mr. Rato know that he was harassing Ms. Gimeno?
[53] There was no direct evidence that Mr. Rato was aware that he harassed Ms. Gimeno with his text messages. However, Mr. Rato struck me as an intelligent man that would not misunderstand Ms. Gimeno’s words and phrases. Ms. Gimeno explicitly told Mr. Rato that she was “done”, that he had “gone too far” and that she was “going to the cops today enough is enough”. On the circumstantial proof of what he knew regarding the state of the relationship, I can infer from his text messages of what he knew. Mr. Rato often responded about himself and how he felt. He stated that “Latin Americans are crazy”, “don’t fuck with me”, “you are going to lose your real estate licence”, “be ready”, “Do you want to test me”, and “you don’t know me when I am crazy”. Mr. Rato’s responses were after Ms. Gimeno warned him that she was scared, prepared to go to the police and was concerned about his mental stability. The language that Mr. Rato used was harassing.
[54] In the words of Justice Proulx in Lamontagne, Mr. Rato was responsible for her being harassed and so knowledge can be imputed to him.
[55] It is not necessary to deal with wilful blindness or recklessness. This element of the offence is established beyond a reasonable doubt in relation to Ms. Gimeno.
Fear for her safety:
[56] It is not enough that the Crown only prove that Mr. Rato repeatedly communicated with Ms. Gimeno directly or indirectly and that he knew that she was harassed as she was, but the repeated communication must have caused her to reasonably fear for her safety in all the circumstances. Ms. Gimeno testified that she was scared of Mr. Rato. She was scared that he would harm her and that he would ruin her real estate career. Her text message responses were indicative of her fears. She explicitly stated that she was scared and fearful. I am not left in a state of reasonable doubt that Mr. Rato’s repeated communication caused Ms. Gimeno to be afraid for her safety. Therefore, there will be a finding of guilt on count #3.
The Conclusion:
[57] Mr. Rato is guilty of counts #2 and #3. Count #1 is dismissed.
Released: March 1, 2019
Signed: Justice P.T. O’Marra