R. v. Singh, 2017 ONSC 7636

CITATION: R. v. Singh, 2017 ONSC 7636

COURT FILE NO.: CR-17-1-268

DATE: 20171220

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

INDERJIT SINGH

COUNSEL:

M. Cole, for the Crown

S. Jaffer, for Mr. Singh

HEARD: December 18-19, 2017

REASONS FOR JUDGMENT

SCHRECK J.:

[1] Never talk to strangers. This is advice most parents give to their children. But what if a stranger persists in talking to a child? And when does doing so cross the line between merely inappropriate behaviour and criminal conduct? That is the issue that must be resolved in this case.

[2] Inderjit Singh is charged with three counts of criminal harassment in relation to L.A., who was 13 years old at the relevant time, and one count of failing to comply with a probation order. The charges arise out of events that took place in the lobby of an apartment building where Mr. Singh repeatedly asked L.A. and her friend, S.A., to come to his apartment. It is alleged that by doing so, he committed the offence of criminal harassment in three ways: by repeatedly following the complainant from place to place, by repeatedly communicating with her, and by engaging in threatening conduct. There is no issue that Mr. Singh was bound by a probation order at the relevant time requiring him to keep the peace and be of good behaviour.

[3] For the reasons that follow, I am not satisfied that Mr. Singh followed the complainant from place to place or that he engaged in threatening conduct. However, I am satisfied beyond a reasonable doubt that he committed the offence of criminal harassment by repeatedly communicating with her, and thereby breached the terms of his probation order.

I. EVIDENCE

A. Overview

[4] The evidence consisted primarily of the testimony of the complainant, L.A., who was 13 years old at the time of the events, and her friend, S.A., who was 12, as well security video from the building where the events took place on August 16, 2016. At the relevant time, L.A. and S.A. were attending a summer camp in the penthouse of an apartment building on Shuter Street in Toronto. The accused, Mr. Singh, lived in that building.

B. The Events in the Building

[5] L.A. and S.A. had left the camp to go out for lunch and were expected back at 12: 30 p.m. They arrived back late and initially could not enter the building as it was locked, so they waited outside the lobby door in the hope that somebody would let them in. Shortly after they arrived, a man with a bicycle also arrived and, like them, waited to be allowed entry by somebody inside the building.

[6] A short while later, Mr. Singh walked past the front door and saw the two girls and the man with the bicycle standing outside. According to the girls, he indicated that he was willing to let the girls in but not the man on the bicycle. Mr. Singh opened the door and the two girls quickly entered. The man on the bicycle followed. Although Mr. Singh attempted to prevent him from entering, he managed to do so. According to the girls, Mr. Singh swore at the man on the bicycle and some sort of altercation took place. While it is clear on the video that Mr. Singh attempted to prevent the man from entering, there was no physical altercation between them.

[7] After entering the building, L.A. walked very quickly past the elevators to an area at the back of the building near the rear entrance. S.A. stopped at the elevators and pressed the elevator button. However, at the same time a man with a dog approached the elevator, so S.A., who was afraid of the dog, walked away from the elevator and joined L.A. at the back of the building.

[8] Mr. Singh walked past the man with the bicycle and the man with the dog, both of whom were waiting for the elevator, to where the girls were and began to speak to them. Both girls testified that when Mr. Singh spoke to them, he asked them where they were from and repeatedly asked them to come up to his apartment. He told them that they could “chill” at his apartment and watch television. According to L.A., he spoke to them in an aggressive manner. The two girls reacted very differently to this. S.A. simply said “no” and then proceeded to ignore him. L.A. testified that she more equivocal and said “I don’t think so” or even “maybe” as she was afraid of what reaction might have been provoked by an outright refusal.

[9] Mr. Singh then walked back to the area of the elevator, where he is seen on the video pointing at something. He then returned back to where the girls were and began speaking to them again. He appears on the video to be very animated and gestures with his arms several times. At this point, a man pulling a wheeled bin containing some sort of equipment entered the area and walked to where the girls were. According to the girls, this man told them not to mind Mr. Singh because he was drunk.

[10] The video shows that soon after, Mr. Singh walked away from the girls back to the elevators, where he spoke to the man with the dog. Mr. Singh then wandered back to where the girls were and once again spoke to them while gesturing with his arms. S.A. then walked to the elevator while Mr. Singh continued to speak to L.A. Mr. Singh then walked over to S.A. and spoke to her, but she quickly walked away from him. Before reaching L.A., she turned around, walked past Mr. Singh, and pressed the elevator button. Mr. Singh walked back towards L.A., said something to her, and then walked back to where S.A. was. At this point, L.A., who was still at the back of the building, gestured to S.A. to come over to where she was and then quickly left the building by the back entrance. S.A. followed her out. Mr. Singh followed them out of the building shortly afterwards.

C. The Events After Leaving the Building

[11] The two girls walked over to the next building and spoke to a security guard there. He was unhelpful, so they left that building. They then encountered a building maintenance worker, Ucal Robinson, to whom they spoke and who offered to take them to the building security office. As they walked back towards the building with Mr. Robinson, the girls saw Mr. Singh sitting on a bench that was behind the building. When he saw them, he began swearing at them. According to L.A., he said “I will get you” or words to that effect.

[12] The girls were taken to the security office where they spoke to the building security guards. They later spoke to the police.

II. ANALYSIS

A. Overview

[13] Section 264 of the Criminal Code sets out the elements of the offence of 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.

(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.

[14] The elements of the offence of criminal harassment were explained in R. v. Sillipp (1997), 1997 ABCA 346, 120 C.C.C. (3d) 384 (Alta. C.A.), at para. 18 and R. v. Kosikar (1999), 1999 CanLII 3775 (ON CA), 138 C.C.C. (3d) 217 (Ont. C.A.), at para. 19. To obtain a conviction, the Crown must prove the following:

1. That the accused has engaged in the conduct set out in s. 264(2)(a), (b), (c), or (d) of the Criminal Code;

2. that the complainant was harassed;

3. that the accused who engaged in such conduct knew that the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassed;

4. that the conduct caused the complainant to fear for her safety or the safety of anyone known to her; and

5. that the complainant’s fear was, in all of the circumstances, reasonable.

In this case, Mr. Singh is charged with three counts of criminal harassment, each alleging a different type of conduct set out in the subsections of s. 264(2), namely subsections (a), (b) and (d). I will consider each in turn.

B. Count 1 – Section 264(2)(a): Repeatedly Follow From Place to Place

[15] Count 1 alleges that Mr. Singh criminally harassed L.A. by repeatedly following her from place to place. Crown counsel submits that because Mr. Singh walked back and forth from where L.A. was standing and then walked out of the building after her, he “repeatedly followed her from place to place”.

[16] I cannot accept this submission. The Canadian Oxford Dictionary, 2^nd ed. defines “follow” as “go or come after (a person or thing proceeding ahead)”. One cannot follow something unless that thing is moving. Mr. Singh did follow L.A. after she left the building, but he did not do so repeatedly: R. v. Ohenhen (2005), 2005 CanLII 34564 (ON CA), 77 O.R. (3d) 570 (C.A.), at para. 31; R. v. Belcher, [1998] O.J. No. 137 (Gen. Div.), at para. 20. There was no evidence that he continued to follow them after leaving the building, so I am not persuaded that the following he did engage in was “from place to place”.

[17] As the Crown has failed to prove the first element of the offence, Mr. Singh cannot be found guilty on this count.

C. Count 2 – Section 264(2)(b): Repeatedly Communicate

(i) The Prohibited Conduct

[18] Count 2 alleges that Mr. Singh criminally harassed L.A. by repeatedly communicating with her. The security video did not record any sound, so the only evidence as to what was said came from L.A. and S.A. It is clear that aspects of their testimony, in particular that of L.A., are unreliable. For example, both girls recall Mr. Singh pushing them when they first entered the building, but it is clear from the video that he did not come into physical contact with either of them. L.A. acknowledges that she remembered Ms. Singh standing much closer to her than the video shows him doing. She also acknowledges that she may have exaggerated the events when speaking to the security guards and had told them that Mr. Singh had touched her, which was not true. I do not think that either witness was trying to mislead the court. However, it is clear that their memories of the events are not completely reliable.

[19] Having taken these frailties in the evidence into account, I nonetheless find that Mr. Singh did speak to the girls, that he asked them where they were from, and that he repeatedly asked them to come up to his apartment to “chill” and watch television. The witnesses were consistent on this point and corroborated each other. As well, neither was challenged in cross-examination with respect to what Mr. Singh said to them.

[20] I also find that Mr. Singh swore at the girls when they were returning to building. However, I am not satisfied that he said “I will get you” or words to that effect. While L.A. testified to hearing this, S.A., who was in as good a position to hear what was said, did not testify to hearing anything of this nature. Given the frailties in L.A.’s evidence, I am not satisfied that Mr. Singh said this. However, I am satisfied that he swore at the girls. This, together with the invitations to come to his apartment, constitutes repeated communication.

(ii) Whether the Complainant Was Harassed

[21] “Harassed” has been defined to mean “tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered”: Kosikar, at para. 25. The Crown need not prove all of these states of mind on the part of the complainant. Proof of any one of them is sufficient: R. v. Kordostami (2000), 2000 CanLII 5670 (ON CA), 47 O.R. (3d) 788 (C.A.), at para. 11.

[22] In this case, L.A.’s description of how she felt as a result of Mr. Singh’s conduct shows that she was, at the very least, “troubled” and, given the repeated invitations to go to his home, “badgered”. I accept her testimony on this issue. This element of the offence has been proven.

(iii) Knowledge, Recklessness or Wilful Blindness

[23] Counsel for Mr. Singh submits that because L.A. was equivocal in her responses to his invitations, he would not have known that she was harassed as a result of his conduct. I cannot accept this submission. Mr. Singh was an adult male repeatedly asking a child he does not know to come to his home. He did so while waving his arms and immediately after being in a verbal altercation with the man with the bicycle. Although L.A. did not assertively refuse his invitation, she made no move to accompany him to his apartment. Her body language, as shown on the video, clearly demonstrated that she was uncomfortable. Anybody engaging in the type of conduct Mr. Singh engaged in would know that there is a significant risk that the child would be frightened and troubled as a result. By choosing to engage in the conduct despite this risk, Mr. Singh was, at the very least, reckless as to whether the complainant was harassed: R. v. Sansregret, 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570, at pp.581-582; R. v. Tremblay, 2011 ONCA 277, at para. 2.

[24] Even if Mr. Singh did not know that the repeated entreaties to come to his home could cause the complainant to be harassed, he would have known that swearing at her after she ran away from him and sought help would have had this effect. While counsel for Mr. Singh tried to draw a distinction between the events that took place in the building and those that took place outside, I see no basis for doing so. Mr. Singh’s repeated requests to L.A. to come to his apartment and his swearing at her when it became clear that she was refusing to do so constituted a continuous course of conduct.

(iv) The Complainant’s Fear for Her Safety

[25] L.A. testified that she was afraid as a result of Mr. Singh’s conduct. I accept her evidence on this point.

(v) The Objective Reasonableness of the Complainant’s Fear

[26] Counsel for Mr. Singh points to two pieces of evidence which she submits demonstrates that L.A.’s fear was not reasonable in the circumstances. First, L.A. acknowledged in her testimony that she is a sensitive individual. Second, S.A., who was present throughout the interaction with Mr. Singh and who observed the same behaviour, testified that she was not afraid.

[27] In assessing the reasonableness of the complainant’s fear, I must take into account her age: Kordrostomi, at para. 17; R. v. Wisniewska, 2011 ONSC 6452, at para. 37. A child may well reasonably fear something which a reasonable adult would not fear. In this, case, a 13-year-old girl was invited by an adult male she does not know to come to his home. The invitation was repeated more than once. In my view, it was completely reasonable for L.A. to be afraid in the circumstances. There is a reason why parents teach their children not to talk to strangers. Her sensitivity does not detract from the reasonableness of her fear. While S.A. may not have been afraid, this shows only that there can be more than one reasonable way to react to a situation.

[28] In my view, all of the elements of the offence have been proven with respect to Count 2.

D. Count 3 – Section 264(2)(d): Threatening Conduct

[29] On this Count, the Crown relies on L.A.’s testimony that Mr. Singh said “I will get you” or words to that effect. For the reasons I have explained, I am not satisfied beyond a reasonable doubt that that comment was made. As a result, the Crown has failed to prove this count.

E. Count 4 – Failing to Comply With a Probation Order

[30] There is no issue that Mr. Singh was bound by a probation order at the relevant time and that one of the terms of that order required him to “keep the peace and be of good behaviour”. For the reasons I have explained, I find that he committed the offence of criminal harassment and thereby breached that term.

III. DISPOSITION

[31] For the foregoing reasons, Mr. Singh is found guilty on Counts 2 and 4 and not guilty on Counts 1 and 3.

Justice P.A. Schreck

Released: December 20, 2017.

R. v. Singh, 2017 ONSC

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

INDERJIT SINGH

REASONS FOR JUDGMENT

P.A. Schreck J.

Released: December 20, 2017.