COURT FILE NO.: CR-20-10000004-00AP DATE: 2020-07-13

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DELANEY COWSILL

Counsel: Kim Motyl, for the Crown, Respondent Christine Wadsworth, Counsel for the Appellant and Special Duty Counsel on behalf of Downtown Legal Services

HEARD: June 25, 2020

HIMEL J.

REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL

[1] Following a trial in the Ontario Court of Justice, Delaney Cowsill was found guilty of one count of criminal harassment contrary to s. 264(2)(b) of the Criminal Code. He received a suspended sentence and was placed on probation for a period of 12 months subject to conditions.

[2] As a result of the COVID-19 health crisis, Chief Justice Morawetz issued an order adjourning all matters scheduled in the Superior Court of Justice. Certain urgent matters affecting the liberty of the person, however, may be heard by conference call. All parties agreed to a hearing by conference call in this case and the appeal proceeded with counsel filing written materials and conducting an oral hearing before me by telephone. Counsel advised that law students were present at the hearing including Hanna Yakymova who appeared as agent at trial.

[3] Mr. Cowsill appeals the conviction only and seeks an order setting aside the disposition of the Honourable Justice E. Libman on December 18, 2019 and directing an acquittal. The following are my reasons for judgment on this appeal.

FACTUAL BACKGROUND

[4] Delaney Cowsill and the complainant, Teagan Johnston, met on-line and became involved in a relationship for approximately four months beginning in February 2018. On May 24, 2018, Ms. Johnston and Mr. Cowsill attended a concert and then returned to her apartment. They had been arguing and the argument continued at her apartment. Ms. Johnston described that Mr. Cowsill slapped her. During her testimony at trial, she agreed that she had consented to him hitting her and that she had asked Mr. Cowsill to punch her instead which he refused to do. She said that she would rather have been punched as the slapping was hurting.

[5] Approximately one week later, Ms. Johnston decided to end the relationship and attempted to contact Mr. Cowsill by phone and by text message. She said she had tried to speak to him about what had happened but that it was difficult to reach him so she ended up sending a text message. There was no further contact between them until late in June 2018 when Ms. Johnston and Mr. Cowsill saw each other in a bar. Mr. Cowsill tried to speak to Ms. Johnston but she said that he should leave her alone and told him not to contact her. She said that he said to her, “If I see I will come talk to you. I’m not going to not contact you.” Ms. Johnston said she felt scared because she believed he would not respect her request not to talk to her. She left the bar. Mr. Cowsill remained there.

[6] On June 26, 2018, three days after the meeting in the bar, Ms. Johnston went to the police to report that Mr. Cowsill had been violent with her on May 24, 2018. She agreed this was consensual but stated that she did not wish to see Mr. Cowsill anymore, and that when she had seen him more recently, he said he would talk to her if he saw her. She said there was no other behaviour by Mr. Cowsill which made her feel threatened or as if she needed protection. Police said they would issue a warning to Mr. Cowsill about not contacting her and told her to stay away from him. Ms. Johnston blocked Mr. Cowsill’s social media accounts and his telephone number. She also left Toronto as she no longer felt comfortable in her apartment.

[7] On June 26, 2018, Constable Josephs called Mr. Cowsill from a private telephone line and told Mr. Cowsill not to contact Ms. Johnston as she did not want to speak to him. Mr. Cowsill hung up the phone before the officer outlined the legal ramifications of not following the caution.

[8] Mr. Cowsill and Ms. Johnston had no communication until October 10, 2018. That night, Ms. Johnston and her friend Sandra Iruegas went to a bar in downtown Toronto. A friend of Mr. Cowsill’s who also knew Ms. Johnston approached her to say hello. Then Ms. Johnston heard Mr. Cowsill’s voice and says that he said, “hello Teagan” at least three times and “how are you?”. Ms. Iruegas testified that she was not sure if the appellant said hello more than once and that he appeared “very normal” and “relaxed” when he said hello. No further words were spoken by him. Ms. Johnston said she may have said hi but left the bar immediately as she was shocked that he would say hello to her once he had been asked by her and by the police not to do so.

[9] Ms. Johnston went outside the bar and sat down as she said she was having a panic attack. Ms. Iruegas came outside to comfort her and said she would go inside to tell Mr. Cowsill not to speak to her again. Ms. Iruegas found Mr. Cowsill inside the bar with his friends and told him never to talk to Ms. Johnston again and that he knew he should not be speaking to her.

[10] On October 17, 2018, Ms. Johnston received two text messages from Mr. Cowsill. She had blocked his telephone previously but bought a new phone and had not blocked the number again. His contact was still in her telephone. She received both messages at 8:25 p.m., one directly after the other. The first read, “Just so you know, you’re hurting me more than I ever hurt you. I’m so sorry for everything. Please stop. It’s killing me.” The second message read, “I will never contact you again.” Ms. Johnston went to police immediately to report that she had received the text messages. Police charged Mr. Cowsill with two counts of criminal harassment.

DECISION OF THE COURT BELOW

[11] The witnesses at trial were Ms. Johnston, her friend Sandra Iruegas and Officer Cody Josephs who had given the warning to Mr. Cowsill. The defence elected not to call evidence. At the conclusion of the evidence, Crown counsel asked the court to find Mr. Cowsill not guilty of the first count of criminal harassment but guilty of the second count. The Crown asked the court to rely on the October 10, 2018 communication in the bar when Mr. Cowsill said hello to Ms. Johnston as the first instance of communication and the October 17, 2018 text messages as the second instance of communication in order to find Mr. Cowsill guilty of the second count of criminal harassment. Crown counsel took the position that the court should consider all of the evidence about the parties’ relationship and what happened before October 17 to come to a finding that the complainant was fearful, that her fear was reasonable in the circumstances and that Mr. Cowsill was approaching her contrary to her wishes.

[12] The defence argued that three of the five elements of the offence of criminal harassment had not been made out: (1) there was no repeated communication by the appellant as neither of the instances of communication were repeated. The event of coming over to the complainant at the bar on October 10 and saying hello was a single incident of contact and related to a separate charge. Because of this, it cannot be taken into account in finding repeated communication for the purpose of the second charge which is based on a text message, although it can be used to establish context between the complainant and the appellant; (2) that the conduct did not amount to harassment of Ms. Johnston; and (3) that a reasonable person would not have the response or reaction that the complainant had and that her fear was unreasonable as there were no threats or inappropriate comments made by the appellant.

[13] The trial judge reviewed the evidence concerning the incident on May 24, 2018, and the incident in late June when the complainant and the appellant coincidentally saw each other in a bar and that Mr. Cowsill tried to speak to her but she asked him not to contact her and how he said if he saw her, he would come up to talk to her. He outlined that the complainant reported the matter to police, that police told Ms. Johnston to stay away from Mr. Cowsill and warned Mr. Cowsill not to contact Ms. Johnston, that they had no contact with each other until October 10, 2018, when they saw each other in a bar. He noted that Mr. Cowsill said hello to the complainant, and she felt threatened and left the bar. On October 17, she received two text messages and reported the matter to police as she was scared.

[14] The trial judge outlined the elements of the offence of criminal harassment. On the element of repeated communication, he commented that in the case of R. v. Ohenhen 2005 34564 (ON CA), [2005] O.J. No. 4072 (Ont. C.A.) the form of communication in issue was a letter which he held was not the same as a text message because the latter is more “open ended”. He noted that “repeated means more than one time” and that “conduct can only be repeated if it occurs on two occasions.” He identified the definition of “communication” as set out in R. v. Scuby, 2004 BCCA 28, [2004] B.C.J. No. 82, and the dictionary definition as: “The interchange of messages or ideas by speech, writing, gestures, or conduct. The process of bringing an idea to another’s perception. The messages or ideas so expressed or exchanged.” The trial judge held that the text messages were a repeated communication because the complainant received them in “consecutive messages” and not simply in one message. He held that the complainant was so impacted by the text messages that she felt harassed and that the fear was reasonable in the circumstances. He found Mr. Cowsill not guilty of the first count relating to October 10, 2018 when he said hello to her in the bar and guilty of the second count of criminal harassment relating to the text messages sent on October 17, 2018.

ISSUES

[15] The issues raised by the appellant on the appeal against conviction are: (1) whether the trial judge erred in the application of the law by holding that two text messages, “sent one after the other” constituted repeated communication as required under s. 264(2)(b); and (2) whether the trial judge failed to consider both the content and repetitious nature of the text messages, thereby erring in his application of the legal tests for the harassment element and reasonable fear element under s. 264(2)(b) as outlined in the jurisprudence.

POSITIONS OF THE PARTIES ON THE APPEAL

The Appellant

[16] Counsel for the appellant submits that while the findings of the elements of the offence of criminal harassment made by the trial judge may be questions of fact, in the case at bar, there is no foundation for the findings and the trial judge erred in the application of the law to the facts. She argues that he made a palpable and overriding error in how he applied the law and that this led to an unreasonable verdict.

[17] The appellant submits that the justice erred by holding that two text messages sent one after the other, constituted repeated communication under s. 264(2)(b). The appellant argues that the two consecutive text messages sent in the same minute constitute one instance of communication which is not sufficient to ground a conviction under s. 264(2)(b). Furthermore, the Crown conceded at trial that the messages were part of one communication because they were close in time and from the same date. In addition, in the decision of the court below, the trial judge referenced the communication as a “text message” in the singular.

[18] Ms. Wadsworth argues that the trial judge erred in making a distinction between a text message and a letter – and equating the spacing in the text message to separate paragraphs – as reasons to find there were multiple communications. Counsel submits that the trial judge’s finding that two consecutive text messages sent in the same minute constitute repeated communication conflicts with other cases under s. 264(2)(b) that involve electronic communication: see R. v. Greenberg, 2010 ONSC 792, 2010 ONSC 3584, [2010] O.J. No. 523 at para. 19; see also R. v. Roylance, 2003 CarswellOnt 6280 (Ont. Ct. Just.) at para. 13; R. v. T.W., 2014 ONSC 4533, [2014] O.J. No. 3662 at paras. 47-49. In Roylance, for example, the court held that seven messages all left on voicemail which came in one after the other did not constitute “repeated communication.”

[19] Because the Crown laid two separate counts in the Information and specified the date of October 10, 2018 in the first count and October 17, 2018 in the second count, counsel for the appellant argues that it is incorrect to rely on the communication on October 10 as the first communication. Rather prior conduct can be relevant to the issue of harassment or the question of the fear of the complainant.

[20] Counsel for Mr. Cowsill further argues that the trial judge erred in applying the legal tests for the harassment and reasonable fear elements under s. 264(2)(b) by failing to consider both the content and the repetitious nature of the text messages. In the case at bar, counsel argues that, based on the Information and according to R. v. Kosikar, 1999 3775 (ON CA), [1999] O.J. No. 3569 (Ont. C.A.), the legal question with reference to the second count is whether, as a consequence of the October 17 text messages, Ms. Johnston was in a state of being harassed. The element of harassment has been defined in the jurisprudence and requires consideration of the content of the communication and the repetitious nature of the communications to determine whether harassment is made out: see R. v. Scuby. While the trial judge cited this decision, he failed to consider these aspects and to adequately analyze the context including whether there were threats and the number of communications made.

[21] Counsel points out, for example, the words spoken in this case involved the appellant saying, “you’re hurting me more than I ever hurt you” and that this may have referred to the fact that the complainant had posted on Facebook the appellant’s name, his music bands and claimed that he had been abusive in the relationship. The other part of the text involved the appellant apologizing. Then he added, “I will never contact you again.” Ms. Wadsworth submits that the cases on criminal harassment tend to involve much more severe conduct: see for example, R. v. Kordrostami, 2000 5670 (ON CA), [2000] O.J. No. 613 (Ont. C.A.), where the accused was a 39-year-old man who made sexually explicit comments when he left the restaurant where he had met the complainant, a 14-year-old. The accused telephoned her the next day and made further sexual overtures. She told him that if he called again he would be “in a lot of trouble”. She feared for her safety and called police. She then received several hang-up calls from him. The Ontario Court of Appeal upheld the trial judge’s findings that there had been repeated communications, that the complainant was harassed and that the conduct caused her to fear for her safety. See also: R. v. Moss, 2011 ONSC 5143, [2011] O.J. No. 4470, where the trial judge found that the accused had sent to his grandmother, aunt, uncle and cousin hundreds of threatening e-mails, phone calls and unsolicited magazine subscriptions after a family dispute.

[22] Counsel argues that, in the case at bar, the trial judge failed to consider the number and the nature of the communications in finding that harassment had been made out.

[23] Further, the appellant takes the position that the trial judge erred in considering only the context, and not the content and repetitious nature of the messages in deciding that he was satisfied beyond a reasonable doubt that a reasonable person in the position of the complainant would fear for her physical or psychological safety as a result of the October 17 text messages.

[24] In summary, counsel argues that the trial judge’s findings were unreasonable. As this is not a case where credibility findings are at play, she submits that this appeal court has all it requires to determine the case and asks that the conviction be set aside and an acquittal entered.

The Crown

[25] Crown counsel takes the position that the appeal should be dismissed. She says that the oral decision of the trial judge given soon after the evidence and submissions were completed was carefully reasoned and the reasons were given in a timely manner. She says that the same arguments raised on this appeal were raised at trial and that the trial judge did not err in his consideration of the issues. She submits that the standard of review is extremely high for findings of fact, that a high degree of deference is owed to a trial judge’s findings of fact and that a reviewing court should not interfere unless there has been a palpable and overriding error. Further, whether a verdict is unreasonable is established by determining whether a trier of fact, properly instructed and acting reasonably could have rendered the impugned verdict. The appellant did not testify at trial and the Crown argues that this court may consider his silence “as indicating that he could not provide an innocent explanation for this conduct.”: see R. v. Ezechukwu, 2020 ONCA 8, [2020] O.J. No. 67 at para. 29.

[26] The Crown submits that the judge on appeal must not re-try the case and that if there was some evidence upon which the trial judge could have made the decision, regardless of whether the appellate court agrees with it, no appellate interference is justified. Even if an error was made, this court should not overturn the decision if the error did not cause an unjust result.

[27] Crown counsel takes the position that the trial judge correctly identified the essential elements of the offence and the issues, carefully reviewed the evidence and concluded that the Crown had proven all elements of the offence beyond a reasonable doubt. The court rejected the same arguments that the appellant makes on appeal. As the trial judge was entitled to come to the findings he did, there is no basis for a reviewing court to intervene.

[28] In particular, the Crown argues that the trial judge did not err in finding that the communications were repeated. Crown counsel takes the position that the court should view the context of the totality of the surrounding circumstances including any past relationship and contact between the accused and the complainant. So long as there are two communications, the element of the offence may be satisfied. The Crown submits that a determination of what constitutes a “repeated communication” is a factual inquiry conducted by a trial judge based upon the unique circumstances in the case before him or her: see R. v. Ohenhen at para. 33.

[29] The Crown argues that the trial judge considered both the content of the messages and their repetitious nature and rejected the defence argument. He was at liberty to find that the text messages constituted repeated communications as the complainant had testified that they “came in one after another” and there was no evidence by the appellant to explain why he sent the messages composed with three separate thoughts. Crown counsel referred to the text messages as a single message at trial and, instead, relied on the words spoken by the appellant to the complainant saying hello in the bar a week earlier and the subsequent text message as evidence of repeated communication. However, on the appeal, Crown counsel argues that she is not bound by what Crown counsel said at trial and that it is clear that the appellant intended to send the messages received on October 17, 2018 separately. In summary, counsel argues, the trial judge was entitled to make this factual finding and there is no basis to intervene.

[30] Further, the Crown takes the position that the trial judge did not err in finding that the complainant was harassed and that he recognized that the words “tormented, troubled, worried continually or chronically plagued, bedeviled and badgered” are synonymous with “harassed” and that the Crown need only prove one consequence of the prohibited act to meet this element of the offence: see R. v. Moss at para. 98.

[31] Finally, Crown counsel submits that the court below did not err in finding that the complainant’s fear was both subjectively and objectively reasonable in that the complainant had taken all steps to inform the appellant that she did not wish to have any further contact, yet he approached her and spoke to her and sent the text messages which caused the complainant to fear for her safety. That safety can include both physical and emotional well-being. The communications do not have to be threatening or menacing to result in harassment. Finally, she submits that the elements of the offence are contextually situated, and, without the testimony of the appellant, this court is unable to say that the text messages were sent innocently.

[32] Ms. Motyl asks that the appeal be dismissed but that, should this court find that appellate intervention is warranted, the appropriate remedy is a new trial and not an acquittal.

THE FUNCTION OF THIS COURT ON A SUMMARY CONVICTION APPEAL

[33] Section 813 of the Criminal Code provides for an appeal by a defendant in a proceeding from a conviction and from a sentence passed in respect of a summary conviction. Section 822(1) sets out the powers of a summary conviction appeal court and incorporates by reference the powers of the Court of Appeal set out in s. 686. Section 686(1) provides that:

On the hearing of an appeal against conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

(a) may allow the appeal where it is of the opinion that

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

(iii) on any ground there was a miscarriage of justice;

[34] The court hearing the appeal may either dismiss the appeal or allow the appeal, set aside the verdict and direct that a verdict of acquittal be entered or order a new trial: see s. 686(2). The summary conviction appeal court’s role is limited. The court is not permitted to re-try the case and substitute this court’s view of the evidence for that of the trial judge. It is not open to a court of appeal to disagree with the trial judge’s assessment of credibility unless the reasons demonstrate an overriding error in the judge’s appreciation of the law or the evidence: see R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621 at para. 24. An appellate court is not to interfere with the trial judge’s findings unless they are unreasonable or unsupported by the evidence: see R. v. Polanco, 2018 ONCA 444, [2018] O.J. No. 2502; R. v. Salerno, [2000] O.J. No. 3511 (Ont. Sup. Ct.) at para. 7. As Justice Durno noted in Salerno at para. 26, “…The trial judge has the advantage of seeing and hearing the witnesses. If there was an evidentiary basis upon which the findings could reasonably have been made, I cannot interfere.”

[35] A court may overturn findings of credibility where such findings are unreasonable: see R. v. W. (R.), 1992 56 (SCC), [1992] 2 S.C.R. 122; R. v. Burke 1996 229 (SCC), [1996] 1 S.C.R. 474. However, deference will be shown to the trial judge. The review directed by s. 686(1)(a) is a limited one because the appellate process is not suited to the assessment of the cogency of the evidence led at trial: see R. v. Tat, 1997 2234 (ON CA), [1997] O.J. No. 3579 (Ont. C.A.).

[36] The test is not whether the court believes the result is unjustified but whether the verdict is unreasonable: R. v. Quercia, 1990 2595 (ON CA), [1990] O.J. No. 2063 (Ont. C.A.). In Corbett v. The Queen 1973 199 (SCC), [1973] S.C.J. No. 157, Pigeon J. said at 389: “the function of the Court is not to substitute itself for the jury, but to decide whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered.” In determining whether a verdict is unreasonable, the court must re-examine and re-evaluate the evidence: see R. v. Yebes 1987 17 (SCC), [1987] 2 S.C.R. 168. The test for an appellate court determining whether the verdict of a jury or the judgment of a trial judge is unreasonable or cannot be supported by the evidence is the same. It is whether, on the whole of the evidence, the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered: see R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381 at para. 36. A verdict is unreasonable when it is illogical, speculative or inconsistent with the evidence. An appellate court is not to substitute its opinion for the trier of fact unless there is a clear basis upon which to draw the conclusion that the verdict is inconsistent with the requirements of a judicial appreciation of the evidence: see R. v. Biniaris, at paras. 20-22 and R. v. Burns, 1994 127 (SCC), [1994] 1 S.C.R. 656 at paras. 198-9.

[37] Where the appellant seeks to overturn a conviction based upon findings of fact made or inferences drawn, an appellate court will only interfere if the findings are shown to be clearly wrong, unsupported by the evidence or otherwise unreasonable. “The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result….”: see R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6 at para. 9. See also R. v. Smits, 2012 ONCA 524, [2012] O.J. No. 3629at para. 67 and R. v. Grosse, 1996 6643 (ON CA), [1996] O.J. No. 1840 (Ont. C.A.) at para. 14.

ANALYSIS AND THE LAW

[38] The appellant was charged with contravening section 264(2)(b) of the Code which reads as follows:

(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

(b) repeatedly communicating with, either directly or indirectly the other person or anyone known to them.

[39] In the decision of R. v. Sillipp, 1997 ABCA 346, [1997] A.J. No. 1089 (Alta. C.A) at para. 18, the Alberta Court of Appeal set out the five essential elements of criminal harassment under s. 264(1) that must be proven beyond a reasonable doubt. In Sillipp, the parties had been married and divorced twenty years later. The allegations were that the appellant frequently drove past and parked near the former spouse’s house, followed the complainant’s vehicle, followed the complainant and her friend to the theatre and into stores and followed the friend to the airport to pick up the former spouse. Several restraining orders had been issued by the court and the appellant had been found guilty of civil contempt for having breached them. The Alberta Court of Appeal considered the actus reus of the offence of criminal harassment as “conduct which meets discernable standards of nature, cause and effect” and the mens rea requirement being that of “an intention to engage in that conduct, or at minimum, recklessness or willful blindness, relative to that conduct”: see para. 32.

[40] In R. v. Kosikar, the appellant was convicted of criminal harassment. The appellant visited the complainant at her place of work, and although she made it clear that she wanted him to leave her alone, he persisted and sent letters and left gifts at her apartment. On one occasion, the complainant found him sleeping in the hall by her front door. The complainant changed jobs, but the conduct persisted. She moved to a different community, but he located her and continued to send letters and gifts. Over time, the letters conveyed a theme that God had promised her to the appellant, that she had no free will and that her life had been predestined to be with him. Ultimately, the complainant obtained a peace bond which the appellant honoured for the year, but when it ended, he sent some letters. Finally, two years later, he was convicted of criminal harassment and received three years’ probation. During the probation term, there was no communication. Following the term of probation, he sent a letter which had aggressive sexual references and left the complainant feeling very shaken. He was charged with criminal harassment under s. 264(2)(d) and the Crown relied upon the earlier relationship between the appellant and the complainant to prove the elements of the offence. This particular offence requires only a single act of communication.

[41] Goudge J.A. writing for the Court of Appeal, adopted the elements of the offence of criminal harassment as outlined in Sillipp at para. 18 and set them out as follows:

(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 willfully 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.

[42] In Kosikar, Justice Goudge wrote “Parliament expressly required repeated conduct in defining the prohibited acts in s. 264(2)(a) and (b).” He held that the absence of such a qualification in s. 264(d) suggested that the legislative intent was that a single threatening act was sufficient and could found a conviction for criminal harassment. The court also considered the element of “harassment” which requires that the Crown prove that as a consequence of the prohibited act, the complainant felt harassed “in the sense of feeling tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered”: at para. 25.

[43] In a later case, the Ontario Court of Appeal commented that “more than one instance of unwanted conduct will be necessary” to constitute repeated communication under s. 264(2)(b): see R. v. Ohenhen at para. 32. In Ohenhen, the appellant met the complainant when she was 15 years old, obtained her phone number, and began to call her sporadically although she had said she was not interested. The appellant became persistent and his calls were aggressive, threatening and derogatory. He was convicted of uttering a threat after he left a message on the complainant’s answering machine threatening rape and death and was sentenced to 30 days followed by probation. He contacted the complainant again years later through a letter sent to her house, which she returned. A year later, he sent another letter and she contacted police. The appellant was arrested and charged.

[44] A jury convicted the appellant of criminal harassment. He appealed and his appeal was dismissed. MacFarland J.A., writing for the court, considered jurisprudence on what constitutes “repeatedly”. She cited a decision of Eberhard J. in R. v. Belcher, [1998] O.J. No. 137 (Ont. Gen. Div.) at para. 20 where she said that she was persuaded that the intended definition for the word “repeatedly” in this context, is a meaning that equates to “persistently”. In Belcher, Eberhard J. wrote that it is the “persistence of the behavior, the context in which it is committed and other factors that will assist in segregating criminal stalking from “following” a person in an annoying, irritating, perhaps even prolonged but not perilous manner.”

[45] MacFarland J.A. referenced the Standard Jury Instruction on Criminal Harassment approved which said:

To repeatedly communicate with another person means to communicate with them more than once. The communication may be direct, or it may be indirect. It may, but does not have to be in the same words or by the same means each time.

[46] After reviewing the dictionary definitions of the words “repeat” and “repeated”, from which the adverbial form “repeatedly” is derived, she concluded at para. 31 that “repeatedly” under s. 264(2)(b) “obviously means more than once but not necessarily more than twice” and that one instance of unwanted conduct “will not be sufficient to satisfy s. 264(2)(b)”: at para. 32.

[47] In Ohenhen, the court also held that “trial judges should be cautious in using the standard charge language in all cases because defining repeatedly as meaning more than one communication is not always appropriate. Conduct that occurs more than once may still not be sufficient to meet the element of the offence. The court stated at para. 33:

Perhaps a more appropriate instruction would be to advise the jury that communication that occurs more than once can constitute repeated communications depending on the context and circumstances under which they were made.

[48] That language has been incorporated in the Watt’s Manual of Criminal Jury Instructions and the National Judicial Institute’s Model Jury Instructions.

[49] In R. v. Scuby, the appellant had phoned the victim – a police officer who had previously investigated the appellant on a charge of break and enter – nine times, consisting of five calls in one day and four calls eight days later. The officer felt threatened and was afraid by the veiled threats of the calls. The judge acquitted Scuby on the ground that the Crown had not proven harassment. The Crown appealed, the appeal was allowed, and a new trial was ordered. The court held that the trial judge failed to apply the test of whether the repeated communications harassed the officer by causing him to fear reasonably. The court wrote at para. 12: “In determining whether Det. Coady had been tormented, troubled, or worried continually by the repeated telephone calls, as alleged, the trial judge had to consider both the content and the repetitious nature of those calls, together with the context in which those calls were made.”

[50] In R. v. Roylance, the accused called the complainant and left seven messages in the early morning hours one day. The court found that the calls were angry, profane, insulting, challenging and confrontational and the complainant felt concerned for his safety and the safety of his children. Justice Duncan considered whether the defendant’s conduct amounted to “repeatedly communicating” and held that seven phone messages was not “repeatedly communicating”. He wrote at para. 19, that “… when it comes to the interpretation of criminal or penal statues where there is any ambiguity that can be found in the words of the section, the interpretation that most narrowly construes the conduct defined as criminal by parliament, should be the interpretation that is favoured. Accordingly, I find that what occurred here was not “repeatedly communicating” as I interpret that phrase and accordingly the defendant is found not guilty of that charge.”

[51] In his reasons, Justice Duncan cited the decision of R. v. Campbell, [1994] O.J. No. 2827 (Ont. Prov. Div.), where the accused talked to the complainant from across the street and then turned around and drove up beside her and invited the complainant for a ride in his car. She declined, and he drove off with a loud and angry tone in his voice. The court found him guilty of breaching his recognizance but not guilty of criminal harassment. Justice Ready wrote at para. 9: “I think there has to be a longer and more repeated course of conduct than what has occurred on this occasion.” This conclusion was upheld on appeal: see R. v. Campbell 1996, CarswellOnt 32 (Ont. C.A.), where the court wrote: “In our view, it was open to the trial judge to find as she did that, on the evidence before her, the circumstances of this case constituted a single ongoing communication, occurring within the space of one minute in the same locale, which did not fall within the contemplation of the word “repeatedly” in s. 264(2) of the Criminal Code.”

[52] In R. v. Ryback, 1996 1833 (BC CA), [1996] B.C.J. No. 285 (B.C.C.A.), the accused appealed a conviction for criminal harassment. The trial judge found that the appellant was stalking the complainant by going to the grocery store where she was a cashier, by sending her presents, talking to her family, and attending at her house without her consent or encouragement. The court found evidence of pre-charge events was relevant to proving the elements of the offence and held that there were repeated communications, that the complainant felt harassed and that her fear was reasonable. The appeal court held that evidence of conduct outside the period covered by the charge was admissible and relevant to the issues of whether the complainant had fear for her safety and to whether it was reasonable that the complainant should be fearful “in all the circumstances”: at para. 32.

[53] The British Columbia Court of Appeal also held that pre-charge conduct was relevant to the appellant’s intent, “that is to say as to whether he knew or was reckless as to whether his conduct harassed the complainant...”: at para. 33. The court went on to discuss what harassment is: “Harassment is defined in the Dictionary of Canadian law as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”. The Concise Oxford Dictionary defines harass as “to trouble or annoy continually or repeatedly” at para. 36.

[54] In R. v. Alvarez-Gongora, 2014 ONCJ 712, [2014] O.J. No. 6263, the accused and the complainant met on-line. He believed that she owed him money and began court proceedings to this end. The accused sent the complainant a number of text messages on March 29, 2013, telephoned her on March 29, 2013 and said he “would hunt her down”, visited her workplace with his ex-wife and sent text messages and an email on June 26, 2013. The court considered the context of the statements made and the conduct between the parties and found that the interactions were more about the civil dispute and that the actus reus and the mens rea for the offence of criminal harassment had not been made out beyond a reasonable doubt. The trial judge further found that it was more probable than not that the complainant did reasonably fear for her safety, but that this would only meet the civil standard and not a criminal one.

DECISION

[55] Mr. Cowsill was charged with two counts of criminal harassment by repeated communication contrary to s. 264(2)(b). The Crown had to prove each of the essential elements beyond a reasonable doubt. One element was that Mr. Cowsill engaged in repeated communication with Ms. Johnston during the specified time period. The Information for the first count related to the incident on October 10, 2018 and was based on Mr. Cowsill approaching the complainant after a mutual friend had approached her in the bar and saying “hello Teagan”, possibly three times. Crown counsel asked the court to find Mr. Cowsill not guilty on this count in light of the evidence. The trial judge agreed.

[56] The second count related to the events on October 17, 2018 where Mr. Cowsill sent two text messages to Ms. Johnston at 8:45 p.m. The Crown had to prove that Mr. Cowsill engaged in more than one instance of communication with Ms. Johnston on that date. The evidence of Ms. Johnston was that the messages were received one after the other and the time stamp from the phone says both came in at 8:45 p.m.

[57] While the trial judge reviewed the evidence at trial in a thorough manner and properly outlined the elements of the offence of criminal harassment, I find that the totality of the evidence at trial cannot support a reasonable finding of guilt for several reasons which I outline below. I also bear in mind the role of an appellate court in deciding whether the verdict was unreasonable and whether there was evidence upon which the trial judge could have made the findings he did.

[58] First, to support a finding of guilt of criminal harassment under s. 264(2)(b) of the Criminal Code, the Crown must prove beyond a reasonable doubt that the appellant “repeatedly communicated” with the complainant. As discussed above, what constitutes repeated communication has been the subject of appellate-level review across the country. In R. v. Ryback, the British Columbia Court of Appeal held that three separate communications amounted to repeated communication. In Ohenhen, the Ontario Court of Appeal held that two letters sent over an 18-month period also were repeated communications and as MacFarland J.A. said, the conduct must occur more than once, but not necessarily more than twice, in order to be repeated communication: at para. 31.

[59] On a charge of criminal harassment, the trial judge must make a finding of fact about whether more than one communication occurred in order to decide if there was “repeated communication.” It is the repeated nature of the conduct that makes what is otherwise lawful conduct unlawful should the other elements also be proven. However, whether the number of communications will satisfy the requirement under s. 264(2)(b) depends on a contextual, legal analysis. This approach mirrors that found in a wealth of cases relating to s. 264(2)(d), where the definition of “threatening conduct” has been analyzed repeatedly following factual findings: see for example: R. v. Sim, 2017 ONCA 856, 2017 CarswellOnt 17179; R. v. Burns, 2008 ONCA 6, [2007] O.J. No. 5117; R. v. George, 2002 YKCA 2, [2002] Y.J. No. 2.

[60] In reviewing the exhibit filed at trial which contained the text messages sent at 8:25 p.m., I find that two text messages that came in at the same time and, according to the complainant, were received “one after the other” constitute a single communication to the complainant. I do not agree that because this communication consists of texts rather than a letter or because there is spacing in the paragraphs of the text, that the element of repeated communication is made out. They were clearly part of one communication made at the same time. This determination is similar to Roylance where the court found that seven voice mail messages made in rapid succession, “one after the other” and retrieved at the same time when the complainant woke up the next morning, did not constitute repeated communication. This element of the offence cannot be established.

[61] I also am of the view that the Crown is bound by the way the counts in the Information are framed such that the communication on October 10, 2018, where the parties coincidentally met and the appellant said hello three times in the bar, cannot be relied upon to constitute the basis for finding repeated communication for the purposes of this element of the offence. Rather, that evidence provides a context for the conduct and may be considered for that purpose.

[62] In summary, the trial judge made a factual finding that there were two text messages sent by the appellant on October 17, 2018. However, in applying the necessary legal analysis, he reached an unreasonable conclusion not based upon the evidence that the element of “repeated communication” had been made out.

[63] Second, in considering the element of whether the complainant was harassed, certainly prior conduct between the parties is relevant. In addition, a court should look at the context and whether the communication is repetitive in nature and the content of the calls to determine whether the complainant had been harassed: see Scuby at para. 20. In Kosikar, the Court of Appeal held that the Crown was required to prove that as a consequence of the prohibited act, the complainant was in a state of being harassed in the sense of feeling “tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered.” The words are not cumulative and any one is synonymous with “harassed” see R. v. Kordrostami at para. 11.

[64] The nature of the communication in the case at bar can be contrasted to other cases in deciding whether the element of harassment is made out. For example, in R. v. Wolfe, 2008 BCPC 119, 2008 CarswellBC 888, the parties had been married, separated in 2003, and entered into a separation agreement in 2004, but Mr. Wolfe experienced difficulties with access. He stopped seeing his children for a period of time and then tried to reintegrate himself into their lives. At that point, his former spouse wanted no contact and would not answer the phone when he called to speak with the children. Mr. Wolfe placed five consecutive telephone calls to the complainant and was charged with criminal harassment.

[65] In Wolfe, the telephone calls had been taped and were before the court in evidence. The court found that, while there was repeated communication, the elements of harassment and fear by the complainant were not made out beyond a reasonable doubt. The court held at para. 40: “There is no threat in any of the communications on February the 25^th by Mr. Wolfe to Mrs. Wolfe as to her safety…She would have been bothered and upset, but I cannot say tormented, plagued, bedevilled or badgered. Worried perhaps about the prospect of litigation, as any parent would, but not outside of that.” The trial judge also considered the nature of the telephone calls and that there were no threats in finding that there was no reasonable basis for her fear.

[66] In a number of cases concerning criminal harassment, I note that many involve conduct that is repetitious, threatening, or has a sexual connotation. Not one of those circumstances exists here. In the case at bar, the trial judge looked at the circumstances and context of the communication made on October 17, 2018 but did no analysis concerning the number of communications and the fact that they did not contain threats. Rather, the appellant apologized for what he may have done and said he would not contact the complainant again.

[67] In the case of R. v. Lamontagne, 1998 13048 (QC CA), [1998] A.Q. No. 2545, the appellant was convicted of criminal harassment contrary to s. 264(1)(d) for having engaged in threatening conduct. Although the prohibited conduct involved a different subsection of criminal harassment, it does require proof of some of the same elements of the offence. The court wrote at para. 12: “The actus reus of this offence is made up of three elements: (1) the conduct prohibited in s. s. (2), (2) that as a matter of fact the victim was harassed, and (3) the effect which this conduct causes in the victim.”

[68] Proulx J.A. described that the elements must be satisfied on an “objective test”. Further, he held that harassment could not be proven at para. 28: “In the case at bar, from this single incident which involves words used by the appellant in circumstances which he mentions and which the judge accepts, also taking account of the silence of the complainant with respect to whether or not she was harassed, the conclusion that she was in fact harassed in some manner cannot be drawn. The failure to prove this element should result in an acquittal.”

[69] In summary, I conclude that the trial judge reached an unreasonable conclusion in finding that harassment had been proven to the requisite standard of proof in this case.

[70] Third, in considering the element of the complainant’s fear and whether in the circumstances it was reasonable, I agree with Crown counsel that this provision was designed to allow for intervention in “stalking” situations before further criminal acts occur. However, the fear experienced by the complainant must be objectively reasonable in the circumstances: see Lamontagne at paras. 21-22. When looking at the jurisprudence, I note, for example, the difference in the case at bar with the fear held to be objectively reasonable in Kordrostami, where the Court of Appeal upheld the trial judge’s finding that the fear was reasonable, “in light of the age of the complainant, the nature of the “sexually charged” conversation they had at the restaurant, and the very explicit direction she had given him to leave her alone…”: at para. 17. Here, in light of the nature of the communications, their context and number, the finding that the complainant’s fear was objectively reasonable in the circumstances cannot stand.

[71] Crown counsel made a submission that the appellant’s failure to testify at trial should be taken into account in that he did not offer an innocent explanation for his conduct. In R. v. Corbett, Pigeon J., writing for the majority, emphasized that while an accused is under no obligation to testify and a trial court may not make any inferences in relation to the decision not to testify, an appellate court may consider that silence as it relates to whether the jury reached a reasonable verdict.

[72] In R. v. Noble, 1997 388 (SCC), [1997] 1 S.C.R. 874, Sopinka J., citing Corbett, held that appellate courts may consider the failure to testify as follows at para. 103:

In my view, the appellate review cases do not contradict the conclusion that silence may not be placed on the evidentiary scales, either by the trier of fact or by appellate courts. Rather, the cases hold that appellate courts, like triers of fact, may refer to the silence of the accused as indicative of the absence of an exculpatory explanation; silence is not inculpatory, but nor is it exculpatory. Nowhere do the appellate review cases outlined above explicitly state that silence may be used as a “make-weight “by the trier of fact, but there is wording that suggests that silence may be used simply in the limited sense of not providing an innocent explanation.

[73] Justice Sopinka wrote that this approach is not inconsistent with the presumption of innocence because an appellate court will only use the fact of the accused’s silence to decide the appeal not to inculpate the accused. Ezechukwu and the cases cited in it – R. v. Dell 2005 5667 (ON CA), [2005] O.J. No. 863; R. v. An, 2015 ONCA 799, [2015] O.J. No. 6059; and R. v. Wu, 2017 ONCA 620, [2017] O.J. No. 3868 – affirm a similar point, that, when considering the reasonableness of a verdict, “an appellate court is entitled to treat an appellant’s silence as indicating that the appellant could not provide an innocent explanation of his or her conduct”: Dell at para. 35.

[74] Accordingly, in the case at bar, while the Crown is correct in submitting that the accused’s failure to testify may be considered on the appeal, an accused’s silence cannot be used to strengthen a weak Crown case on appeal. In R. v. Luu, 2010 ONCA 807, [2010] O.J. No. 5120, Rosenberg J.A. wrote: “Given the frailties in the expert evidence and the lack of other evidence of any kind to support a conviction, the fact that the appellant did not testify is of no value.” The Ontario Court of Appeal found the verdict to be unreasonable and set aside the conviction. Similarly, here, I find the conviction to be unreasonable and the accused’s silence cannot be used to augment the case being appealed.

RESULT

[75] A summary conviction court may allow an appeal if it is satisfied that the verdict should be set aside because it is unreasonable or cannot be supported by the evidence or the judgment was made on a wrong decision on a question or law or any other ground where there is a miscarriage of justice. I conclude that the verdict of the trial judge was unreasonable in that the elements of the offence concerning whether the appellant “repeatedly communicated” with the complainant, whether the conduct amounted to harassment and whether the complainant’s fear for her safety was reasonable in the circumstances on an objective test cannot be made out on the criminal standard of proof.

[76] The appellant argues that, should the appeal against conviction be allowed, the correct remedy is an acquittal. Crown counsel made the submission that an acquittal should only be entered in the clearest of cases. Because the argument on appeal concerns factual issues, Ms. Motyl submits that a new trial should be ordered.

[77] In R. v. Schoenthal, 2007 SKCA 80, [2007] S.J. No. 387, the Saskatchewan Court of Appeal wrote about the discretion under s. 686(2) of the Criminal Code after deciding that the appeal should be allowed and dealing with whether a new trial should be ordered or an acquittal entered. The court wrote at para. 27:

In Sopinka and Gelowitz, The Conduct of an Appeal, it is stated:

This discretion is generally exercised on the basis of an assessment of the evidence that was properly before the trier of fact. In circumstances in which the admissible evidence was such that a properly instructed trier of fact could reasonably have convicted the accused, it is appropriate to order a new trial. Where, however, the court of appeal concludes that there was no evidence upon which a properly instructed trier of fact could have convicted, the appropriate course is to direct a verdict of acquittal.

[78] For the reasons outlined above, the appeal against conviction is granted and the conviction is quashed. I exercise my discretion and determine that this court has a full factual record and that there is nothing to be gained by having a new trial as there is no evidence upon which a properly instructed trier of fact could convict. Accordingly, I direct that an acquittal be entered.

Released: July 13, 2020

Himel J.