CITATION: R. v. Humberto Dapena-Huerta, 2017 ONSC 7531
NEWMARKET COURT FILE NO.: CR-15-1279
DATE: 20171215
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
HUMBERTO DAPENA-HUERTA
Applicant
A. Linds, for the Respondent
M. Rieger, for the Applicant
HEARD: December 4, 2017
RULING ON APPLICATION FOR A DIRECTED VERDICT
HEALEY J.:
Nature of the Application
[1] This is a motion by the defence for a directed verdict of acquittal on Count 6 on the indictment.
[2] The charge reads as follows:
That between the 1st day of February to the 31st day of March in the year 2014 at the Town of Richmond Hill in the Regional Municipality of York did, without lawful authority and knowing that another person, namely K.D.[^1], was harassed or was reckless as to whether that person was harassed, engage in besetting or watching a place where that person happened to be and cause the said K.D. to reasonably fear for her personal safety, contrary to Section 264, subsection (3) of the Criminal Code.
The Test to be Applied
[3] The test that must be applied on a motion for a directed verdict is that set out in United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, at p. 1080, and R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 21, which is the that judge must determine whether there is sufficient evidence upon which the jury, properly instructed and acting reasonably, could convict.
[4] Where the Crown has not presented direct evidence as to every element of the offence, the trial judge must conduct a limited weighing of any circumstantial evidence to determine if a properly instructed jury could reasonably convict. This limited weighing involves assessing whether the circumstantial evidence is reasonably capable of supporting the inferences that the Crown asks the jury to draw: Arcuri, at para. 23.
[5] Arcuri makes clear, however, that it is not for the trial judge to measure the credibility of witnesses, draw inferences from facts, test the inherent reliability of the evidence or ultimately weigh the evidence to decide whether he or she would find the accused guilty beyond a reasonable doubt: at para. 23. These issues are to be left to the jury. As set out in The Law of Evidence in Canada, 4th ed., “the task of limited weighing does not consider the inherent reliability of the evidence itself but rather it is an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence”: See Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 4th ed. (Markham, Ontario: LexisNexis Canada, 2014), at para. 5.27.
[6] For criminal harassment to be made out, the Crown must prove the following (R. v. Verdon, 2014 ONCA 807, at para. 6):
The accused engaged in the conduct prohibited under s. 264(a), (b), (c) or (d);
The complainant was harassed by the prohibited conduct;
The accused who engaged in such conduct knew that the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassed;
The conduct caused the complainant to fear for his or her safety, or the safety of anyone known to him or her; and
The complainant’s fear was, in all the circumstances, reasonable.
The Argument of the Defence
[7] The position of the defence is that first, the Crown has not adduced evidence, direct or circumstantial, of all of the essential elements of criminal harassment during an incident encompassed by the dates on the indictment. Second, there is no evidence that the man observed by the complainant engaged in watching or besetting. Third, there is no evidence that the complainant was harassed by the acts alleged to have been committed on either of the two occasions. Fourth, there is no evidence that the man was aware of the effect of his conduct on the complainant.
The Evidence
[8] The incident involving K.D. occurred on April 30, 2014 at approximately 8:45 a.m., in a suburban area of Richmond Hill. At the time, K.D. was 13 years old.
[9] On her way to school in the morning, while walking along Crystal Drive, K.D. noticed a man standing by mailboxes on a pathway exiting from Pleasantville Park. The man was recognizable to her because she had seen him perhaps eight or nine weeks earlier in the same area, when she and a friend, Y.A., had seen him in Pleasantville Park, and thought that he was following them as they left the park. At that time, she and her friend lost sight of the man when they reached the mailboxes where she now saw the man standing. She recognized the man because of his clothing and his hair, which she described as a grown-out buzz cut.
[10] When she had seen the man eight or nine weeks earlier, she noticed him sitting on the park bench beside them at the top of the hill. When he was sitting on the bench she looked over once or twice, but was not really paying much attention to him. She recalled that it was light when they left the park between 5:00 and 5:30 p.m. As they were leaving, K.D. noticed that the man was walking behind them on the path, approximately ten metres back. She turned her head slightly to the side and glanced back because she wanted to see how close he was. She glanced back one or two times, and saw that he was looking down at the sidewalk. But she was trying not to look at him too much that first time, so that he would not get a good look at her face. The two girls sped up as they were getting closer to Crystal Drive. She and Y.A. increased their pace. The man did not speed up but was still following the same path. As they were exiting onto Crystal Drive by the mailboxes, Y.A. turned around, showed the man her phone and said to the man, "why are you following us?" Y.A. was speaking in a raised voice. The man did not respond. Instead, he turned and walked quickly away. The two girls talked about how the event was strange, and that things like that—being followed and attacks—do not usually happen in Richmond Hill. K.D. had never had a concern before that day when walking in that neighborhood. K.D. believes that she was more afraid than Y.A., who was a year older. They both agreed that the man might have been following them. She did not mention the event to her parents.
[11] It was that context or history that K.D. had in mind when she saw the man for the second time on April 30, 2014.
[12] Upon seeing him again K.D. sped up and crossed to the other side of Crystal Drive where there was no sidewalk, and continued walking on her usual route. At the time that she crossed the street the man was 10 to 15 metres behind her. She thought that the man had seen her, but was not quite sure. While walking, K.D. turned around three times to look back at the man. She did that because she wanted to see if it was the same person whom she had seen in February. Every time she looked back the man was looking down at the sidewalk. She was concerned after she saw him on the pathway, because he was walking as fast as she was for a time. The man stayed on the other side of Crystal Drive. He did not try to speak with her or catch up with her, and she testified that the man “mocked” her pace (by which I infer that K.D. meant to convey that he “mimicked” her pace). On cross-examination, she was reminded of her preliminary inquiry testimony, where she said that when she got faster, he stayed at the “same pace”. Her earlier testimony leaves it open to the jury to interpret her evidence to mean that when she sped up, he either kept pace with her or remained at his initial pace.
[13] The route taken by K.D. involved at least two turns at intersections in which there was an option to go in another direction. She agreed that it was possible that it could be the case that the man was walking down to Major McKenzie using the fastest route, which was the route that she was taking.
[14] When she reached a convenience store, she looked back and could no longer see the man. The total time period involved from the time that she first saw the man was between five to seven minutes, in her estimation. She continued on her way to school. She told her teacher later that day, and her father contacted the police.
[15] K.D. had been made aware of other similar incidents involving teenaged females in her neighborhood. From time to time her father had been driving her to school because of these other incidents.
[16] The defence has been aware of both of these incidents throughout these proceedings. The defence has also been aware at least by the time of the preliminary hearing, that the first incident was alleged to have occurred during the month of February and that the second incident was alleged to have occurred on April 30, 2014. The defence has been aware that K.D. was interviewed by the police on the date of the second incident.
[17] The Crown closed its case before seeking an amendment to the dates on Count 6. Before closing, the Crown indicated that it is only seeking a conviction on a single count of criminal harassment, arising from the incident occurring on April 30, 2014.
[18] The defence opposed the amendment that was suggested by the Crown during argument of this application, but could not point to any prejudice to his client from such amendment.
Analysis
A. Amendment to the Indictment
[19] Subsection 601(2) of the Criminal Code, R.S.C., 1985, c. C-46, (“the Code”) provides:
Amendment where variance
(2) Subject to this section, a court may, on the trial of an indictment, amend the indictment or a count therein or a particular that is furnished under section 587, to make the indictment, count or particular conform to the evidence, where there is a variance between the evidence and
(a) a count in the indictment as preferred; or
(b) a count in the indictment
(i) as amended, or
(ii) as it would have been if it had been amended in conformity with any particular that has been furnished pursuant to section 587.
[20] The test to be applied in answer to whether the indictment may be amended to conform to the evidence is whether or not the amendment can be made without causing irreparable prejudice to the accused: R. v. Morozuk, 1986 CanLII 72 (SCC), [1986] 1 S.C.R. 31; R. v. Campbell, 1986 CanLII 35 (SCC), [1986] 2 S.C.R. 376.
[21] In this case, the accused has known about the allegations arising from April 30, 2014 from the disclosure and throughout the proceeding. This is not a case in which the date on the indictment is suggestive of fabrication on the part of the complainant, as there is evidence that she told a teacher, and police were contacted, on the same date of the incident. The accused has not been prejudiced in any way in the conduct of the trial. Accordingly, there is no value in retaining the existing dates, within which only the first incident occurred, and not amending the indictment to conform to the evidence.
[22] Accordingly, I order that Count 6 shall be amended to read:
That on the 30th day of April in the year 2014 at the Town of Richmond Hill in the Regional Municipality of York did, without lawful authority and knowing that another person, namely K.D.[^2], was harassed or was reckless as to whether that person was harassed, engage in besetting or watching a place where that person happened to be and cause the said K.D. to reasonably fear for her personal safety, contrary to Section 264, subsection (3) of the Criminal Code.
B. Watching or Besetting
[23] Mr. Dapena-Huerta is charged under s. 264(2)(c) of the Code. That section provides:
Criminal harassment
264 (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.
Prohibited conduct
(2) The conduct mentioned in subsection (1) consists of
(a) repeatedly following from place to place the other person or anyone known to them;
(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;
(c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or
(d) engaging in threatening conduct directed at the other person or any member of their family.
[24] “Harassed” has been defined as being “tormented, troubled, worried continually and chronically, being plagued, bedeviled and badgered”: R. v. Sillipp (1995), 1995 CanLII 5591 (AB KB), 99 C.C.C. (3d) 394 (Alta. Q.B.). It is not sufficient that the complainant be “vexed, disquieted, or annoyed”.
[25] The terms “watching” and “besetting” are not defined in Black’s Law Dictionary. While the case law provides some assistance, there has been no clear articulation of those terms.
[26] In R. v. Eltom, 2010 ONSC 4001, 258 C.C.C. (3d) 224, the accused appealed his conviction for criminal harassment. He was charged and convicted of “watching and besetting” the complainant’s place of work. Trotter J. (as he then was) was faced with the issue of defining these terms. Significantly, he was unable to offer definitions of those terms from cases involving a charge under s. 264 of the Code. At para. 13, he noted that the expression “watching or besetting” had been defined in Everywoman’s Health Centre Society (1988) v. Bridges (1993), 1993 CanLII 1276 (BC SC), 109 D.L.R. (4th) 345 (B.C.S.C.), a civil contempt case. After examining a number of dictionary definitions of those terms, the court in Everywoman’s Health concluded, at para. 26:
These definitions lead to the conclusion that watching is passive in nature and besetting is active. Watching is continually observing for a purpose and besetting has a physical element of approaching and, with respect to another person, importuning or seeking to argue with that person.
[27] In Eltom, Trotter J. went on to state, at para. 13:
Importantly, as used in s. 264 of the Criminal Code, the terms “watching” and “besetting” are disjunctive. Indeed, the information alleges that the appellant committed criminal harassment by merely watching the complainant. However, the juxtaposed words take meaning from each other. And as noted above, the legal meaning of “watch” requires continuous observation for a particular purpose: see Telus Communications Inc. v. Telecommunications Workers Union (2005), 2005 ABQB 719, 385 A.R. 43 (Q.B.), at paras. 58 to 59.
[28] At para. 14, he concluded that the trial judge had failed to examine the evidence before concluding that the actus reus of the offence had been established. He observed that “merely looking at someone and smiling, standing alone, is not sufficient to constitute ‘watching’ within the meaning of s. 264”. He went on to add that the conduct of the accused is to be viewed and assessed in its factual context, and that provision of the Code must be applied with reference to the relationship between “watching” and “besetting”.
[29] With respect, I do not agree that there is necessarily a relationship between watching and besetting, as suggested in Eltom. The conduct of a person in watching a place, without more, might be just as unsettling or harassing to a complainant than the situation in which an accused person besieges or otherwise actively engages with them in a disturbing way. The fact that the word “or” exists between watching and besetting means that either can, alone, amount to an offence within the definition of s. 264.
[30] Further, I do not agree with any possible suggestion in the Eltom case that, where the allegation is “besetting or watching a place where that person happened to be”, that the primary focus must be placed on the nature, quality or duration of the accused’s interactions with the complainant. The accused, after all, may watch a place where a complainant happens to be without ever making eye contact with or even observing a complainant, or may watch that place in a way that the complainant only becomes aware of over time or through chance. A woman’s ex-partner might sit in a car outside of her residence watching who enters and exits, for example, without ever fixing his eyes on her. Yet once she learns of it, the conduct could cause her to feel harassed and fear for her safety. While ultimately the object of the offender’s conduct must be the harassment of the victim or someone known to them in order to make out the offence, I do not agree that the actus reus of the offence can only be proven by an act or acts that overtly show a watching of the person, as opposed to the place in which that person happens to be. Such an interpretation is, in my view, in accordance with the wording in s. 264(1)(c) of the Code.
[31] David Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Thomson Reuters Canada, 2015) at p. 772, includes the following in the precedent instruction to be given for a charge of besetting or watching:
To beset a place means to be present at or near it in a troubling way.
To watch a place means to observe it with continuous attention.
[32] These definitions assist in focusing the triers on the actions of the accused in relation to the place and his reason for being there, as opposed to the ultimate object of his interest, the victim.
[33] The entirety of the circumstances and context plays an important role in determining whether besetting or watching has occurred within the meaning of s. 264(2)(c) of the Code.
[34] In R. v. Belcher, 1998 CarswellOnt 192 (S.C.J.), an appeal from a conviction under s. 264(2)(c) of the Code was dismissed. In Belcher, the accused was known to the complainant. In May 1996, the appellant was convicted of a historic indecent assault against the complainant. The appellant appealed and was released on a recognizance pending the determination of his appeal, a term of which required him to refrain from association or communication with the complainant. In January 1997, a chance encounter occurred when both the appellant and the complainant attended at a shopping plaza. The appellant looked at the complainant before she entered the bank. The complainant carried on with her errands at other stores in the shopping plaza complex, and spent some time talking to her brother, who she found parked in the parking lot. After she left the plaza, the appellant followed her in his vehicle to a nearby town, a distance of approximately 12 miles. There she entered a restaurant, where she found her son and some of his friends. The complainant's son and his friends left the restaurant looking for the appellant, and as they approached his car parked in front of the nearby community center, he fled from the scene.
[35] At paras. 20-21 of Belcher, Eberhard J. noted that the wording of s. 264 has resulted from a concern for balancing the peril of conduct from which the community ought to be protected, such as stalking, against avoiding the criminalizing of conduct that may in fact be quite innocuous and well within the freedoms cherished by society. She cited from the decision of R. v. Lafreniere, 1994 CarswellOnt 7344 (Ont. Prov. Div.), Greco J., wherein he states, at para. 7:
If one analyzes the section closely it becomes apparent that conduct or behavior by an accused which had previously been viewed as innocent, in the sense that it was not criminal conduct, in certain circumstances and under certain conditions may now become criminal conduct.
[36] I fully agree with the conclusion reached by Eberhard J. in Belcher at para. 22, where she stated:
I am persuaded that the definition of the conduct described in subsection (2) is assisted by looking back at subsection (1). An activity such as “watching” can clearly be non-criminal, but if it is done in circumstances and to an extent, that is objectively capable of demonstrating the intention to harass and generating reasonable fear, then it may likely be a quality of conduct that falls within subsection (2).
[37] Eberhard J. went on to state, at para. 26:
Innocent, innocuous or chance watching at a public place would not attract criminal sanction. The persistent and intentional watching that the appellant caused to occur in this case is clearly conduct of a quality to surpass the subsection (1) limitations. Had watching ceased after the chance first sighting in a public place when the complainant left that area, there would clearly be no offence. Conduct on the continuum between these two qualities of watching would be assessed on a case by case basis.
[38] In R. v. Ohenhen (2005), 2005 CanLII 34564 (ON CA), 77 O.R. (3d) 570, 203 O.A.C. 3, (C.A.), MacFarland J.A., held, at para. 32, that one instance of unwanted conduct can be sufficient to satisfy s. 264(2)(c).
[39] I agree that there is no evidence that the person who K.D. observed on April 30, 2014 engaged in “besetting”, as at no time did he engage in any behavior that could be seen as importuning, pestering or seeking to argue with K.D..
[40] In this case, in mid-February when K.D. and Y.A. encountered the man in Pleasantville Park, it is open to the jury to find that the man noticed the girls sitting on the bench at the top of the hill. K.D. and Y.A. noticed, as they were walking out of the park, that the man, who had disappeared from their view for a time, was now located behind them. That realization, together with his proximity to them, was sufficient to cause them concern. K.D. glanced back at the man to see how close he was to them. The significant event is what occurred next, when Y.A. loudly asked the man “why are you following us?”, and he turned and abruptly walked away from them. It is open to the jury to find, based on the man’s lack of response or denial, that K.D. reasonably believed that she and her friend had been the target of the man’s attention, and that he watched and then followed them.
[41] The encounter giving rise to the charge begins where the earlier event left off, with the man being located at the mailboxes at the end of the pathway where K.D. and Y.A. had been situated when they last saw the man. Defence counsel argued that there is no evidence that the man even looked at or even in the direction of K.D. during this encounter, and so the actus reus cannot be established. However, it is open to the jury to find that, based upon their proximity to one another on this residential street, the man did see K.D. from the outset. It is open to them to believe her evidence that he mimicked her pace, sped up when she did, and persisted in taking the same route that she took, not because it was the fastest route, but because he was watching her. If those are the facts that they accept, it is open to them to find that he was continuing to watch her as she wound her way down the streets toward her school. They will be able to weigh the importance of her evidence that he was looking down at the sidewalk every time that she looked back against the evidence of this “mimicking”. It is open to them to find that it was either a chance encounter that brought them into proximity with one another on April 30, or that he was watching the place where he had seen the girls on the last occasion. I do not believe that it is necessary for the Crown to have to prove that the accused was specifically watching for the complainant in particular.
[42] To prove that the complainant was harassed by the accused’s behavior, the Crown must show that the complainant was "tormented, troubled, worried continually or chronically, plagued, bedevilled and badgered". This list of words does not have to be read cumulatively, but rather are individual synonyms for "harassed".: R. v. Kordrostami, 2000 CanLII 5670 (ON CA), 47 O.R. (3d) 788, 130 O.A.C. 63 (C.A.). It is open to the jury to find that the man's behavior troubled the complainant, given her actions in speeding up when she saw him, crossing over to the other side of the street and remaining on that side, while glancing back at him three or four times.
[43] The Crown must also show that the accused knew that the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassed. In R. v. Ryback (1996), 105 C.C.C. (3d) 240, 1996 CanLII 1833 (B.C. C.A.), Finch J.A. who delivered the judgment for the British Columbia Court of Appeal, observed, at para. 34:
The appellant's state of mind would, of necessity, depend in large part on his past association with, and conduct towards, the complainant. His knowledge that the complainant was harassed, or his recklessness as to whether she was harassed, could be realistically decided only by looking back to what had gone before.
[44] If the jury determines that it was the same man on both occasions, it is open to them to find that the prior negative interaction between K.D., Y.A. and the man was sufficient to inform him that following closely behind K.D. was behavior that K.D. would find harassing. They could look to the entirety of the circumstances, including K.D.’s age, the fact that she was walking alone, that she crossed the street and walked where there was no sidewalk, and that she glanced back at him several times.
[45] The fact that the complainant was fearful for her safety could be proved by the fact that she reported the incident to her teacher when she got to school, and that she later provided the police with her statement.
[46] Based upon her earlier interaction with the man in the park, her fear is objectively reasonable given her age, the fact that she was walking alone, the characteristics of the man in terms of his age, height and build in relation to her own, and her knowledge that there had been other incidents of this nature in her neighborhood.
[47] Accordingly, there is sufficient evidence upon which the jury, properly instructed and acting reasonably, could convict. For these reasons the motion was dismissed.
Healey J.
Release: December 15, 2017
[^1]: Initials used to protect the identity of the complainant, who was under 18 years of age at the time set out in the indictment.
[^2]: See endnote 1.