COURT FILE NO.: 22-11404874-A (Ottawa) DATE: 20231012 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – AHMAD HASAN Defendant
Counsel: Michael Lunski, for the Crown Robert Richardson, counsel appointed pursuant to s. 486.3 (2) of the Criminal Code Self-Represented
HEARD: 18 - 22, 25 - 29 September and 5 October 2023, at Ottawa
REASONS FOR DECISION AT TRIAL
MEW J. (ORALLY):
[1] Ahmad Hasan comes before the court charged with the following five offences under the Criminal Code (R.S.C., 1985, c. C-46):
a. A count of criminal harassment (s. 264) as against Detective Akiva Geller, the officer-in-charge of a completed criminal case against Mr. Hasan, as a result of various Facebook postings made by him;
b. A count of criminal harassment as against Natasha Calvinho, a lawyer who assisted Mr. Hasan as amicus on his prior criminal cases, as a result of various Facebook postings made by him;
c. A count of breach of probation (s. 733.1) for communicating directly or indirectly with a person/persons (namely, E.H. and/or Katherine Weaver-Rutten) named on one of his probation orders, as a result of various Facebook postings made by Mr. Hasan;
d. Two counts of breach of probation for engaging in the conduct underlying the other counts, thereby failing to keep the peace, as a result of various Facebook postings made by Mr. Hasan.
[2] A warrant for Mr. Hasan’s arrest on these charges was obtained on 12 December 2022. However, it was not until 4 January 2023 that he was arrested. He has remained in custody since that time.
[3] The alleged conduct giving rise to these charges occurred between 9 August 2022 and 4 January 2023 (25 November 2022 in the case of the criminal harassment charge concerning Akiva Geller).
[4] Prior to the commencement of the trial, a number of pre-trial applications brought by both the Crown and the defence were heard over four days of hearings. Included among those applications was an application by Mr. Hasan for a stay of proceedings based on abuse of process. That application was dismissed for reasons provided by me in an endorsement on 26 May 2023. Further applications made by Mr. Hasan for a stay of proceedings based solely, but not exclusively, on what he described as a malicious prosecution of the charges against him were dismissed, as was an application for an order that Mr. Hasan be released due to deficiencies in the arrest warrant. My reasons for dismissing these further defence applications are contained in an endorsement dated 12 September 2023.
[5] Following the closing of the Crown’s case at trial, Mr. Hasan brought a motion for a directed verdict of acquittal on all counts. This was dismissed by me for reasons contained in an endorsement dated 29 September 2023.
[6] The current charges against Mr. Hasan emanate from numerous postings made by him on his public Facebook page between August 2022 and January 2023. However, a series of events going back to August 2021 provide the backdrop to the events that bring Mr. Hasan before the court at this time.
[7] In August 2021, Mr. Hasan was working as an Uber driver. He gave a woman, E.H., a ride home. He asked E.H. if he could see her again. She agreed and gave him her mobile phone number. They exchanged several text messages and arranged to meet on 12 August 2021. That was the only date which Mr. Hasan and E.H. had. Subsequent events that occurred on 14 August 2021 led to him being charged with criminally harassing E.H.
[8] Two of the Ottawa Police officers involved with the investigation which led to Mr. Hasan being charged with criminally harassing E.H. were Laurie-Anne Rocca and Katherine Weaver-Rutten. Officer Weaver-Rutten took a statement from E.H., and, having reviewed the statement which E.H. provided to Officer Weaver-Rutten, Officer Rocca then interviewed E.H. Although Mr. Hasan was initially arrested for criminal harassment and sexual assault, Officer Rocca concluded that there were no grounds to charge him with sexual assault. Consequently, no such charge was laid.
[9] Mr. Hasan was released on bail. He was evidently very upset about having been charged. He felt that E.H. and her coworkers had misrepresented the situation to the police, which had led to him being charged.
[10] Mr. Hasan had a public Facebook account. It was “public” in the sense that Mr. Hasan did not place any restrictions on who could view, comment on or repost Mr. Hasan’s postings.
[11] On 18 September 2021, Mr. Hasan made two postings which led to further charges against him. In the first, he wrote “does her majesty have a gun?” In a second, longer, posting the first three sentences said:
Should I get a fuckin gun and stalk the fuckin criminals? They said I had a gun and was stalking the bitch anyway and the Judge read the fuckin bail conditions to me and warned me not to get a fuckin gun and stressed on that. What would it matter if I got a fuckin gun anyway?
[12] The second posting continues with references to two of the arresting officers as well as other aspects of the events of 14 August 2021 (the evening of Mr. Hasan’s arrest). These, and some other postings made by Mr. Hasan in the days that followed, led to Mr. Hasan being contacted by Detective Geller who told Mr. Hasan that he was under investigation for a number of possible offences, including criminal harassment, uttering threats, engaging in conduct to impede performance of justice duties, and publishing defamatory libel.
[13] Mr. Hasan was subsequently arrested and charged with 44 offences concerning Ottawa Police officers, justice officials and members of the public with some connection to the E.H. case.
[14] In respect of this second, “justice officials” case, ten charges went to trial (five counts of uttering threats and five counts of criminal harassment). Mr. Hasan was eventually convicted of five counts of uttering threats. He was acquitted on the criminal harassment charges. On 20 April 2022, having taken account of two months of presentence custody, Mr. Hasan received a suspended sentence with two years of probation and a ten year weapons prohibition. Mr. Hasan has appealed his conviction. That appeal is pending.
[15] In respect of the E.H. case, Mr. Hasan was convicted on 11 April 2022 and, on 4 August 2022, account having been taken of 101 days spent in presentencing custody, Mr. Hasan received a suspended sentence with three years of probation and a ten year weapons prohibition. An appeal from that conviction was dismissed on 28 June 2023 (reported at 2023 ONSC 2846). An application for leave to appeal that decision is pending.
[16] Almost immediately after being released, Mr. Hasan returned to Facebook.
Conduct Giving Rise to the Current Charges
[17] Within days of his release, Mr. Hasan was inquiring through his probation officer about the extent to which he could identify the names of known associates in his social media postings. He was ultimately advised on 11 August 2022 that identifying known associates, even if only by initials or police badge numbers, could lead to breach of probation charges.
[18] On 14 August 2022, after a series of emails involving, inter alia, Peter Napier (a Crown attorney) and Natasha Calvinho (the court-appointed s. 486 and amicus counsel in the E.H. and justice officials cases), Mr. Hasan was requested by Ms. Calvinho to not contact her by email or in any other manner (she added that his communications to her were unwanted and she viewed them as “threatening”).
[19] Mr. Hasan’s initial email to, inter alia, Mr. Napier and Ms. Calvinho refers to them both as “fucked up big time criminals”. With respect to “the bitch Natasha Calvinho”, Mr. Hasan accused her of knowing very well that she did not represent the defence, that she was a “filthy bitch” and that she was “working with Napier to corrupt justice and you will be fucked”. He concluded his email with “get prepared to receive your fair punishment criminals. It will be so tough and you will be asked about every single thing you did in your filthy plot!”
[20] Detective Geller had been made aware of the email exchanges involving Mr. Hasan, Mr. Napier and Ms. Calvinho. He emailed Mr. Hasan to caution him that any further communication, directly or indirectly to any of the parties related to his previous files may result in further criminal cases against him, and that such communication “includes posts on any social media directed to or at any of the involved parties”.
[21] Mr. Hasan responded to Detective Geller’s warning email, saying, inter alia:
The responses of Napier and Calvinho were taken and published on my facebook account so that the public becomes aware of the conduct of participants in the justice system.
Furthermore, I reserve my right to communicate with anyone I deem fit to help me with obtaining information regarding my previous files and to copy general inboxes. I accuse you personally, Mr. Geller, of criminal offences and request no further contact from you whatsoever and consider you to be my legal opponent I accuse you of conspiracy and torture and participation in activities of a criminal organization.
Should you attempt in any manner to contact me again, you will be reported to the police and criminal charges will be laid against you.
YOUR INTIMIDATION WILL BE SHARED ON MY FACEBOOK ACCOUNT SO THAT THE PUBLIC KNOW ABOUT YOUR UNLAWFUL CONDUCT. I BELIEVE YOU SHOULD HAVE BEEN IN JAIL A LONG TIME AGO.
[22] Mr. Hasan admits sending these, and the other, emails I will be referring to in these reasons.
[23] The probation orders which Mr. Hasan was subject to, as a result of the E.H. and justice officials proceedings, each contained the statutory condition to keep the peace and be of good behaviour. The E.H. case probation order contained a condition that Mr. Hasan not contact or communicate directly or indirectly with, inter alia, E.H. and Katherine Weaver-Rutten.
[24] There had also been a publication ban order, made on 29 October 2021, pursuant to s. 486.4 of the Criminal Code, preventing the publication of the identity of the victim, E.H., and other witnesses.
[25] On 14 August 2022, Mr. Hasan posted on Facebook a copy of the email that he had sent to Mr. Napier and Ms. Calvinho. He also posted copies of the statement which E.H. had given to the police on 14 August 2021, as well as copies of investigative action statements completed by Constable James Wilson, Constable Katherine Weaver-Rutten and Constable Mauro Bertoli relating to the E.H. case.
[26] Detective Geller had become aware that Mr. Hasan had been released from custody and became aware of his Facebook postings. He also became aware of the email sent by Mr. Hasan to Ms. Calvinho and Mr. Napier, which had been forwarded on to him. At trial, he explained his interest in Mr. Hasan’s ongoing social media activity on the basis that Mr. Hasan had been released on conditions which precluded him from contacting or communicating directly or indirectly with certain people involved with his previous cases. Detective Geller said that he was still the assigned officer and that checking on Mr. Hasan’s Facebook account was the cyber equivalent of a door knock check.
[27] A number of Mr. Hasan’s Facebook postings in August and September 2022 addressed his views on Palestine and the state of Israel. For example, he posted that resisting the Israeli occupation of the Arab lands is not terrorism. In another post, he stated that if the Jewish occupants of the Arab land want peace, they should dismantle their army and renounce the state of Israel and that Palestine is an Arab land that was stolen by armed gangs of Zionist criminals.
[28] On 25 September 2022, a Facebook posting by Mr. Hasan stated that one year and two days previously, he had received an email “from the JEWISH ‘Akiva Geller’, a detective…”
[29] On 3 November 2022, Mr. Hasan posted that “Natasha Calvinho is a narcissist sadistic psychopath”. The same day he accused Officer Geller of being “a sadist machiavellian psychopath”.
[30] On 16 November 2022, Mr. Hasan posted:
I need information about the mental health, social and personal life and history of the following persons…Katherine Weaver-Rutten…Akiva Geller…and Natasha Calvinho ‘criminal attorney’.
In addition to those individuals, also listed were four other Ottawa police officers, three Crown attorneys, eight judges or justices of the peace, and one psychiatrist. The email continued:
Any new information regarding their childhood, college/university years, and any specific addictions or mental health issues will be rewarded. Any significant information about the nature of the relationship between [certain justice officials] will be rewarded. Also any information about the relationship between [judge]/Napier/Calvinho in specific will receive additional rewarding.
Your identity shall not be publicly disclosed if you so request.
[31] In a second post, on the same day, Mr. Hasan posted:
Any information regarding the following will be rewarded:
1 – Confirmation of the religion of Dan Brenner “restaurant manager at Montanas – Ogilvie road, Gloucester (Ottawa), Ontario, Canada”. Is he Jewish?
2 – Information about any personal relationship between Dan Brenner and Akiva Geller “Jewish detective – Ottawa police services”.
3 – Information about Akiva Geller’s connections with the Zionist movement, including connections between him and the intelligence and military personnel of the state of Israel inside and/or outside Canada.
Anonymous identity guaranteed if requested. All I need is information.
[32] On 21 November 2022, Mr. Hasan posted “I [heart emoji] [E.H.] and will always love her”.
[33] Detective Geller testified that he became aware of the 16 November 2022 postings sometime between 18 and 25 November 2022. He notified his supervising officer, Sergeant Scott Fenton, as well as the Justice Officials Protection & Investigations Section (JOPIS). Sergeant Fenton determined that Mr. Hasan had breached the terms of his probation orders requiring him to keep the peace and be of good behaviour and not to communicate directly or indirectly with, inter alia, Katherine Weaver-Rutten or E.H. He also determined that there had been criminal harassment of both Officer Geller and Ms. Calvinho (although, at that juncture, Sergeant Fenton had not spoken with Ms. Calvinho or obtained a statement from her).
[34] On 7 December 2022, Mr. Hasan was in court, albeit virtually, for the hearing of his appeal against his conviction in the E.H. case. One of his grounds of appeal was the ineffective assistance of Mr. Calvinho as s. 486/amicus counsel. Ms. Calvinho participated in the hearing and was cross-examined by Mr. Hasan. The appeal Crown, Moiz Karimjee, advised the court of Mr. Hasan’s 14 August 2022 Facebook postings wherein he had published the whole statement of E.H., despite the publication ban. Parfett J. reminded Mr. Hasan that the publication ban had been in effect since the trial and had never been lifted. Mr. Hasan said that he would comply with the publication ban.
[35] On 10 December 2022, two Ottawa Police officers came to Mr. Hasan’s home to tell him that he was being charged with two counts of criminal harassment and three counts of breach of probation. They did not disclose to him who the complainants in the criminal harassment cases were, but his belief was that one of the complainants was Natasha Calvinho. The officers did not have a warrant. Mr. Hasan declined to voluntarily surrender at that time.
[36] More Facebook postings followed. Some of them discussed the E.H. case, including the posting of at least one further document taken from the Crown disclosure in that case. E.H. was referred to by name multiple times. Natasha Calvinho was described as a “liar”. Mr. Hasan recorded how, on 11 April 2022, he had called Ms. Calvinho a “bitch” in the court. He made reference to the evidence given by Ms. Calvinho at the appeal hearing on 7 December and the continued publication ban. In the course of doing so, one of his posts stated:
I breached the court’s publication ban order because I believe the publication is necessary in order to challenge Calvinho, knowing that she was stalking me on facebook, with regard to the matters I am publishing.
[37] A number of the postings, directed at Natasha Calvinho, added “whom I know to be stalking this facebook account”.
[38] In his post of 12 December 2022 Mr. Hasan wrote:
To Natasha Calvinho, whom I know to be stalking this account, how do you like my ‘tantrums’, bitch?
Emotional instability? Misogynist, Narcissist, criminal harasser, sexual misconduct, you said? I mean seriously, fuck you bitch…no no let me say it one more time fuck you bitch…one more tantrum please, fuck you Natasha fuck you big big time bitch. One second let me repeat this slowly because I know this word pisses Natasha the stalker “B-I-T-C-H”.
I hope you are enjoying my circus, Natasha.
Keep stalking!
Discussion
[39] I will deal first with the breach of probation charges. I will then discuss the harassment charges.
Keep the peace and be of good behaviour
[40] Being defiant of persons in authority, disrespectful to property of others, and using foul and insulting language will not amount to failure to keep the peace and be of good behaviour. Nor is conduct amounting to a mere annoyance or insult to an individual, but stopping short of actual personal violence: R. v. Gosai, [2002] O.J. No. 359 (S.C.J.), at para. 20.
[41] Rather, a failure to be of good behaviour must involve a breach of a legal obligation created in legislation: R. v. Gosai, at para. 28. While it would not appear to be a prerequisite for a conviction, based on a breach of a probation order condition to keep the peace, that a separate criminal offence must have been committed, it is clear that to be of “good behaviour”, one must abide by federal, provincial and municipal statutes and regulatory provisions: R. v. R. (D.), 1999 13903 (NL CA), 138 C.C.C. (3d) 405 (Nfld. C.A.); Cooper v. Canada (Minister of Citizenship & Immigration), 2005 FC 1253, at para. 14.
[42] It follows that if Mr. Hasan is convicted of criminal harassment, he will also have breached the requirement to be of good behaviour.
[43] The Crown argues that, in addition to resulting in a finding of guilt if any of the other offences that Mr. Hasan is charged with are made out, a breach of the publication ban imposed during the course of the E.H. case would also amount to a breach of the condition to be of good behaviour.
[44] Mr. Hasan challenges the validity of the publication ban. He points out, correctly, that an order restricting publication made under s. 486.4 of the Criminal Code only arises in proceedings in respect of certain specified sexual offences. Although Mr. Hasan was initially arrested for sexual assault and criminal harassment, he was never charged with sexual assault.
[45] The record before me does not reveal the basis upon which the s. 486.4 order was made. All that can be said is that, rightly or wrongly, it was made. The appeal from Mr. Hasan’s subsequent conviction has been dismissed (although an application for leave to appeal to the Court of Appeal is outstanding).
[46] I cannot now sit as a court of appeal against the s. 486.4 order. Mr. Hasan cannot elect to ignore the order, even if he has a seemingly valid basis for believing that it was wrongfully made. Nor can I. That is not how the rule of law operates.
[47] In his Facebook postings, Mr. Hasan used the full name of E.H. on multiple occasions. In doing so, he breached the order restricting publication made in connection with E.H.’s case. It matters not that Mr. Hasan has not, at this juncture, been convicted of a breach of that order. The count on the indictment which addressed the breach of the order restricting publication was, on consent, quashed because this court lacked jurisdiction to deal with that charge. However, there is no doubt that the order restricting publication has been breached and, as such, can form the basis for a conviction on the breach of probation charges relating to failure to be of good behaviour, regardless of whether Mr. Hasan is also found guilty of some or all of the other charges on the indictment.
Communicating directly or indirectly with a person/persons named on a probation order
[48] A term of the probation order of 4 August 2022, made in connection with the E.H. case, was that Mr. Hasan “not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with…[E.H.]…[or] Katherine Weaver-Rutten”.
[49] There is no issue that Facebook postings made by Mr. Hasan after 4 August 2022 referred to E.H. and Katherine Weaver-Rutten by name. The question is whether these communications amounted to contacting or communicating with in any way, either directly or indirectly, by electronic or other means, either E.H. or Katherine Weaver-Rutten.
[50] Mr. Hasan’s evidence – which, on this point, I accept – is that he had no knowledge of whether either Katherine Weaver-Rutten or E.H. had Facebook accounts. Mr. Hasan himself testified that he has around 30 Facebook “friends”, and that he is a member of various Facebook groups. However, his posts are public, and he conceded that his posts could be reposted. Indeed, Mr. Hasan used Facebook as the principal outlet for publishing his grievances against the justice system, and his belief that he has been wrongly convicted and persecuted.
[51] Mr. Hasan denies intending, by referring to E.H. and/or Katherine Weaver-Rutten, that either of these individuals would read, or otherwise become aware of, what he had written.
[52] Mr. Hasan submits that, in the absence of any evidence to show that E.H. or Constable Weaver-Rutten would read his postings, he cannot be found to have contacted or communicated with them, directly or indirectly.
[53] The Crown responds that the public nature of Mr. Hasan’s Facebook postings evidenced an intention on his part, or at least an attempt, to communicate with these individuals.
[54] In the case of Officer Weaver-Rutten, whether or not Mr. Hasan had her specifically in mind, on 11 August 2022 he addressed a posting “to their dishonors, the crown prosecutors and the police officers…”. Although not specifically named in that posting, Ms. Weaver-Rutten was one of the police officers involved in the E.H. case.
[55] Every time a posting is made on social media mentioning a person’s name or handle, it is reasonable for a court to consider the sender’s intent to communicate with that person. In most cases, this one being no exception, courts will have to determine whether a reasonable inference can be drawn of an intention to communicate.
[56] In my view, the reference in Mr. Hasan’s 11 August 2022 email to, inter alia, “the police officers” casts too broad a net to be characterised as an indirect attempt to communicate with Officer Weaver-Rutten. Breach of probation is a full mens rea offence. I am not satisfied, beyond a reasonable doubt, that a posting addressed to “the police officers” was intended to communicate, directly or indirectly, with Officer Weaver-Rutten.
[57] However, Ms. Weaver-Rutten’s name also appeared in the 16 November 2022 email, in which Mr. Hasan sought, for reward, information concerning her as well as other individuals.
[58] Detective Weaver-Rutten’s evidence was that she only became aware of this posting after she had been contacted by JOPIS. Because she does not have her own Facebook account, she had to get a friend to access the post.
[59] Mr. Hasan’s evidence is that, in posting a request for information, it was not his intention to contact or communicate, directly or indirectly, with any of the individuals named. Rather, he says his purpose was investigatory in nature. He sought to gather evidence to support his claims of a conspiracy on the part of various justice system officials to persecute him, as well as to prove that he was wrongfully convicted in the E.H. and justice official matters.
[60] Even if I accept Mr. Hasan’s assertion that he had no intention to communicate with any of the individuals named in his 16 November 2022 “request for information” posting, that does not end the inquiry.
[61] In order to succeed on a breach of probation charge, the Crown must prove beyond a reasonable doubt that Mr. Hasan failed, without reasonable excuse, to comply with the order not to contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with, inter alia, Katherine Weaver-Rutten.
[62] In R. v. Legere (1995), 1995 1551 (ON CA), 95 C.C.C. (3d) 555, 22 O.R. (3d) 89 (C.A.), the Ontario Court of Appeal held that the word “communicating” should be given its ordinary dictionary meaning. The court adopted the following non-exhaustive propositions:
a. “Communicate” can be to impart, transmit information;
b. “Communicating” contemplates an exchange of information between persons, whether it be oral or otherwise;
c. Mutuality implicit in an exchange of information is not always required. However, there must be some imparting of information from one to another;
d. “Communicating” involves the passing of thoughts, ideas, words or information from one person to another;
e. “Communicating” can occur by acts or gestures as well as by words; and
f. “Communication” is different from mere “contact”.
[63] Legere was a case involving the breach of bail conditions. The order in question prohibited “communication”, but not “contact”. The appellant had been released on bail on a condition that he abstain from communicating with any person under the age of sixteen unless accompanied by an adult. He was observed in a shopping concourse walking towards an escalator when two young boys entered the concourse and walked towards the escalator as well. An officer who observed what happened said that they were on a “collision course” with the appellant. The appellant was observed walking in front of the boys and then kneeling down on one knee. The boys seemed startled. They turned around and ran out onto the street. Two officers had had the appellant under surveillance, but were nevertheless too far away to say whether the appellant spoke to the children or what his facial expression was at the time. The Court of Appeal held that even if the appellant’s act was an attempt to initiate communication (which was unsuccessful), it was not an act of communicating as that word was used in the judicial interim release order. There was no imparting of information. The appellant may have intended to communicate, but his attempt to do so was not communication.
[64] The situation in the present case is distinguishable from that in Legere. By posting a request for information about Ms. Weaver-Rutten, Mr. Hasan would – the Crown says must – have contemplated the possibility that his posting would come to Ms. Weaver-Rutten’s attention. In particular, a reasonable person would conclude that a posting of such a nature might come to Katherine Weaver-Rutten’s attention.
[65] It has been held that the prohibition against contacting someone can be seen as broader than an order forbidding communication: R. v. Edgar, 2021 QCCS 3867, at para. 61.
[66] In R. v. F. (J.), [2001] O.J. No. 2054 (S.C.J.), a case involving a breach of bail conditions, Hill J. observed that an order prohibiting communication or contact, directly or indirectly with identified parties, clearly prohibits the use of an agent to initiate communication or contact. In so holding, Hill J. rejected an argument that the bail conditions were limited to communications designed to harass someone, to discuss the outstanding offence or pending testimony, to solicit personal details, to threaten, or the like. In R. v. Lofstrom, 2018 ABCA 5, at para. 53, the Alberta Court of Appeal held that indirect communication could cover a situation where a message is passed along, and continued:
On the other hand, indirect contact could occur without direct communication. The concept of “contact” is not restricted to physical touching and it may include contacting the mind of the recipient without communication.
[67] In R. v. F. (J.), Hill J., at para. 28, observed that communications and physically proximate attendance, whether or not innocuous from the accused’s perspective, “frequently generate adverse experiences for those who are in fact victims of crime”. Appreciating that this comment was made in the context of bail conditions governing an accused charged with sexual offences, the purpose of a condition in a probation order not to communicate with or contact, directly or indirectly, a specific individual, is surely designed to protect the designated individuals from the negative consequences of any form of communication or contact initiated by the accused. In other words, the objective of the sort of condition which Mr. Hasan was subject to is to restrain him from saying or doing things which, if communicated to (in this case) Ms. Weaver-Rutten, might cause her concern, whether that be for her safety or her peace of mind, or otherwise. By seeking personal information about her, which any person in her position would find disquieting if brought to her attention, I find that Mr. Hasan failed, without reasonable excuse, to comply with the order not to contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with Katherine Weaver-Rutten.
[68] I reach a different conclusion with respect to the posting pertaining to E.H. On the motion for a directed verdict, I stated that a finder of fact would be bound to ask why Mr. Hasan would post an assertion of his love for E.H. if not in the hope that his pronouncement would somehow come to her attention?
[69] During the course of evidence called by the defence, it emerged that the “I [heart emoji] [E.H.] and will always love her” pronouncement was part of a longer posting which started with a reference to one of the judges involved in an earlier case who Mr. Hasan made some rude and uncomplimentary comments about, concluding that the judge took pleasure in torture and causing endless suffering to the judge’s victims. This part of the posting had not previously been part of the evidentiary record. The “I [heart emoji] [E.H.]” line immediately followed as part of the same posting. Placed in this context, it is possible that the focus of the posting was the judge who Mr. Hasan was critical of, and that his reference to E.H. was to distinguish his feelings for her, as compared to the judge. Given that possibility, I am not prepared to accept that the evidence supports a conclusion, beyond a reasonable doubt, that Mr. Hasan’s references to E.H. were an attempt to contact or communicate with her directly or indirectly.
Harassment Charges
[70] To be found guilty of criminal harassment of Akiva Geller and/or Natasha Calvinho, the Crown must prove each of the following essential elements beyond a reasonable doubt:
a. That Ahmad Hasan engaged in threatening conduct directed at Akiva Geller and/or Natasha Calvinho;
b. That Ahmad Hasan had no lawful authority to do what he did;
c. That Ahmad Hasan’s conduct harassed Akiva Geller and/or Natasha Calvinho;
d. That Ahmad Hasan knew that Akiva Geller and/or Natasha Calvinho were harassed, or went ahead with such conduct not caring whether the conduct harassed Akiva Geller and/or Natasha Calvinho or not;
e. That Ahmad Hasan’s conduct caused Akiva Geller and/or Natasha Calvinho to fear for his/her safety; and
f. That Akiva Geller and/or Natasha Calvinho’s fear was reasonable in the circumstances.
[71] It is clear from a review of Mr. Hasan’s Facebook postings that Akiva Geller and Natasha Calvinho were targeted as objects of his derision and contempt. He was convinced that Akiva Geller was out to get him, and the unmistakable innuendo from his frequent references to Detective Geller as the “Jewish detective”, together with his strongly held views about Zionism and the state of Israel, suggest that Detective Geller’s religious and cultural affiliations have informed the basis for what Mr. Hasan perceives to be Detective Geller’s animus towards him. Similarly, his crude and vulgar comments about Ms. Calvinho could reasonably be interpreted as misogynistic and hostile (although, as Goldstein J. observed in R. v. Roy, 2019 ONSC 903, being annoying, persistent or even racist will not necessarily, without more, render an individual guilty of criminal harassment).
Did Mr. Hasan engage in threatening conduct directed at Akiva Geller and/or Natasha Calvinho?
[72] Mr. Hasan is portrayed as someone naïve to the criminal justice system. It is argued that he truly believes that he has not had a fair shake, and likely believes that going forward, he will still not get a fair shake. He believed that the Crown prosecutors and police were not listening to him, and that witnesses wronged him. As a result, he turned to the court of public opinion. His postings – excessive, crude, insulting and offensive as many of them were – were not intended as, and do not, he argues, constitute “threats” as that term is used in s. 264 of the Criminal Code.
[73] Mr. Hasan submits that when he sought information about Detective Geller and Ms. Calvinho, among others, he was trying to obtain information about the people who, he believed, had persecuted him. He intended to pursue Detective Geller and Ms. Calvinho in court. He did not have access to the state’s information gathering system. But he did have access to Facebook, and that is the medium that he used.
[74] In R. v. George (2002), 2002 YKCA 2, 162 C.C.C. (3d) 337, the Yukon Court of Appeal reviewed the jurisprudence on the meaning of “threat” as used in s. 264 of the Criminal Code. Reference was made to the Oxford Dictionary definition of “threat” as:
A declaration of intention to punish or hurt, a menace of bodily hurt or injury, such as may restrain a person’s freedom of action; and an indication of something undesirable coming.
[75] The court observed that there is no requirement that the threat specify death or serious bodily harm. Rather, it can include psychological harm. At para. 41, the court wrote:
I do not see any difference, in substance, between defining a threat as a restraint on a person’s freedom of action and an indication of something undesirable to come, or defining it as a tool of intimidation, designed to instill a sense of fear. Instilling a sense of something undesirable to come is indeed engaging in an act designed to instill a sense of fear.
[76] Whether or not conduct amounts to a threat is a question of law and not of fact. The question is whether, looked at objectively, in the context of all the words written or spoken, and having regard to the person to whom they were directed, would Mr. Hasan’s conduct be regarded as threatening: R. v. George, at paras. 36-38; R. v. McCraw, [1991] 3 S.C.R. 72, at pp. 81-83.
[77] In my opinion, viewed objectively, Mr. Hasan’s request for information regarding “their childhood, college/university years, and any specific addictions or mental health issues”, in return for a reward and anonymity, can be regarded as threatening. The context in which the request for information was made includes the many prior postings in which Mr. Hasan had branded Detective Geller and Ms. Calvinho as criminals, sadists and psychopaths. And although there were no known occasions on which Mr. Hasan had threatened or carried out any acts of physical violence towards the targets of his derision, to Detective Geller and Natasha Calvinho’s knowledge, he had previous convictions for criminal harassment and uttering threats. As Laurie-Ann Rocca, a police officer who was called by the defence, asked rhetorically during her evidence, why would Mr. Hasan ask for the sort of information that he was requesting other than for a mischievous purpose?
[78] Mr. Hasan’s threatening conduct was amplified, vis-à-vis Akiva Geller, by his request for information about Detective Geller’s connections with the Zionist movement, including connections between him and the intelligence and military personnel of the state of Israel. Viewed in the context of Mr. Hasan’s strongly held views that resisting what he describes as the “Israeli occupation of Arab lands” is not terrorism, a reasonable person would regard Mr. Hasan’s conduct towards Detective Geller as intimidating.
[79] Mr. Hasan argues that his posts, while they concerned Akiva Geller and Natasha Calvinho, were not directed at them.
[80] I do not accept that argument. Viewed objectively, Mr. Hasan’s postings were threatening in nature and expressly named Akiva Geller and Natasha Calvinho, amongst others. They were public postings in which Mr. Hasan broadcast to the world at large that he wanted highly personal information about them. I find that the postings, taken in context, were threatening.
Did the Defendant’s Conduct Harass the Complainants?
[81] The defence argues that even if Mr. Hasan’s conduct was threatening in nature, it did not harass Akiva Geller or Natasha Calvinho because access to Mr. Hasan’s Facebook pages was outside his control. According to the defence, lots of offensive things are posted on Facebook all of the time. One does not have to view them. Mr. Hasan’s views and thoughts may well at times have been regarded as objectionable. However, there was no definitive way for Mr. Hasan to ensure that either Detective Geller or Natasha Calvinho viewed his postings.
[82] In my view, this argument fails to take into account the modern day realities of social media. In R. v. Fulton, 2021 BCSC 1146, the court found that Facebook posts that were clearly aimed at a complainant could constitute indirect communication (see para. 174). And in R. v. Lauck, 2018 ABPC 260, at para. 101, and R. v. Elliott, 2016 ONCJ 35, at para. 364, it was observed that every time a posting is made on social media mentioning a person’s name or handle, a court will consider the sender’s intent to communicate with that person. In most such cases, courts will have to determine whether a reasonable inference can be drawn of an intention to communicate.
[83] We live in an era where social media has become a dominant form of communication. It is used not only for keeping in touch with friends and family. It is a platform for public expression. Postings received by one person can be rebroadcast to others. “Likes” and other expressions of approval or disapproval can be viewed and commented upon. Although various security settings can limit who can read or rebroadcast a social media communication, and postings can be deleted, there can be many situations in which, once launched, the sender abdicates control of their social media communications and, hence, responsibility, over who accesses them. In the present case, there were no restrictions on who could view Mr. Hasan’s Facebook postings. His postings were viewable by anyone with access to Facebook or the Internet.
[84] In my view it can no longer be said with confidence that not knowing whether social media postings containing threats or other harassing content will come to the attention of a complainant will defeat a criminal harassment charge. A posting containing threats against identified or identifiable individuals made with the intention to make a public pronouncement may well, depending on the circumstances, be considered harassment of those individuals if it is foreseeable that they will become aware of the postings.
[85] All of that said, at the end of the day, the fact is that in the present case, the harassing comments did come to the complainants’ attention, and as they have been held to be threats, that part of the test is met.
Did the Defendant Know that the Complainants Were Harassed?
[86] Mr. Hasan argues that the Crown has failed to prove beyond a reasonable doubt that, even if his conduct amounted to harassment of Akiva Geller and/or Natasha Calvinho, he knew that they were harassed or went ahead with his conduct, reckless as to whether they were harassed.
[87] Mr. Hasan’s evidence is that he did not know that Akiva Geller or Natasha Calvinho were harassed by his conduct. Indeed, in August 2022 he had expressly stated that he did not wish to have any further communications with Detective Geller. With respect to Ms. Calvinho, it was only late in the day – at or around the time of his 7 December 2022 court appearance – that Mr. Hasan became aware that Ms. Calvinho was viewing (or as Mr. Hasan put it, “stalking”) his Facebook posts about her.
[88] Mr. Hasan did, however, know that the police were monitoring his Facebook posts. By any objective standard, it would be unreasonable of him to expect that, simply by demanding that Mr. Geller stop communicating with him, the detective (who, it will be remembered, was still the investigating officer for the most recent of Mr. Hasan’s offences when he started posting on Facebook again in August 2022), would cease and desist his monitoring of Mr. Hasan’s postings.
[89] As for Ms. Calvinho, while she had been on the receiving end of Mr. Hasan’s August 2022 emails, she had indicated at that time that while she found the conduct to be threatening, it did not rise to the level of criminal harassment. Specifically, she did not, at that time, fear for her safety. The Crown concedes that, at that time, she was not, objectively, threatened. That changed, however, after 6 December 2022, when she became aware of the request for information and other Facebook postings made by Mr. Hasan and, subsequently, was the object of multiple derogatory – and threatening – postings directed at “Natasha Calvinho, whom I know to be stalking this account”.
[90] In these circumstances, I am satisfied that Mr. Hasan either knew that his conduct would harass Detective Geller and Ms. Calvinho, or that he was reckless as to whether they would be harassed.
Did the Defendant’s Conduct Cause the Complainants to Fear for their Safety?
[91] I accept, without hesitation, the evidence of both Detective Geller and Ms. Calvinho that they did, as a result of Mr. Hasan’s postings, fear for their safety.
[92] After becoming aware of the 16 November 2022 postings, Detective Geller advised JOPIS and Sergeant Fenton of his concerns. He knew that he would have to remove himself as the investigating officer. JOPIS recommended that Detective Geller and his family remove their social media presence, or make it very private. Detective Geller believes that he and his wife changed their names on social media. His evidence, which I accept, was that he believed Mr. Hasan’s intent was either to cause him fear, or to do harm to him and his family. He installed extra security cameras at his home and placed special film on the windows of his home to reduce the ability of individuals outside to look into the house. He told his neighbours and an agency that he volunteers with – the Centre for Israel and Jewish Affairs – to be aware that Mr. Hasan, or associates of his, might be trying to find out information about him and his family. Detective Geller felt that the only reason that Mr. Hasan would be asking for personal information was to either harm him and his family, or make them feel like he would harm them. He believed that either Mr. Hasan or someone he was talking to could potentially harm him, his family, or other people on the list. And at the back of his mind was Mr. Hasan’s posting, back in September 2021, asking whether he should get a gun and stalk the “criminals”.
[93] It was suggested by the defence that Ms. Calvinho’s fears were not related to her personal safety but, rather, the damage to her professional reputation caused by Mr. Hasan’s utterances.
[94] I would accept that any professional would be concerned about the reputational damage done by the sort of pronouncements that Mr. Hasan made. Some of Mr. Hasan’s comments would probably be seen more as expressions of anger, frustration and disdain than fear-inducing threats. And as Ms. Calvinho herself acknowledged, one has to have a pretty thick skin as a criminal defence lawyer.
[95] However, when she became aware of Mr. Hasan’s postings, Ms. Calvinho’s concern was not only about the postings that mentioned her but, also, his comments about Detective Geller and his religion, and about E.H. She was concerned both professionally and personally. Added to this, when she was cross-examined by Mr. Hasan on 7 December 2022, she detected what she described as a “loathing” in the tenor of his voice. A day or two after she had testified, she and her partner were expecting a late delivery at her home. Ms. Calvinho saw headlights coming. She testified that she realised at that point how worried she was. She was shaking and locked herself in a bedroom until she knew that she was all right. She expressed herself to be genuinely fearful of Mr. Hasan. It seemed to her like he was willing to go to the ends of the earth to, as he had put it in one of his postings, “fuck me”. She advised her children and stepchildren about what was going on and showed them pictures of Mr. Hasan. She advised her staff. She activated an alarm system at her office which had hitherto not been routinely used. The door at her office was kept locked and staff were instructed not to answer the door unless they were sure who it was. And, after 7 December 2022, she checked Mr. Hasan’s Facebook page daily if not more often. She, too, was conscious of Mr. Hasan’s earlier posting about whether he should get a gun and stalk the “criminals” and the “bitch”: although at the time of that posting she was not yet on the scene, Mr. Hasan had subsequently referred to Ms. Calvinho as one of the criminals, and to her and other female justice participants as “bitch”.
Were the Complainants’ Fears Reasonable in the Circumstances?
[96] Having accepted the evidence of Detective Geller and Ms. Calvinho that Mr. Hasan’s conduct caused them to fear for their safety, the final element of the offence of criminal harassment requires me to consider whether the Crown has proved beyond a reasonable doubt that these fears were reasonable in the circumstances.
[97] Both Detective Geller and Ms. Calvinho are justice system participants. Both of them have experience in dealing with angry, hostile people, including people who, like Mr. Hasan, believe that they have received a raw deal from the justice system.
[98] Justice system participants do, indeed, need to have thick skins sometimes. A reasonable person would expect them to differentiate between, on the one hand, conduct that demonstrates frustration, venting or anger and, on the other hand, conduct that is threatening. Constable Rocca said that she became concerned after becoming aware of Mr. Hasan’s 16 November 2022 posting requesting information about her. She, of course, is not one of the complainants in this case. But she considered whether Mr. Hasan might have a personal vendetta against her. She spoke to her senior officer, her neighbours, and her partner. She was stunned that Mr. Hasan would go so far as to request information about things like her mental health. She scrubbed her social media presence because she was not sure what Mr. Hasan was capable of. When reminded by Mr. Hasan that he did not have a criminal record prior to the E.H. case, Ms. Rocca conceded that she did not have any direct evidence of Mr. Hasan having been violent. But she added that she had twenty years of experience of what people might do when they became obsessed, as she believed Mr. Hasan to be.
[99] I do not accept the contention by Mr. Hasan that because there was no history of any physical violence on his part, there was no reasonable basis for Detective Geller or Ms. Calvinho to fear for their own safety. Any reader of Mr. Hasan’s emails would conclude that he was obsessed with the injustices that he perceived had been visited upon him. Experienced justice system participants, such as Detective Geller and Ms. Calvinho (and also Constable Rocca), would be only too aware that there can be a tipping point when anger and frustration, previously manifested in words, becomes more than that. Furthermore, as Detective Geller explained, it was not just the threat of Mr. Hasan doing something that he was worried about. There were also the people who Mr. Hasan’s postings were intended to reach. He wanted the public to know about Detective Geller and Ms. Calvinho. Particularly in the case of Detective Geller, Mr. Hasan’s postings also had to be evaluated in the face of his very strongly expressed, and negative, views about Detective Geller’s religious and cultural affiliations.
[100] I am satisfied that the fears that Detective Geller and Ms. Calvinho had for their own safety were objectively reasonable. As a result, I find Mr. Hasan guilty on both of the criminal harassment charges.
[101] My conclusion on the harassment charges also results in additional grounds for finding Mr. Hasan guilty of breaking the terms of the two probation orders requiring him to keep the peace and be of good behaviour.
Conclusion
[102] Mr. Hasan is found guilty on all five charges on which he was arraigned.
[103] Before I finish, I would be remiss in not acknowledging the Court’s gratitude for the patience and professionalism demonstrated by counsel in this matter. They did their best to ensure that Mr. Hasan had a fair trial, and any complaints that Mr. Hasan might have to the contrary should be laid at my feet and not at the feet of counsel. I am particularly grateful to the assistance provided by Mr. Richardson, and for the help he gave to Mr. Hasan.
Mew J.
Handed down (orally): 12 October 2023