Warning and Non-Publication Order
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a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration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or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration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: 2025-06-25
COURT FILE No.: Central West Region 998 23 47106611
BETWEEN:
His Majesty the King
— AND —
Wilfredo Martinez-Calderon
Before Justice J. De Filippis
Heard on May 1 & 2, 2025
Reasons for Judgment released on June 25, 2025
Ms. C. Gzik — counsel for the Crown
Mr. C. Combei — for the defendant
De Filippis, J.:
Introduction
[1] The defendant went to trial on the following charge: On October 24, 2023, at the City of Hamilton, knowing that [the complainant] is harassed or being reckless as to whether [the complainant] is harassed, did engage in conduct that causes [the complainant] to reasonably, in all the circumstances, fear for her safety pursuant to s. 264(2), contrary to s. 264(3). I heard from four witnesses, including the defendant. Much of this evidence is not controversial.
[2] On the day in question the defendant was 40 years old, and the complainant was 13 years old. They do not know each other. At 11 AM, the complainant stood at a bus stop in front of a McDonald’s restaurant in downtown Hamilton. A surveillance camera (without audio) at the restaurant captured the interaction between the complainant and defendant. The video shows the following events:
As the complainant waited for the bus, on Barton Street, a blue car drives past her on this busy street. The car changes lanes, from the left to the right, and pauses in front of the complainant. The car then enters the restaurant parking lot. The car is parked in the closest spot to the complainant. It is a spot reserved for those with an accessible parking permit. There are other parking spots available for those without such a permit. The defendant exits the blue car, stands beside it while swinging his arms, and then walks the short distance to the complainant. After about 25 seconds, he walks back to his car and stands outside of it, with his hands behind his back, watching the complainant for a few minutes until the bus arrives and she enters it. The defendant enters his car and leaves the parking lot and drives behind the bus.
[3] Surveillance cameras inside and outside the bus show the following: The complainant is seated while the bus travels to her destination. When the bus stops to let her out, the blue car, driven by the defendant, passes by, without stopping.
[4] These reasons explain why I find the defendant guilty.
Other Evidence
[5] M.S. is the mother of the complainant. She testified that on the day in question, while at work, she received a telephone call from her daughter, who was then in grade eight. The complainant said that she did not feel well and would go home on the Barton street bus. Not long after, M.S. received another call from her daughter, reporting that she had run home from the bus because of “this situation”. M.S. described her daughter as upset, crying and out of breath during this conversation. She called the police.
[6] The complainant testified that after she called her mother and left school, she waited for the bus in front of McDonalds on Barton Street. She had a backpack and was wearing black leggings and a purple shirt with a bow on it. While waiting for bus the defendant slowly approached her. He said she was beautiful and asked if she was going to school. When the complainant replied she was waiting for the bus to go home, he offered her a ride in his car. She said no, thank you and he walked away. When the bus arrived and she entered it, the defendant got into a blue car. The complainant saw the car behind the bus. Five minutes later, the bus arrived at her stop. When she left the vehicle, the complainant saw the blue car drive past her. The complainant ran home and called her mother.
[7] The complainant estimated that her total interaction with the defendant at the McDonald’s was about three minutes and the above noted conversation testified lasted 20 – 25 seconds. She did not know this man and her mother had warned her about strangers. She testified that she was “really, really scared” and added that, “it shook me up that he offered to drive me home and I did not know what his intentions were or what kind of man he was”. The complainant noted that he “was polite but it felt flirty”. The following exchange occurred with Defence counsel:
Q: He was flirting with you
A: That is what it felt like
Q: An older man walks up to you, is trying to be flirtatious and offers you a ride, you said no thank you and he backs away, is that all
A: That is all
Q: Was the majority of your anxiety because he offered you a ride
A: My main fear is a man who I have never met before coming up to me and offering me a ride home
[8] PC Dobbie reviewed entire video from McDonalds. He testified that the defendant never entered the restaurant.
[9] The Defendant testified that on the day in question he drove from his home in Vaughan to visit his father in Hamilton. Barton Street is the route he took to his father’s home at the corner of Wentworth Street and Main Street. When he passed the McDonalds, he saw “an attractive girl”. He thought she was “at least 18 years old”. He parked his car in the restaurant lot and approached her. He continued his testimony as follows:
I told her she was pretty and if she needed a ride I could take her. She said no, thank you. I said are you sure and she said, she was positive. I went back to my car and waited for the Barton bus to come and then got in my car and went in the same direction the bus was going. I was not following the bus. This is the route to see my father. I passed the bus and kept going.
[10] The defendant added that he “did not understand her to be nervous”.
[11] The defendant could not recall his father’s address but said it was “it is at the back of the pita place at Wentworth”. When the Crown presented a google map with images of the area in question the defendant identified the building with the pita place and the second-floor apartment unit belonging to his father. The defendant had telephoned his father before coming to Hamilton but there was no answer. He made the one hour and 20-minute trip anyway because it was his day off work. He described his relationship with his father as “bad” and they have had limited contact over the years.
[12] The defendant lives alone in a basement apartment. He does not have a physical disability but is schizophrenic. He does not have an accessible parking permit but went to the spot reserved for such people at McDonalds because he did not plan to be there long. The Crown produced a Hamilton newspaper published on the day of this cross-examination and read a headline “Child grabbed by stranger”. The defendant replied, “that’s not very good”. The following exchange then occurred:
Q: Why do you think its ok to ask a young attractive woman to get into your car.
A: My family is broken. Not a good relation. I have never been in love. I saw something different in her and thought I could talk to her. I saw sweetness and kindness and that’s why I asked (sic) her for a ride.
Q: You came to Hamilton to find a young sweet female as you would not be known in Hamilton
A: She was on my way, that is why I offered her a ride, I said nothing incorrect, nothing dirty
[13] The defendant testified that if the complainant had entered his car he would have “spoken to her like a friend” and that he was not necessarily looking for a sexual relationship. He agreed “it was a mistake not asking her age” and added “but I assumed she was over 18”. The defendant understands that “sex with an under age person is against the law”. He explained, “I take medication for schizophrenia and I lost control there by not asking her age”. Later, the exchange with counsel continued as follows:
Q: You asked her if she was going to school.
A: Yes.
Q: You knew she was going to school and therefore likely under age.
A: I thought she was over 18.
Q: Why wait for the bus to arrive and leave?
A: She rejected me, so I waited in the car and thought about it, I didn’t want to wait there like I had been fooled so I waited for the bus.
[14] The defendant agreed he did not see his father that day. He passed his place without stopping because his father had still not replied to his earlier telephone call. He returned home. The defendant agreed he did not use the building intercom to see if his father was home or otherwise look for him.
Criminal Harassment
[15] Subsection 264 (1) of the Criminal Code sets out the offence of criminal harassment, and s. 264(2) specifies that the conduct amounting to criminal harassment can be committed in one of four ways:
(1) Criminal harassment – 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 that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.
(2) Prohibited conduct – 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.
[16] The Information in this case does not specify any of the enumerated grounds. In submissions the Crown relied on subsection 264 (2) (c) and (d) – watching/besetting and engaging in threatening conduct. That said, the parties focussed their submissions on the threatening conduct.
Submissions
[17] Defence counsel argues that the defendant was a credible witness and that “the few inconsistencies are due to mental health challenges”. The defendant found the complainant to be attractive and believed her to be over 18 years old. He had a 20 - 25 second interaction with her and disengaged when she declined his offer of a ride. Counsel submits that the threatening allegation fails because there was no design to instill fear. In this regard, it was noted that defendant engaged in a brief polite conversation and left. In these circumstances it cannot be said the complainant’s fear was reasonable. In any event, the defendant did not intend that nor was he reckless about the matter.
[18] The Crown submits that these facts show the defendant is guilty of harassment by threatening conduct: A middle-aged man approached a 13-year-old girl, told her she was pretty, and offered to drive her home. When she refused, he waited for her to get on a bus and followed the bus in his car. The Crown asserts words can be threatening and that following in a car is a tool of intimidation. As such, in all the circumstances, the complainant reasonably feared for her safety and the defendant had to know this. Counsel also argues that the defendant’s testimony about why he was in Hamilton is not credible since he never saw, or attempted to find, his father. The Crown suggested the defendant came to the city because he is not known, and this would facilitate commission an offence.
[19] The Crown concluded her submissions by reading the names of several young women who have been raped and murdered in Canada. These comments, like the question put to the defendant, in cross-examination, about a recent child abduction are of no assistance to me in deciding this matter.
Analysis
[20] The Crown carries the burden of proving guilt beyond a reasonable doubt. This fundamental principle of law means that if the defendant has called evidence, there must be an acquittal where the testimony is believed or where the testimony is not believed but raises a reasonable doubt. An acquittal will follow even if the defence evidence is rejected, but the remaining evidence fails to convince, beyond reasonable doubt, that the defendant is guilty (R. v. W(D)).
[21] Probable guilt is not the criminal law standard of proof – it is closer to certainty. A reasonable doubt is a doubt based on reason and common sense which must be logically based on the evidence or lack of evidence (R. v. Villaroman, 2016 SCC 33). In applying the standard, I can accept some, part, or none of what a witness states. The testimony of a witness is assessed based on the person’s sincerity and accuracy.
[22] I have confidence in the evidence given by the complainant. Her interaction with the defendant was captured on video. For the most part, her account of the conversation is in accord with that given by the defendant. In any event, her credibility and reliability were not seriously or successfully challenged. I do not have confidence in the testimony by the defendant, as I will explain.
[23] The elements of the offence of criminal harassment were discussed by the Court of Appeal for Ontario in R. v. Kosikar and R. v. Kordrostami. Applying those principles to this case, the Crown must prove that (1) the defendant engaged in threatening conduct toward the complainant, (2) this harassed her, (3) the defendant knew the complainant was harassed or was reckless or wilfully blind to it, (4) the defendant’s conduct instilled fear in the complainant, and (5) this fear was reasonable.
[24] The mens rea requires an intent to commit the prohibited act. The knowledge requirement can be satisfied by recklessness or willful blindness that the act caused the victim to be harassed. R. v. Sim, 2017 ONCA 856, confirmed how the actus reus is to be determined. As in the present case, Sim was convicted under paragraph (2)(d) – “engaging in threatening conduct directed at the other person”. In that case, the trial judge found that the Crown had established the mental element or mens rea of the offence. The Court of Appeal for Ontario noted as follows:
[14] Sim does not challenge this finding. He does, however, challenge the trial judge’s finding that the actus reus had been made out. The trial judge found:
I have found that the actus reus of threatening has been made out on the basis of all the evidence I accept. In particular the accused’s recklessness at least about the link being made between the real-life [P.L.] and the on-line [P.L.]. As well as the recklessness about the complainant finding out about the home page and the whole website, as she eventually did.
[15] Sim submits that the trial judge erred in law in making this finding because establishing the actus reus of the offense requires proof that the accused subjectively intended to engage in threatening conduct. The trial judge acknowledged that if the actus reus imports a requirement to prove an accused’s subjective intention, then Sim was entitled to be acquitted. But the trial judge held that there was no such requirement. I agree. For that reason, I do not accept Sim’s submission.
[16] R. v. Burns, 77 W.C.B. (2d) 402 – relying on the judgment of the Yukon Territory Court of Appeal in R. v. George, 2002 YKCA 2, 52 W.C.B. (2d) 530 – this court endorsed an objective standard for determining the actus reus of harassment by engaging in threatening conduct. At para. 2, the court wrote:
(1) To establish harassment under s. 264(2)(d) of the Criminal Code, the Crown had to establish that the appellant engaged in “threatening conduct”. We accept the definition of threatening conduct given in R. v. George at para. 39 that, in order to meet the objectives of s. 264, the threatening conduct must amount to a “tool of intimidation which is designed to instill a sense of fear in the recipient”. The impugned conduct is to be viewed objectively, with due consideration for the circumstances in which they took place, and with regards to the effects those acts had on the recipient. [Citation omitted.]
[17] In support of his submission, Sim focuses on the word “designed” in the phrase “tool of intimidation which is designed to instill a sense of fear in the recipient”. I do not read this phrase or the word “designed” in the way Sim does for two main reasons.
[18] First, Sim’s submission is inconsistent with s. 264(1) of the Code and thus is contrary to Parliament’s express intent. Subsection 264(1) specifies that the mens rea component of criminal harassment can be met by an accused’s knowledge or recklessness. To suggest that the actus reus of threatening conduct requires a specific intent to instil fear is contrary to the plain language of s. 264(1).
[19] Second, as this court said in Burns, under s. 264(2)(d) the conduct in question must be viewed objectively. In other words, would the accused’s threatening conduct cause a reasonable person in the complainant’s situation to fear for her safety? The word “designed” does not require the Crown to prove the accused’s subjective intention. And, in assessing whether an accused’s conduct is threatening under s. 264(2)(d), a judge is not required to get into the accused’s mind.
[25] In considering the actus reus, context is important. This is not a case like Burns and George, cited in Sims, where the accused made unwelcome remarks to adult women, without anything more. The Court in those cases found that while the remarks were inappropriate, they were not threatening. In the present case, the complainant, a 13-year-old girl was approached by a 40-year-old. He commented on her looks and offered her a ride. When the offer was declined this stranger walked a short distance away and watched the girl for about two minutes until she boarded a bus. He then entered his car and travelled behind that bus for about five minutes until the girl got off and continued on his way. The girl was aware of all this. She ran to her home and frantically called her mother for help.
[26] I am satisfied that the actus reus has been proven in the present case. The defendant’s conduct was threatening, and it caused the complainant to be harassed and reasonably fear for her safety. As noted in George, at paragraph 41, “…. Instilling a sense of something undesirable to come is indeed engaging in an act designed to instill a sense of fear.”
[27] The defendant’s trial testimony is particularly problematic with respect to mens rea because he is schizophrenic. I do not know what, if any, impact this illness had on his conduct. There is no suggestion he is unfit or not criminally responsible. The only references to this issue came from the defendant in explaining his schizophrenia may be why he did not ask the complainant how old she was and by Defence counsel in submissions who suggested certain inconsistencies in the defendant’s testimony might be explained that way. Three questions arise with respect to the defendant’s evidence.
[28] First, there is the matter of the defendant’s perception of the complainant’s age. He testified that she looked to be over 18 and that he assumed as much. He added that he understands that “sex with an under age person is against the law”. His perception stands in contrast to the fact that the complainant is an obviously young person wearing leggings, with a shirt and bow. She was standing at a bus stop with a backpack. It is not surprising that the defendant asked her if she was going to school. In these circumstances, he must have known the complainant was a minor. That offering the complainant a ride would alarm her is a fact about which he was at least reckless or wilfully blind.
[29] Second, is the question of why the defendant did not leave after the complainant declined his offer of a ride. He testified he did not do so immediately after being rejected would make him look foolish. Instead, he stood nearby and waited until the complainant got on the bus. This is difficult to understand. His action arguably highlighted the rejection. In any event, assuming he was motivated by the need to save face, this focus on himself came at the expense of the complainant, a fact about which he was at least reckless or wilfully blind.
[30] The third question is why the defendant followed the bus. His position is that he did not do so for a sinister purpose but because that is the route to his father’s residence. Support for this position can be found in the fact that when the complainant got off the bus, he continued to drive without stopping. In this regard, there is no reason for me to reject the defendant’s assertion that his father lived at a place further down the road. However, he had driven for one hour and 20 minutes from Vaughan to Hamilton to see his father and when he arrived at the place, he did not visit him. On arrival, he did not telephone him or go to the door of his apartment. Instead, the defendant returned home. It is difficult to understand why he followed the bus at all. Why not return home from the place he had encountered the complainant? In any event, this decision came at the expense of the complainant, a fact about which he was at least reckless or wilfully blind.
[31] On the day in question, the defendant arrived in Hamilton, interacted with the complainant, and returned to Vaughan. He did nothing else. Taken together, the answer to the three questions satisfies me that mens rea has been proven in this case.
[32] I find the defendant guilty.
Released: June 25, 2025
Signed: Justice J. De Filippis