DATE: December 13, 2023 ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
KEVIN GOUDREAU
Before Justice B. Green
Heard on November 1st, 2023
Reasons for Judgment released on December 13th, 2023
Ms. MacDonald.............................................................. counsel for the Crown Mr. Burgis........................................ counsel for the defendant Mr. Goudreau
Green J.:
A. Introduction:
[1] Mr. Goudreau is charged with two counts of uttering threats to cause death, two counts of criminal harassment for allegedly repeatedly communicating with the complainants and a single count of breaching his probation order by failing to keep the peace and be of good behaviour.
[2] Most of the facts were not disputed during the trial apart from a few details. On March 31st, 2022, Mr. Goudreau engaged in a very loud, racist, homophobic rant in the backyard outside his basement apartment at nighttime. Amid shouting “Heil Hitler” and offensive epithets, he uttered threats to cause bodily harm and death along with invitations to come outside and have “chat” with him. A gay couple who resided above him heard the threats and hate speech.
[3] Counsel did not dispute that the couple was terrified or that Mr. Goudreau engaged in threatening conduct. Rather, he narrowly focussed the issues to be decided on whether the facts make out all the essential elements of each of the offences. He urged the court to find that the crown cannot prove beyond a reasonable doubt that Mr. Goudreau targeted or intended his hate speech and threats to be communicated directly or indirectly to these two neighbours. Furthermore, Mr. Goudreau was charged with criminal harassment for “repeatedly” communicating with the complainants. This was a singular event of ranting about his personal views and opinions as opposed to “repeated” communication with any particular person.
[4] The crown emphasized that the mental element of the offences includes recklessness. At the very least, when Mr. Goudreau was yelling threats and inviting people to come have a chat with him while uttering homophobic slurs, he was reckless as to whether the couple living above him would feel threatened by him. In addition, he shouted threats and hateful slurs several times, which was more than once, thereby “repeatedly” communicating with them.
[5] It was admitted that Mr. Goudreau was on probation at the time, and he was supposed to be keeping the peace and being of good behaviour. While Mr. Goudreau was not charged with other offences, shouting an abusive, frightening, hate fueled tirade outside a small apartment building in a manner that was loud enough to be disruptive to the occupants interfered with the other tenants’ lawful use and enjoyment of their home. Counsel conceded that the crown could prove beyond a reasonable doubt that Mr. Goudreau’s conduct that night was not keeping the peace and being of good behaviour: R. v. Gosai, [2002] O.J. No. 359 (Ont.S.C.J).
[6] Mr. Goudreau’s ravings were frightening, disturbing, and upsetting to anyone who would feel targeted by his hateful language. The complainants’ fear of him was entirely justified. Counsel emphasized that these established facts do not necessarily mean that his conduct and the consequences of it were the crimes set out in the Information.
[7] The unique facts in this case provide the necessary context to decide whether the crown has proven all the essential elements of the offences of threatening and criminal harassment beyond a reasonable doubt.
B. Facts:
[8] A large home was converted into an apartment building with various units. The entrance to Mr. Goudreau’s apartment was located at the back of the building. He resided in a walk out basement. There was an area near his door with a firepit and some chairs where Mr. Goudreau routinely sat outside. The rear of the apartment building also had a parking lot in a location where tenants had to pass by Mr. Goudreau’s sitting area to access the apartment that had a side entrance or walk around to the front entrance to access the other apartments.
[9] In February of 2021, Ms. Larke and Ms. Stead moved into an apartment above Mr. Goudreau’s place. He is taller than them, older and gruff looking. In contrast, they are two youthful, petite women. In addition to their size and age differences, Mr. Goudreau has a noticeable swastika tattooed on his chest and they are a gay couple. They were understandably worried and uncomfortable with him being their neighbour.
[10] Access to the couple’s apartment was gained through a side door of the building around the corner from the entrance to Mr. Goudreau’s door. They also had an interior door that led to a shared laundry area with Mr. Goudreau. Their unit had a few windows, including a bay window. Most of their windows faced the back area above Mr. Goudreau’s apartment and his sitting area.
[11] Whenever Ms. Larke or Ms. Stead parked their car, they passed by the sitting area outside of Mr. Goudreau’s home. If they saw each other, they were pleasant and cordial. On one occasion, Mr. Goudreau’s partner accidently damaged their car. They were able to resolve the situation amicably. Mr. Goudreau paid for the damages. Shortly thereafter, he vented to Ms. Larke about some financial pressures he had been experiencing and he was upset about some bills.
[12] There was one encounter with Mr. Goudreau that scared the couple. Late at night, Mr. Goudreau approached them at the door to their apartment. He was smoking a cigarette and carrying a beer. He was wearing a sleeveless, see-through shirt so they could see his tattoo. He told them that they should not call the police if his music was too loud. He related to them that he vehemently disliked the previous tenant because of issues about noise and he repeated that they should speak to him if there was an issue and not to call the police. They both assured him that they would not call the police. He was persistent but he eventually left their door.
[13] Ms. Larke described Mr. Goudreau’s tone as more aggressive than her partner who described him as relaxed when he spoke to them. It was the content of their conversation with him and the surrounding circumstances that were intimidating. The message was clear, don’t call the police if he was being disruptive or if he was disturbing them.
[14] Considering the proximity of their dwellings, the placement of the windows and this conversation, the only reasonable inference from these facts is that Mr. Goudreau was quite aware that, if he was outside, close to their windows or in his sitting area, his upstairs neighbours could hear him if he was shouting or making loud noises. [1] He told them that this was an issue with the previous tenant of that same apartment.
[15] Around 7:30 p.m. on March 31st, 2022, Ms. Larke and Ms. Stead were at home. Their car was parked in the back which would have been visible to Mr. Goudreau. He knew it was their car because he saw them coming and going from it while they lived there and because of the accident. The interior lights in their apartment would have been visible to anyone outside at the back or at the side of the apartment because they were on at that time and their windows were above his door and sitting area.
[16] They heard a “commotion” and a loud voice outside. Mr. Goudreau was making a lot of noise which was not unusual. He would often “blast” his stereo. Ms. Larke and Ms. Stead closed their windows and tried to tune him out by making noise within their apartment. They had the television on, or they were playing with the dog, and they were occupying themselves with activities to ignore him. Considering the presence of their car, the interior lights, the noise and activity within their home, the downstairs tenant, Mr. Goudreau, knew that his closest neighbours were home.
[17] Initially, they ignored him until they received a call or text from a neighbour who was concerned for their safety because of what Mr. Goudreau was saying outside. As a result, they turned off anything that was muffling the noise and began to pay attention to what Mr. Goudreau was saying in close proximity to their home.
[18] Mr. Goudreau was very agitated and pacing around outside about fifteen feet away from their home. He was yelling and screaming while waving his arms in the air. Ms. Larke heard him shout, “faggot”, “bitches”, “I am going to kill you” and “come outside I want to talk to you”. At points, he used some “futuristic” language about what he was “going” to do and “just wait”. When he wasn’t yelling, he was mumbling, laughing, and kicking the ground. He was gesturing like he was punching the air in front of him. There was no one else outside with him, not even his dog. They did not hear any other voices. He was alone while he was engaging in this conduct.
[19] Mr. Goudreau was moving around but, at one point, he faced their kitchen window and stood there while shouting threats and invitations to come outside. Ms. Larke testified that it could not have been clearer to her, at that time, they were being targeted and his comments were directed at them.
[20] Ms. Larke and Ms. Stead were quite frightened. They turned off the lights and hid from his view. They opened their kitchen window slightly and used their phone to record some of the words that he was shouting. The recording was tendered as an exhibit. Parts of it are inaudible because Mr. Goudreau was walking around the back area. The parts that are audible captured the substance of his rants. He was very loud; his tone was aggressive and angry and what he was saying was abhorrent. Ms. Larke and Ms. Stead explained that Mr. Goudreau’s shouting sounded much louder in person than in the recording.
[21] Mr. Goudreau spued hateful words, profanity, and threats throughout the recording. Of note, he targeted “queers” and “faggots” when he was uttering death threats and inviting them to come outside and have a chat. He said that “they” should not walk down the street and he warned that he was going to kill “faggots”. During the trial, I questioned whether that particular word was used to pejoratively refer to gay men. However, Ms. Larke testified that Mr. Goudreau also referenced “bitches” and “queers”. It does not matter what specific slurs Mr. Goudreau was using that night. The message was clear, he hates gay people, he threatened to kill them and harm them and he was seeking a confrontation with them for that purpose.
[22] Mr. Goudreau’s shouting persisted for about an hour. Ms. Larke and Ms. Stead were so afraid that, after about twenty minutes of indecision, they realized they had to call the police. When officers arrived, they watched one of them approach Mr. Goudreau and speak with him.
[23] That night, they couldn’t sleep because they were so scared especially since he could access their interior door. They immediately looked for a new apartment and moved out within days. They had just paid their rent for the month, so they lost that money.
[24] Mr. Goudreau did not say the complainants’ names during his tirade. Rather, his threats were accompanied by homophobic references as well as references to “bitches”.
[25] There is no direct evidence that Mr. Goudreau knew they were a gay couple as opposed to roommates. He had not been invited inside their home. I do not know if he knew the size of the couple’s apartment or whether it was a one bedroom or a two bedroom. Ms. Larke and Ms. Stead were very careful not to show any public displays of affection or refer to themselves in a manner that would disclose that they were a gay couple outside of their home or around the building.
[26] While they tried to be careful, they thought they might have slipped up once, but they could not be sure if Mr. Goudreau heard that comment. In addition, Ms. Stead recalled that Mr. Goudreau’s partner asked her whether they were a couple shortly before they moved out. She could not say if this conversation was communicated to Mr. Goudreau, and she wasn’t certain about when it took place.
[27] Ms. Larke and Ms. Stead believed that they were the only gay couple in the building. However, since they were not close to all the tenants, they could not say if they were the only gay people residing there. In addition to homophobic words, Mr. Goudreau targeted other groups and communities when he was yelling outside. I do not know if any of the other tenants or surrounding neighbours were people of colour. The complainants did not appear to be women of colour. I do not know whether there were other gay people or people of colour residing in their building or the surrounding neighbours.
C. Legal Analysis:
i. Uttering threats:
[28] Mr. Goudreau uttered threats to kill and cause bodily harm to specific groups of people while swearing and using derogatory language to refer to them. Section 264.1 of the Criminal Code states that:
264.1 (1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat
(a) to cause death or bodily harm to any person.
[29] Mr. Goudreau was recorded uttering death threats which were received by Ms. Larke and Ms. Stead. Nevertheless, counsel submitted that the crown cannot establish beyond a reasonable doubt that he “knowingly” targeted or directed these words at the complainants. Counsel emphasized that there is no evidence from which the only available inference is that Mr. Goudreau knew that his neighbours were gay, and he never said their names that night. Accordingly, counsel urged me to find that the crown has failed to prove the prerequisite mental element of this offence.
[30] In R. v. McRae, 2013 SCC 68, the Supreme Court of Canada explained that the goal of criminalizing uttering threats is to “protect against fear and intimidation”. The words spoken by Mr. Goudreau were threatening and both the complainants were fearful and intimidated by his misconduct. The question is whether Mr. Goudreau “knowingly” conveyed or caused his upstairs neighbours to receive these threats as opposed to randomly shouting at other people around the area or the members of the communities he referred to during his rants.
[31] The Supreme Court outlined the elements of this offence and specifically addressed whether the crown is required to prove that the words uttered were intended to be conveyed to the recipients:
Paras 17 to 19: The fault element is made out if it is shown that threatening words uttered or conveyed "were meant to intimidate or to be taken seriously".
It is not necessary to prove that the threat was uttered with the intent that it be conveyed to its intended recipient or that the accused intended to carry out the threat. Further, the fault element is disjunctive: it can be established by showing either that the accused intended to intimidate or intended that the threats be taken seriously.
The fault element here is subjective; what matters is what the accused actually intended. However, as is generally the case, the decision about what the accused actually intended may depend on inferences drawn from all of the circumstances. Drawing these inferences is not a departure from the subjective standard of fault. In R. v. Hundal, [1993] 1 S.C.R. 867, Justice Cory cites the following words from Professor Stuart which explain this point:
In trying to ascertain what was going on in the accused's mind, as the subjective approach demands, the trier of fact may draw reasonable inferences from the accused's actions or words at the time of his act or in the witness box. The accused may or may not be believed. To conclude that, considering all the evidence, the Crown has proved beyond a reasonable doubt that the accused "must" have thought in the penalized way is no departure from the subjective substantive standard. Resort to an objective substantive standard would only occur if the reasoning became that the accused "must have realized it if he had thought about it". [Emphasis added: p. 883.]
Para. 23: To sum up, the fault element of the offence is made out if the accused intended the words uttered or conveyed to intimidate or to be taken seriously. It is not necessary to prove an intent that the words be conveyed to the subject of the threat. A subjective standard of fault applies. However, in order to determine what was in the accused's mind, a court will often have to draw reasonable inferences from the words and the circumstances, including how the words were perceived by those hearing them. [emphasis mine]
[32] In R. v. Batista, 2008 ONCA 804 at para. 19, the Ontario Court of Appeal highlighted that “in considering whether a threat was made, the ordinary reasonable person would take into account all the circumstances, including the manner in which the words were communicated, the audience to whom it was addressed and the relationship between the writer and the subject of the alleged threat.”
[33] The Court of Appeal cautioned that, when making these decisions, it is important to consider that a reasonable person is “objective, fully informed, right-minded, dispassionate, practical and realistic”: Batista, supra at para. 24. Mr. Goudreau is entitled to a fair trial that is not influenced by revulsion for his personal beliefs or opinions. Freedom of expression, “even offensive expression” is a protected right in this country: Batista, supra at para. 36. Nevertheless, freedom of expression has its limits, including when the words uttered are used to threaten, harass, or intimidate other people.
[34] The complainants had been living together for a year above Mr. Goudreau’s apartment. He saw them coming and going from their home. Some of their windows overlooked his sitting area. He knew that they could hear him if he was being too loud outside because he spoke to them about what they should do and should not do if his music was disrupting them.
[35] That night, Ms. Larke and Ms. Stead were purposefully making noise within their apartment to tune out Mr. Goudreau’s loud voice. Their interior apartment lights were originally on, but they turned them off, which he would have been able to see while standing outside. Their car was parked where he could see it and he knew it was their car. The only reasonable inference from these facts is that Mr. Goudreau knew that his closest neighbours were home and that they could hear him while he was uttering very frightening threats coupled with invitations to come outside and have a chat with him.
[36] Counsel argument was premised, in part, on the assertion that the crown must establish that Mr. Goudreau was aware that Ms. Larke and Ms. Stead were a gay couple to infer that he intended his remarks to be received by them. I do not agree.
[37] Mr. Goudreau was yelling and screaming outside, at night, near an apartment where he knew that his neighbours were present, and they could see and hear him. He knew that two, younger, physically smaller women, who lived together, could hear him while he shouted death threats along with homophobic and misogynist epithets including “queers” and “bitches” [2]. He issued warnings to wait for what would happen next and invitations to join him. Whether Mr. Goudreau knew that this couple was gay or not is not a fact that the crown must prove to make out this offence nor does it matter to the legal analysis.
[38] Mr. Goudreau’s volume, agitation so close to their home, the nature and manner of the words that he was yelling and that he faced the complainants’ window at points, is important context to decide his intentions. The only available reasonable inference is that any rational person would have perceived that the threats that were uttered were conveyed or caused to be received by the occupants of that home. Accordingly, the crown has established the requisite mental element. Mr. Goudreau is found guilty of uttering death threats to Ms. Larke and Ms. Stead.
[39] Considering these findings, I will not address the crown’s written submissions requesting an amendment to the Information to replace the names of the complainants with “homosexual individuals” since that is unnecessary.
ii. Criminal harassment:
[40] Mr. Goudreau uttered various threats that were conveyed to Ms. Larke and Ms. Stead. Counsel submitted that, even if the threatening counts were made out, the allegations of criminal harassment were specifically particularized in the information to require proof of “repeatedly” “communicating” with Ms. Larke and Ms. Stead.
[41] There are two discreet issues. First, whether the crown has proven beyond a reasonable doubt whether Mr. Goudreau’s raging was intended to be communicated to the complainants. Secondly, since this occurred on one occasion as part of one long rambling speech, the communications were not repeated because they did not occur on more than one occasion.
[42] The elements of the offence of criminal harassment are outlined in section 264(1) of the Criminal Code:
264 (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.
Prohibited conduct
(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.
[43] The police do not need to describe the alleged “prohibited conduct” when laying a charge of criminal harassment. Absent an application for particulars, the crown can proceed with a generalized charge of criminal harassment and prove the offence through introducing evidence of one, some or all the different forms of “prohibited conduct” described in subsection 264(2). However, as Ontario Court of Appeal observed in R. v. Sadeghi-Jebelli, 2013 ONCA 747 at paras 23 and 24:
When the Crown charges an accused with an offence, and particularizes the way the offence was committed, it must prove the offence as particularized in the charge. The Supreme Court of Canada affirmed this principle in R. v. Saunders, [1990] 1 S.C.R. 1020 at 1023. McLachlin J. said: "It is a fundamental principle of criminal law, that the offence, as particularized in the charge, must be proved". So, for example, if the Crown charges an accused with trafficking in heroin, it cannot, without an amendment to the charge, obtain a conviction for trafficking in cocaine.
This principle is grounded in fairness. Particulars permit "the accused to be reasonably informed of the transaction alleged against him, thus giving him the possibility of a full defence and fair trial". See R. v. Côté, [1978] 1 S.C.R. 8 at 13. This principle is subject to an exception for "mere surplusage", or information in the indictment that is not essential to the offence, but that exception does not apply here. See R. v. Vézina, [1986] 1 S.C.R. 2 at para. 49.
[44] Mr. Goudreau was specifically charged with criminal harassment for “repeatedly communicating” with the complainants. The crown fairly and professionally did not seek to amend the information to delete this reference or replace it with the more broadly worded subsection of “engaging in threatening conduct”. Mr. Goudreau would have prejudiced by such a substantive amendment since the trial was focussed on the crown’s ability to prove the essential elements of the offence as particularized in the Information.
[45] In R. v. Kosikar, [1999] O.J. No. 3569 (Ont.C.A.) at para 19, the Ontario Court of Appeal adopted the reasons from a judgement of the Alberta Court of Appeal that helpfully outlined the five essential elements that the Crown must prove to establish the offence of criminal harassment:
- 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.
- It must be established that the complainant's fear was, in all of the circumstances, reasonable.
[46] Undoubtedly, Mr. Goudreau engaged in conduct that caused the complainants to feel harassed and, in all the circumstances, they were reasonably in fear for their safety. The issues to be decided are whether the crown has proven beyond a reasonably doubt the other physical and mental elements of the offence. That is, whether Mr. Goudreau knowingly “communicated” with the complainants and, if so, whether this one occurrence constituted repeated communications.
A. Did Mr. Goudreau “communicate” with the complainants?
[47] Mr. Goudreau was shouting threats when there was no one outside of the building with him. He named various groups of people but not individuals. Finally, while he was loud enough that the occupants inside the building could hear him, counsel submitted that there is insufficient evidence to find that the only available inference is that Mr. Goudreau intended to communicate with either of the complainants named in the Information. To address counsel’s submissions, it is essential to explore the definition of communication.
[48] In R. v. Legere, [1995] O.J. No. 152 (Ont.C.A.) at page 8, the Court of Appeal addressed the meaning of communicating:
Both counsel agreed that "communicating" should be given its ordinary dictionary meaning. The New Shorter Oxford English Dictionary (1993), vol. 1, defines "communicate" in part, as follows at pp. 454-55:
communicate 1. Impart, transmit, (something intangible or abstract, as heat, motion, feeling, disease, etc. to, spec. information, news, etc., to, with). b. Give, bestow, (something material) . . . 5. Make or maintain social contact; convey or exchange information etc; succeed in evoking understanding. (Foll. by with.)
[cite omitted]
Even if the mutuality implicit in an exchange of information is not always required communicating at least connotes an imparting of information from one to another. In Goldman v. R., [1980] 1 S.C.R. 976 at p. 995, another case on the interception of private communications, McIntyre J. wrote: "[a] communication involves the passing of thoughts, ideas, words or information from one person to another."
Communicating can occur by acts or gestures as well as by words, as the trial judge correctly observed. [emphasis mine]
[49] Mr. Goudreau intentionally and emphatically expressed hostile opinions, expressed hatred, uttered intimidating and frightening threats and “imparted” information between himself and anyone who was within hearing range of his rants. He knew that he was very close to his neighbours’ apartment. He knew was that they were home. He was speaking and gesturing aggressively while yelling and shouting. At one point, he faced Ms. Larke’s and Ms. Stead’s apartment window while he was yelling threats to “queers”. The only available reasonable inference from these collective facts is that Mr. Goudreau knew or, at the very least, he was reckless or wilfully blind that his communications, the message he intended to impart that night, would harass Ms. Larke and Ms. Stead.
[50] As a result, the crown has established that Mr. Goudreau knew that the information he was imparting, sharing and/or communicating would harass Ms. Larke and Ms. Stead.
B. What constitutes “repeated” communication?
[51] While Ms. Larke and Ms. Stead were harassed by Mr. Goudreau’s communications, the second issue that must be addressed is whether one lengthy tirade can be interpreted as “repeatedly” communicating with them. No one intervened to stop Mr. Goudreau until the police attended and spoke with him. Once they spoke with him, he stopped yelling outside and entered his home.
[52] In R. v. Cowsill, 2020 ONSC 4254 at paras. 58 to 59, Justice Himell reviewed multiple appellate decisions from across Canada that considered what “repeatedly” means in subsections 264(2) (a) and (b) and concluded:
First, to support a finding of guilt of criminal harassment under s. 264(2) (b) of the Criminal Code, the Crown must prove beyond a reasonable doubt that the appellant "repeatedly communicated" with the complainant. As discussed above, what constitutes repeated communication has been the subject of appellate-level review across the country. In R. v. Ryback, the British Columbia Court of Appeal held that three separate communications amounted to repeated communication. In Ohenhen, the Ontario Court of Appeal held that two letters sent over an 18-month period also were repeated communications and as MacFarland J.A. said, the conduct must occur more than once, but not necessarily more than twice, in order to be repeated communication: at para. 31.
On a charge of criminal harassment, the trial judge must make a finding of fact about whether more than one communication occurred in order to decide if there was "repeated communication." It is the repeated nature of the conduct that makes what is otherwise lawful conduct unlawful should the other elements also be proven. However, whether the number of communications will satisfy the requirement under s. 264(2) (b) depends on a contextual, legal analysis. This approach mirrors that found in a wealth of cases relating to s. 264(2) (d), where the definition of "threatening conduct" has been analyzed repeatedly following factual findings.
[53] In Cowsill, supra at para. 60, the Court found that the texts were “clearly part of one communication made at the same time”. Accordingly, the crown could not establish that the accused “repeatedly” communicated with the complainant. Counsel submitted that the same rational could be applied to the facts in this case because Mr. Gourdreau’s conduct was all part of one lengthy communication like a text or letter.
[54] The circumstances surrounding the communications and the contents of what is communicated are the context within which to decide whether something occurred “repeatedly”. The Cowsill decision is factually distinguishable because the communications were received at the same time, and they were relatively benign. In contrast, Mr. Goudreau’s ranting occurred over the course of about an hour. In between the death threats and invitations to come outside, he engaged in all sorts of other disruptive and frightening behavior targeting various groups. He stopped yelling occasionally and mumbled, laughed and/or kicked the ground but then he went back to communicating more invitations to come out and “chat”, more warnings about what was going to happen and repeated threats to kill and cause harm to “queers” and “faggots”.
[55] In R. v. Belcher, [1998] O.J. No 137 (Gen.Div) at para. 20, the court addressed a similar issue in the context of repeatedly following someone on one day and held that:
I am persuaded by a review of the authorities cited that parliament and the courts have each engaged in an effort to name as criminal conduct, that conduct from which the community ought to be protected, while avoiding the criminalizing of similar conduct that does not represent the same peril or conduct which may be mistaken for or experienced as harassment, but is in fact quite innocuous and well within the freedoms cherished in this society. As stated in Lafreniere"repeatedly" is clearly meant to define conduct that occurs "more than once". This is not because the conduct presents less peril because it only occurs once. It is of no comfort to a person being stalked that it is the first time. It does not appear sensible, therefore, to interpret repeatedly to require a conduct occurring "over and over again" and separated by any particular amount of time. Rather, I am persuaded, the intended definition for "repeatedly" in this context, is its meaning that equates to "persistently". When one assesses whether conduct falls within the definition of "repeatedly", one can guard against the criminalizing of innocuous behaviour by assessing the persistence of the behaviour, the context in which it is committed, and other factors that will assist in segregating criminal stalking from "following" a person in an annoying, irritating, perhaps even prolonged but not perilous manner. An examination of "following" conduct that arbitrarily demands not only persistent "following" which demonstrates resolve to do so; not only a perseverance such as was exhibited on the facts of this case; but also insisting that the definition include a requirement that such persistence be shown on a number of occasions separated by time, is neither a necessary nor a sensible definition of "repeatedly" having regard to the intention of parliament and balancing of interests demanded by this section. [emphasis mine]
[56] The Ontario Court of Appeal cited the Belcher decision with approval in R. v. Ohenhen, [2005] O.J. No. 4072 (Ont.C.A.). After reviewing many decisions, Justice MacFarlane cautioned trial judges that (at para.33):
It seems to me that defining "repeatedly" as being more than one communication is not always appropriate. In some cases, the jury will have to consider the context in which the communications were made, the intent of the accused and possibly other factors to determine whether the communications were repeatedly made or were innocuous or accidental. Perhaps a more appropriate instruction would be to advise the jury that communication that occurs more than once can constitute repeated communications depending on the context and circumstances in which they were made.
[57] Considering the context and nature of the information that was persistently and knowingly imparted by Mr. Goudreau over the course of an hour, the crown has proven beyond a reasonable doubt that Mr. Goudreau:
- Repeatedly communicated threats to Ms. Larke and Ms. Stead.
- They were harassed by these communications.
- He knew that the complainants were harassed or was reckless or wilfully blind as to whether the complainants were harassed.
- Mr. Goudreau’s conduct caused them to fear for their safety.
- The complainant's fear was reasonable in all the circumstances.
[58] Accordingly, Mr. Goudreau is found guilty of both counts of criminal harassment.
D. Conclusion:
[59] Mr. Goudreau has the right to freely express his opinions no matter how distasteful they may be to other members of this community and this Court. Freedom of expression is not, however, an unqualified right. It is intended to be a shield, not a sword that permits harming other people with words. Mr. Goudreau crossed an easily identifiable line between exercising his constitutionally protected rights, to infringing the rights of Ms. Larke and Ms. Stead to be free from threats and criminal harassment especially within the safety and security of their own home.
[60] The crown has proven beyond a reasonable doubt that Mr. Goudreau threatened and criminally harassed Ms. Larke and Ms. Stead. He will be found guilty of all four counts. In addition, he was not keeping the peace or being of good behaviour so he will be convicted of breaching his probation order.
[61] The crown relied on the same offending words, the repeated threats and offensive language, to establish both the threatening and criminal harassment charges. I have not considered whether convictions for the threatening and the criminal harassment charges should be barred by the rule against multiple convictions for the same delict: Kienapple v. The Queen, [1975] 1 S.C.R. 729.
[62] I am aware that in R. v. Dixon, [2016] O.J. No. 4139 (Ont.S.C.J.) at para 19, the Court hearing an appeal with respect to a similar issue found that:
Regarding the third ground of appeal, the Kienapple principle operates to preclude multiple convictions arising from the same delict. As each of the convictions in the present case involved a separate delict, the Kienapple principle is not engaged. The criminal harassment against all three complainants -- Johanna and Keyanna Cunliffe and Andrea Black -- is particularized as repeated communications contrary to s.264(1) (b) of the Criminal Code, and not as threatening contrary to s. 264(1) (d). There is thus no overlap with the uttering threats counts.
[63] A “delict” is defined in Black’s Law Dictionary as “a wrongful act or omission”. In this case, the wrongful acts of uttering repeated threats were instrumental facts underpinning the conviction for criminal harassment by repeatedly communicating these threats and other pejorative language. Accordingly, the Dixon case is factually distinguishable from my perspective. I will invite further submissions with respect to whether the threats should be conditionally stayed as a result.
[1] See exhibit 2 aerial photo of the apartment [2] Ms. Larke’s unchallenged recollection of some of the words spoken [3] I acknowledge counsel’s observation that Mr. Kosikar was charged with criminal harassment for engaging in threatening conduct directed at the complainants, however, the analysis of the essential elements applied to all the subsections.