ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-18-00000025-00AP DATE: 20190207

BETWEEN:

HER MAJESTY THE QUEEN Appellant

– and –

CLIVE ROY Respondent

COUNSEL:

Paul Alexander, for the Crown, Appellant

John Fennel, for Mr. Roy, Respondent

HEARD: January 16, 2019

BEFORE: R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL

[1] Clive Roy can certainly be an annoying, persistent, and even racist fellow. But did he cross the line from annoyance, persistence, and even racism to criminal harassment? That was the question before the trial judge, Justice Horkins of the Ontario Court of Justice. Justice Horkins found that the Crown proved that Mr. Roy’s actions fulfilled all but one of the essential elements of the offence of criminal harassment. He found, however, that the Crown failed to prove the fifth element beyond a reasonable doubt: that the fear felt by the complainants was reasonable in the circumstances. As a result, he acquitted Mr. Roy of all charges.

[2] The Crown appeals the acquittals. The Crown argues that the trial judge applied the wrong legal test. The Crown also argues that the trial judge misapprehended the evidence of fear, which led him into error.

[3] I find that the trial judge made no legal error and did not misapprehend the evidence. He stated the legal test correctly. His findings of fact were grounded in the evidence and are entitled to deference. For the reasons that follow, the Crown’s appeal is dismissed.

FACTS

[4] Mr. Roy lived at the Earnscliffe Non-Profit Housing Cooperative at 477 Sherbourne Street in Toronto. He had been a resident for many years. Although it was a co-op, Mr. Roy was a tenant. He was grandfathered in when the building was converted. In 2015 Esther Forde became the property manager. Tammy Daley was president of the board. Mary Jankulak worked in the office as an administrative assistant.

[5] In November 2015 Mr. Roy wrote a series of emails to Ms. Forde regarding conditions in the building. He seemed especially vexed by his noisy neighbour. His noisy neighbour seemed equally vexed by Mr. Roy. Ms. Forde did not respond. In fact, as far as I can tell, Ms. Forde never responded to Mr. Roy’s complaints.

[6] Ms. Forde testified that in December 2015 Mr. Roy visited the office several times to obtain contact information about his neighbour. Ms. Forde could not give it to him. He continued to visit the office and paced outside. She testified that she was scared. She and Ms. Jankulak decided to call the police. The police came but at that point Mr. Roy had left.

[7] Mr. Roy escalated his email campaign within a few days. I think it is fair to say that he began bombarding the Earnscliffe employees and Ms. Daley with emails. He also copied outside officials at the City of Toronto – and even his local Member of Parliament. Mr. Roy did not receive what he felt was a timely response to his concerns. The lack of response no doubt made him quite upset. He re-attended at the Coop office. Mr. Roy’s response to the lack of response was unfortunate. He began to film his encounters with the employees. He noted in some of his emails that Ms. Forde is black. He also insinuated that Ms. Forde was taking his neighbour’s side in the noise dispute because the neighbour is also black.

[8] On December 10, 2015 the coop posted a trespass notice. They told Mr. Roy not to attend the office anymore. He did not. Ms. Daley wrote a letter to him on dated December 23, 2015. She attempted to address his concerns. She did not express any concerns about his behaviour or his actions. The co-op began eviction proceedings.

[9] In 2016 Mr. Roy continued to send emails. The volume of emails declined considerably until May, 2016. The emails dealt almost entirely with conditions in the building. Ms. Forde also testified about the building being the subject of various investigations as a result of Mr. Roy’s complaints. In May 2016 there was another incident. Mr. Roy took out his camera and filmed into the office. Ms. Jankaluk called the police. The police came and arrested Mr. Roy.

REASONS OF THE TRIAL JUDGE

[10] The trial judge noted that the charges related to the three complainants, Ms. Forde, Ms. Daley, and Ms. Jankaluk. He noted that the Crown filed a large number of emails, mostly from Mr. Roy. As he put it, “the building management reacted early on by seeking to evict Mr. Roy.”

[11] The trial judge further noted that the communications were voluminous, but he found that they did not cross the line to criminal harassment. He found that the complainants were genuinely fearful. In fact, he agreed with Crown counsel that all of the elements of the offence of criminal harassment were made out except for one: whether that fear was objectively reasonable. The trial judge found that there was nothing in the communications that was overly threatening or abusive. He found that most of it was written in a very business-like tone. The trial judge also said:

It is clear to me that he knew that it was more than not liking it, that it was upsetting and annoying. And the evidence from the complainants very clearly establishes the conduct in fact had the effect of instilling fear, perhaps for physical safety but most certainly it created emotional and psychological trauma in all three of the complainants.

[12] The trial judge described the key issue in the case this way:

But the pivotal issue in this case is whether that subjective fear instilled in these complainants was objectively reasonable. And on this issue, I will be blunt, there appears to be a significant disconnect between the evident extreme distress of the complainants and the established foundation of that distress… I have difficulty in getting to the point of being persuaded to that necessary degree, beyond a reasonable doubt that the defacto level of fear and concern was reasonably proportional to the conduct established in the evidence.

[13] Ultimately the trial judge found that the fear experienced by all three of the complainants was not objectively reasonable. He found that Ms. Forde was very dramatic. He also found that Ms. Jankaluk’s reaction was out of proportion as well. He found that it was magnified in her mind. The trial judge found that Ms. Daley’s fear was based on the fear felt by Ms. Jankaluk and Ms. Forde. The trial judge found that there was no allegation of physical harm or threats of violence, or stalking. He described Mr. Roy’s behaviour this way:

Just being an annoying or allegedly tormenting and abusive pest.

ISSUES AND ANALYSIS

[14] The case was tried as if all three counts stood or fell together. Both counsel have dealt with the appeal as if it stands or falls on all three counts together. I will deal with it that way.

[15] Crown counsel argues that the trial judge erred in two respects: first, that he incorrectly applied the wrong legal test with respect to whether the complainants’ fear was reasonable in the circumstances; and second, that he misapprehended the evidence. I will approach the issues by asking these questions:

• Did the trial judge apply the wrong legal test?

• Did the trial judge misapprehend the evidence?

(a) Did the trial judge apply the wrong legal test?

[16] Section 264 of the Criminal Code sets out the offence of criminal harassment. The Court of Appeal in R. v. Kosikar, 1999 3775 (ON CA), [1999] O.J. No. 3569, 138 C.C.C. (3d) 217 (C.A.) set out the five elements of the offence:

(1) It must be established that the accused has engaged in the conduct set out in s. 264(2)(a), (b), (c), or (d) of the Criminal Code.

(2) It must be established that the complainant was harassed;

(3) It must be established 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) It must be established that the conduct caused the complainant to fear for her safety or the safety of anyone known to her; and

(5) It must be established that the complainant's fear was, in all of the circumstances, reasonable.

[17] The trial judge accepted that the Crown had proven the first four elements beyond a reasonable doubt. He was not satisfied beyond a reasonable doubt on the fifth. He described the test this way:

Reasonable means objectively proportional.

[18] Mr. Alexander, Crown counsel, argues that the trial judge failed to properly set out and apply the test on this critical element of the offence. He argues that the trial judge did this by importing an incorrect proportionality test. The trial judge used the terms “out of proportion” or “beyond what would be reasonable based on the evidentiary record”. Mr. Alexander argues that proportionality is no part of the test. He argues that He argues that the question isn’t “was it reasonable to be as afraid” but rather was it “reasonable to be afraid in the circumstances”. He also argues that the trial judge applied a different standard to landlord and tenant cases.

[19] I respectfully disagree with the Crown’s position.

[20] I start with the standard of review. There is no question that an appeal on a question of law is to be decided on the standard of correctness: R. v. Shepherd, 2009 SCC 35 at para. 18. Accordingly, I must determine whether the trial judge correctly set out and applied the test.

[21] First, I find that the trial judge correctly stated the test. He quoted directly from paragraphs 16 and 19 of the latest case from the Ontario Court of Appeal on this issue, R. v. Sim, 2017 ONCA 856. For convenience, these are the paragraphs:

In R. v. Burns (2007), 2008 ONCA 6, 77 W.C.B. (2d) 402 (Ont. C.A.) — relying on the judgment of the Yukon Territory Court of Appeal in R. v. George, 2002 YKCA 2, 52 W.C.B. (2d) 530 (Y.T. C.A.) — this court endorsed an objective standard for determining the actus reus of harassment by engaging in threatening conduct. At para. 2, the court wrote:

To establish harassment under s. 264(2)(d) of the Criminal Code, the Crown had to establish that the appellant engaged in "threatening conduct". We accept the definition of threatening conduct given in R. v. George at para. 39 that, in order to meet the objectives of s. 264, the threatening conduct must amount to a "tool of intimidation which is designed to instill a sense of fear in the recipient". The impugned conduct is to be viewed objectively, with due consideration for the circumstances in which they took place, and with regards to the effects those acts had on the recipient. [Citation omitted.]

Second, as this court said in Burns, under s. 264(2)(d) the conduct in question must be viewed objectively. In other words, would the accused's threatening conduct cause a reasonable person in the complainant's situation to fear for her safety? The word "designed" does not require the Crown to prove the accused's subjective intention. And, in assessing whether an accused's conduct is threatening under s. 264(2)(d), a judge is not required to get into the accused's mind.

[22] Second, when read as a whole the reasons of the trial judge make it clear that he did not change the test or use a different test. Where a trial judge uses a phrase and it is open to two interpretations, a reviewing court ought to accept the one that is consistent with the trial judge’s presumed knowledge of the law: R. v. Morrissey, 1995 3498 (ON CA), [1995] O.J. No. 639, 22 O.R. (3d) 514 (C.A.) at para. 27. The trial judge set out the correct test. There is no reason to think he did not understand it.

[23] Third, I respectfully disagree that the trial judge erred in his application of the test. I turn back to R. v. Sim at para. 16, itself quoting from R. v. Burns, 2008 ONCA 6: “the conduct is to be viewed objectively, with due consideration for the circumstances in which they took place and with regards to the effects that those acts had on the recipient”. There are two parts to that formulation. The first is part deals with the circumstances. The second is the effect.

[24] As the Court stated at para. 20 of Sim, the conduct must be that which could instil fear in a reasonable person in the complainant’s specific situation, particularly when the actual effects of the conduct are considered. The first part is a question of drawing a line: at a certain point, annoying behaviour becomes criminal behaviour. The second is where that line is drawn in the particular circumstances. The trial judge was in the best position to determine where the line should have been drawn in this case, and his evaluation was reasonable.

[25] In any event, I disagree that the concept of proportionality plays no role in the evaluation of what is reasonable in the circumstances. The concept of proportionality plays a critical role in many aspects of our criminal law. For example, proportionality is the fundamental principle of sentencing: Criminal Code, s. 718.1. More importantly, the term “reasonable in the circumstances” in other areas of our criminal law includes the concept of proportionality.

[26] The self-defence provisions of the Criminal Code state that actions taken in self-defence must be “reasonable in the circumstances”. In determining whether an action is reasonable in the circumstances, a court is required to consider the nature and proportionality of the response to the threat of force: Criminal Code, ss. 34(1)(c), 34(2)(g); R. v. Mohamed, 2018 ONCA 966 at paras. 246-247.

[27] The “defence” of duress also contains an element of proportionality, based on the reasonable person standard. LeBel and Cromwell JJ. stated the following for the majority in R. v. Ryan, 2013 SCC 3 at para. 53:

The defence of duress requires proportionality between the threat and the criminal act to be executed. In other words, the harm caused must not be greater than the harm avoided. Proportionality is measured on the modified objective standard of the reasonable person similarly situated, and it includes the requirement that the accused will adjust his or her conduct according to the nature of the threat…

[28] Fourth, and finally, I deal with Crown Counsel’s argument that the trial judge applied a different standard because this case involved a landlord/tenant dispute. I disagree. Section 264(1) requires that the fear be “reasonable in the circumstances”. Those circumstances must include context. The context of a landlord and tenant dispute, which is frequently contentious, must be considered: R. v. Verdon, 2014 ONCA 807 at para. 12. It was not an error for the trial judge to note that the criminal harassment provisions of the Criminal Code were originally envisioned as a measure to deal with stalking. The trial judge also recognized that the landlord/tenant context is very different. It would have been an error for the trial judge to find that the context changed the legal content of the standard to be applied, but that is not what the trial judge did. Instead, the trial judge found that the context helped to inform whether the fear was objectively reasonable.

(b) Did the trial judge misapprehend the evidence?

[29] Mr. Alexander argues on behalf of the Crown that the trial judge misapprehended the evidence in four respects: first, the involvement of St. Stephens; second, the events of May 17, 2016; third, the nature of the emails; and fourth, the complainant’s knowledge of Mr. Roy’s history and circumstances. He argues that these misapprehensions went to the heart of the trial judge’s reasoning process. They therefore amount to an error of law.

[30] Again, I must respectfully disagree. A trial judge’s findings of facts are entitled to deference unless they are unsupported by the evidence: R. v. Polanco, 2018 ONCA 444 at para. 20. Even if a finding of fact is erroneous or unsupported by the evidence, an appeal court can only interfere where the errors played an essential role in the trial judge’s reasoning process: Morrissey, at para. 93.

[31] The first alleged factual error is the involvement of St. Stephens Mediation Service. Mr. Roy and the management of the co-op discussed using a mediation service. They negotiated the terms of the mediation. Emails flew between Mr. Roy and management regarding the terms of the mediation. The trial judge noted that there were concerns about the building: noise, bugs, and drug dealing chief among them. Mr. Roy perceived that management did not pay attention to these concerns. The trial judge also noted that Mr. Roy felt that he was acting within his rights and in good faith. The trial judge said this:

However, he feels that he was acting lawfully within his rights. He says that to the fact that this was done in good faith can be inferred from his efforts to involve a third party, St. Stephens House, which does mediations of these sorts of things. That he tried to involve them and that is some evidence that he was not simply doing this in bad faith.

[32] Crown counsel argues that a review of the many emails on this subject show that Mr. Roy was not acting in good faith. He was trying to sabotage the mediation. The trial judge misapprehended the evidence on that point.

[33] I read the trial judge’s reasons differently. It seems to me that the trial judge was simply setting out Mr. Roy’s position. But even if I am wrong about that, whether Mr. Roy was acting in bad faith or just being difficult is a matter of interpretation. If the trial judge was saying that Mr. Roy was being difficult, as opposed to sabotaging the mediation, then that interpretation was certainly open to him. The trial judge had the benefit of reading the correspondence and seeing Mr. Roy testify. He was in the best position to make that judgment. Moreover, even if the trial judge was wrong, the error could not possibly go to the heart of his reasoning process. The mediation error could only have gone to Mr. Roy’s intentions. The Crown proved that element of the offence beyond a reasonable doubt. If there was an error, it has nothing to do with whether the fear felt by the complainant’s was reasonable in the circumstances.

[34] I deal next with the events of May 17, 2016. On that day at 4:40 pm Mr. Roy attended at the office. He appeared to have a camera. He filmed through the door window. After about 2 minutes of filming (just before 4:43 pm) Mr. Roy opened the door and went in. Ms. Jankulak came out after about 20 seconds. She pulled out her phone and made a call. She stood in the hallway by the door. Mr. Roy did not come out. At 4:45 someone went into the office (apparently Hercules, the maintenance technician). Ms. Jankaluk then opened a door across the hall and went in. At 4:48 another man started walking in and out of the office. Ms. Jankaluk stayed in the other room for some time. Mr. Roy was arrested that day.

[35] Ms. Jankulak also called 911. The recording was played in court. The trial judge assessed her real level of fear. He stated:

So her evident trauma is accepted as honest, but it seems to be amplified greatly beyond what would be reasonable based on the evidentiary record.

[36] I listened to Ms. Jankulak’s call to 911. I also watched the entire video. Again, I did not do so in order to re-try the case. I did so in order to determine whether evidence supported the trial judge’s conclusion. In my respectful view, it was open to the trial judge to find that her fear was not objectively reasonable in the specific circumstances. I noted that Ms. Jankaluk did not say she was calling 911 because she was afraid. When the 911 operator asked her why Ms. Jankulak was using 911 she responded that Mr. Roy was “threatening us”. The 911 operator asked “what was the threat”. Ms. Jankaluk responded: “He hasn’t threatened our lives but they have told us to call 911 in the past.” I see no misapprehension of the evidence in relation to Ms. Jankulak by the trial judge.

[37] I turn now to the emails. I reviewed them. Again, I did not review them for the purpose of second-guessing the trial judge. I reviewed them in order to determine whether the trial judge’s findings of fact about them were supported by the evidence. In my view, they were. There is no doubt that Mr. Roy’s emails were persistent. I’m sure that the recipients found them annoying.

[38] Many of the emails were directed at Ms. Forde. The trial judge described her testimony as dramatic. It was. Ms. Forde, with respect, seems to have been very vexed that Mr. Roy’s actions caused several investigations to have been launched into conditions in the building. It was open to the trial judge to find that Mr. Roy was clearly frustrated in his dealings with management. Ms. Forde explained in her testimony that the emails addressed to her went to a general mailbox. Ms. Jankaluk then forwarded the emails to Ms. Forde’s inbox. That might have taken a few days. It is true that Mr. Roy started venting immediately. It is also true that Ms. Forde never provided that explanation to Mr. Roy – at least not in the emails that were entered into evidence. In fact, as far as I can tell, she never responded to any of Mr. Roy’s emails at any time.

[39] That said, there is no doubt that Ms. Forde was, rightly, upset by some of Mr. Roy’s emails. Those were the emails that noted that Ms. Forde is black. Mr. Roy accused her of favouring a black tenant over him. Those emails were undoubtedly racist. Mr. Roy seems not understand that those emails were offensive and totally offside. Mr. Roy was not, however, on trial for being persistent, annoying, or even being a racist. I hasten to add that this Court unreservedly condemns those racist comments and I have no doubt that there are cases where racist comments alone can constitute criminal harassment. I agree with the trial judge that the vast majority of the emails were not abusive and were not personal. They were simply voluminous.

[40] The Crown does not argue that there was a specific misapprehension of evidence in relation to Ms. Daley, other than the volume of the emails.

[41] Finally, I will deal with Mr. Roy’s history and general reputation. Crown counsel argues that the trial judge improperly took notice of evidence about Mr. Roy’s reputation. Crown counsel points out that while the trial judge could not (and did not) use Mr. Roy’s reputation as propensity evidence. Crown counsel does, however, make the point that the complainants could have been aware of Mr. Roy’s reputation. That awareness could have informed their reactions.

[42] Again, I respectfully disagree. The Crown argues that reputation can be a significant tool of harassment. That is true, but as the Crown points out – and as the trial judge also pointed out – there was no evidence that the complainants were aware of that reputation. Under those circumstances, the trial judge would indeed have erred if he had found that the complainants were intimidated as a result of Mr. Roy’s reputation. That is not, however, what he did.

DISPOSITION

[43] The appeal is dismissed.

R.F. Goldstein J.

Released: February 7, 2019

COURT FILE NO.: CR-18-00000025-00AP DATE: 20190207

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Appellant

– and –

CLIVE ROY Respondent

REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL

R.F. Goldstein J.