R. v. D.R.N., 2014 BCPC 474

Citation: R. v. D.R.N. 2014 BCPC 421 Date: 20141028 File No: 161556-5-KC Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. D. R. N. BAN ON PUBLICATION Pursuant to section 517(1) of the Criminal Code of Canada REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E. BLAKE Counsel for the Crown: M. Murray Counsel for the Defendant: E. Chesterley Place of Hearing: Victoria , B.C. Dates of Hearing: October 27 & 28. 2014 Date of Judgment: October 28, 2014 [ 1 ] I am satisfied that Count 2 has been made out, without having to hear from the Crown on it. Really on the entirety of the

evidence, including the defendant's own evidence, there is no question that at the place and on the date alleged, D.R.N. had contact or communication with the complainant contrary to the terms of his recognizance, and that he knew it. [ 2 ] There will be a finding of guilt on Count 2. [ 3 ] Count 4 has to do with his placing himself on Vancouver Island, or at least in the City of Victoria, contrary to the express provision that required him to provide notice to a particular police officer if he had to come to this location. Again, there is really no issue about it on all of the evidence.

That is proved, and so there will be a finding of guilt on Count 4. [ 4 ] With respect to Count 5, the evidence clearly, from the complainant, is that there were a number of messages left with her after the meeting at her office on the 27th. She says he left various text-to-landline messages, six or seven of them, referring to their attendance at the coffee shop. She forwarded these on to the police, and it was only after that, that, being concerned about his state of mind, she contacted him to ask essentially if he was all right, but she did not get any answers.

She was concerned that he was suicidal. [ 5 ] I am satisfied that Count 5 is made out by the proof of the unsolicited messages after the May 27th meeting, and accordingly there will be a conviction on Count 5. [ 6 ] So there are convictions on Counts 2, 4, and 5, without me having to call upon the Crown on those counts, and I still have to deal with Count 1. [ 7 ] Count 2, I am going to deal with by making a finding that it is proved, but that I am directing a stay of proceedings. [ 8 ] MS. MURRAY: Count -- on Count 3, Your Honour? [ 9 ] THE COURT: Count 3, excuse me. [ 10 ] MS.

MURRAY: Count 3, yes, okay. [ 11 ] The remaining charge for me to deal with here is the charge of harassment pursuant to s. 264 of the Criminal Code . The allegation is that D.R.N. harassed M. (removed for publication) from October 1, 2008, to December 8, 2013. [ 12 ] The essential legal principles for me to consider when determining whether that charge has been made out to the requisite criminal standard are set out in the decision of R. v. Sillipp, a 1997 decision of the Alberta Court of Appeal, which was referred to with approval by the British Columbia Court of Appeal in the case of R. v.

Taylor, 2014 BCCA 138 , paragraph 15 . The essential principles are these, and I quote: In the result, a proper charge to a jury in a criminal harassment case must include reference to the following ingredients of the crime, all of which must be proved beyond a reasonable doubt: 1) It must be established that the accused has engaged in the conduct set out in s. 264 (2) (a), (b), (c), or (

d) of the Criminal Code . 2) It must be established that the complainant was harassed. 3) It must be established that the accused who engaged in such conduct knew that the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassed; 4) It must be established that the conduct caused the complainant to fear for her safety or the safety of anyone known to her; and 5) It must be established that the complainant's fear was, in all of the circumstances, reasonable. [ 13 ] In the present case, the essential allegation is one of repeatedly communicating with the complainant, contrary to the provisions of s. 264(2) (b). [ 14 ] The defence argues essentially that Elements 3 and 5 of the elements that I referred to are not established beyond reasonable doubt here.

In other words, the defence contends that it has not been established that the complainant's fear was reasonable in all the circumstances, nor has it been established that the accused knew that his conduct was causing the complainant to fear for her safety or that she was harassed. [ 15 ] The factual background to this case is of some relevance. It is clear that in 2007 and 2008, the complainant and D.R.N. had a consensual relationship in which there was a significant traffic back and forth in email or, for a time at least, Facebook communications.

At some point in late 2008, possibly about October, after having met D.R.N. once in Ontario, the complainant decided to end the relationship. [ 16 ] I accept that the reason she ended the relationship had nothing particularly to do with D.R.N., but had everything to do with her wish to maintain her ongoing relationship with a partner here in Victoria. [ 17 ] She told D.R.N. that she wished to end the relationship by email, and there followed a period of time thereafter when he nonetheless continued to contact her.

His contact with her, at least initially, could be described as annoying and could be described from her point of view as dangerous, in the sense that it placed at risk her relationship with her own partner. [ 18 ] Initially at least, however, I am not satisfied that the state of the communications between at least 2008 and late 2009 could be described as harassment. Although I emphasize that M. felt herself at risk and at jeopardy, that does not make it a criminal offence.

The risk or jeopardy that she felt was not for her own safety, but for the maintenance of her ongoing relationship, at least that is the way I interpret the evidence.

[ 19 ] The situation worsened considerably though thereafter. D.R.N. would not go away. He continued to contact the complainant, at least on a sporadic basis, and continued to cause her considerable concern. This continued up to September 19, 2009, without the complainant responding to any of the messages he was sending.

Most of those messages continued to profess his love for her and his longing for the continuance of their relationship, although I agree the emails do so in a poetic or a philosophical way in many instances. [ 20 ] Nonetheless, by September 19, 2009, at the very latest, the complainant had had enough. She wrote him an email in which she wished to assure him that, first of all, she had not been sharing any of their private information with family or friends and that she had no intention of doing so.

This was a matter of some concern to D.R.N. [ 21 ] She points out, though, that she broke off the communication deliberately. She broke it off because of her disappointment in herself and her sense of betrayal to her own partner. She says, and I quote: “I lay awake in terror last night, all night, my guilt and fear consuming me.” [ 22 ] My point there is that, at least up to this point, it is her fear that her relationship is in jeopardy and guilt about what she had done that is consuming her. She ends the email by saying: I need to go now. I truly wish you all the best, [redacted for publication].

Please respect my request. Please respect me. Please don't scare me anymore. Please don't hunt me down. I don't want that to be my lingering emotion when thoughts of you arise. Take care of yourself. [ 23 ] In his response, D.R.N. makes it clear that he understands that his further communication with her is not acceptable and is not wanted. He writes on that same day, and I quote: I say happy birthday now for the remaining years to come. My presence is not welcome. I will no longer wish to intrude in your life. I am truthfully sorry. Your words have been healing. I have made an obvious mistake.

I choose integrity and honour. [ 24 ] If the matter had ended then, I do not think for one minute there would have been a charge of harassment. I must say that, to that extent at least, I believe the charge that is before the court is overly broadly drawn.

I do not think there was harassment in the years 2008 and at least until the end of 2009. [ 25 ] It is what happened in 2012 and after which puts the matter in an entirely different light, in my view. [ 26 ] M., the complainant, gave evidence, which I accept, that for about two and a half years after the exchange in November 2009, that I have referred to, she heard nothing further from the accused. He plainly had got the message.

His emails started again, however, in May 2012, and there is then a flow of emails to which the complainant does not respond, which can only be described as displaying an irrational state of mind at times, an unpredictable state of mind, and a clear obsession with the complainant, M. [ 27 ] I am not going to embarrass the accused by referring to a lot of details of comments that are so off the wall as to be impossible to understand, but there are some parts of this barrage of emails which are plainly troubling. [ 28 ] In June 2012, the accused writes to M. and tells her all about a trip to British Columbia that he has taken.

He describes looking at a statue in the water and wondering if the statue was of her, because it is so beautiful. [ 29 ] He refers to condolences to the complainant for the death of her pet, even though her pet was, I gather, in perfectly good health. He then sends her a number of different poems that he has written, including one in Russian. [ 30 ] I accept that in none of this barrage of information is there actually any overt threat of violence. I accept that there is no reference to any sort of weaponry or physical harm suggested.

But the obsessive, unpredictable, and irrational state of mind that is revealed by these various communications, in my view, would, on an objective basis, cause M. to be fearful, and she was.

To that extent, I accept that both the objective and subjective tests for harassment, or at least to assess the state of mind of the complainant, are made out. [ 31 ] The series of emails eventually leads the accused to write a poem on November 9, 2013, about a year and a half after the series of emails had begun, and again I emphasize that there was no response from the complainant, nothing on her part to suggest that anything had changed from her message to him in 2009, that she did not want to continue to communicate with him. [ 32 ] On November 9, 2013, the accused sends the following email.

It consists of a poem: Every soul seeks to love Seeks to love a loved one Encourage a lover's thought Inspire a lover's love to light The lover's light, brightest light To exist eternal I want to make love to you I want to make love to you in the forest and heal the trees I want to make love to you in the garden and heal the fruits of life I want to make love to you on a plane and heal our atmosphere

I want to make love to you in the ocean and remove contamination I want to make love to you everywhere on the planet and heal the people I want to make love to you on a spaceship and heal the universe I want to make love to you right now and be in the moment I want to be in the moment, I am in the moment I am in the moment, I am, every day I am one step closer. [ 33 ] This email, together with a second one sent barely two hours later, caused the complainant to make one last attempt to make her views known to him.

She wrote the following email: [redacted for publication], I clearly requested you stop contacting me over five years ago now. Five. I have experienced your repeated, unsolicited, and offensive emails since that time as threatening, aggressive, and the epitome of cyberstalking. I unwittingly entered into correspondence with you over a period of several months. You contacted me. I never went looking for you. I made it very clear over five years ago, I no longer wanted contact with you.

I also made it clear you were violating a personal space and using an email address I had never provided to you for the purpose of correspondence. Everyone has the right to make a unilateral decision to exit a relationship at any time for any reason. I believe this with every essence of my being. You may think you are endearing yourself to me. You are not. You are scaring me and backing me into a corner. I lose sleep because of you. After I informed you I wanted no further contact, I thought my silence to your cycles of emails over the years would be sufficient to have you focus your attention elsewhere. Not so.

You continue to pepper me with an onslaught of uncomfortable and overly-familiar emails at your whim. Your persistence, fervour, and obsession is suffocating and overwhelming at this point. I feel sick. I will no longer tolerate this behaviour on my own. From here forward, I will be alerting others to your stalking behaviour, so that I will no longer need to deal with this fear on my own. If there was ever any shred of respect and authentic care for me, you will stop all further correspondence. You need to move on. Stop stalking me. Stop making me afraid.

Stop. [ 34 ] That is the end of the email. [ 35 ] Now, it strikes me that not only is that message sent in a restrained and reasonable fashion, disclosing perfectly understandable emotions, it is absolutely clear. It is so clear, in fact, that the accused, who gave evidence in this matter, accepts that he understood it meant he was not to contact her any further. [ 36 ] That, however, was not the course that he took. He carried on. There are further emails which continue through until early December, and he is obviously beginning to press the point.

He starts talking to her about going out to dinner and about meeting up with her, to the point that he ends up on December 7th writing: I tell you what, I am going to seek out your energy because my heart feels you. I will find you without your permission. Your nervousness gives you away. Then we will talk, leave the house, I don't want to go there just yet. [ 37 ] The accused, in his evidence, explains that last message by reference to something that had happened back in 2008. I have to say that I did not understand at all what he was saying.

It struck me as utter gibberish, and the message, as it appears on the face of it, would be threatening and scary indeed. [ 38 ] The accused also sought to explain this whole series of emails by saying that he was not really thinking about the complainant at all, he was writing to her in order to seek help for his various own ailments and problems. [ 39 ] In my view, in the face of a letter which, in the plainest of terms, told him to stop, in view of the fact that he had received a perhaps even less clear message years before and understood that one, I do not have the slightest doubt that he understood that he was overstepping the boundaries and that he was simply choosing to ignore those boundaries for his own purposes. [ 40 ] At the very least, he was, in my view, reckless in his actions, in the sense that that term is used in the well-known decision in Sansregret.

He may also fairly be described as wilfully blind, but I think it goes beyond that into recklessness. [ 41 ] He then continued his communication with the complainant by actually arriving in Victoria. By his own admission, he left flowers at her place of work and some coffee cream, apparently. That led eventually to the complainant advising her partner what had been going on for so long and to her contacting the police. [ 42 ] In my view, the defendant's actions up to and including the events of December 8 disclose a, at the very least, reckless disregard for the complainant's wishes.

I am satisfied that the obsessive, unpredictable, and irrational nature of much of what was said, together with the ever-approaching spectre of dealing with this man on a closer basis, led the complainant to a reasonable fear for her safety, and I find the defendant guilty. (REASONS CONCLUDED)