WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.5(1) or (2) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.5(1) or (2), read as follows:
486.5 ORDER RESTRICTING PUBLICATION — VICTIMS AND WITNESSES — (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
(2) JUSTICE SYSTEM PARTICIPANTS — On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
(2.1) OFFENCES – The offences for the purposes of subsection (2) are
(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;
(b) a terrorism offence;
(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or
(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
(3) LIMITATION – An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Ontario Court of Justice
Date: 2024 07 22 Court File No.: Hamilton 22-47102219
Between:
HIS MAJESTY THE KING
— AND —
RICHARD HANNELL
Before: Justice J.P.P. Fiorucci
Heard on: September 19, 20, October 23 and 24, 2023 and February 15, 2024
Reasons for Judgment released on: July 22, 2024
Counsel:
Jill McKenzie....................................................................................... counsel for the Crown The accused Richard Hannell................................................................ on his own behalf Oleksiy Bykov………………………………………………………………..s. 486.3 counsel
FIORUCCI J.:
Introduction
[1] The complainant, E.T., is a news reporter employed by a television station. In June and July of 2022, she was a field reporter on the morning show that the station produced. Starting at 6:00 a.m. each morning, E.T. would do short live segments each half hour from a particular location. Once the first segment aired at 6:00 a.m., viewers knew the location from which E.T. was reporting that morning. She remained at that location for each successive segment until 9:00 a.m.
[2] The accused, Richard Hannell, was a regular viewer of the morning show. E.T. did not know the accused despite his claims that she did. On July 7, 2022, the accused attended one of the locations from which E.T. was reporting and photographed her without her knowledge. He posted this photograph on one of his Twitter accounts in response to a tweet E.T. made about the news story that day. This prompted E.T. to go through the accused’s Twitter accounts. She found two other photographs of herself reporting from different locations and other tweets which suggested that the accused had a romantic interest in her. The accused’s tweets, and his attendances at different locations from which she was reporting, caused E.T. to fear for her safety. She notified her employer and the police.
[3] On July 8, the accused again attended at a location from which E.T. was reporting. On July 10, a police officer telephoned the accused to advise him that his conduct was unwanted and warned him that he would be charged with criminal harassment if he continued to pursue E.T. and follow her to her morning telecasts.
[4] The police officer’s phone call to the accused did not deter him from following E.T. to another morning telecast and sending an e-mail to her employer which was directed at her. He was charged with criminal harassment.
[5] The accused represented himself at his trial. He entered a not guilty plea to the charge. The Crown called four witnesses: the complainant, E.T., two cameramen employed by the news station and the police officer who warned the accused that his conduct was unwanted and could result in a criminal charge. The accused testified in his own defence.
[6] On February 15, 2024, I found the accused guilty of criminal harassment and advised the parties that I would provide written reasons for my decision. These are my written reasons.
The Elements of the Offence
[7] The Crown’s case is premised on conduct directed at E.T., not conduct toward another person known to her. In the circumstances of this case, for me to find the accused guilty of criminal harassment, the Crown must prove each of the following elements beyond a reasonable doubt:
(i) one of the following forms of conduct: (a) that the accused repeatedly followed E.T. from place to place; or (b) that he repeatedly communicated with E.T., either directly or indirectly; or (c) that he beset or watched the dwelling house, or place where E.T. resides, works, carries on business or happens to be; or (d) that he engaged in threatening conduct directed at E.T.;
(ii) that the accused’s conduct harassed E.T.;
(iii) that the accused knew, or was reckless, as to whether E.T. was harassed by his conduct;
(iv) that the accused’s conduct caused E.T. to fear for her safety, or the safety of anyone known to her; and
(v) that E.T.’s fear was reasonable in all the circumstances.
[8] Crown counsel, Ms. McKenzie, provided two cases which she submits are of assistance in understanding the elements of the criminal harassment offence and in applying them in the accused’s case.
[9] In R. v. B.S., 2023 ONSC 4494, which was a summary conviction appeal, the appellant was the ex-spouse of the complainant. There had been family court proceedings which resulted in a restraining order against the appellant prohibiting her from attending within 500 metres of the matrimonial home. In violation of the restraining order, she went to the matrimonial home on several occasions to see and speak with her children who continued to live with the complainant.
[10] The complainant conceded that at no time did the appellant engage in aggressive or assaultive behaviour. The complainant admitted he was not physically afraid of the appellant and was never assaulted or physically threatened by her. There was no history of violence or spousal abuse in their prior relationship. However, the complainant testified that the appellant’s repeated breaches of the restraining order “caused him significant anxiety and stress and he came to fear for his mental well-being”.
[11] The central issue in the case was whether the appellant’s repeated unannounced visits to the residence, which was formerly the matrimonial home, in violation of the family court restraining order, constituted criminal harassment. The trial judge found the complainant to be credible when he asserted that the appellant’s conduct, “caused him worry, stress, and anxiety”. The trial judge also accepted the complainant’s testimony that “ he came to fear for his personal safety in the sense of experiencing mental health trauma”.
[12] Justice Hackland, the summary conviction appeal judge, dismissed the conviction appeal finding that the trial judge had not erred in accepting the complainant’s testimony that the appellant’s repeated unannounced visits to the residence, in the face of the family court restraining order, “caused him to fear for his personal safety, in the sense of his psychological well-being”.
[13] In dismissing the appeal in B.S., at paragraph 7, Justice Hackland addressed what is meant by the term “besetting” in s. 264(2)(c) of the Criminal Code:
The concept of "besetting" is understood in law to mean to be at or near the place "in a troubling way". The trial judge did not make a specific finding on this point but it was unequivocally implicit that the Appellant's conduct entailed repeated harmful or troubling visits to the matrimonial home, which is a dwelling house.
[14] Justice Hackland also addressed the concept of reasonable fear for safety, at paragraphs 13 to 15, which includes fear of mental, emotional, or psychological trauma:
[13] In my view, the trial judge properly applied the established jurisprudence on harassment, holding that the concept of inducing fear for one's personal safety can include or consist of fear for one's psychological well-being, even in the absence of physically or verbally threatening behavior on the part of the harasser.
[14] In R. v. Wisniewski [sic], 2011 ONSC 6452, a harassment case based on an Accused's continued unwanted communications causing a Complainant psychological harm, Justice Durno summarized the relevant jurisprudence. He stated at para. 36:
Psychological violence can be the very evil Parliament sought to punish by enacting the criminal harassment offence. R. v. Fennessey, [2000] O.J. No. 3316 (C.A.) A Complainant's psychological safety has been held to include "fear of mental, emotional, or psychological trauma" in R. v. Ryback (1996), 105 C.C.C. (3d) 240 (B.C.C.A.) at para. 37 and "freedom from fear or the mental or emotional or psychological trauma" in R. v. Stagnita [2000] O.J. No. 3024 (S.C.J.) at para. 37. Fear can also reflect a state of uncertainty as to what an individual is capable of, what his or her intentions might be, or what consequences might follow. R. v. Sostak, [2007] O.J. No. 3353 (C.J.)
[15] Justice Durno went on to offer this guidance about how a trial judge should assess the objective reasonableness of a fear for one's safety in para. 38:
What is required in each case is a fact specific determination of whether the fear was reasonable. There is no requirement that the Crown establish threats of violence (Sousa, supra, at para. 6) or actual violence. To import that requirement would ignore psychological safety and the objectives of the legislation. Neither does the section require the Complainant to know what the accused is capable of doing. To import that element would be to preclude convictions where the offence is committed by a stranger. Sousa, surpa, at para. 6. Indeed, the uncertainty as to what the harasser could do, in itself can often establish the fear component and its reasonableness. In addition, the past conduct of the accused and the past relationship between the parties can inform the assessment of the reasonableness of the fear even when that background evidence is not within the timeframe of the information or indictment. Kosikar, supra, at para. 27. See also R. v. D.(D.) (2005), 203 C.C.C. (3d) 6 (Ont. C.A.) at para. 13 and R. v. Ryback, supra, at para. 32.
[15] The criminal harassment charge against the accused is premised on his conduct toward E.T. between June 22 and July 26, 2022. Crown counsel provided the case of R. v. D.D. (2005), 203 C.C.C. (3d) 6 (Ont. C.A.) in which the Court of Appeal for Ontario considered the admissibility of an accused’s pre-charge conduct when he is charged with criminal harassment. The Court explained how the pre-charge conduct of an accused is relevant to the issue of whether the complainant feared for her safety and whether her fear was reasonable in all the circumstances. An accused’s pre-charge conduct is also relevant to his intent. It assists in determining whether the accused knew, or was reckless, that his conduct harassed the complainant.
Legal Principles
[16] The accused is presumed innocent, and that presumption can only be displaced if his guilt is established beyond a reasonable doubt by the Crown. I must instruct myself in accordance with the criminal standard of proof set out by the Supreme Court of Canada in R. v. Lifchus, [1997] 3 S.C.R. 320.
[17] A reasonable doubt must be based on reason and common sense. It is logically derived from the evidence or absence of evidence. It is not sufficient to believe that the accused is probably guilty or likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so because such a standard of proof is impossibly high.
[18] In this case, the accused testified. I am required to consider and apply the framework enunciated in R. v. W.(D.), [1991] 1 S.C.R. 742, which states that:
(1) If I believe the testimony of the accused, I must find him not guilty;
(2) If I do not believe the accused’s evidence, but the evidence leaves me with a reasonable doubt, I must find him not guilty;
(3) Even if the accused’s evidence does not leave me with a reasonable doubt, I must ask myself whether, on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt of the guilt of the accused.
[19] I can accept all, some or none of a witness’s evidence: R. v. H.(S.M.), 2011 ONCA 215. A criminal trial is not a "credibility contest". The overriding consideration is whether the evidence as a whole leaves the trier of fact in a state of reasonable doubt about the guilt of the accused. The evidence favourable to the accused must be assessed and considered with the conflicting evidence offered by the Crown as a whole, not in isolation: The Honourable Mr. Justice David M. Paciocco, “Doubt about Doubt: Coping with R. v. W.(D.) and Credibility Assessment” (2017) 22 Can. Crim. L. Rev. 31, at pg. 47.
Analysis
[20] On the totality of the evidence, I find that the Crown has met its burden of establishing each of the elements of the criminal harassment offence beyond a reasonable doubt. I found E.T. to be a credible witness who gave reliable evidence about the fear she experienced for her own safety from viewing the posts on the accused’s Twitter accounts and because of his attendances at her morning telecasts. I also accept E.T.’s evidence that her fear for her safety was heightened when the accused attended at her morning segment on July 21, after he had been warned by the police to stop, and when she learned about the July 21 e-mail that the accused sent to the general e-mail address of her employer.
[21] I have carefully reviewed and considered the accused’s evidence in the context of the totality of the evidence. I have concluded that I do not believe him, nor does his evidence leave me in a state of reasonable doubt. As I will explain, the accused’s evidence was implausible on material points, and he also gave evidence that was internally inconsistent.
[22] I accept E.T.’s evidence that she did not know the accused. On July 7, 2022, E.T. did the morning show from the Hamilton General Hospital (HGH). She posted a tweet about the story she was doing that day on her Twitter account. E.T. saw a photo posted in response to her tweet from the Twitter account @RickHannell. This photo was taken from the HGH and showed E.T. and her cameraman from a distance.
[23] E.T. thought the HGH photo was strange, and it made her curious. It prompted her to go through the @RickHannell account on July 7. When she did so, E.T. found several tweets that included her name. She also saw that the account holder had previously responded to tweets she had made and had tweeted about her. E.T. was very concerned about the tweets she saw on July 7 because they showed that the accused had a romantic interest in her and that he had been to two of her other morning broadcasts and taken photographs of her.
[24] E.T. gave evidence at the trial about the tweets she reviewed on the @RickHannell account and on two other Twitter accounts which appeared to be linked to @RickHannell: @SubliminalSuess and Obsessedfan@Rick71795433. Screenshots from the three Twitter accounts were collectively made Exhibit 2 on the trial. The accused did not dispute that the three Twitter accounts belonged to him. He too gave evidence about them and was cross-examined regarding the posts he made.
[25] E.T. testified about the following tweets she saw on @RickHannell and the concern they caused her:
(a) On June 20, the accused responded to a tweet E.T. made on June 6 about her first broadcast one year earlier with a tweet “I’m sorry I said you look like Taylor Swift. I think you’re beautiful”;
(b) On June 22, the accused tweeted a photograph of E.T. standing by the news truck at Spencer Smith Park in Burlington. The photograph was taken from a shorter distance than the photograph at HGH and the tweet had the caption, “I’ve discovered a new very pretty species of bird. I’m naming it the ‘Red-headed [E.] Bee-eater”. E.T. testified that she was not aware that the photograph was being taken when she was at Spencer Smith Park on June 22;
(c) On June 23, the accused tweeted a photograph or video of an apartment with an iPad on the floor playing E.T.’s morning news show and a bird on the floor with the caption “[E.] on the loose”. E.T. gave evidence about another tweet she had seen which said, “I’ve named my birds [E.] and [T.]” (i.e. her first and last names). E.T. said that this made her feel uncomfortable and was “a strange detail to find”;
(d) On June 23, the accused tweeted, “Yes Sir. But I have a serious “Toner” for [E.] “Clair!!?” [T.], followed by emojis including two red roses. When Crown counsel asked E.T. if she knew what this tweet meant, she was not certain, but she said she “found it to be relatively sexual and suggestive in nature”;
(e) On June 25, the accused responded to a tweet E.T. made and included: “P.S. I think you’re fucking gorgeous!”;
(f) On June 27, the accused responded to a tweet E.T. made by saying he got booted off Twitter again, and ended his tweet with “P.S. Batgirl, you looked like Poison Ivy this morning. I would love ♥ to know what you smell ( red rose and flower emoji )”;
(g) On June 27, the accused responded to a tweet E.T. made by tweeting, “The Crows only want me to follow you to the gas station”;
(h) On June 27, the accused responded to a tweet E.T. made about Amtrak service with a tweet about the sexist advertising that comes up when he follows her on Twitter. The accused ended the tweet with “P.S. You make an Awsome Batgirl” [ various emojis ] please don’t block me”;
(i) On July 4, responding to a tweet by Justin Trudeau, the accused tweeted, “Yes Sir. But I don’t want to talk to [E.] if she has no interest in me. Lois Lane has to at least care if Superman exists”;
(j) On July 5, E.T. tweeted a videoclip of an interview with a police officer. The accused responded with a tweet of his own ending with, “You look amazing [ red rose emoji ]”;
(k) On July 5, the accused responded to a tweet by Justin Trudeau with a tweet stating, “Yes Sir. So what am I supposed to do? I am NOT chasing after another woman that has no interest in me”. E.T. testified that all the accused’s tweets surrounding this tweet were about her and she assumed this one was too, and she was concerned that it was talking about chasing another woman around again;
(l) On July 5, in response to a tweet from an account called World and Science the accused tweeted, “I’m still waiting for my walk in the arboretum. [E.] ( red rose emoji ]”;
(m) On July 6, the accused posted a photograph he took of E.T. and her cameraman, M.R., at Hamilton City Hall with the caption, “Pretty Bird! ( smiling face with heart eyes emoji) looks ( pouting face emoji ) upset. The accused also re-tweeted this photograph and caption on his Obsessedfan@Rick71795433 account on July 6. E.T. said this tweet was “one of the most concerning things, the scariest things that I saw on the Twitter account when I was looking at it because this is the photo of just the day before when I was at City Hall with a cameraman…And it’s a photo of us from a distance and …we’re looking at the camera but we’re not looking at it in the way that we knew it was being taken”;
(n) On July 6, the accused tweeted the same photo from Hamilton City Hall in response to a tweet by Justin Trudeau with the caption, “Yes Sir. This is going to sound terrible but if I’m going to be truthful to Lois Lane, I was in the whole at Springhill when this accident happened and couldn’t have cared less. Shout out to Carrie”. E.T. testified that she had no idea what this caption meant but, “it was scary to see things that I just don’t understand it seemed, frankly, like nonsensical to me, accompanied with my photo. Taken in such a way that I didn’t know it was being taken”. When E.T. was asked about the reference to Lois Lane and what it made her think, she testified that she knew Lois Lane was the woman reporter from Superman and: “This is this, like, fictional romantic relationship. I mean, to my understanding, I’m not a superhero person, is that Lois Lane and Superman are together, that they’re in love, and I believe Lois Lane is a reporter as well, so that seems like a very obvious reference to me but in a way that I don’t want to happen, I don’t want any romantic advancement, but I think is another example of that”;
(o) On July 6, again responding to a tweet by Justin Trudeau, the accused tweeted, “Yes Sir. I changed my mind and want to follow [E.T.] around, but don’t want to inadvertently Fuck with her work or say something stupid to piss her off… P.S. thank you Sir. The mocking birds have left. There’s not a Crow in sight”. E.T. testified that this tweet was scary because he is saying that he wants to follow her around and she went on to say, “it sounds like to me that he’s going to continue to do this and I don’t know if it means, like, only for my work, but this makes me scared that he’s going to follow me back to the station, that he’s going to follow me home. My roommate was terrified seeing this. We created little codes, like, I got one of those, like, safety, like, loud whistles and we said that, like, two whistles meant that there was something wrong, she would watch me as I went into our parking lot all the time. Like, we were really scared that he was going to be ready, that he was going to follow me home”.
[26] E.T. described the concerns she had about the accused’s tweets:
But seeing the pattern of it on July 7th, seeing that these are all from the same account, there are several referring to things like, ‘I want to know what you smell like,’ and the, ‘I have a toner,’ and things like that, that’s a concern for me that this is something sexual in nature that I do not want.
[27] E.T. described her main concern as follows:
…showing up at various locations, but then especially the possibility of following the very recognizable [television station] car back to the station, figure out what my car looks like, my license plate, following me home. I work at 3:30 – or I worked at 3:30 in the morning, so I was often entering my parking lot to my building in the pitch black at night and then I was entering the [television station] car in the dark; it’s all very scary when someone says they want – someone wants you to – or the crows want them to follow you.
[28] I find as a fact that E.T. feared for her safety when she viewed the numerous tweets about her on July 7 and that her fear was reasonable in the circumstances. What E.T. did with the information she learned on July 7 demonstrates that she took these tweets and the accused’s attendances at her work locations seriously.
[29] E.T. testified that she showed her managers at work the tweets and that they passed around photographs of who they believed to be Rick Hannell and his vehicle, with the licence plate. The photograph of the accused came from a selfie on the @RickHannell account. Although E.T. was uncertain whether she saw the Obsessedfan@Rick71795433 account on July 7, it is a reasonable and logical inference that she did since the photographs of the accused’s vehicle and licence plate were posted on that account.
[30] The fact that E.T. and her employer took steps to identify Rick Hannell and his vehicle and that the cameramen that E.T. was working with were given photographs of the accused and his vehicle, to keep an eye out for him as they did their morning segments, demonstrates the concern caused by the accused’s tweets.
[31] On July 8, those fears proved to be justified when the accused showed up at Gage Park for E.T.’s morning segment. E.T. testified that the accused parked in the very furthest part of the parking lot. She detailed how her cameraman, M.R., told her to go back to the truck and lock the doors as he followed the accused and took photographs of him and his vehicle, which looked like the exact same vehicle they saw on Twitter.
[32] M.R. confirmed in his testimony that he was working with E.T. on July 8 and had been made aware of the concerns regarding the tweets and the person following E.T. He also confirmed that he was given a basic description of the male and of the vehicle, a white Chrysler 300. M.R. said that he kept his “awareness up the whole morning”.
[33] M.R. then recounted how he saw someone in the background and thought it looked like the person was taking a picture of them. When the segment was done, M.R. followed the male and took a picture of the car backing up and leaving the parking lot at Gage Park. The photograph M.R. took of the vehicle was made Exhibit 5 on the trial.
[34] The accused admitted in his testimony that he was at Gage Park on July 8. He denied that he followed E.T. there, but rather claimed that he had followed a hawk from his apartment building all the way to Gage Park in his car. I reject the accused’s claim that he was at Gage Park that day to photograph birds, and that it was a mere coincidence that E.T. was there. He admitted in cross-examination by Crown counsel that, at the time, he was an avid viewer of the morning news telecast and that he was aware that E.T. was reporting from Gage Park that day.
[35] Furthermore, it is a reasonable and logical inference from the nature of the tweets that the accused made prior to July 8 that he had a romantic interest in E.T. and that he acted on that interest by following her to her morning telecasts.
[36] On June 27, the accused responded to one of E.T.’s tweets by tweeting, “The Crows only want me to follow you to the gas station”. In cross-examination, the accused admitted that he sent this tweet and that crows told him to follow E.T. only to the gas station.
[37] The accused also admitted in cross-examination that he posted the July 6 tweet, “Yes Sir. I changed my mind and want to follow [E.T.] around, but don’t want to inadvertently Fuck with her work or say something stupid to piss her off”. The following exchange occurred between Crown counsel and the accused about this tweet:
Q. Okay. And you expressed a desire to follow [E.T.] around? A. Yes, because she had been following me around and I thought, okay, well, tit for tat; if they’re going to follow me around, I’m going to start doing it to them. But the thing was is I came to Hamilton to follow the birds and at the time I was following the crows and they always led me to the gas stations, so that’s why I said that.
[38] The accused’s evidence that, after he moved to Hamilton, in April 2022, he had been followed and constantly harassed by the staff at E.T.’s television station and by the Hamilton Police Service is implausible, as is his claim: “When I first started talking to [E.T.] and she was following me around and stuff, and all the staff were – I thought they were doing a story on me. I was flattered”.
[39] The accused made the further implausible claim that he started the Obsessedfan@Rick71795433 account when he realized he was being followed by the staff at E.T.’s news station. The accused went so far as to claim that E.T. was the obsessed fan who was following him all over the city which is the reason why he was able to get the pictures of her that he displayed on his Twitter accounts. The accused’s evidence in this regard is absurd. Again, the posts he made on his Twitter accounts demonstrate that he was the one interested in E.T., repeatedly telling her that she was beautiful [1], and making the tweet about wanting to follow her.
[40] The accused also gave internally inconsistent evidence about his intentions and feelings for E.T. When he was being cross-examined about the June 27 tweet “P.S. Batgirl, you looked like Poison Ivy this morning. I would love ♥ to know what you smell ( red rose and flower emoji )”, the accused initially said that he was referring to Taylor Swift. He then admitted that it was E.T. that looked like Poison Ivy when he was watching her on the news that morning and that she looked beautiful.
[41] When Crown counsel pressed on and suggested that he wanted to get close enough to E.T. to know how she smells, the accused responded, “[n]o, I doubt that. I never wanted to meet [E.T.]. I had nothing to do – didn’t want anything to do with her”. The accused then went on to repeat his claim that it was E.T. and the staff at her station that were following him.
[42] The accused’s testimony that he never wanted to meet E.T. is inconsistent with evidence he gave when questioned about the July 4 tweet: “Yes Sir. But I don’t want to talk to [E.] if she has no interest in me. Lois Lane has to at least care if Superman exists”. In cross-examination, the accused admitted that he was looking for a replacement for CNN reporter, Julia Chatterley, who he had been tweeting at before. The accused admitted that he was envisioning a relationship with Julia Chatterley who he considered to be Lois Lane. When Crown counsel questioned the accused about the July 4 Lois Lane tweet, the following exchange occurred:
Q. All right. And you’re telling the prime minister you don’t want…. A. That [E.T.] has no interest in me whatsoever. Q. That [E.T.] has no interest in you? A. Correct. Q. All right. And, so, you don’t want to talk to her if she has no interest in you? A. Right. Q. Right. “Lois Lane has to at least care if Superman exists.” A. I was trying to find a replacement for Julia Chatterley. Q. All right. And, so, you thought that might be… A. Yeah, and…
Q. …[E.T.]? A. …[E.T.] didn’t want anything to do with it. Q. She wanted nothing to do with you? A. Yeah, she did. When I suggested the idea, like, it’s like role-playing, it’s like a video game almost, role-playing, like, if I’m Superman, Julia Chatterley would be Lois Lane to me. Or if I’m James Bond, she’d be Ms. Moneypenny. I was just suggesting that to [E.T.] and she didn’t want any part of it. So, I told the prime minister. Q. Okay. All right. So, you knew that she didn’t want any – anything? A. Right. Q. Right. On July 4th. A. I knew she didn’t want anything to do with me long before that. Q. Okay. A. I was just merely suggesting it. When I suggested it to her – like, when I moved to Hamilton, I did, I remember asking her – I did make a pass at her, but she didn’t want anything to do with me, so I just left it at that. She didn’t want to be Lois Lane, so that was it. I told the prime minister. Q. She wasn’t interested in you. She didn’t want you to be following her, posting about her, or tweeting about her. A. I wasn’t following her. Q. Right. A. She didn’t want any interest – she had no interest in me. Q. Okay. A. I had asked her out and she said no. Q. When did you ask her out? A. I don’t remember. Probably the day just before that. Q. Okay. All right. And on page 93 – so, that was July 4th, it’s very clear in your mind she’s got no interest in you? A. Yes.
[43] Therefore, notwithstanding his claim at one point in his evidence that he never wanted to meet or have anything to do with E.T., the accused stated at another point in his testimony that he did make a pass at her and suggested that she be his Lois Lane.
[44] I accept E.T.’s evidence that the accused’s attendance at Gage Park on July 8 made her very uncomfortable. She testified that it had all happened so fast. She had just seen the messages on Twitter on July 7 and then the accused was at Gage Park on July 8. E.T. described her fear at that point as follows:
…it sort of clicked into place that all of this was real, so I was scared, I didn’t know what was going to happen, I didn’t know what the intentions were necessarily or if it was going to be something that was – I don’t know, violent, perhaps, or uncomfortable or unnerving or what it was. Like, I’ve never had someone just stay from afar and take these photos, you know, and leave.
[45] I find that E.T.’s fear for her safety was reasonable in the circumstances. As a result of her growing concern, E.T. gave an audio statement to a police officer, Detective Paul Kent, on July 9. According to E.T., the police told her that they would call the accused to tell him to stop showing up and that “if these were advances in the way that maybe the Twitter account was portraying, that I wasn’t interested in these, that I didn’t want him to approach, all of these things”.
[46] After her meeting with Detective Kent, E.T. learned that, when the police officer spoke with the accused, the accused “responded very aggressively in saying that he could do whatever he wanted and that they couldn’t stop him”. This informed the fear that E.T. continued to have for her safety after giving her first statement to police on July 9. As she said, “[t]he police had expressed concern to me, and so my concern increased”. E.T. blocked the accused on Twitter but had several people monitoring his tweets which is further evidence of her heightened fear for her own safety.
[47] Detective Kent testified about his telephone calls with the accused on July 10. The accused conceded in his testimony that he was the male who spoke with Detective Kent on the telephone on July 10. Detective Kent said he identified himself to the accused as “Detective Paul Kent, Hamilton Police”. The essence of Detective Kent’s evidence is that he explained to the accused the reason he had called, which was to inform him that E.T. was not interested in a romantic relationship, did not want to talk to him and did not want him showing up at her news segments. Detective Kent also testified that based on the responses he received in this first call with the accused, he told the accused that “further contact would lead to, or could lead to, criminal harassment charges”.
[48] Detective Kent said that he terminated the first call with the accused but then a short time later received a call back from him. The accused advised Detective Kent that he had spoken with a lawyer who said that E.T. would need to get a restraining order against him, and he could go to the park if he wanted to because it was a free country. When Detective Kent reminded the accused that he could be charged with criminal harassment, the accused said he would charge him (Detective Kent), began to swear at him, and then said: “There’s fuck all you can do about it". Detective Kent hung up the phone.
[49] I find as a fact that, on July 10, Detective Kent warned the accused that further contact with E.T. or attendances at her morning telecasts would result in a criminal harassment charge.
[50] In his testimony, the accused did not deny speaking with Detective Kent on July 10. He admitted that he told the officer to “fuck off” because he was not following E.T. The accused also admitted that he called Detective Kent back and basically told him that it was a free country, and he could do what he wanted. The accused testified that he told Detective Kent that E.T. should block him on Twitter if she thought he was harassing her. When Crown counsel pointed out to the accused that E.T. had blocked him, he said that she never did and was lying. The accused agreed with Crown counsel’s suggestion that, as of July 10, he was “aware that [E.T.] was uncomfortable with anything that [he] might do towards her”.
[51] I find as a fact that E.T. blocked the accused on Twitter but had others monitoring his accounts for her. E.T. learned about two references to her on the accused’s Twitter that seemed “particularly angry”, the July 10 tweet that was made Exhibit 3 on the trial and the July 11 tweet that was made Exhibit 4.
[52] On July 10, the same day that he spoke with Detective Kent, the accused tweeted: “Yes Sir. Sorry to bother you on a Sunday, but I just had the Hamilton police call because I went to Gage park to photograph birds. [E.T.] complained. She’s gay. Why would I have any romantic interest in her. I seriously considering filing a harassment complaint”. [2] E.T. testified that this tweet “seemed a bit more angry in tone to the previous ones, which were much more affectionate, perhaps romantic”.
[53] I accept E.T.’s testimony that she was concerned about a violent confrontation:
…now all of a sudden I was fearful that the approaching becomes something of like retribution or violence or some sort of affront or accosting to us.
[54] E.T. went on to testify about her state of mind at the time:
…nothing in the tweet indicated to me that it would stop happening. It was more so that the next approach could then be angry rather than following in an admiring kind of way, it would then be some sort of angrily approaching my cameraman or myself, or especially if I was alone, and saying, you know, ‘Why did you have the police involved?’ kind of thing.
[55] E.T. confirmed that she also saw the accused’s July 11 tweet wherein the accused, who was addressing Justin Trudeau, wrote: “Yes Sir. This is why I believe in God. Both at her 7:30 and 8:00 am broadcasts the Crows sat outside my window and started Cawing the precise moment [E.T.] started speaking. It was awesome….”. E.T. said that this post made her feel overwhelmed, because the accused had spoken about crows before, and a lot of the tweets did not seem very reasonable or rational. E.T. did not believe that she was necessarily dealing with someone who would go away just because he was told she was not interested. E.T. spoke of how she, her family, and roommate became really scared about some sort of violence after police involvement and how the situation was “so unpredictable”.
[56] E.T.’s fear that the accused would continue his conduct, notwithstanding the police warning, was justified. On July 21, L.G. was E.T.’s cameraman. They were doing a story from the parking lot across the street from the Brantford Casino.
[57] In July of 2022, when L.G. returned from a vacation, he became aware of the issues E.T. was experiencing with someone showing up on location, taking pictures and tweeting about it. L.G. looked at tweets and photographs “just to see who the person I was dealing with…”. He also informed himself about the white Chrysler 300 vehicle the individual may be driving.
[58] L.G. testified that, on July 21, before going live for their next segment, E.T. had gone over to the Tim Horton’s in the parking lot. L.G. saw the accused heading towards the Tim Horton’s. The accused walked past the doors of Tim Horton’s, looped around an adjacent building, and went back towards his white Chrysler 300.
[59] L.G. followed the accused to his car and took photographs of the car, the licence plate, and the accused. L.G. believes they missed the 8:00 a.m. live segment because they did not feel it was safe for E.T. to be out. L.G. testified that once he had returned to E.T. after taking photos of the accused and his car, the accused pulled out of the casino parking lot and gave him (L.G.) a big wave as he (the accused) drove off.
[60] E.T. testified that when she came out of the Tim Horton’s, she saw L.G. walking very quickly across the street following a few paces behind the accused, who was also walking very quickly. She saw L.G. with his phone out taking photos of the car and the licence plate. E.T. also recounted how she and L.G. called the police and immediately called their producer. Although they cancelled the segment, they did not want to leave immediately in case the accused was still in the area and was planning to follow them back to the station.
[61] E.T. said she was very scared at that point because it was after the police had told the accused not to show up at her location or contact her and after she had blocked him on Twitter:
…so I have made it as clear as I can, from my understanding, that this is making me very uncomfortable and unnerving and I don’t want this….
… that’s after the police call, so this is – is this the – is this the anger because we phoned the police, that we got the police involved, is this still the same supposedly adoring fan online or is it someone who’s looking to, I don’t know, speak with me or harass me, or what it is. And then again, I don’t know if previously he has followed me back to the station or followed me home or if this is the time that he's going to follow us back to the station and then follow me home. So, it’s a lot of uncertainty to that point. I was very scared.
[62] E.T. and her managers spoke at the station after this occurrence at the Brantford Casino. On July 21, the same day, E.T. agreed with her managers that, due to their concerns for her safety, the only thing they could do was remove her from the situation entirely by no longer having her work on the morning show. E.T. described her state of fear when she accepted her employer’s offer to move off the morning show:
I was also fearful for my safety at that point, too, and that was a move that, you know, they offered it to me, I took it immediately because I didn’t want to put myself in a situation yet again where I was, again, out in whatever location it was and then he was able to approach again. And it seemed to escalate every time that it happened, so I didn’t want to see what the next escalation was going to be, whether that was going to be something that was violent or angry because we had had the police involved or if it was going to be an advance. And many of the tweets were sort of, like, romantic or sexual in nature, so if it was an advance like that, that was something I was very scared of. And I don’t know how to react in a situation like that necessarily, so I was moved off completely, to completely avoid that situation. You know, it’s not really possible in the evening. But that meant that I wasn’t really able to fulfill my job requirements, so.
[63] The accused gave evidence about his attendance at the Brantford Casino on July 21. He admitted following E.T. there, claiming that it was the only time he followed her. Again, I reject the accused’s assertion that it was the only time he followed E.T.
[64] The accused testified that he followed E.T. to the Brantford Casino because “her boyfriend called me the Sunday before, telling me not to do it”. When the accused referred to “her boyfriend” he meant Detective Kent, who the accused claimed had implied he was E.T.’s boyfriend when he called on July 10.
[65] The following exchanges between Crown counsel and the accused bolster my finding that the accused knew E.T. was harassed by his conduct but persisted in the face of that knowledge:
Q. Okay. Well, Officer Kent told you you were making [E.T.] uncomfortable. A. Oh, see, that whole conversation, if I was making [E.T.] so uncomfortable, why didn’t Officer Kent get the peace bond or restraining order that I suggested? Q. Okay. He told you to stop and to stop following her around. A. And that is the only reason I ever followed her. The only reason. I had never followed her up until that moment. Q. Okay. A. Because he called up pretending to be her boyfriend, threatening me, waking me up on a Sunday morning. Q. Okay. All right. So, we’ve already established that she on July 21st did a story outside the Brantford Casino, right? A. Yes. Q. And you, because you were so angry with Detective Kent telling you not to follow [E.T.], you followed her? A. Basically, yeah, that’s basically what it comes down to… Q. Okay. A. …yes. It’s a free country and I really resented [E.T.] after following me for almost four or five months, calling up the police and having me harassed on a Sunday morning. Q. Okay. A. I was very angry with Officer Kent. Q. Okay. And with [E.T.]. A. No. Q. Well, Officer Kent wasn’t at Brantford Casino. A. I wasn’t angry with [E.T.] until after she had me arrested. Q. Well, Officer Kent wasn’t at Brantford Casino on July 21st, [E.T.] was. A. Yes. Q. And you knew she was… A. Yes. Q. …because every morning at six o’clock she goes to her spot and that’s where she stays from six o’clock to 8:30 a.m.? A. Yes.
[66] With respect to the e-mail that the accused sent to the general e-mail address of the television station on July 21, at 10:58 a.m., I reject the accused’s claim that it was not directed at E.T. The subject line of this e-mail (Exhibit 1) states, “Hi [E.T.]”.
[67] In cross-examination, the accused made nonsensical claims when he was questioned about the July 21 e-mail. He said that the television station’s e-mail address was his personal journal that he kept on the advice of his veteran’s affairs counsellor because of his brain injury and PTSD. He also claimed that the first day E.T. started working at the station, he told her that he would use this e-mail address as his personal journal and that none of the comments were directed at her or any of the other staff at the station. The accused also testified that the July 21 e-mail was directed at Taylor Swift and that he thought she should die because she owed him money for a song that he wrote for her ten years earlier.
[68] I find as a fact that the accused directed the July 21 e-mail at E.T. based on the subject line, the contents of the e-mail and the fact that it was sent between two to three hours after he had followed her to the Brantford Casino. The spelling of the name contained in the body of the e-mail also supports my finding that it was directed at E.T.
[69] The contents of the accused’s July 21 e-mail are disturbing as it suggests that the accused is saying that E.T. “is truly an evil person” and that:
the world/Earth would be ALOT better off if she were dead. Her carbon footprint is monstrous and the biggest piece of shit I ever had the displeasure of speaking to. I merely suggested she kill herself.
[70] E.T. became aware of the accused’s July 21 e-mail a few days after the accused sent it and after she had already provided her second statement to the police. E.T. said that she was already very fearful when she provided her second interview to police because the situation “seemed to continue to escalate”.
[71] She said that the July 21 e-mail also made her fear for her safety and concerned about violence. In cross-examination, E.T. said she perceived the July 21 e-mail as “yet another attempt then through a different venue, once we already blocked off the other ones, to still try and contact me”.
[72] In cross-examination, E.T. summed up the fear that the accused’s conduct created, which included the unknown:
…I was just rattled and I was freaked out going to work every morning. I mean, again, I leave at 3:00 in the morning to get to those jobs, so I’m walking into a pitch black parking lot with a couple of lights, not knowing if he knows where I live, driving to the station, and then from there I drive myself to the next location. So, there’s a lot of time in there that I’m just, like, in the dark.
And then it’s really hard to focus on what’s happening and be able to do a good job at your work when you don’t know if he’s going to approach, if he’s taking photos behind you and you don’t see it, you know? Part of the scary thing is the not knowing.
[73] The Crown has established that the accused repeatedly followed E.T. from place to place, repeatedly communicated with her directly or indirectly and beset or watched the places where she worked, and that the accused’s conduct harassed E.T.
[74] The Crown has also established that the accused knew E.T. was harassed by his conduct. I find as a fact that Detective Kent made it clear to the accused that he was making E.T. uncomfortable with his tweets and his attendances at her morning segments. The accused agreed with Crown counsel’s suggestion that by the time he sent the July 10 tweet (Exhibit 3) wherein he said “[E.T.] complained. She’s gay”, he was keenly aware that he was to have no further contact with E.T. and that he was making her uncomfortable.
[75] Regarding the July 10 tweet (Exhibit 3), the accused said, “I was trying to explain to the prime minister that [the television station] has been following me since the first day I moved to Hamilton and all of a sudden now [E.T.] has a problem with me following her”. Despite knowing that E.T. had a problem with him following her, the accused nonetheless followed her to the Brantford Casino on July 21. That same day, he sent an e-mail, which I find was directed at E.T., saying that it would be better off if she were dead.
[76] The Crown has established that the accused’s conduct caused E.T. to fear for her safety and that E.T.’s fear was reasonable in all the circumstances. The accused’s initial tweets which expressed a romantic interest in E.T. were accompanied by his multiple attendances at her morning segments in different cities, and the posting of photographs he took without her knowledge. The accused’s conduct escalated in severity when he attended at the Brantford Casino on July 21 and sent the disturbing e-mail later that morning, after he had been warned by the police not to have contact with E.T. or attend at her broadcast locations.
[77] E.T. knew that the accused had disregarded the police warnings. It was reasonable for her to fear the potential for violence as retribution for having contacted the police and to fear the unknown. As Justice Durno stated in R. v. Wisniewska, 2011 ONSC 6452, at paragraph 36, “[p]sychological violence can be the very evil Parliament sought to punish by enacting the criminal harassment offence”.
Conclusion
[78] For the reasons set out above, I found the accused guilty of criminal harassment.
Released: July 22, 2024 Signed: Justice J.P.P. Fiorucci
[1] The accused admitted in his testimony that the tweets he posted included the following: (i) June 20: “I’m sorry I said you look like Taylor Swift. I think you’re beautiful”; (ii) June 25: “P.S. I think you’re fucking gorgeous!”; and (iii) July 5: “You look amazing [ red rose emoji ].
[2] This tweet was in response to a tweet by Justin Trudeau on July 10.