COURT FILE NO.: 646/13

DATE: 20140801

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

- and -

T.W.

Allison MacPherson and Martin Sabat,

for the Crown

Michael Strathman, for the accused

HEARD: June 11-12, 2014

Subject to any further Order of a court of competent jurisdiction, an Order has been made in this proceeding, pursuant to s. 486.4 of the Criminal Code, directing that the identity of the complainants and any information that could disclose such identities shall not be published in any document or broadcast or transmitted in any way.

K.L. Campbell J.:

I

Overview

[1] The accused faces an indictment that charges him with two offences, namely: (1) that he criminally harassed the complainant, H.B., by repeatedly communicating with her and thereby causing her to reasonably fear for her safety, contrary to s. 264(1) and (2)(b) of the Criminal Code, R.S.C. 1985, chap. C-46; and (2) that he failed to comply with the condition of a probation order requiring him to “keep the peace and be of good behavior,” contrary to s. 733.1(1) of the Criminal Code. Both of these offences are alleged to have been committed by the accused in Toronto between May 1 and July 9, 2012. These two allegations are very closely connected and stand or fall together, as it is the alleged criminal harassment of the complainant that the Crown contends constitutes the accused’s alleged failure to “keep the peace and be of good behavior” in breach of the probation order.

[2] This case is not particularly complex. There is no real issue between the parties that the accused contacted the complainant by means of a series of voice-mail messages he left for her at her workplace during the time period specified in the indictment. The evidence overwhelmingly establishes that these messages, in fact, harassed the complainant, and reasonably caused her to fear for her safety. The only truly contentious issue between the parties is whether the Crown has established, with the requisite degree of certainty, that the accused was “reckless” in relation to whether the complainant was harassed by his messages. In short, while there is little question that the accused engaged in the conduct that forms the actus reus of the alleged harassment, the key question is whether he possessed the necessary minimum mental element or mens rea of the offence of criminal harassment.

II

The Factual Background

A. Introduction

[3] The trial of these charges proceeded upon: (1) the agreement of the parties that the evidence from the earlier, separate trial in relation to the child pornography charges would apply; and (2) the viva voce testimony of the complainant, H.B., and the accused’s former girlfriend and common law spouse, H.T. I have considered all of the evidence in reaching my conclusions in relation to this case. The evidence paints a clear picture of the relevant events. In any event, based upon my consideration of all of the evidence, I find the facts to be as follows.

B. Living Together in Southern Ontario in 2000

[4] The accused first came into contact with the complainant in the year 2000. At that time, the accused was living with his common law spouse, H.T., in a city in southern Ontario. The accused and H.T. had started dating in 1995, and had moved in together a few months thereafter. H.T. had started a retail art business, she and the accused lived together in the back of the store, and the accused periodically helped her with the running of the store.

C. The Accused and His Hobbies

[5] As H.T. explained, the accused was, by nature, not a “people person.” He was “very shy” and had few friends. He did not enjoy talking to people. But, he enjoyed his hobbies. He had an extensive movie collection and he spent time each day surveying and organizing this collection. He also had a Barbie doll. He named this doll “Victoria” and treated it as if it were his daughter. He would get her dressed each day, talk to her, ensure that she had an activity in which to engage, and get her ready for bed each night. H.T. bought this doll for the accused, and shared this hobby with him. She had her own Barbie doll and they collected accessories for their dolls. She thought that this was a harmless, inexpensive, creative activity. At one point, H.T. made a “serial killer doll” for the accused as a Christmas present.

D. Photocopying the Serial Killer Scrapbooks

[6] One of the accused’s main hobbies at the time centered on his fascination with serial killers, especially his favourites, Ted Bundy, Jeffrey Dahmer and Albert DeSalvo. The accused would take clippings from internet sites, movies and books, tape them on blank pages, have the pages photocopied, and then organize the photocopied pages into large binders. The accused wanted the final product of his efforts to be reflected on smooth pages, without any tape. His movie collection also included movies about serial killers.

[7] H.T. assisted the accused with the photocopying aspect of his hobby. As the accused did not drive, she would chauffeur him to a store in the area that had a business center with photocopy machines and services. Given the tape on the original pages with the clippings, the pages had to be individually hand-fed, one page at a time, into the photocopy machine. The accused was not good with machines so H.T. always helped with the photocopy machine. The accused would pass her the pages face-down and she would feed them into the photocopy machine. This was always done in a fast and efficient manner.

E. Meeting the Complainant – Becoming Obsessed

[8] The accused and H.T. met the complainant at this store. H.B. worked primarily in the copy center, and would provide service assistance to the accused and H.T. in relation to their periodic photocopying needs. H.B. was in her early 20’s at the time. The accused quickly became obsessed with H.B. In his journal writings the accused himself described his feelings as an “obsession.” As H.T. explained, the accused had obsessive-compulsive personality traits, and H.B. was not the first woman he obsessed over. In the past, he had become very interested in certain female celebrities. Further, in December of 1999, H.T. discovered that the accused had become obsessed with another young woman he had met earlier while doing janitorial work at a community center.

F. Discovery of the Other Scrapbooking Activities of the Accused

[9] According to H.T., the accused continued his “scrap-booking” hobby throughout the course of their relationship. For the most part, H.T. avoided the contents of the scrapbooks, and the accused was usually protective of their contents. During their photocopying sessions, the accused handed her the pages to be copied “upside down,” and she did not at other times seek out the binders for viewing. She presumed that he did not want others looking at them.

[10] On or about June 10, 2000, a day when the accused was out with his mother for the day, H.T. saw one of the accused’s binders left out on top of his dresser, and she looked through its contents. She became alarmed. This particular binder had numerous clippings of women from pornographic magazines, some “gruesome images” from the crime scene internet sites the accused would visit, and typed commentary detailing the things the accused wanted to do with women, some of which related to dismemberment and murder.

[11] The materials in this scrapbook also included “love letters” and other notes revealing the accused’s obsession with the complainant and another young woman. More specifically:

• In one note dated March 29, 2000, the accused described the complainant as his “soulmate” and discussed why he wanted his “precious” H.B. “in [his] life forever.”
• In a note dated April 1, 2000, the accused detailed his “first time talking” to the complainant. In this note the accused explained that he had contacted her by phone at work. When he asked her if she had a boyfriend, she replied: “Yes, unfortunately I do.” When he asked if he could “call [her] sometime,” she hung up the phone without responding. The accused wrote that he felt as if his “heart just stopped beating,” but he vowed that he was “not giving up” on becoming her “lover.”
• In a note dated April 10, 2000, the accused reflected on his feelings about the complainant as it had been “10 days” since he had called her, concluding that he could not be mad at her, she was “to[o] beautiful to hate,” and that he still loved her and “always will,” stating that H.B. “will be mine to hold and love forever.”
• In a note dated April 18, 2000, however, the accused expressed his knowledge that the complainant was not the one for him, as he “finally came to [his] senses,” and realized that his true love was the other young woman he had been obsessing over.
• In subsequent notes dated in April and May of 2000, the accused continued to focus on the other young woman.

[12] While H.T. had been aware of the accused’s earlier obsession with the other young woman, this was the first time she learned of his obsession with the complainant.

[13] Having reviewed the contents of the scrapbook, H.T. became concerned and scared that the accused might take action on some of the ideas he expressed in the scrapbook, and she did not want to play any role in such consequences. Further, she no longer felt comfortable staying with the accused. Accordingly, when the accused returned home with his mother, H.T. confronted him with the contents of his scrapbook and showed his mother its contents. They discussed what to do.

[14] In the result, H.T. and the accused’s mother agreed that they should call the police, hoping that this might lead to a psychiatric assessment and the accused getting the medical help they thought he needed. H.T. called the police and the accused was quickly arrested. The accused did not fight with them about calling the police, nor did he leave the residence. Rather, he simply waited for their arrival. H.T. provided the police with the scrapbook of materials that had been assembled by the accused. Following his arrest, the accused was detained in custody.

G. The Criminal Harassment Charge – The Resulting Peace Bond

[15] In their subsequent investigation, the police approached the complainant. H.B. recalled dealing with the accused and H.T. at the copy center. She did not know their names, but she recalled them and their “distinct” appearances. They were “regular customers.” The accused had very long, wavy hair, a “Fu Manchu” style mustache, and always wore thick glasses, dark clothing and a long trench coat. Whenever they came into the copy center, which was fairly often, the complainant always spoke to H.T. The complainant never spoke to the accused, and the accused never spoke to her. The complainant clearly recalled the nature of the materials that she was asked to photocopy for them. They were materials about serial murderers. She recalled seeing materials about Ted Bundy and Jeffrey Dahmer in particular.

[16] H.B. also recalled receiving a phone call on April 1, 2000, while she was working at the customer service desk. After she answered the phone and identified herself by her first name, the male caller said “Hello” to her, and asked her if she had a boyfriend. She replied “yes, I do,” and asked who was calling. The male caller then sighed, and she hung up the phone. In cross-examination, the complainant agreed that it was possible that she might have said “unfortunately, I do,” in response to the question about whether she had a boyfriend. The complainant thought the call was “strange.” She had never received that kind of a call before. She thought that it might have been a call from someone else in the store, perhaps made on behalf of her boyfriend, as it was April Fool’s Day. At the time she told a work colleague about the call.

[17] When the police came to speak to her at the store a few weeks after this telephone call, they asked her whether she had been dealing with any “questionable” customers, and she told them about the couple that had been coming in and asking her to copy the materials about the murderers. The officers let her know that someone had notified the police that she “could be in some kind of danger” because of one of her customers, and that was the reason for their investigation. The officers did not elaborate too much, but they did ask her to describe the male customer, and she described the accused. The police had a big, thick binder of printed material with them, and referred to it generally as containing some information, but they did not show it to her. It was nevertheless intimidating for her to think that the contents of this binder might be about her.

[18] H.B. met with the police again a few weeks later, in the presence of her parents, with whom she was living at the time. During that meeting she was shown a photograph of the male customer. The officers explained that they had been told that the female customer had called the police because she was concerned that the male customer “might do something.” From what the officers told her, the complainant thought that the male customer had been collecting material or information about her, and had been “stalking” her, even though she had not realized it. This concerned her as she thought that the accused may have been watching her while she was unaware. While the officers continued to speak with her parents, the complainant left the conversation. She was “very frightened” at that point and, while grateful that the police were involved, she did not want any more information as she thought that it would just increase the stress she was feeling.

[19] As a result of these meetings with the police, H.B. and her parents approached their neighbours and H.B.’s co-workers with a photograph of the accused, explained to them the seriousness of the situation, and asked them to call the police immediately if they saw the accused. The complainant also contacted all of her family members listed in the telephone directory, and urged them not to provide any information about her or her family, in the event that the accused reached out to them for information.

[20] At one point in 2000, the police advised the complainant that she should be prepared to go to court for the proceedings against the accused in January of 2001. However, in late December of 2000, she was told that an agreement had been reached that meant that she would not have testify, but that the accused was not allowed within her region of the province and was not permitted to have any contact with her.

[21] In fact, on February 13, 2001, the accused entered into a peace bond. The information charged that there were reasonable grounds to fear that the accused “will cause personal injury” to the complainant, H.B., on account of a threat made between December of 1998 and June 10, 2000, by “communicating with” and “watching” the complainant at her place of employment. The accused consented to enter into a “recognizance to keep the peace” in the amount of $500. This recognizance required the accused to keep the peace and be of good behavior for a period of 12 months, upon the following terms, which required that he: (1) have “no contact directly or indirectly” with the complainant; (2) “not attend” at the complainant’s residence, her school, or any place of her employment; (3) report to a named police officer in the “offender management unit”; (4) attend such counseling as may be deemed appropriate by the supervising police officer; and (5) abstain from acquiring or possessing any firearm, cross-bow, prohibited or restricted weapon or device, ammunition, or explosive substance. The accused personally signed this peace bond.

[22] After the accused was released from custody on the peace bond, the police returned to him the scrapbook binder that H.T. had provided to them upon his arrest. H.T. remained in the southern Ontario city, while the accused moved to Toronto where he lived for a time with his sister. Later, he moved into his own basement apartment in Toronto.

H. The Voice-Mail Messages to the Complainant in the Summer of 2012

1. The First Call – May of 2012

[23] In May of 2012, more than 11 years after the accused signed this peace bond, and with no intervening contact or communication between them, the accused began communicating with the complainant. At the time, the complainant was working at a women’s shelter.

[24] Upon her return to her office one day in May of 2012, H.B. received a voice-mail message from a male caller. The call had come into the voice-mail system late at night. It sounded very strange, and the voice was muffled as the caller was not speaking clearly. In this message the caller, using the complainant’s first name, stated: “I’m still waiting for you Princess [H.B.] – shall you accept?” When the complainant heard this message she thought back to the accused and the events of 2000. She knew that the call could have come from anyone, but she thought of the accused. She preserved a copy of this voice-mail message on her cell phone.

[25] The complainant immediately spoke to her managing supervisor about the call, and explained the history of the events involving the accused in 2000. This information was shared with other employees of the women’s shelter at a staff meeting, so that they too would be aware of what had happened, and everyone was told not to provide any information concerning the complainant and her whereabouts. This made her daily employment routine more challenging as the complainant was employed in a public-relations capacity.

2. The Series of Calls in July of 2012

[26] Approximately two months later, the complainant received a series of four further calls from the accused. The complainant had been away on vacation, and when she returned to work in July of 2012, she heard the four voice-mail messages that the accused had left for her. They sounded similar to the voice-mail she had received in May. It is apparent from the collective content of these messages that they were all from the accused, and cell phone records confirmed that three of these four voice-mail messages originated from the cell phone then being used by the accused. Further, in the final message, the accused suggested that the complainant call him back, and left his own cell phone number in the message. I find as a fact that the accused placed all of these calls, and left all of these voice-mail messages for the complainant.

[27] The content of the four voice-mail messages the accused left for the complainant in July of 2012, using her first name, are as follows:

• “Uncover your eyes. Do our souls collide? Invite me in.”
• “Please Princess [H.B.] I’m very proud of you since [her job in the copy center] and now a women’s shelter. I love you and always will. I love you.”
• “You’ve come a long way Princess [H.B.]. I’m very proud of you since [her job in the copy center] and now a women’s shelter. I love you and always will. I love you.”
• “Good evening. If you know we’re meant to be one call me on Friday between 7 and eleven [at his seven-digit cell phone number]. You know who I am, Princess [H.B.].”

[28] Two of the three calls that originated from the accused’s cell phone were placed on July 6, 2012, just a few minutes apart and both just after 1:35 a.m. The third call that originated from the accused’s cell phone was placed on July 9, 2012 at approximately 11:00 p.m.

3. The Impact of the Calls on the Complainant

[29] The complainant described these messages as “very creepy” in nature and they “frightened [her] to say the least.” She thought that the caller sounded “somewhat drunk.” She found the calls “terrifying” because it had been a “very long time” and what she thought had been just “a brief moment in [her] life,” had actually been “part of those whole 12 years.” Also, she has never spoken to the accused and does not know him. After hearing the messages, the complainant immediately called her managing supervisor and then the police. The police arrived within approximately ten minutes.

[30] Subsequently, the complainant notified the staff at the women’s shelter about these further messages, and told them that what might have been a random call in May was not, and that this was serious. The complainant also changed her personal life dramatically. She changed almost all of the doors and windows on her house, installing “very costly” new doors and steel frames. She had a female tenant living in her house, and she had to explain the situation to her tenant and give her the option of terminating her lease. In any outside social activities the complainant never uses her real name as she is terrified that the accused might be able to find her on the internet. She had to let her friends know what had happened, and she found this very embarrassing and humbling, as she had to explain to them why she could not have any photographs taken of her, and why there could be nothing on the internet about her. She has not been involved in any social media on the internet. The greatest difficulty for the complainant, however, was with respect to her friends and colleagues at work, as she felt like her mere presence there might be putting people at danger. The complainant explained that the conduct of the accused was that which they collectively worked toward preventing, that some who worked at the women’s shelter were unpaid volunteers, and that the complainant felt guilty that her presence at work might be putting them in danger.

[31] These calls from the accused have had a significant impact on the daily employment routine of the complainant. Her job responsibilities at the women’s shelter are largely in connection with public relations (i.e. she is the contact person responsible for volunteering, public education, media relations, and fundraising). Yet, promotions in which she is involved can usually only be publicized after the fact, without any photographs of her. Normally, hers would have been the public “face” of the shelter, but that can no longer be the case. While her managing supervisor has been very understanding as to the complainant’s difficulties, and her colleagues have helped, if she is unable to fulfill her job responsibilities she may have to think about moving on to other employment. The complainant explained that his would “kill” her as she loves her current job.

I. The Obsession Silently Continued For More Than a Decade

1. Introduction

[32] The accused was arrested for these charges on the night of July 10, 2012, the day after his last voice-mail message to the complainant. When he was arrested, the accused was just outside his basement apartment in Toronto having a cigarette. He was very cooperative with the police. At his request, the police entered his basement apartment with him to turn off the lights before they left for the police station. During that lawful entry of his apartment the police made observations that subsequently led to the police obtaining and executing a series of search warrants. The materials ultimately seized by the police collectively revealed that the accused had continued his obsession with H.B. for more than a decade.

2. The Framed Document About the Complainant’s First Name

[33] When the police entered the accused’s basement apartment they discovered, amongst other things, a framed document that displayed, in large bold type, the first name of the complainant. The document consisted of eight lines which appeared to explain the “Old English” origin of the name, and the personal characteristics of people with that name. At the bottom of the document, however, in the same font/print type as the rest of the document, are the words “Love Ya Always …” and the date followed by a question mark, “1999?” This framed document was hanging on the wall of the accused’s bedroom. There was another smaller similar document, also entitled with the complainant’s first name, stuck inside the frame, on the right side. On the left side of frame, similarly stuck inside the frame was a small colour photograph of the complainant that had been available on the internet.

3. The Many Journal Entries About the Complainant

[34] When the police entered the basement apartment belonging to the accused, they found and ultimately seized his journal binders. It is apparent that when the accused returned to Toronto, he continued to create pages for this personal journal. Indeed, it is apparent that he continued to pursue this hobby for many more years. Some of his journal entries over this lengthy time period related specifically to the complainant. More particularly:

• In a journal entry dated November 15, 2000, the accused stated that he had gone to speak to his lawyer that day, and he understood that there were “8-10 witnesses against [him],” including H.B., and that, if he was found guilty he would serve between six months and five years in prison. The accused also indicated that he found out her “last name” while he was in jail.[^1]

• In a journal entry dated February 28, 2001, the accused discussed the result of his peace bond resolution of his criminal matter in connection with H.B. The accused indicated that that while he was a “free man,” he was to have “no contact” with H.B. But he described this result as “OK” as he had “no reason” to contact her anymore given that he was only interested in another named woman.[^2]

• In his journal, the accused reflected on being charged with criminal harassment in 2000 in relation to H.B. On a page in between other journal entries dated January 14 and March 2, 2002, the accused wrote:

  “I got arrested in the year 2000, for criminal harassment, saying I was stalking a woman named [H.B.] at the [copy center], but the truth is I only seen her when I was photocopying pages, I was always with my (ex) girlfriend, and I only talked to her once, over the phone, to ask her if she had a boyfriend, so I really don’t see why I got arrested for that, and I know 100%, that even if I didn’t have a girlfriend at the time, I would still have still called her on the phone to ask her out, cause that’s what most people do when they’re to[o] shy to ask them face to face. Trust me, the “Mopboy” is living proof of that.”[^3]

• In an undated journal entry, the accused indicated that the “lovely [H.B.]” had brought him “about 8 months of pleasure in [his] society life.”[^4]

• In a journal entry dated December 5, 2002, the accused indicated that for the past week and a half his heart had been “pounding” as he was beginning to grow very fond of a teenage girl who walked by his basement window every day after school. The accused indicated that his heart had only pounded like that “twice before,” noting that one of those times was “because of [H.B.].[^5]

• In a journal entry dated September 5, 2004, the accused indicated that: “Not a day that goes by I do not think about [H.B.]. She is a part of our family.” The accused then refers to “Princess [H.B.]” as one of his two “beloved wives,” and states: “I know that you both will be waiting with open arms when I and our beautiful daughters awake.”[^6]

• In a journal entry dated October 6, 2004 the accused indicated that “loving his princesses” gave him “such a wonderful feeling inside” and “knowing that they feel the same way about [him].” The accused also indicated that “when that day arrives when we wake up in … [H.B.’s] arms,” their “love for each other will always arise for eternally.”[^7]

• In a journal entry situated between pages with entry dates of December 4, 2004 and March 5, 2005, the accused wrote about his encounters with the complainant at the copy center. The accused indicated that he remembered like it was “yesterday,” walking into the copy center, along with H.T., to “color photo copy [his] serial killer pages, and “there behind the counter was [his] beloved wife [H.B.].” The accused described how, as soon as he “laid [his] pages down on the counter” the complainant would “just stare at them for a few seconds” and “when she lifted up her head, she would just giggle at [them] with a big smile … so adoring.”[^8]

  On this same page in the journal, after the heading “Love is all I need,” the accused recalled another time, a “hot summers night,” when he and H.T. attended at the copy center and “Princess [H.B.] was behind the counter.” The accused indicated that, as he got closer to the counter, he noticed that the complainant was wearing shorts, and as she was “color photo copying [his] pages, [he] sank deep into dreams” in relation to her legs.[^9]

  On this same page in the journal, under a heading “Together … we will burn,” the accused wrote about his phone call to the complainant in 2000. The accused wrote: “Fact: The police said that when I called my beautiful [H.B.] on the phone, she didn’t think anything of it, because she just thought that it was only one of the other employees playing a joke on her.”[^10]

• In a journal entry on a page between pages dated April 5, 2005 and July 5, 2005, the accused outlined an October 31st “wedding ceremony” involving the accused the complainant, and the other young woman the accused was obsessed with. The accused explained how they would each have a rose in their hands. The accused indicated how he would place a “black rose” in the hand of “Princess [H.B.], how she would “return the favour” for him, and how, at midnight, all three of them would squeeze their hands over wine glasses, which they would then drink from.[^11]

• In a journal entry dated July 13, 2005, the accused discussed how “Princess [H.B.] was so beautiful this morning as she appeared in [his] dream” and how he just wanted to “hold her in [his] arms when [his] eyes [were] open.”[^12]

• In a journal entry on a page between pages dated August 19, 2006 and November 3, 2006, the accused discussed how he fantasized about taking his “last breath,” and seeing his two “beautiful wives” with their “arms wide open” waiting for him and their “beautiful daughters.[^13]

• In a journal entry dated December 8, 2006, the accused discussed a dream he had about his “beautiful wife [H.B.].” The accused then vowed his eternal love for his “two beautiful wives,” one of whom is his “beautiful Princess [H.B.].” The accused also indicated that, when he “hold[s] out his left hand” for them, he knows in his “heart” that they “both will accept.”[^14]

• In a journal entry on a page between pages dated March 31, 2007 and April 17, 2007, the accused discussed his thoughts about his two “beautiful wives.” He discussed finding them in caskets in a funeral home and kissing them until they awaken “just like Snow White.” The accused also wrote that he wondered whether they “think about [him] in this sick society.”[^15]

• In a journal entry on a page between pages dated June 22, 2010 and August 2, 2010, the accused discussed how the complainant and another young woman had “broken [his] heart here in society by rejection,” but that he had forgiven them because when they “embrace” they “will know that we are meant to be one.”[^16]

• In a journal entry on a page between pages dated December 25, 2010 and February 2, 2011, the accused stated: “My psychiatrist … gave me some interesting information about my beloved wife [H.B.], at the time of my arrest … 12 years ago, my beloved [H.B.] was attending university and working part-time at [the copy center], and also she is a year younger than myself … It makes me wonder if she still thinks about me.”[^17]

4. The Poem About the Complainant

[35] On top of the computer desk in the basement residence of the accused, amongst numerous assorted images of pornography, the police found a poem entitled “My Hunger” dated April 17, 2011. The poem is about the complainant and she is referred to, by her first name, a number of times throughout the poem. In this poem, the accused begins by asking the complainant to “uncover [her] eyes” and “stare as [their] souls collide.” The accused continues the poem by asking the complainant to “invite [him] in” and “embrace the warmth that we spread.” In this poem, the accused expresses his love for the complainant, talks in some detail about how his “lust” for her “shall never expire,” and speaks of her as the “angel” he feeds upon.[^18]

5. Complainant’s Contact Information – Finding His “Beloved Wife”

[36] The police also found, on the top of the computer desk in the accused’s residence, amongst the numerous assorted images of pornography, a single piece of paper that contained detailed information about the complainant. It was apparent that that accused had printed two images of the complainant (that were available on the internet), and the details about where she worked, her job title, phone number, work address and email address, and taped all of these details, together with her images on this piece of paper. The paper was dated May 8, 2012. Immediately beneath that date at the top of the page, the accused wrote “I have found my Beloved Wife.” At the very bottom of this page the accused wrote: “My Princesses Beauty Shall Never Fade.”

6. Note About His Recent Calls to the Complainant – And the Police Response

[37] The police also found, on the top of the computer desk in the accused’s apartment, a note dated July 10, 2012, the date the accused was arrested, wherein the accused stated:

Since I found my beloved wife [H.B.] on the internet, I have called the woman’s shelter and left three messages for her, and today when I checked my messages, there was a message for me from the police saying stop calling and harassing [H.B.], or you will be arrested and charged with criminal harassment again. I’m guessing he had my background information considering he said again. The only thing that upsets me is that: my beautiful wife has not yet realized that we are meant to be one.

J. The Probation Order – Keep the Peace and Be of Good Behaviour

[38] In an unrelated matter, the accused was found guilty of certain criminal offences and on October 12, 2010, he was sentenced to a maximum reformatory term of imprisonment, to be followed by a three-year term of probation on a number of terms and conditions, including the statutory condition that he “keep the peace and be of good behaviour.” This probation order, including this particular term, was in operation in the summer of 2012, when the accused left his voice-mail messages for the complainant.

[39] Erin Robertson was the probation officer responsible for the accused. She first met with the accused in relation to this probation order on February 14, 2012. At that meeting, all of the terms of the probation order were clearly explained to the accused by Ms. Robertson, and he appeared to understand these terms and conditions. While Ms. Robertson could not recall exactly what she told the accused about his obligation to “keep the peace and be of good behavior,” she testified that, as a matter of general practice, she told all of her probationers that if they committed any further offences, such an offence would violate this term of their probation, and they would also be charged with breaching their probation order.

III

Analysis

A. The Presumption of Innocence and the Burden of Proof on the Crown

[40] As constitutionally guaranteed by s. 11(d) of the Canadian Charter of Rights and Freedoms, every person charged with a criminal offence is presumed to be innocent. That presumption of innocence remains with the accused in the present case unless and until the Crown establishes his guilt for the alleged offences beyond a reasonable doubt. That heavy burden of proof never shifts. The accused has no obligation to establish his innocence.

B. The Elements of the Offence of Criminal Harassment

[41] The accused is alleged to have criminally harassing the complainant by “repeatedly communicating” with her and thereby causing her to reasonably fear for her safety.

[42] In order to prove the alleged “prohibited conduct” by the accused, the Crown must establish that the accused “repeatedly” communicated with the complainant directly or indirectly contrary to s. 264(2)(b) of the Criminal Code. The term “repeatedly” obviously requires that the accused communicated with the complainant more than once, but it does not necessarily require proof that the accused communicated with the complainant any more than twice. There is no higher minimum number of communications that must be established in order for the Crown to prove that the accused engaged in these communications “repeatedly.”

[43] The meaning of the word “repeatedly” was determined by the Court of Appeal for Ontario in R. v. Ohenhen (2005), 2005 34564 (ON CA), 77 O.R. (3d) 570, 200 C.C.C. (3d) 309, leave denied: [2006] S.C.C.A. No. 119. In concluding that, in the circumstances of that case, two letters written by the accused to the complainant over the course of 18 months amounted to “repeatedly communicating” with the complainant, MacFarland J.A., delivering the judgment of the court, concluded, at para. 31:

In my view, the dictionary definitions of the words “repeat” and “repeated”, from which the adverbial form “repeatedly” is derived, lead me to conclude that conduct which occurs more than once can, depending on the circumstances of the case, constitute “repeated” conduct or conduct which is “repeatedly” done and the section is met. In my view, it is unnecessary that there be a minimum of three events or communications. “Repeatedly” obviously means more than once but not necessarily more than twice.

[44] The law is settled that in addition to proving that an accused engaged in the conduct prohibited by s. 264(2) of the Criminal Code, the Crown must also establish: (1) that the complainant was in fact harassed by the actions of the accused; (2) that the accused knew that the complainant was harassed by his or her conduct, or was reckless or willfully blind in relation to whether the complainant was harassed; (3) the conduct of the accused caused the complainant to fear for his or her safety; and (4) the complainant’s fear for his or her safety was reasonable in all of the circumstances. See: R. v. Sillipp, 1997 ABCA 346, 120 C.C.C. (3d) 384, at paras. 18-19, 38-39; leave denied: [1998] S.C.C.A. No. 3; R. v. Kosikar (1999), 1999 3775 (ON CA), 138 C.C.C. (3d) 217, [1999] O.J. No. 3569 (C.A.), at para. 19; R. v. Krushel (2000), 2000 3780 (ON CA), 142 C.C.C. (3d) 1 (Ont.C.A.), leave denied: [2002] S.C.C.A. No. 293; R. v. Kordrostami (2000), 2000 5670 (ON CA), 47 O.R. (3d) 788, 143 C.C.C. (3d) 488 (C.A.), at paras. 8-17; R. v. Scuby, 2004 BCCA 28, 181 C.C.C. (3d) 97, at para. 8; R. v. Katzenback, 2011 ABCA 318, 515 A.R. 141, at paras. 14-18; R. v. Seaton, 2012 ONSC 6070, [2012] O.J. No. 5122, at para. 69; R. v. Savard, 2013 ONSC 2208, at paras. 30-32, 53-54.

C. The Subjective Mental Element of Recklessness

[45] As to the necessary mental element of the offence of criminal harassment, it is important to accurately recall the legal scope and operation of “recklessness” as part of the general mens rea of criminal offences. The Supreme Court of Canada explored the detailed nuances of the traditional view of recklessness in R. v. Sansregret, 1985 79 (SCC), [1985] 1 S.C.R. 570. The accused in that case was charged with rape and the issue centered on the accused’s claim that he was honestly mistaken as to the complainant’s consent to the sexual activity. McIntyre J., delivering the judgment of the unanimous court, confirmed that the mens rea of rape was knowledge that the woman was not consenting, or recklessness as to whether she was consenting or not, and made the following observations about recklessness, at pp. 581-582:

The concept of recklessness as a basis for criminal liability has been the subject of much discussion. Negligence, the failure to take reasonable care, is a creature of the civil law and is not generally a concept having a place in determining criminal liability. Nevertheless, it is frequently confused with recklessness in the criminal sense and care should be taken to separate the two concepts. Negligence is tested by the objective standard of the reasonable man. A departure from his accustomed sober behaviour by an act or omission which reveals less than reasonable care will involve liability at civil law but forms no basis for the imposition of criminal penalties. In accordance with well-established principles for the determination of criminal liability, recklessness, to form a part of the criminal mens rea, must have an element of the subjective. It is found in the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risk and who takes the chance. It is in this sense that the term “recklessness” is used in the criminal law and it is clearly distinct from the concept of civil negligence.

[emphasis added]

[46] Accordingly, the traditional formulation of the concept of recklessness is described as a subjective form of mens rea that is somewhat less culpable than actual intention or knowledge. It is described as an accused who knows that his or her conduct runs the risk of producing a prohibited result, but proceeds in any event. While the accused may not necessarily want to produce that prohibited result, the accused nevertheless recognizes the risk inherent in his or her conduct and proceeds in the face of that risk. An accused is reckless where he or she recognizes that his or her conduct could bring about the prohibited result or consequences, even if not convinced that it would produce the prohibited harm or consequence. See also: R. v. Cooper, 1993 147 (SCC), [1993] 1 S.C.R. 146, at pp. 154-156; R. v. Zlatic, 1993 135 (SCC), [1993] 2 S.C.R. 29, at pp. 49-50; R. v. Théroux, 1993 134 (SCC), [1993] 2 S.C.R. 5, at pp. 20-21; R. v. Briscoe, 2010 SCC 13; [2010] 1 S.C.R. 411, at paras. 21-23; R. v. Kingsbury, 2012 BCCA 462, 297 C.C.C. (3d) 255, at paras. 40-54.

D. The Present Case – Criminal Harassment

1. The Prohibited Conduct – Contacting the Complainant Repeatedly

[47] I am satisfied beyond a reasonable doubt that the accused engaged in the “prohibited conduct” alleged, in that he “repeatedly” communicated with the complainant directly or indirectly contrary to s. 264(2)(b) of the Criminal Code. Defence counsel did not suggest otherwise, and I am satisfied that the Crown has established this element of the offence of criminal harassment beyond a reasonable doubt.

[48] I am satisfied that the accused was, in fact, the person who made all of the calls to the women’s shelter, and who left all of the voice-mail messages for the complainant, starting in May of 2012 and concluding on July 9, 2012. The cell phone records prove that he made a number of these calls from his own cell phone and, in the last call, he left his cell phone number in the voice mail message for the complainant. In most of these messages the male caller referred to the complainant, using her first name, as “Princess [H.B.]” From his many journal entries, it is clear that “Princess [H.B.], using her first name, is how the accused referred to the complainant. It was a name that he had invented for her. The complainant testified that no one called her “Princess.” She was, of course, unaware of the fact that the accused referred to her in this way as, prior to his voice-mail messages, the only other time the accused had spoken to her was in 2000, when he called the copy center to ask her if she had a boyfriend.

[49] I am also satisfied that the accused contacted the complainant “repeatedly” because, during the time period outlined in the indictment, the accused contacted the complainant by voice-mail messages five times. The repetitive nature of these calls – all of which were unanswered by the complainant – established that the accused made the calls “repeatedly.” See: R. v. Ohenhen, at para. 31.

2. The Complainant was Harassed by the Prohibited Conduct

Of the Accused and Reasonably Feared for Her Safety

[50] I am also satisfied beyond a reasonable doubt that the complainant was, in fact, harassed by the prohibited conduct of the accused, and was reasonably in fear for her safety as a result of the accused’s repeated communications with her in the summer of 2012. Again, defence counsel did not contend otherwise. I am satisfied that the Crown has established these elements of the offence of criminal harassment beyond a reasonable doubt.

[51] As I have already indicted, the complainant described these messages as “very creepy” and “terrifying.” After listening carefully to the recordings of these messages, I have no difficulty accepting as accurate her characterization of these messages from the accused. His deep tone of voice and slow pace of speaking seem almost calculated to inspire fear.

[52] The accused left five such voice-mail messages without hearing any response from the complainant. Moreover, the accused knew that, until his fifth, in which he left his cell phone number, the complainant had no means of responding to his messages, if even just to tell him to stop calling her. Further, the accused could not have failed to appreciate that the complainant would know that all of these voice-mail messages were being left for her, over a period of time, by the same man.

[53] I have already outlined, in some detail, the complainant’s evidence as to the immediate practical impact these messages had upon her. I accept her evidence in this regard. In short, these messages harassed her professionally and personally, and caused her to fear for her safety and the safety of those around her. She notified her family, friends, tenant, and work colleagues about the potential danger the accused presented. She took significant steps to try to ensure her safety by changing her daily routine, altering the way she met her professional responsibilities, avoiding photographs and involvement in any social media, and by fortifying her residence. The complainant found all of this embarrassing, humiliating, humbling and frightening.

[54] The substantive content of the messages themselves were clearly such as to harass and reasonably cause any female recipient, in the circumstances, to fear for her safety. In these messages, the accused referred to the complainant repeatedly as “Princess,” indicated that he was “still waiting” for her, expressed pride in her professional progress through her current employment, asked her to “uncover [her] eyes” and “invite [him] in, and repeatedly expressed his ever-lasting “love” for her. These messages were left by someone who had not seen or talked to the complainant for some 12 years, and who, following their one prior telephone conversation in 2000, was arrested for criminal harassment and thereafter prevented from having any contact or communication with her for a year. These messages suggested the existence of a romantic relationship and a level of intimacy between the complainant and the accused that has simply never existed. These messages also suggested that the accused had been following the complainant, romantically and professionally, for many years (unbeknownst to her), and that he would “always love” her.

[55] Accordingly, I am satisfied beyond a reasonable doubt that the complainant was harassed by the repeated communications from the accused, that his prohibited conduct caused the complainant to fear for her safety, and that this fearful reaction by the complainant, to these unsolicited and unwanted repeated communications from the accused, was objectively reasonable in all of the circumstances.

3. The Mental Element of the Offence – Was the Accused Reckless?

[56] The real point of contention between the parties is whether the Crown has established beyond a reasonable doubt that the accused possessed the necessary mens rea of the offence of criminal harassment. The Crown argues that the evidence shows that the accused was at least subjectively “reckless” in relation to whether the complainant was harassed by his voice-mail messages. Defence counsel argues, on the other hand, that the evidence establishes no more than that the accused objectively “ought” to have known that the complainant was harassed by his conduct.

[57] In repeatedly leaving these voice-mail messages for the complainant in the summer of 2012, the accused might well have hoped, within the confines of his rich fantasy life, that H.B. might one day be interested in him romantically. But, based on all of the evidence in this case, I am satisfied beyond a reasonable doubt that the accused subjectively realized the real risk that H.B. might want nothing to do with him, and that his repetitive voice-mail communications to her could well cause her to feel harassed and to reasonably fear for her safety. In concluding that the Crown has proven beyond a reasonable doubt that the accused possessed the minimum subjective mental element of the offence of criminal harassment, namely recklessness, I note the following:

• Only Spoke to the Complainant Once: In his journal writings, the accused expressed his subjective appreciation of the fact that he had only ever spoken to the complainant once, over the telephone on April 1, 2000, when he asked her if she had a boyfriend. This was, as a matter of fact, the only time they ever spoke to each other.[^19]
• Interest in Serial Killers: In his journal writings, the accused expressed his subjective appreciation of the fact that his initial contacts with the complainant were when she would photocopy his “serial killer pages” at the copy center. The accused described how the complainant would “just stare at them for a few seconds” before commencing the photocopying task.[^20]
• Arrest for Criminal Harassment: In his journal writings, the accused expressed his subjective appreciation of the fact that, shortly after the first expression of his romantic interest in the complainant, he was arrested by the police for criminal harassment, and ultimately ordered into a peace bond that legally prohibited him from having any contact or communication, directly or indirectly, with H.B. for a period of 12 months.[^21] This view of the events in 2000 and 2001 showed the accused had an accurate understanding of what had happened as a result of his one effort to court the complainant.
• Complainant’s Rejection of Him: In his journal writings, the accused expressed his subjective appreciation of the fact that the complainant had rejected him in 2000.[^22]
• No Contact for Over 12 Years: For a period of over 12 years, the accused and H.B. had no contact or communication with each other. They did not speak to each other by any means, or communicate in any fashion – either directly or indirectly. Accordingly, notwithstanding his own ongoing fantasies and thoughts about the complainant, in reality they had no relationship of any kind together.
• Repeated Messages Disclosing His Obsession: In the summer of 2012, the accused, out of the blue, began sending H.B. a series of late-night, voice-mail messages that effectively disclosed his long-standing romantic obsession with her. In these messages, the accused consistently called her “princess,” said he was “still waiting for her,” said he was proud of her professional accomplishments in her new job, professed his ever-lasting “love” for her, suggested that they were “meant to be together,” and asked her to “uncover [her] eyes,” “invite [him] in,” and contact him by telephone. These communications were unsolicited and, as I have indicated, their content presumed the existence of a romantic relationship between the accused and the complainant that had never existed. These messages also suggested that the accused had been monitoring her professional career over a period of years, and disclosed that the accused, unbeknownst to the complainant, had been silently in “love” with the complainant for years, had been “waiting” for her, and would always love her.

[58] In these circumstances, I am satisfied beyond a reasonable doubt that the accused subjectively appreciated the clear risk that his conduct, in repeatedly leaving these messages for the complainant, could cause her to feel harassed and reasonably in fear for her safety, and yet he persisted in these unsolicited and unanswered communications with the complainant notwithstanding this risk. Accordingly, I find that the Crown has established that the accused possessed the mens rea of recklessness in respect of the alleged offence of criminal harassment.

[59] There is no doubt that, as defence counsel accurately noted, the accused seemed at times to live in a fantasy world. In his jounal entries he referred to the two women he was obsessed with as his “beautiful and beloved wives,” when they were not, in fact, involved in any type of relationship with him. He acted towards his dolls as if they were his “daughters,” giving them names, playing with them, and taking pictures of them as if they were real members of his family. It is also fair to observe, as did defence counsel during his submissions, that the accused is painfully shy and naïve. However, possessing a creative and vivid imagination and being shy and uncomfortable around others does not render a person incapable of appreciating the true reality of their personal circumstances or the natural and probable consequences of their actions. Moreover, there is no evidence to suggest that the accused suffers from any type of mental disorder that could somehow displace the legal presumption of sanity statutorily provided in s. 16(2) of the Criminal Code.

4. Conclusion

[60] In the result, I am satisfied that the Crown has established, beyond a reasonable doubt, all of the elements of the offence of criminal harassment. Accordingly, I find the accused guilty of this alleged offence.

E. The Breach of the Probation Order

[61] As I have indicated, in May through July of 2012, the accused was subject to a court-ordered probation order that required him to “keep the peace and be of good behaviour.” When this probation order commenced, the accused’s probation officer, Ms. Robertson, explained to the accused that the requirement that he “keep the peace and be of good behavior” would be breached if he committed another criminal offence. The accused understood his responsibility in this regard.

[62] In the result, I am satisfied that the Crown has established, beyond a reasonable doubt, that by committing the offence of criminal harassment in relation to the complainant, the accused has also failed, without reasonable excuse, to comply with this condition of his probation order. Accordingly, I also find the accused guilty of this alleged offence.

IV

Conclusion

[63] In the result, I am satisfied beyond a reasonable doubt that the accused is guilty of both charges alleged in the indictment.

______________________________

Kenneth L. Campbell J.

Released: August 1, 2014

COURT FILE NO.: 646/13

DATE: 20140801

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

- and -

T.W.

REASONS FOR JUDGMENT

K.L. Campbell J.

Released: August 1, 2014

[^1]: Book One, Image 560.

[^2]: Book One, Image 578.

[^3]: Book One, Images 491-492.

[^4]: Book One, Image 499.

[^5]: Book Two, Image 605.

[^6]: Book Two, Image 636. There are subsequent entries in the journal in which the accused referred to his two “beautiful wives,” one of whom is the complainant. See also, Book Two, Images 650, 654, 656.

[^7]: Book Two, Image 639.

[^8]: Book Two, Image 651.

[^9]: Book Two, Image 651.

[^10]: Book Two, Image 651.

[^11]: Book Two, Image 662.

[^12]: Book Two, Image 666.

[^13]: Book Two, Image 677.

[^14]: Book Two, Image 682.

[^15]: Book Two, Image 697.

[^16]: Book Two, Image 797.

[^17]: Book Three, Image 816.

[^18]: Book Three, Image 853.

[^19]: Book One, Image 491.

[^20]: Book Two, Image 651.

[^21]: Book One, Images 491, 560, 578.

[^22]: Book Two, Image 797.