Court File and Parties

COURT FILE NO.: 20-DV7074 DATE: 2023/08/04 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: His Majesty The King v. B.S

BEFORE: Justice Charles T. Hackland

COUNSEL: Moiz M. Karimjee, for the Crown The Appellant, B.S., self represented

HEARD: May 19, 2023 (Ottawa)

Reasons for Judgement (Summary Conviction Appeal)

Background

[1] This is an appeal by the Appellant from her conviction in the Ontario Court of Justice on a single count of criminal harassment, contrary to section 264(3) of the Criminal Code. This is a very sad case arising in the course of a family break-up. The Appellant, in the context of her actions which were found to constitute harassing conduct, was going over to the former matrimonial home on a number of occasions in an attempt to see and talk to her three young boys, where they continued to live with the Complainant, (the boy’s father who is the Appellant’s estranged husband). These visits were in violation of a Restraining Order issued by the Superior Court of Justice, Family Branch.

[2] The boy’s father was the Complainant in this case and was the only witness at trial.

[3] The Appellant was self represented at trial. As noted, she did not testify or call evidence. She had the assistance of section 486 counsel who cross-examined the Complainant. The Appellant was also self represented in this appeal. The Appellant had been in custody for several months when the trial commenced. At trial and on this appeal, she provided well organized and articulate submissions. Unfortunately, the Appellant struggled on this appeal with the concept that her version of events about her interactions with the Complainant and her children were not in the evidentiary record before the trial judge, as she chose not to testify at trial. The trial judge was compelled to assess the events giving rise to the charge with the Complainant’s testimony alone and with due consideration to the Family Court Restraining Order (trial exhibit:1). The Complainant continues to assert that the Restraining Order is not valid or binding on her. The trial judge found that the Restraining Order was and remains valid and enforceable and was entirely correct in doing so.

[4] The Complainant testified that during the general time frame of the charge (March 17 to April 24, 2020), he was separated from the Appellant and he had exclusive possession of the jointly owned matrimonial home pursuant to a Family Court order and he was residing there with the couple’s 3 young boys. During this time, the Appellant attended unannounced at the residence on several occasions to talk to her boys, bring them gifts, once to help with their homework and she also attempted to discuss with the Complainant some tax issues and her draft separation agreement which she wished him to sign. The Complainant testified these unannounced visits became very upsetting to him and he notified police. However, as the Appellant accurately submits, the Complainant conceded that at no time did she engage in aggressive or assaultive behavior. The Complainant admitted he was not physically afraid of the Appellant and was never assaulted or physically threatened by her and there was no history of violence or spousal abuse in their prior relationship.

[5] Importantly, throughout the period of the charges, the Appellant was subject to a restraining order dated March 1, 2019, made by a Justice of the Ontario Superior Court, Family Branch, sitting in child protection proceedings. These proceedings had been initiated by the Children’s Aid Society in March 2018, following reports from the boy’s teachers expressing concerns about the boys’ well being from comments they had made at school concerning conflict between their parents at home. The order prohibited the Appellant from attending within 500 metres of the matrimonial home, or at the Complainant’s place of work or any location that he or the children may be, except in accordance with any court order regarding access. The Complainant explained that the Appellant’s repeated breaches of the Restraining Order caused him significant anxiety and stress and he came to fear for his mental well-being.

Trial Judge’s Decision

[6] The trial judge found the Complainant to be credible. She accurately identified the central issue to be whether the Appellant’s repeated unannounced visits to the former family residence, in the face of a Family Court Restraining Order, constituted harassment of the Complainant. The trial judge carefully and accurately considered his testimony. She accepted his assertions that the Appellant’s conduct caused him worry, stress, and anxiety and also accepted his testimony that he came to fear for his personal safety in the sense of experiencing mental health trauma. These factual findings were reasonable and within the purview of the trial judge.

Appellant’s Points of Argument

[7] The Appellant argued firstly that she was convicted in the absence of a sufficient evidentiary basis to support the conviction. Specifically, she submits there was no evidence that she engaged in “besetting or watching the dwelling house” as required in s. 264(2) (c) of the Criminal Code. I reject this submission. The evidence established the Appellant made repeated visits to the former matrimonial home where the Complainant and the couple’s 3 boys resided. The concept of “besetting” is understood in law to mean to be at or near the place “in a troubling way”. The trial judge did not make a specific finding on this point but it was unequivocally implicit that the Appellant’s conduct entailed repeated harmful or troubling visits to the matrimonial home, which is a dwelling house.

[8] The Appellant next argued that the Crown’s case as presented to the court, was about the (alleged) besetting of a person whereas s. 264(2) (c) contemplates the besetting of a place. This is not a sensible submission. The section requires proof that the harassment occurred through or in the course of besetting a dwelling house but focuses on the effect of the besetting on a person. This is not a type of property offence.

[9] The Appellant stresses the offence requires proof beyond a reasonable doubt that the victim was caused to fear for his personal safety by the Appellant’s conduct in besetting the dwelling house and that such fear must be objectively reasonable in the circumstances disclosed by the evidence. The court would observe that the trial judge correctly and clearly focused on this as being the central issue in the case.

[10] The Appellant contends that her well-intended reasons for her visits and her conduct at these visits would not cause a person in the Complainant’s position to fear for his personal safety on any reasonable standard. She submitted, “combined with my non-threatening and non-violent history of conduct towards the Complainant…any evidence of unpredictability of my visits to the co-owned residence did not have sufficient probative force” to support the conviction.

[11] The Appellant argued that much of what was upsetting the Complainant was, on his own testimony, considerations not directly caused by her visits to his residence. Examples included his concerns about how to handle the children’s reactions to her visits and their strongly expressed desire to spend time with their mother, his worries about prior warnings from the CAS about the need to make sure access to the children by their mother was supervised, his concern that the Appellant might remove one of the children when he was not aware of where she lived, and the concern he had about allowing visits which contravened the Restraining Order.

[12] The trial judge was of the view that the Complainant’s expressed concerns arose from the Appellant’s repeated unannounced visits to his residence and the mental health trauma this caused him. The trial judge found the evidence was “clear” that the emotional distress of the repeated attendances has taken a toll on his mental health. The trial judge explained her conclusion to the Appellant in these words:

…I am assessing whether a reasonable person would fear, as [the Complainant] has. …The fear of personal safety is in relation to your repeated attendance with no notice, including pushing your way past [the Complainant] in the home. His worry of your taking the children, his worry of not having a way to contact you if you were to take one of the kids. The impact of these repeated attendances on his mental health: he’s testified that these events have caused him a great deal of mental health trauma. And I find that even in the absence of a diagnosis, that this repeated attendances, these exchanges and the stress have an impact on [his] mental health and would affect a reasonable person to cause them to fear for their personal safety. So I find that your attendance between March 17 and April 24, 2020 caused [the Complainant] to fear for his personal safety and that fear was reasonable.

[13] In my view, the trial judge properly applied the established jurisprudence on harassment, holding that the concept of inducing fear for one’s personal safety can include or consist of fear for one’s psychological well-being, even in the absence of physically or verbally threatening behavior on the part of the harasser.

[14] In R. v. Wisniewski, 2011 ONSC 6452, a harassment case based on an Accused’s continued unwanted communications causing a Complainant psychological harm, Justice Durno summarized the relevant jurisprudence. He stated at para. 36:

Psychological violence can be the very evil Parliament sought to punish by enacting the criminal harassment offence. R. v. Fennessey, [2000] O.J. No. 3316 (C.A.) A Complainant’s psychological safety has been held to include “fear of mental, emotional, or psychological trauma” in R. v. Ryback (1996), 105 C.C.C. (3d) 240 (B.C.C.A.) at para. 37 and “freedom from fear or the mental or emotional or psychological trauma” in R. v. Stagnita [2000] O.J. No. 3024 (S.C.J.) at para. 37. Fear can also reflect a state of uncertainty as to what an individual is capable of, what his or her intentions might be, or what consequences might follow. R. v. Sostak, [2007] O.J. No. 3353 (C.J.)

[15] Justice Durno went on to offer this guidance about how a trial judge should assess the objective reasonableness of a fear for one’s safety in para. 38:

What is required in each case is a fact specific determination of whether the fear was reasonable. There is no requirement that the Crown establish threats of violence (Sousa, supra, at para. 6) or actual violence. To import that requirement would ignore psychological safety and the objectives of the legislation. Neither does the section require the Complainant to know what the accused is capable of doing. To import that element would be to preclude convictions where the offence is committed by a stranger. Sousa, surpa, at para. 6. Indeed, the uncertainty as to what the harasser could do, in itself can often establish the fear component and its reasonableness. In addition, the past conduct of the accused and the past relationship between the parties can inform the assessment of the reasonableness of the fear even when that background evidence is not within the timeframe of the information or indictment. Kosikar, supra, at para. 27. See also R. v. D.(D.) (2005), 203 C.C.C. (3d) 6 (Ont. C.A.) at para. 13 and R. v. Ryback, supra, at para. 32.

Disposition

[16] This court is satisfied there was evidence, being the Complainant’s testimony, from which the trial judge could reasonably draw the conclusion she did, that the Appellant’s repeated unannounced visits to the Complainant’s residence, in the face of a Family Court Restraining Order, caused him to fear for his personal safety, in the sense of his psychological well-being.

[17] This appeal is dismissed.

Justice Charles T. Hackland Date: August 4, 2023