R. v. B. Date:, 2011 BCPC 370

Citation: R. v. B. Date: 20111110 2011 BCPC 0370 File No: 56019 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v . P.M.B. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E. D. SCHMIDT Counsel for the Crown: R. Beram Counsel for the Defendant: C. Arnason Place of Hearing: Richmond, B.C. Date of Hearing: November 1, 2011 Date of Judgment: November 10, 2011 [ 1 ] The accused is charged with a single count of Criminal Harassment between the 31 st day of August, 2010 and the 23 day of October, 2010, contrary to

Section 264 of the Criminal Code . [ 2 ] The alleged harassment consisted of a series of letters the accused wrote from prison to his former girlfriend and their children. [ 3 ] The letters to the complainant express his deep love for her and the hopes and dreams he has for their future with their children. He describes how he is a changed person from the years he has spent in prison and how he has earned his degree and what a great father he will be to his children.

He begs her not to separate him from his children. [ 4 ] The letters to the children promise an involved father and all the great times they will have in the future. He sends them drawings and expresses his love for them. [ 5 ] None of the letters are threatening. They are letters of a man full of remorse for some past behaviours , pleas for forgiveness, and

expressions of hopes and dreams for the future. Read in isolation from the evidence of the complainant, the reader will feel encouragedat the expressions of paternal attachment, love for the complainant and his children and his dreams for the future. [6] Upon receiving each of the letters, the complainant contacted the police. The police were not helpful.

They advised her that itwas a civil matter and that her Order from the Provincial Family Court was not enforceable for various reasons. [7] She contacted the correctional facility to get them to block mail to her, but that did not happen and the letters kept coming. [8] She continued to seek assistance from the police.

When she received the last three letters, she contacted Constable Quee whotook a greater interest in her situation and ultimately referred the matter to Crown Counsel, who laid the charge of criminal harassment. [9] The elements that must be proven by the Crown to obtain a conviction for criminal harassment are set out in the cases of Reginav. Ryback (1996), (BC CA), 105 C.C.C. (3d) 240 (BCCA) and Regina v. Sillipp (1998), 1997 ABCA 346 ,120 C.C.C. (3d) 384 (Alta. C. A.). They are as follows:

(1) The accused engaged in conduct set out in s. 264(2)(a), (b), (

c) or (

d) of the Code.

(2) The complainant was harassed.

(3) The accused knew that the complainant was harassed or was reckless or willfully blind as to whether the complainant washarassed by the conduct.

(4) The accused’s conduct caused the complainant to fear for his safety or the safety of anyone known to him.

(5) The complainant’s fear was, in all of the circumstances, reasonable. [10] In order to examine whether the elements of the offence are made out, the court must look beyond the letters and their contentand examine the context in which they were written. [11] The accused and the complainant are the parents of two children aged 4 and 5, born in 2006. [12] In 2007, the parties went their separate ways with the complainant keeping custody of the children. [13] The accused has been in jail from time-to-time, both during the cohabitation and thereafter, and is currently in custody serving asentence for a number of robberies. [14] During cohabitation, the relationship was not satisfactory to the complainant.

She was 20 years old when the first child was bornin early 2006. She says that the accused rarely worked, was often intoxicated or high on drugs, and was either out of the house or lockedin his room. The parties separated in early 2007. [15] Between March 2007 and October 2007, the accused was in custody on theft charges. He called the complainant often fromprison and explained that he had changed.

She spoke with a chaplain at the prison and eventually agreed that he could come back whenreleased, on the condition that he did not take drugs and alcohol. [16] Within a couple of weeks, she began finding drug paraphernalia in the house and all his old habits reappeared. They foughtcontinually about this and during this time, she was concerned at his yelling and screaming at her in front of the children. She wasscared by his erratic behavior. [17] She again asked him to leave, and after 1 ½ weeks she was able to get him to leave.

She says that she was done with therelationship, but it was a difficult time, as he did not want to leave, and when he did, he continually came back and tried to convince herthrough various promises, expressions of love and hard luck stories that she should take him back in. He often appeared with gifts forthe children and begged her to take him back. She surmised that the gifts were stolen, as he did not work, and she refused to accept them. [18] When he kept coming around, she contacted the police who advised him to stop going there and stop calling her. However hejust kept calling and showing up.

His behaviour was erratic and disruptive, causing her anxiety and stress. [19] At this point in the relationship, there had not been any violence or threats against her or the children. [20] That changed in December 2007 when he showed up with gifts and wanted to be let in. According to her affidavit filed inProvincial Family Court, January 17, 2008, he was threatening and abusive. He rambled on and on and she eventually took the gifts andshut the door. He then went around to the back window and started banging on it. He came around to the front window of the basementsuite. The daughter went over to the window.

The accused then threw an ice scraper at the window causing it to shatter. The child wasnot hurt. [21] The complainant called the police and while she was on the phone with the police, the accused smiled at her, drew his handacross his throat in a throat-slitting gesture and ran away. [22] The police came and took her and the children to a transition house until he was arrested.

The day before his bail hearing, shemoved to new premises. [23] He has not seen the children since that incident on December 9, 2007. [24] On December 11, after that incident, he contacted the complainant and made further threats and told her that no matter how long

it took, he would “get her”. On December 13, 2007, he was charged with making repeated harassing telephone calls to her, along with charges for the December 9 incident. [ 25 ] In February 2008, he was convicted of threats, mischief and criminal harassment and was jailed for two months after credit for 4 months in custody, and placed on probation for two years.

The Probation Order had a no contact provision. [ 26 ] On December 20, 2007, the complainant obtained an Interim Ex-Parte Restraining Order from the Provincial Family Court restraining the accused from molesting, annoying, harassing, or communicating with the complainant or the children. The court ordered that the accused be served with the application of the complainant and summonsed to a hearing set for January 17, 2008. [ 27 ] Both parties attended at the Hearing on January 17, 2008. After hearing from the parties, the Court made a Consent Order for sole custody and guardianship to the complainant mother.

No order for access to the father was made. The court also made an order under

Section 37 (

a) of the Family Relations Act that restrains the accused from molesting, annoying, harassing, or communicating with the complainant or any of the children. [ 28 ] The Court further ordered that the accused was at liberty to apply to vary or set the order aside on two days notice to the applicant. [ 29 ] There have been no further applications to the Family Court. [ 30 ] The accused made no attempt to contact her or the children after he was released from prison in early 2008.

Three incidents occurred during the time he was out of custody that frightened and concerned the complainant. [ 31 ] The first was a call she received from the accused’s sister saying that the accused had observed her and the children playing in the cul-de-sac where she lived. She became worried that he was watching her. [ 32 ] The second was a call she received from the police asking her to bring the children to the police station. She was advised by police that the accused had agreed to turn himself in to police on some investigation they were conducting, provided that he was allowed to see the children.

As guardian, the complainant determined that it was not in the best interests of the children, and refused. She also was visited by a detective seeking to verify the accused’s identity and handwriting. She was told it related to criminal activity. [ 33 ] On another occasion, four police cars arrived at her home at 11:30 at night and gave her ½ hour to pack her bags and the children, and to leave with them to stay in a hotel with police protection. She complied. The next day, she was advised that the accused had been arrested and it was safe to leave the hotel.

The circumstances remain vague, but presumably are related to the eleven robberies for which he is currently in custody. The complainant can only speculate according to the actions of the police as to what danger she was in at the hands of the accused. [ 34 ] The accused was convicted in March, 2010 for eleven robbery charges. He received a 47-month jail sentence and remains in custody. [ 35 ] The letters began again after his conviction. [ 36 ] The accused is charged under s. 264 of the Criminal Code . Subsection (1) and (2) read 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 (

a) repeatedly following from place to place the other person or anyone known to them; (

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

c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or (

d) engaging in threatening conduct directed at the other person or any member of their family. [ 37 ] The court will review the elements to be proven by the Crown as described in the Sillipp and Ryback cases . A. Did the accused engage in conduct described in section 264(1)? [ 38 ] The time frame of the charge is between the 31 st day of August 2010 and the 23 rd day of October, 2010. During that time, the accused wrote three letters to the complainant. One of the letters was to the Complainant’s mother with an attachment to be given to his son.

Four other letters were put in evidence that had been written around that timeframe, but not within it. [ 39 ] The court finds that the seven letters written within a short time frame, with the same or similar message, amounted to repeated communication with the complainant.

B. Was the Complainant harassed? [40] Harassment may be proven if, as a result of the prohibited acts, the complainant feels tormented, troubled, worried continually orchronically plagued, bedeviled or badgered. R. V. Kosikar (1999), (ON CA), 138 C.C.C. (3d) 217. [41] The complainant had been subject to the repeated solicitations from the accused since late 2006 / early 2007 following the initialseparation. Those solicitations had been in the form of repeated unannounced visits at her home and repeated phone calls. All were ofthe same nature, attempting to insinuate himself back into their lives.

The introduction of the letters from prison was a variation of thetheme that had been part of the complainant’s life from the time of separation four years previously. [42] She was so disturbed by the communications of the accused that in December 2008 and January 2009, she had attended court andobtained court orders prohibiting the accused from communicating with herself or her children. [43] When the accused commenced his campaign from prison by way of letters, knowing that he was acting in defiance of court order,she says she felt sick to her stomach and immediately tried to get assistance from police and corrections.

She sought their help on eachoccasion she received a letter and even sought the advice of a lawyer when police told her that the court order was not valid. [44] Clearly, the effect of the letters on the complainant in the context of the whole of the circumstances was that she was troubledand worried and felt badgered by his persistent attempts to be a part of her life in spite of court order. The letters proposed no alternativeother than that he would be a part of her life, and she would have to accept it.

This troubled her and made her feel sick. [45] The court finds that in all of the circumstances, the effect of the communications by letter was to make the complainant feelharassed. C. Did the accused know, or was he reckless or willfully blind that the complainant was harassed? [46] The accused was aware of the effect of his persistent conduct on the complainant prior to writing the letters.

He knew that shewas rejecting his solicitations that had occurred over the space of the previous three years. [47] Indeed, he had been sentenced for criminal harassment as a result of his attempts through repeated visits and telephone calls toher in the past.

Those visits and telephone calls had the same purpose and content as the letters. [48] The accused knew that she had contacted police about previous contacts, and on one occasion when he phoned while she wasmaking a report to police about his harassment, she handed the phone to the officer who spoke to him. [49] He knew as well that she had obtained a court order to prohibit him from communicating with her.

That in itself should havebeen enough to alert him to the fact that his communications were troubling to her. [50] He made no attempt to apply to change the court order and convince a court to allow him communication for the many reasonshe cites in his letter, but simply engaged a strategy to wear the complainant down in the resolve she had to end the relationship.

Hethought only of himself and was willfully blind to the effect that his communications with the complainant and the children, who did notknow him, would have on them. [51] The court finds that the accused knew or was willfully blind to the effect that the prohibited acts would have on the complainant. D. Did the conduct cause the complainant to fear for her safety? [52] The complainant was “sick to her stomach” each time she received a new letter.

She could see that this pattern of communicationin one form or another, begging to be a part of her life, would continue in spite of the protection of the court. [53] She had as background the repeated phone calls, the unannounced and difficult attendances at her home, the violent episode thatcaused real danger to the physical well being of her daughter, the gestured death threat, the sudden and unexplained middle of the nightintervention by police, the report of being watched by the accused, the threat that he would “get her” no matter how long it takes, thenegotiation by the accused with police using the children as enticement, and the knowledge that he did not feel bound by court orders. [54] While defense says he was in jail, so what could she be afraid of, that appears to have been small comfort to the complainant.

She replied that she may be physically safe if he is in jail, but that if he is willing to break the law by writing to her, what else is hewilling to do. The very fact that he wrote to her despite the court order appears to have created a sense of fear about his potential to dosomething that may put her or the children in harms way. [55] Again, given all the circumstances including the history of the relationship, the letters caused renewed anxiety about her safetyat some unspecified future time.

E. Was the complainant’s fear reasonable? [ 56 ] In giving her evidence, the complainant showed no signs of exaggeration or hysterical reaction. She did not try to overplay any of the incidents she described, but was matter of fact and reasonable in her assessment of the circumstances. [ 57 ] Even under cross examination, there was no indication that she made more of the incidents described than was objectively reasonable. [ 58 ] The court had no indication that she was describing her feelings in such a way as to gain advantage.

While she does not want the relationship to continue and wants the accused out of her life, the court did not have an impression that she was creating a scenario by demonstrating fear of him in order to achieve that purpose. [ 59 ] Looked at objectively, the history of the relationship, the criminal associations of the accused, the threats of violence, the manipulation of the corrections chaplain and the police to recruit them to achieve his purposes, the demonstrated violence, the spurning of court orders and the persistence of the accused in trying to keep the relationship alive, there is no doubt that the complainant had reason to be fearful.

F. Conclusion. [ 60 ] Having answered all the elements of the offence that have to be established by the crown in the affirmative, the court is satisfied that the crown has proven its case beyond a reasonable doubt and the accused is convicted of the offence as charged. _____________________ E. D. SCHMIDT, P.C.J.