ONTARIO COURT OF JUSTICE
CITATION: R. v. Vince, 2021 ONCJ 647
DATE: 2021 12 09
COURT FILE No.: Guelph #20/1771
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
Christian Vince
Before Justice M.K. WENDL
heard on November 23rd, 2021
Reasons for Judgment released on December 9th, 2021
C. Vince.......................................................................................................... Self-Represented
L. Fishleigh……………………………………………….……………………….486 Counsel
M. Dolby.......................................................... Counsel for the Provincial Crown Attorney
WENDL J.:
[1] Christian Vince is charged with criminal harassment by besetting or watching the workplace of his former partner Kimberly McGarr. Most of the facts in this case are not in dispute. Mr. Vince did not testify on his own behalf and no other defence evidence was called. As a result, the question for this court to resolve is whether the Crown has met their onus and the facts amount to criminal harassment.
FACTS
[2] The accused, Christian Vince, and the complainant, Kimberly McGarr, although legally married, have been separated since 2005. They have three children together, now 28, 24 and 18, respectively. Back in 2019, the youngest went on a road trip with Mr. Vince and decided to move in with his father, leaving his mother’s home. He was 16 at the time.
[3] As a result of his youngest moving in with him, Mr. Vince, who is of limited financial means, was of the view that Ms. McGarr should pay him child support. Ms. McGarr took the position that, since she raised the children without any financial support from Mr. Vince, if Mr. Vince wanted child support, he should take her to court. Mr. Vince did not take her to court. Instead, on May 29, 2020, he camped out in front of her home, yelling, with a sign indicating, “POS, Mother chooses Jamie Dennison over her son”. Also, on his van the accused had the following writing “Kim McGarr is a deadbeat mom, paid zero support, 519-xxx-xxx.”[^1]
[4] In reaction to Mr. Vince’s conduct on the 29th, Ms. McGarr’s new boyfriend called the police. They advised him that if he persisted in his actions he could be charged with criminal harassment and/or mischief. Ms. McGarr testified that the accused’s actions made her fearful.
[5] Shortly after this incident, on June 2, 2020, Mr. Vince showed up at Ms. McGarr’s work with similar writing on this van, “Thank you, all healthcare workers for your service except for Kim McGarr, Kim McGarr is a deadbeat mom, our son is hungry.” Mr. Vince was asked to leave the premises and, again, Ms. McGarr felt fearful.
Law & Analysis
[6] Criminal harassment is a complicated offence and conceptually more difficult than most. The essential elements of the offence were distilled in Sillipp:
It must be established that the accused has [without lawful authority] 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 [by the conduct].
It must be established that the accused who engaged in such conduct knew that the complainant was harassed or was reckless or willfully 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.[^2]
[7] The first element of the offence requires proof of one the following acts as set out in 264(2) (a)-(d):
(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.
[8] Specifically, Mr. Vince was charged under section (c) with besetting or watching the workplace of Ms. McGarr.
[9] Recently, Block J., in Harper, reviewed the definition and application of “watching or besetting” under section 264(c). The following passage is edifying and worth quoting in full[^3]:
The phrase "watching or besetting" is not defined in the Criminal Code.
In R. v. Eltom, 2010 ONSC 4001, Justice Trotter, as he then was, considered the interpretation of "watching or besetting" contrary to section 264(2)(c) of the Code. He held that the use of the conjunction "or" indicates that the phrase is intended to be interpreted disjunctively. Justice Trotter also adopted, in para. 13, the conclusion that: "watching is passive in nature and besetting is active. Watching is continually observing for a purpose and besetting has a physical element of approaching and, with respect to another person, importuning or seeking to argue with that person."
In this case Justice Trotter, sitting as a summary conviction appeal court, was considering the failure of the trial judge to evaluate the conduct of an appellant who attended the mall where the complainant was working on a number of occasions. There is no indication that he intended to restrict the meaning of "beset "to exclude an "approach" that resulted in the immediate, unprovoked assault on the complainant's companion.
The definition of "besetting" as an approach combined with "importuning or seeking to argue with a person" owes much to the multitude of civil contempt cases concerning picket lines and demonstrations at abortion clinics. In this regard see Everywoman's Health Care Centre Society (1988) v Bridges (1993), 1993 1276 (BC SC), 109 D.L.R. (4th) 345 (B.C.S.C.) at para 26.
Watt J.A., in his definitive Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Thomson Reuters Canada, 2015) at p. 772, includes the following definition:
To beset a place means to be present at or near it in a troubling way.
To watch a place means to observe it with continuous attention.
Dictionary definitions of "beset" encompass assault. The current on-line edition of Merriam-Webster defines "beset" as "trouble, harass" and "to set upon, assail". Vocabulary.com defines "beset" as "assail or attack on all sides". The current on-line edition of the Oxford Advanced Learner's Dictionary defines "beset" as "to affect someone in an unpleasant or harmful way".
[10] Ultimately, in Harper, Block J., found that the accused, also the complainant’s former husband, had “beset” the complainant when he suddenly appeared in front of her, masked, in the complainant’s neighbourhood, close to her home, and assaulted a male friend who was with her at that time. Block J. stated, “The least that can be said about Mr Harper's sudden attack is that, in the words of Justice Watt, it was an approach "in a troubling way".[^4]
[11] Here, at bar, Mr. Vince attended twice to the vicinity of Ms. McGarr, in a short period of time, once in front of her home and the second time in front of her work. Both times he appeared with disparaging signage indicating that Ms. McGarr was a “deadbeat”.
[12] Clearly, the only inference that can be drawn from these instances was that Mr. Vince intended to apply pressure to the complainant to obtain child support. The definition of besetting adopted by Trotter J. in Eltom is apt “besetting has a physical element of approaching and, with respect to another person, importuning or seeking to argue with that person.”[^5] Therefore, I find that Mr. Vince beset Ms. McGarr by attending to the workplace with disparaging signage, without lawful authority, on the 2nd of June, 2020. To put it in the manner of Block J.: “the least that can be said about Mr. Vince’s conduct is that “it was an approach in a troubling way.”
[13] I pause to note here that the information charges Mr. Vince with besetting or watching. As Trotter J. said in Eltom “besetting or watching” is disjunctive^6, therefore the Crown only needs to prove one or the other for the purposes of this offence.
[14] The second element of the offence of criminal harassment is that that the complainant is harassed by the conduct. Harassed is defined as the feeling of being tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered. As the Court of Appeal stated in Kosikar.
Hence, I think this element of the offence requires the Crown to prove that as a consequence of the prohibited act the complainant was in a state of being harassed or felt harassed in the sense of feeling, "tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered". The statute says nothing that would preclude a single threatening act from producing this consequence. In other words, while being in a harassed state involves a sense of being subject to ongoing torment, a single incident in the right context can surely cause this feeling.[^7]
[15] Based on the evidence, it is unequivocal that Ms. McGarr felt harassed. She was clearly troubled, badgered and, even, disturbed, by her former husband’s conduct. He appeared in front of her home, yelling, and with signs, and at work with signs as well, calling her a POS deadbeat mom who lets her son go hungry. Who would not be troubled and disturbed by this?
[16] The third element of the offence is the mens rea component. The Crown must prove that Mr. Vince knew or was reckless or willfully blind to the fact that Ms. McGarr felt harassed.
[17] The only conclusion I can draw was that Mr. Vince was aware that Ms. McGarr felt harassed. Foremost, the only purpose that can be inferred from his conduct was that he intended to badger or harass her into a settlement over child support. Second, he was told by the police after the first incident that he could be charged with harassment, yet he continued. Third, the simple that fact that the police were called because of his conduct after the first incident would have been an indication to him that the complainant felt harassed. It makes no difference in this analysis that Ms. McGarr’s current boyfriend called the police and not her.
[18] The final two elements of the analysis require proof that the complainant felt fear for her safety and that fear was reasonable. Ms. McGarr testified, and I accept, that she felt fearful for her safety. However, was that fear reasonable? I point out here that the bulk of final submissions was on the issue of the objective reasonableness of Ms. McGarr’s assertion of being fearful for her safety.
[19] I find that Mr. Vince’s conduct was concerning to Ms. McGarr, especially in the context of the dysfunctional relationship that existed at the time, and, as I stated above, I accept that she felt fear as a result of his actions. I must now determine whether that fear was objectively reasonable. From the evidence, it seems that the accused and the complainant have known each other for 29 years. Ms. McGarr testified that the relationship with Mr. Vince was not a good one and dysfunctional, but it was not a violent one. There are no instances of violence in the past. The language used towards Ms. McGarr in the signs was clearly insulting, however, it was not threatening nor is there any evidence that Mr. Vince intimated any assaultive behaviour. Ms. McGarr stated in examination-in-chief that Mr. Vince’s behaviour was aimed at humiliating her in front of her neighbours and co-workers. In addition, in cross-examination she stated the following, “I felt like that was Chris’s goal; if he could humiliate me, then I would hand him some money”. I accept that the goal of Mr. Vince’s campaign was to humiliate her.
[20] The notion of safety not only includes physical safety but psychological safety.
In my view, it was the intention of the legislature that a victim's fear for his or her safety must include psychological and emotional security. To restrict it narrowly, to the risk of physical harm by assaultant behaviour, would ignore the very real possibility of destroying a victims psychological and emotional well-being by a campaign of deliberate harassment. If conduct by an accused person constitutes embarking on a course of conduct that causes a person reasonably to fear for his or her emotional and psychological safety, when viewed objectively, this would, in my view, constitute an offence under this section.[^8]
[21] Harpur J., in Lepp, found that in cases where the alleged fear is psychological or emotional, "safety" refers to one's psychological or emotional state of health or ongoing well-being.[^9]
[22] While the fear must be measurable, it is not necessary for the victim to be terrified. In Goodwin, the British Columbia Court of Appeal rejected the notion “that victims of harassment must suffer ill health or major disruption in their lives before obtaining the protection of s. 264”.[^10]
[23] In Szostak, the Court of Appeal of Ontario adopted the following threshold in relation to psychological or emotional harm "fear for [one's] safety" included "a state of anxiety or apprehension concerning the risk of substantial psychological harm or emotional distress, in addition to physical danger or harm".[^11]
[24] In Vandoodewaard, sitting as a summary conviction appeal court, Durno J. noted that the fact the appellant had never been violent in the past is not the issue. What has to be feared is the complainants' physical, psychological or emotional safety.[^12]
[25] In Coppola, Wolder J., found that the accused's dogged pursuit to destroy the complainant's personal and professional reputation by causing her to lose her employment of about 17 years, and leaving her reputation in tatters, constituted cause for the complainant to fear for her psychological and emotional safety. Wolder J. found this fear to be reasonable in the circumstances.[^13]
[26] In the criminal law textbook Manning, Mewett & Sankoff, the authors note that the analysis as to whether the victim was fearful and whether this fear was objectively reasonable, are both case sensitive matters to be addressed in context. This includes consideration of the relationship between the two parties, the measures taken to discourage the conduct in question, and the nature and extent of the prohibited activity.[^14]
[27] First, the relationship between Ms. McGarr and the accused was dysfunctional. She testified:
“We were – we were married and we were dysfunctional, we fought. We have no criminal charges, no assaults or anything like that, but we are very dysfunctional. We are not good at communicating and we fought. Our marriage failed because of it. It’s not a healthy relationship.
[28] Second, the police had informed Mr. Vince to stop his behaviour, yet he continued and went to the complainant’s workplace. This shows a disregard for the complainant’s expression of concerns when the police officer told the accused, he may be charged after the initial incident.
[29] Third, the conduct was clearly aimed at humiliating the accused both at home and at work.
[30] Humiliate is defined as to “make (someone) feel ashamed and foolish by injuring their dignity and self-respect, especially publicly.” Ultimately, to humiliate someone undermines their dignity, it undermines the positive view of themselves and to humiliate undermines their reputation. In my view, the cornerstone to anyone’s psychological and emotional well-being is their dignity or self-respect. In the context of a dysfunctional relationship, Mr. Vince attempted to impugn Ms. McGarr’s reputation publicly to her immediate neighbours and co-workers, people with whom she must have a continued relationship, or at the very least see on the street when she is going for a walk. To humiliate her would take away her feeling of self-worth for herself, but also, potentially, in the eyes to those with whom she would have a regular, even daily interaction. As a result, much like in Coppola, I find that Ms. McGarr’s fear was objectively reasonable. I find Mr. Vince guilty of the offence of criminal harassment.
Released: December 9th, 2021
Signed: Justice M.K. Wendl
[^1]: The number on the sign was that of the complainant.
[^2]: R. v. Sillipp (1997), 1997 ABCA 346, 120 C.C.C. (3d) 384 at para. 18 (Alta. C.A.), leave to appeal to S.C.C. dismissed, [1998] S.C.C.A. No. 3
[^3]: R. v. Harper, [2021] OJ No 78 (ONCJ)
[^4]: Ibid at 45
[^5]: R v Eltom, [2010] OJ No 3021 at 13 (SCJ)
[^7]: R v Kosikar, 1999 3775 (ON CA), [1999] OJ No 3569 (ONCA)
[^8]: R v Gowing, [1994] OJ No 2743
[^9]: R v Lepp, [2019] OJ No 6237 (ONCJ)
[^10]: R. v. Goodwin, [1997] B.C.J. No. 954, 89 B.C.A.C. 269 at para. 22 (B.C.C.A.).
[^11]: R v Szostak, 2012 ONCA 503, 111 OR (3d) 241 at 31 (ONCA)
[^12]: R v Vandoodewaard, [2009] OJ No 5099 at 72 (SCJ)
[^13]: R v Coppola, [2007] OJ No 1624 (ONCJ)
[^14]: Manning, Mewett & Sankoff 5th ed. PART IV — SPECIFIC OFFENCES Chapter 20 — Offences Against the Person IV. CRIMINAL HARASSMENT (d) The Fear Element