ONTARIO
SUPERIOR COURT OF JUSTICE
(Summary Conviction Appeal Court)
B E T W E E N:
HER MAJESTY THE QUEEN
A. A. Khoorshed, for the Respondent
Respondent
- and -
MICAELA KELLNER
J. McCulligh, for the Appellant
Appellant
HEARD: March 7, 2018, at Milton
REASONS FOR JUDGMENT
[on appeal from an NCR Verdict by Brown J. on August 10, 2016]
HILL J.
INTRODUCTION
[1] After a trial, the appellant was found not criminally responsible (NCR) of three charges – criminal harassment and breach of probation (x2).
[2] On appeal, Mr. McCulligh informed the court that the appellant has been conditionally discharged from hospital detention.
[3] The appellant has raised interrelated grounds of appeal essentially questioning the trial judge’s conclusion that the actus reus of criminal harassment was established at trial.
PROCEDURAL HISTORY
[4] The appellant was represented throughout this matter by experienced defence counsel, Mr. McCulligh.
[5] On May 20, 2016, the Crown applied before Wolder J. for a Criminal Code Part XX.I assessment order respecting the accused, invoking s. 672.11(b), 672.12(3)(b). The issuance of an assessment order was opposed. After an evidentiary hearing, the court issued an assessment order with a remand to the St. Joseph’s Healthcare (SJH) facility in Hamilton for psychiatric opinion as to whether the appellant was, at the time of the alleged offences, “suffering from a mental disorder so as to exempt [her] from criminal responsibility by virtue of subsection 16(1)” of the Code.
[6] The appellant was assessed at the Forensic Psychiatry Program Campus of the SJH facility. Drs. G.A. Chaimowitz and N. Mokhber prepared a July 8, 2016 assessment report concluding that the appellant was NCR at the time of the alleged offences.
[7] Mr. McCulligh was instructed by his client that not guilty pleas were to be entered at trial and that an NCR defence was not to be advanced.
[8] The procedural structure of the trial before Brown J. was unusual. The complainant testified as the first Crown witness. Together with a documentary exhibit, the prosecution maintained that this evidence proved the actus reus of the criminal harassment allegation. Then, on agreement of the defence and the court, without the defence yet calling evidence to challenge proof of the actus reus of the alleged crimes, the Crown was permitted to lead two additional witnesses (including Dr. Chaimowitz) to establish that the appellant was NCR at the time of the offences. The sole defence witness was the appellant. After hearing the evidence and submissions, Brown J. rendered NCR verdicts.
[9] Concerned that the trial process had resulted in the prosecution raising the issue of insanity in advance of findings of guilt or the appellant herself putting her capacity for criminal intent in issue (the “Swain principle), this court earlier adjourned the appeal hearing for additional written submissions on this point: 2017 ONSC 6875.
FACTUAL CONTEXT OF ALLEGED CRIMINAL HARASSMENT
Attempt to Give a Drawing
[10] The complainant, Andrea Rochon, is a correctional officer at the Vanier Centre for Women (Vanier) in Milton.
[11] In her evidence, the appellant, who was aged 32 at trial, recalled that she first observed Ms. Rochon probably in June 2015 as the complainant escorted inmates down a hallway. The appellant, an inmate at Vanier, testified that the complainant would “stare” at her “all the time”.
[12] The appellant testified that, prior to September 2015, she had briefly spoken to the complainant on one occasion leading the appellant to believe that Ms. Rochon cared about her well-being.
[13] Ms. Rochon recalls that she first met the appellant in September 2015 when the complainant was working in the admitting and discharging area of Vanier. A Peel Regional Police Service (PRPS) prisoner transport vehicle brought the appellant to the institution from a court attendance. Ms. Rochon was responsible for frisking arriving inmates and placing them in holding cells until they were escorted to the institutional range or unit where they would be housed.
[14] On this first occasion of meeting the appellant, on the complainant’s evidence, as she placed the appellant in a cell, the appellant said that she had some artwork to show her. In Ms. Rochon’s experience, it was not uncommon for inmates of the institution to draw. After responding, “Sure”, the appellant withdrew a picture from a purple folder containing pictures. The appellant held up a picture which the witness described as “very erotic” saying that it was for the complainant.
[15] Ms. Rochon testified in-chief as to her reaction, saying that:
I looked at her and I said, ah, “This is not appropriate. You cannot be showing this sort of – these pictures or drawings to officers” and I warned and counseled her and told her that if this happened again she was going to be placed on misconduct. That if she was to – or her artwork and share that with her other inmates that are on her range that’s fine, but she cannot be presenting this type of thing to other officers.
[16] The complainant testified the appellant responded “okay”, and after telling the appellant that she “would be placed on a misconduct” if such behaviour continued, she observed the appellant to nod her head “in acknowledgement”.
[17] On her testimony, the appellant acknowledged presenting the complainant with a picture she had drawn. The appellant recalled her exchange with the complainant in these terms:
Q. Do you want to see a picture I drew for you?
A. Yeah, let me see it.
[18] On the appellant’s evidence, after about two minutes, Ms. Rochon said, “Very nice” ... “keep it”, before walking away. The appellant gave this further evidence:
Q. All right. And when – after that second time in that you had contact with her in September, did, did she tell you not to have any further contact with her?
A. Ah, no, she didn’t. In fact the next day she again like she did like, she did her hand as if she was gay walking by the window, trying to tell me like I appreciate your drawing, I am a lesbian.
Inspection of Appellant’s Profile Card
[19] After securing the holding cell door, Ms. Rochon went to inspect the appellant’s institutional profile card to determine what charge or charges she was facing as a remand prisoner. The information she learned was that the appellant’s charge included “criminal harassment … on a female police officer” named J.D. Ms. J.D. was a PRPS constable.
Confiscation of the Purple Folder
[20] The complainant testified that her only other face-to-face contact with the appellant occurred on the following day. The complainant was posted as a floor officer responsible for getting inmates off to court in the morning. The appellant was due to return to court on this date.
[21] Ms. Rochon observed the appellant being frisked by PRPS officers before being placed in a transport van. The appellant was holding what appeared to be the same purple folder she had in her possession on the prior day. Because remand prisoners are prohibited by policy from taking property to court, excepting a bible, the appellant was instructed to leave the folder. The appellant appeared angry, agitated and upset. Nothing threatening was said by the appellant. At first the appellant refused. The folder was then confiscated before the appellant was handcuffed and taken to court. Ms. Rochon testified that this was the last time she spoke to the appellant.
[22] The appellant testified that she was prevented by the complainant from taking her purple folder to court. She did not become angry with the complainant.
[23] The complainant looked through the folder (Exhibit #1, Appeal Book, pp. 66-77) and found numerous letters or writings apparently written by the appellant to, or about, J.D. including reference to an upcoming court date involving J.D.. While nothing in the folder related to the complainant, there were death wishes for J.D. in the material. Ms. Rochon then wrote a detailed report based on the incident of the prior day and the material she had read in the appellant’s folder. The witness testified that she did so as: “I was concerned that this was going to be an issue that she was going to become fixated on me based on her charges and her behaviour”.
[24] The appellant testified that there were no notes in her folder about wanting to kill J.D.
Another Picture is Forwarded
[25] On Ms. Rochon’s evidence, on the evening of the following day, another correctional officer provided her with mail sent out by the appellant. The item was described by the witness: “…it was written to me and it was a picture that she had sent out for me”. Ms. Rochon testified that she wrote up a further report about this matter and said at that point in time “I feel like my safety and wellbeing is in jeopardy at this point in time”. The complainant was concerned that the accused would become fixated on her as had apparently occurred in Constable J.D.’s case.
[26] The appellant informed the trial court that she sent a second picture to Ms. Rochon through another correctional officer and “never got in trouble for it”. No one told her not to make her drawings.
Appellant’s Evidence of Non-Verbal Contact
[27] The appellant testified that on another occasion when Ms. Rochon was her unit’s guard, the complainant discussed medication with her. In terms of any other interaction, the appellant gave this evidence in-chief:
…but most of the time it was just her being the guard and then flirting with me, licking her lips, staring at me, eating her sandwich at me suggestively, she sat in the chair and opened her legs at me, it’s all on camera.
[28] In cross-examination, the appellant testified in respect of herself and the complainant, “We were flirting” – she saw Ms. Rochon lick her lips, open her legs, do the “gay hand” with a dangling wrist, and stare at her. The complainant was not cross-examined about this subject matter. The appellant testified that, while she was in custody at Vanier, the complainant never directly informed her that she did not want contact of a personal nature with her.
The Complainant is Informed of Further Communications
[29] The complainant testified that over the next couple of months, Sergeant Bruce McNall, a Vanier security officer, summoned her on a number of occasions to his office to view material in his custody represented to the complainant as having been “sent out” to her by the appellant. There were multiple drawings and notes which had been confiscated. Ms. Rochon further described the material in these terms:
…they were very graphic in nature, sexual, um, songs of sexual orientation that she wanted me to listen to that she wanted us to be together, wanted me to like her. Said that when she gets out she was going to be coming to the institution to see me as she wants to see me, she wants to be with me.
[30] The materials forwarded to Ms. Rochon by the appellant when in custody at Vanier included drawings and short notes (Exhibit #1, Appeal Book, pp. 57-64).
[31] The complainant did not want attention from the appellant:
I wanted nothing to do with her at all. And I wrote in the reports that I wanted this to stop, I wanted nothing to do with her, I wanted to go to work and perform my duties and not have to feel threatened in any, any way shape or form.
[32] In her in-chief testimony, the complainant gave this evidence:
Q. And did this cause you to feel threatened?
A. Yes, it did.
Q. And does it continue to cause you to feel threatened?
A. Yes, it does.
[33] The appellant agreed in her evidence that she sent notes and drawings to the complainant while in custody at Vanier. While the appellant testified that no one at Vanier told her not to have contact with Ms. Rochon, she also testified that at some point, a “supervisor” came to her cell and told her that she could not forward notes to the complainant.
Materials Mailed Out From Hamilton
[34] On October 17, 2015, the appellant was transferred from Vanier to the Hamilton Wentworth Detention Centre (HWDC). It was Ms. Rochon’s understanding that this transfer was in part on account of the situation involving her and the appellant.
[35] Ms. Rochon testified that she came to understand that whenever the appellant, while at the HWDC, mailed material with the complainant’s name on it, HWDC security officers would forward such material to the Vanier security officer.
[36] Over the months, the complainant was shown notes and pictures forwarded to her by the appellant which had been intercepted by institutional security officers. At trial, the appellant acknowledged that she forwarded material by out-going mail to the complainant from Hamilton to Vanier. She identified Exhibit #1 as containing some of this material. On the appellant’s evidence, no one told her not to send these notes.
[37] The bulk of the materials forwarded over the months by the appellant to Ms. Rochon occurred while the appellant was incarcerated at the HWDC (Exhibit #1, Appeal Book, pp. 21-56, 78-87, 91-95). This material included drawings including two females intimately posed, and notes referring to the complainant as her “girlfriend”, to missing Ms. Rochon, a request for Ms. Rochon to send a picture of herself, and dreams of touching and embracing the complainant.
[38] At the appellant’s trial, a willsay statement of Halton Regional Police Service Constable William Glennie was received as evidence. This officer attended the HWDC on November 27, 2015 to interview the appellant. The constable summarized his conversation with the appellant in this way:
During my interview with inmate KELLNER I informed her that I was there at the request of Correctional Officer ROCHON to inform her that her communication(s) are unwanted. I cautioned inmate KELLNER that should she make or attempt to make any type of contact or communication with CO ROCHON, including attending the Vanier Centre, would result in her being arrested and charged with criminal harassment. During the interview I reiterated this warning on several occasions.
[39] In her testimony, the appellant acknowledged that Const. Glennie informed her at the HWDC that Ms. Rochon wanted no further communication with her. She recalled the officer also stating that if she attempted communication when released from custody there would be “consequences”.
[40] The complainant testified that she became aware at some point that officers involved in investigation relating to the appellant had gone to the appellant and informed her that the complainant was not interested in her and wanted nothing to do with her.
[41] The appellant testified that after her meeting with Const. Glennie, because she decided “to test if he was telling the truth”, she forwarded another envelope to the complainant. When she mailed out that envelope, and the correctional officers sent it out, she concluded that Const. Glennie had lied to her. According to the appellant’s evidence, a note in this envelope included her phone number and stated that if the complainant did not want communication (“If I am unwanted”) she should personally text the appellant as she did “not trust cops”.
[42] In one of the notes, signed “Micaela”, presented to the complainant at trial, there was writing stating:
I would like to ask you out on a date, Rochon. I plan to come to your work to do just that by December 1st.
[43] The complainant testified that when she saw this note, it made her feel “very uncomfortable”, “concerned” and “worried”. Ms. Rochon informed the trial court that she was concerned for her safety.
[44] The appellant admitted in her evidence sending a note to the complainant as to the date and time when she would be coming to Vanier so they could talk.
Out-of-Custody Attendance at Vanier
[45] Evidence was led at trial respecting a bouquet of flowers with a note delivered to Vanier one evening for “C.O. Rochon”. Ms. Rochon did not see the flowers and has no knowledge of the contents of the note. Sgt. McNally phoned the complainant about the delivery. According to Ms. Rochon, she was “very afraid” especially as the appellant was no longer in custody.
[46] The appellant testified that she was released from the HWDC on December 4, 2015. She sent a note and flowers to Vanier for Ms. Rochon. To the appellant’s recall, the note said that she wanted to take the complainant “on a date and … to three places”.
[47] The complainant testified that she subsequently became aware that the appellant attended Vanier the following day.
[48] Const. Glennie’s witness statement described the circumstances of the appellant’s arrest on December 9, 2015:
I attended the Vanier Centre at approx. 10:40 am and took up static surveillance of the parking lot in the event that KELLNER attend[ed] the facility. At approx. 11:15 am I observed KELLNER drive into the parking lot in a small green Ford Focus, Lic # 304LPS. After parking the vehicle, KELLNER entered the front foyer of the facility. I followed KELLNER into the foyer and after identifying myself informed her she was under arrest for Criminal Harassment and Failing to Comply Probation. The time was 11:17 am.
[49] In her in-chief testimony, the appellant gave this evidence:
Q. All right. If Ms. Rochon had told you that she didn’t want to see you, would you have gone to the jail?
A. Ah, of course not, no.
[50] In cross-examination, the appellant gave these answers:
A. But now that she said no on the stand, now she doesn’t want my attention.
Q. Okay. So it’s taken her to say it in front of you for you to be convinced?
A. Yeah, pretty much.
The Crown Leads NCR Evidence
The Appellant’s Mother
[51] Linda Fischer, the accused’s mother, was called as a prosecution witness. She identified her daughter’s writing in the Exhibit #1 documentation.
[52] Ms. Fischer informed the trial court that she believed her daughter’s artwork reflected sexual content because she had erotomania. The witness further testified:
… the stuff with Ms. Rochon was just basically a relationship that she [the appellant] delusionally thought that she was interested in Micaela.
Dr. Chaimowitz
[53] Dr. Chaimowitz’s evidence at trial was consistent with the conclusions documented in his July 8, 2016 assessment report which included this opinion:
Based on all of the information available, Ms. Kellner’s symptoms are consistent with a psychotic spectrum disorder. She has a fairly entrenched system of fixed erotomanic delusional beliefs focused on females in positions of authority. In the context of the current assessment, a number of additional symptoms emerged that appeared to be aligned with a diagnosis of Schizophrenia.
There also appeared to be evidence of paranoia and persecutory delusions, as Ms. Kellner believed that the police had followed her and had orchestrated a number of events, including her arrest for the current set of charges. Despite a number of positive symptoms, she does not exhibit any negative symptoms or signs of global disorganization. Further, her score on a test designed to measure intellectual functioning was estimated to be in the average range. Overall, a diagnosis of Schizophrenia with features of erotomania seems reasonable in the absence of any other contradictory information.
Ms. Kellner’s presentation is remarkable for an individual with a protracted history of delusional symptoms amidst positive symptoms (i.e., hallucinations) that meet criteria for a Psychotic Disorder, namely Schizophrenia. Most notably, she experienced erotomanic delusions, believing that the victim was romantically interested in her and ascribing meaning to various innocuous signs and behaviors during casual interactions.
As it pertains to the question of responsibility, there is a documented history of a psychotic disorder (i.e., disease of the mind) and Ms. Kellner’s ability to clearly assess the status of the interpersonal interactions was overridden by a strong (and false) belief that the victim was either reciprocating her affection or was prevented from doing so by others. In considering all of the facts, it is our opinion that at the time of the index offenses Ms. Kellner did not have the mental capacity to understand fully the moral implications of her act nor its consequences on the victim. Therefore, based on the available information, we recommend that the pleas of Not Criminally Responsible should be made available to Ms. Kellner for both the charge of Criminal Harassment and the associated Fail to Comply with a Recognizance.
SUBMISSIONS BEFORE THE TRIAL COURT
[54] Before the trial judge, Mr. McCulligh submitted that the actus reus of criminal harassment had not been proven. Some of those submissions however also related to the appellant’s knowledge and intent and not strictly to proof of commission of the act of criminal harassment. In this regard, counsel pointed to these features of the evidence supportive of that position:
(1) the complainant described only two face-to-face meetings with the appellant at Vanier, neither of which were of a threatening nature
(2) when told by a Vanier supervisor that she could not send notes to a correctional officer at that institution where she was in custody, the appellant stopped
(3) when transferred to the HWDC, the appellant assumed that notes/drawings could be sent to Ms. Rochon as they were then situated in separate facilities
(4) it was the appellant’s impression that because her mail-outs to the complainant appeared to be forwarded, without anyone at the HWDC telling her to stop, the communications were not inappropriate – the forwarded notes/drawings were never of a threatening nature
(5) while Const. Glennie cautioned her that the complainant wanted no contact, and the consequences of persisting in such contact, the appellant, untrusting of the police, was not certain that this was Ms. Rochon’s position as the complainant at no point personally asked her to cease communicating
(6) to verify the police representation, the appellant sent a note to the complainant saying that if the appellant was “unwanted”, Ms. Rochon should text her and the appellant would not respond
(7) when the appellant received no text back from the complainant, she sent flowers and attempted to meet Ms. Rochon in person once released from custody.
[55] Crown counsel at trial submitted that the actus reus of the criminal harassment crime had been proven relying in particular upon this evidence:
(1) there were repeated communications over the months by the appellant directed to the complainant
(2) knowing something of the appellant’s history and circumstances with J.D., and on the basis of the number and content of the appellant’s materials forwarded to her, the complainant was concerned that the appellant was fixating upon her as well
(3) the appellant persisted in communications forwarded to Ms. Rochon despite a warning by a Vanier supervisor and Const. Glennie informing her that communication with her was no longer appropriate
(4) in light of the course of the appellant’s ongoing behaviour, including a stated intention to come to Ms. Rochon’s workplace, the complainant felt threatened, concerned for her safety and worried for the future.
REASONS OF TRIAL JUDGE
[56] The trial judge held that the actus reus of the criminal harassment allegation was proven. The court found that:
(1) the appellant persistently communicated with Ms. Rochon over a number of weeks
(2) the complainant became sufficiently concerned about the ongoing situation that she prepared reports to her institutional supervisors
(3) the communications forwarded by the appellant contained some graphic sexual pictures and a desire to become engaged in a relationship with the complainant
(4) the complainant did nothing to invite ongoing communication with the appellant
(5) a change of custodial environment did not cause the appellant to stop communicating with Ms. Rochon
(6) despite correctional and police officials telling the appellant to cease communicating with Ms. Rochon, communications continued
(7) in the circumstances, the complainant persisted in efforts to communicate with her even after released in custody
(8) on the whole of the evidence, the appellant’s persistent and unsettling conduct caused Ms. Rochon to be extremely afraid, a fear for her safety which “was reasonably held”.
[57] On the basis of the evidentiary record, including the psychiatric expert testimony, the trial court found the appellant NCR at the time of the commission of the actus reus of the criminal harassment offence and in turn in respect of the breach probation counts founded on failing to keep the peace and be of good behaviour.
ANALYSIS
The Swain Issue
[58] Counsel submitted that their agreement to conduct a blended trial, with evidence led to concurrently address proof of the elements of the criminal allegations as well as the appellant’s mens rea and capacity for criminal intent, did not prejudice the appellant’s fair trial interests. It is said that there was an efficiency in the process. While the thrust of the appellant’s defence was a dispute that the actus reus of the criminal harassment allegation could be proven, cross-examination of Ms. Rochon together with the appellant’s testimony would inevitably have resulted in the Crown being in a position to raise the NCR issue.
[59] Section 672.34 of the Code provides that:
Where the jury, or the judge or provincial court judge where there is no jury, finds that an accused committed the act or made the omission that formed the basis of the offence charged, but was at the time suffering from mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1), the jury or the judge shall render a verdict that the accused committed the act or made the omission but is not criminally responsible on account of mental disorder.
(emphasis added)
[60] As observed in R. v. David (2002), 2002 45049 (ON CA), 169 C.C.C. (3d) 165 (Ont. C.A.), at paras. 48-53, there will be cases where it is difficult, if not impossible, to isolate the issue of capacity for intent from the question of whether a particular accused actually formed the requisite intent. The factual circumstances of a specific accused, who can be shown to be NCR, can make it practically difficult for the Crown to attempt to prove criminal intent on the part of the accused prior to consideration of NCR – related evidence. In R. v. Harvey, 2014 BCSC 1692, at para. 17 (affd 2016 BCCA 149), the court observed that:
However, where the accused refuses to raise the issue of NCRMD, a situation is created, apparently not anticipated in Swain, where an accused who is not unfit to stand trial maintains a set of obviously delusional beliefs that make an assessment of his intent in that unreal context completely artificial, but until there is a determination as to whether the Crown has proven the offence (which includes proof of intent) beyond a reasonable doubt, the Crown will not be able to raise the issue of mental capacity to form that very intent. It is not entirely satisfactory to say the Court should then just resort to a finding of manslaughter, because in the circumstances here the unlawful act which would form the basis of a manslaughter verdict, with the required intent for that lesser offence, was driven by the very same delusional beliefs and is subject to the same concern regarding lack of capacity.
[61] With one limited exception (Reasons for Judgment, Transcript, p. 73, lines 20-25), the trial judge segregated analysis of proof of the actus reus of the s. 264 offence from the questions of intent, capacity and NCR considerations. On a fair reading of the whole of the reasons, this minor error did not prejudice the appellant.
[62] Counsel for the parties at trial, well-versed with the history of the case, and the expected flow of the evidence, agreed to the procedure before Brown J. with approval of the trial court. In the specific circumstances of this case, without approving the approach taken in this case for universal use, there is no reason at this point to question the collective judgment of those conducting the trial.
Criminal Harassment
[63] The s. 264 allegation in the criminal information was unparticularized in the sense of not specifying what “conduct” delineated in ss. 264(2)(a) to (d) was alleged to have been committed by the appellant. The record reveals that the trial was conducted on the basis that the prohibited conduct was that described in para. 264(2)(b):
(b) repeatedly communicating with, either directly or indirectly, the other person [the complainant]
[64] A body of jurisprudence interpreting the meaning of the criminal harassment offence has uniformly considered the elements of the crime to be proven by the Crown as follows:
(1) that the accused engaged in the conduct set out in s. 264(2) (b) of the Criminal Code
(2) that the complainant was harassed by that prohibited conduct
(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 such conduct, in all the circumstances, caused the complainant to reasonably fear for her safety.
See R. v. Verdon, 2014 ONCA 807, at para. 6; R. v. Kordrostami (2000), 2000 5670 (ON CA), 47 O.R. (3d) 788 (C.A.), at paras. 7-8; R. v. Kosikar (1999), 1999 3775 (ON CA), 138 C.C.C. (3d) 217 (Ont. C.A.), at para. 19 (leave to appeal refused [1999] S.C.C.A. No. 549).
[65] In terms of proof of the volitional conduct described in para. 264(2)(b), the communication attributed to have been undertaken by the accused must be “repeated”. With each case having a unique history, there is no numerical formula applied to proof of this purely objective factor: R. v. Ohenhen (2000), 2005 34564 (ON CA), 200 C.C.C. (3d) 309 (Ont. C.A.), at paras. 11-33 (leave to appeal refused [2006] S.C.C.A. No. 119).
[66] In determining whether a complainant was “harassed” by the prohibited conduct of an accused, the second element required by s. 264(1) of the Code, a contextual assessment of the evidence of the entire history is necessary: R. v. Shorey, 2015 ONCA 219, at para. 4. This is the ultimate consequence. ‘Harassed’ is not itself defined in the Code. There must be proof of more than the accused’s prohibited conduct having the effect of being vexing, disquieting or annoying to the complainant: R. v. Lamontagne (1998), 1998 13048 (QC CA), 129 C.C.C. (3d) 181 (Que. C.A.), at p. 188. Can it be said that the evidence “tormented, troubled, worried continually, plagued, bedeviled [or] badgered” her: Kosikar, at paras. 23-25; Kordrostami, at paras. 10-12; R. v. Smith, 2014 ONCA 324, at para. 37.
[67] Proof of whether a complainant was placed in a state of “fear” by an accused’s prohibited conduct engages a purely subjective assessment: R. v. Hyra, 2007 MBCA 69, at para. 8. Where the trial evidence supports the existence of fear, can it be said that in all the circumstances that impact was objectively reasonable in the sense of whether a reasonable person in the situation of the complainant would have experienced this effect: Lamontagne, at pp. 187-188; Hyra, at para. 12; R. v. Sim, 2017 ONCA 856, at paras. 19-20.
[68] Given the NCR finding in the present case, unchallenged on appeal, discussion of proof of the mental element is unnecessary.
Discussion
[69] Despite Mr. McCulligh’s articulate submissions, the appeal must be dismissed.
[70] The trial judge’s finding that the actus reus of the s. 264 crime had been established, beyond a reasonable doubt by the Crown, reflected no legal misdirection and was a conclusion reasonably supported by the entirety of the evidence.
[71] The appellant’s drawings and notes, with their communicative quality, were directed to the complainant. This objective factor, the prohibited conduct of para. 264(2)(b), was convincingly established. The communications were repeated and persistent. The fact that correctional services security personnel intercepted the appellant’s communications and arranged viewings by the complainant, as opposed to permitting the documents to be delivered directly to Ms. Rochon, does not alter the fact that the appellant communicated with the complainant.
[72] The trial judge’s finding that Ms. Rochon was in fear as a result of being the intended subject of the appellant’s communications is fully supported by the complainant’s testimony at trial. There was no serious challenge to the complainant’s description of her subjective state of mind of feeling threatened and in fear as a result of becoming an unreciprocating and unencouraging target of the appellant’s communicated affections.
[73] The trial court’s conclusion that this fear on the complainant’s part was reasonable in all the circumstances is unassailable on the record before the court including consideration of the following:
(1) for a period of weeks, the appellant forwarded pictures and notes to Ms. Rochon of a sufficiently suggestive character to indicate that the appellant had become obsessed with having an intimate relationship with the complainant
(2) this was not an instance of an isolated note or drawing – the communications were numerous and persistent
(3) the complainant did not encourage the appellant’s unsolicited fixation
(4) a Vanier supervisor and a police officer instructed the appellant to cease communicating with the complainant – the complainant was aware of these preventative measures and that they failed to curb the flow of communications or to blunt the appellant’s interest in her
(5) the appellant expressed intention to escalate the nature of her communications from use of the mail to coming to the complainant’s workplace
(6) the reasonable person in the shoes of the complainant would know that the appellant was charged and before the courts as a result of allegedly engaging in criminal harassment of a female police officer and when the appellant’s obsessive advances were rejected by that alleged victim, the appellant wished for her death.
[74] While Mr. McCulligh is correct that the appellant’s communications were not overtly threatening on their face, their number and their persistence in the face of the intended recipient not responding to those communications, and the unsuccessful efforts by the authorities to stop the one-way communication, would nevertheless lead any reasonable or ordinary person to fear for their safety and well-being from an individual reasonably viewed to be unstable and unpredictable. This conclusion of the trial judge is not called into question by the appellant’s note stating that if the complainant texted back that the appellant was “unwanted”, the appellant would not respond. As a reader of that communication, a reasonable person in the complainant’s circumstances, would have no real confidence that obsessive behaviour on the appellant’s part would so easily terminate.
[75] While the trial judge’s reasons do not specifically speak to the element of the complainant being “harassed”, the ultimate consequence, the totality of the reasons, and, the evidence accepted by the trial court, make it abundantly clear that Brown J. found the prohibited conduct of the appellant, reasonably causing Ms. Rochon to fear for her safety, had the effect of seriously troubling, continually worrying and bedevilling her.
CONCLUSION
[76] The appeal is dismissed.
[77] It is ordered that the clerk of the appeal court comply with Rule 40.23(1) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) as to distribution of these Reasons for Judgment.
Hill J.
DATE: March 9, 2018
COURT FILE: 76/17
DATE: 2018 03 09
ONTARIO
SUPERIOR COURT OF JUSTICE
(Summary Conviction Appeal Court)
RE: R. v. MICAELA KELLNER
COUNSEL: A. Khoorshed, for the Respondent
J. McCulligh, for the Appellant
REASONS FOR JUDGMENT
[on appeal from an NCR Verdict by Brown J. on August 10, 2016]
Hill J.
DATE: March 9, 2018