Court File and Parties

COURT FILE NO.: CR-23-10000032-00AP DATE: 20241112 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Sandy Benyamin

BEFORE: Schabas J.

COUNSEL: Darren J. Hogan for the Crown Myles Anevich for the Appellant

HEARD: October 17, 2024

Reasons for Judgment

Overview

[1] The Appellant was found guilty of criminal harassment under s. 264 of the Criminal Code, R.S.C. 1985, c. C-46 on January 26, 2023, by Justice R. Wright in the Ontario Court of Justice. On August 17, 2023, the Appellant was sentenced to nine months imprisonment followed by two years of probation. He appeals his conviction and sentence to this Court.

[2] The Appellant raises two issues on the conviction appeal, both of which, he submits, are grounded in a misapprehension of the evidence by the trial judge:

(i) Whether the trial judge erred in concluding that the appellant’s actions were without “lawful authority”; and

(ii) Whether the complainant’s fear caused by the appellant’s harassment was objectively reasonable.

[3] With respect to the sentence appeal, the Appellant submits that the trial judge imposed a disproportionate sentence by relying on inapt comparator cases, and failed to adhere to the “step-up” principle.

[4] For the reasons that follow, the appeal is dismissed, on all issues.

Conviction Appeal

Lawful Authority

[5] In his Reasons for Judgment, the trial judge’s finding on lawful authority was as follows:

Second, that Mr. Benyamin did not have lawful authority to do what he did. There is no evidence in this trial of any authority that would permit Mr. Benyamin to engage in this series of communication. Ms. Cheung's evidence was that he had been repeatedly told that contact was unwanted. The Crown has proven this element beyond a reasonable doubt.

[6] The Appellant submits that this was in error because he ceased his harassing communications immediately upon being told to stop by the police. It was only at this time that the harassment became impermissible, it is argued.

[7] I disagree.

[8] In R. v. Savard, 2013 ONSC 2208 at para. 65, the phrase “without lawful authority” in s. 264(1) was interpreted to mean that if the accused engaged in acts with “lawful authority” then an essential element of the offence is missing. Put another way, “to have lawful authority to do something means that the law specifically allows a person to do what the accused did in the circumstances in which he or she did it”: R. v. Vandoodewaard at para. 76, quoting from the Ontario Specimen Jury Instructions.

[9] In Savard, the defence argued that the communications were pursuant to lawful authority because the accused was trying to convince the complainant to testify on his behalf, and therefore this was protected, or privileged, speech. Although the court accepted that this could be a lawful purpose, the communication went far beyond what was necessary for that purpose and constituted harassment.

[10] There is no question that, standing alone, a person has lawful authority to contact anybody they choose; but what they are not lawfully authorized to do is harass them with repeated and unwanted communications. As the Court of Appeal stated in R. v. Nadir at para. 7:

We were referred to no evidence which could provide any support for a lawful excuse defence in respect of calls made exclusively for the purpose of harassing the recipients. Indeed, it is difficult to imagine a situation in which telephone calls made exclusively for the purpose of harassment could be sheltered under a lawful excuse defence.

[11] As was held in Vandoodewaard, even when the predominant purpose of the communication is lawful, if the conduct is harassing and known to be unwanted, it is prohibited and criminal. As Durno J. stated in Vandoodewaard at para. 84:

…whether the predominant theme is harassment or pursuant to a lawful authority, if the elements are established as long as some or part of the conduct amounts to harassment, it is not necessary to establish that the predominant purpose is harassment. For example, a lengthy communication could deal with issues covered under lawful authority. However, if the communication included threatening conduct directed at the other person or member of their family (s. 164(2)(d)), provided the other elements of the offence were established it matters not that the predominant theme was pursuant to lawful authority.

[12] In the context of this case, the nature of the communications satisfied the trial judge that the Appellant had no “lawful authority” to engage in harassing communications.

[13] Further, there was ample evidence on which to find that the Appellant knew that the conduct was unwanted, and there was no evidence to suggest any lawful authority to engage in such unwanted communication. The evidence was that the Appellant had repeatedly and incessantly called the complainant’s business, a café she owned, and a business owned by her family where she also worked. In one twenty-four-hour period the Appellant called at least 30 times. He also posted numerous messages on the complainant’s “new customer contact” website. As Stansfield P.C.J. stated in R. v. Box, [1995] B.C.J. No. 2822 at para. 23, “I have no doubt in my mind that 20 angry, belligerent calls in which threats are made give rise to an inference of intent to harass.”

[14] The complainant corroborated the evidence of her husband that they had told the Appellant “a million times” to stop calling, among other things. The communications were part of an ugly and long-standing family feud between, at least, the Appellant and his brother, who is the complainant’s husband. The complainant’s husband has also had to change his phone number in the past because of the Appellant’s unwanted communications.

[15] While the defence highlights that the calls to the complainant’s businesses were not directly to the complainant, they involved attacks on her husband and his family which would, logically, have been conveyed to her as they were calls to her business and workplaces. Much like his previous communications, and regardless of the direct recipient, these calls were unwanted and the Appellant had been told to stop on many occasions. Like the trial judge, I see no merit in the submission that the Appellant was not intending to contact the complainant but was trying to contact his brother. The primary target may have been the Appellant’s brother, but that does not permit him to harass the target’s wife.

Objectively Reasonable Fear

[16] The trial judge accepted the complainant’s evidence that the Appellant’s harassing conduct caused her to fear for her safety. As the trial judge stated:

[The complainant] also testified to feeling fearful on the basis of these communications. She didn't know how far Mr. Benyamin was going to take this. She was fearful of how he would try to get to her, or her husband, by contacting other acquaintances, family, siblings, or workplaces. She didn't know what he was capable of.

[17] Although, as the Appellant’s counsel points out, the complainant testified to being annoyed and embarrassed, she also expressed fear of the Appellant. This was accepted by the trial judge and is a finding of fact amply supported by the evidence which is entitled to deference.

[18] The trial judge also referred to evidence to support his finding that the complainant’s fear was reasonable in the circumstances. In particular, the complainant referred to a phone call she had heard between her husband and the Appellant in which the Appellant threatened her children and wished a rape upon her daughter. The complainant’s husband also testified about this call. Although this threat had occurred about five years earlier, this was just one factor in the trial judge’s consideration of reasonableness of her fear. Further, as the Court of Appeal addressed in R. v. D.D., [2005] O.J. No. 4904, 204 O.A.C. 55, at para. 29, albeit in the context of admitting evidence of prior discreditable conduct (although in a criminal harassment case), “the passage of time between prior incidents and the conduct which gives rise to the charge, in circumstances where the evidence demonstrates that the respondent's attitude toward the complainant had not changed over the years, is no basis upon which to exclude such evidence.”

[19] The trial judge also referred to the “volume and timing” of the communications, and the content of the messages, to support his finding that the fear was reasonable. As he said:

It is reasonable, based on the volume and timing of the communications, which were sent to Juliana Social by multiple means and were also being sent to Charlie's Meats. It is reasonable, based on the content of the messages, which were disorganized, and sometimes did not make sense. This supports the reasonableness of her feeling of uncertainty, that she didn't know how far he might go, or what he might do. I find that the Crown has proven both of these elements beyond a reasonable doubt.

[20] Assessing the reasonableness of a complainant's fear requires consideration of how a reasonable person would have felt in the circumstances of the complainant: R. v. Sim, 2017 ONCA 856, at para. 19. This includes having regard to the complainant's personal circumstances and experience with the offender.

[21] Reasonable fear in this context can include fear for one's physical safety, and fear of and freedom from, mental, emotional, or psychological trauma caused by psychological violence: R. v. Finnessey at para. 16. The Crown does not have to prove threats of violence. Protecting psychological safety is an objective of the legislation. As Durno J. stated in R v. Wisniewska, 2011 ONSC 6452 at para. 38:

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.

[22] Here, the trial judge had regard to the totality of the evidence and committed no reversible error in concluding that the fear of the complainant was objectively reasonable.

Sentence Appeal

[23] The Appellant argues that the trial judge erred in principle in accepting and applying the range applicable for criminal harassment convictions involving intimate partners. Further, and as a result, he submits that the sentence of nine months in prison was disproportionate to the offence and is demonstrably unfit.

[24] It is well-accepted that sentencing is accorded considerable deference, and that a sentence should only be varied if there is an error in principle or it is not fit or, put another way, unreasonable: R. v. C.A.M. at para. 90.

[25] I see no merit in this ground of appeal. This was the Appellant’s fourth conviction for criminal harassment, the three prior convictions all having been within six years of the current offence. He also has convictions for failing to comply with a recognizance, attempting to obstruct justice, and disobeying an order of the court. There was evidence of the serious impact the offence had on the complainant, her family and her business. The Appellant showed no remorse, variously denying his involvement in the offences, justifying his actions, and blaming the victims.

[26] The trial judge was aware of and considered the fact that the range of sentences was based largely on intimate or domestic partner cases, which aggravate the crime and sentence. He recognized in his reasons that this was not the situation here.

[27] The trial judge appropriately considered the step-up principle, noting that the “duration of sentence represents an appropriate step up from his prior sentences and reflects the unusual circumstances of this case.” On his second harassment conviction, which also included a conviction for attempt to obstruct justice, the Appellant served 129 days pre-sentence and was sentenced to an additional 51 days, or the equivalent of about six months. The current sentence is nine months.

[28] In short, the trial judge considered all the appropriate sentencing factors, including those complained of by the Appellant, and committed no error in principle in sentencing the Appellant. Nor can it be said that the sentence was demonstrably unfit.

Conclusion

[29] The appeal from conviction and sentence is dismissed.

[30] The Appellant, Mr. Benyamin, shall surrender himself into custody by no later than Monday, November 18, 2024 at 5:00 p.m. to continue to serve his sentence. Should he fail to do so, a warrant of committal shall issue.

Paul B. Schabas J. Date: November 12, 2024