R. v. S.F., 2023 BCPC 221

Citation: R. v. S.F. 2023 BCPC 221 Date: 20231017 File No: 43600-2-K Registry: Courtenay IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. S.F. BAN ON PUBLICATION pursuant to s.486.4 (2.2) and s.486.4

(1) CCC REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE WOLF Counsel for the Crown: T. Morgan Counsel for the Defendant: E. Chesterley Place of Hearing: Courtenay , B.C. Dates of Hearing: April 11, 12, 13, 14 and October 16, and 17, 2023 Date of Judgment: October 17 , 2023

INTRODUCTION [ 1 ] The accused has two criminal charges and there has been a trial. A number of witnesses were called and the Crown has closed its case. The accused chose not to provide evidence on his own behalf. In fact, even though the accused was supposed to appear in person on October 16, 2023 to continue with his trial date, he failed to attend court. Even though the accused failed to appear on October 16 and 17 2023, this trial continued in his absence. These are the reasons for decision with respect to this criminal trial. [ 2 ] The accused and complainant were married to each other for a number of years.

It is alleged, that the accused placed an alarm clock with a hidden camera in it on the bedside table in the shared bedroom of their family home. [ 3 ] There are images in evidence that show a recording has been created of the complainant in the marital bed. Not that it matters, but for the sake of clarity, she was not in the bed with anyone else. In fact, she was alone. [ 4 ] For our purposes, the details of what is depicted on the recording is irrelevant. I say this because the accused is not charged with making a recording for a sexual purpose.

Therefore, it does not matter whether the complainant was clothed, sleeping or watching TV. [ 5 ] I emphasize, at no time at all was she sexually intimate with any person in the recording. This is important to know because the accused thought he would ‘catch her in the act’ of having an extra marital affair with someone. This may have been one of the reasons he placed the camera there. [ 6 ] This case is not about whether either marital partner was being faithful or unfaithful. [ 7 ] The sole question that I must consider is whether the Crown has proven that the accused acted in a criminal manner.

By all accounts, he had cameras in the marital family bedroom. On this point, I conclude the accused’s behaviour was not legal, was very intrusive and disrespectful of the privacy that one expects in their own home. I will discuss this later in these reasons. [ 8 ] The Crown accepts that the camera planted in the bedroom was for non-sexual reasons. On this point, I accept the explanation by the accused to the police that one purpose of the hidden camera was to protect the accused from false allegations of inappropriate behaviour.

For example, questions put to the complainant probed the idea that he expected to be going through a divorce proceeding and did not want to risk the complainant making false allegations against him for assaultive acts that may not have taken place. [ 9 ] I also accept his explanation that he gave to the police was that another purpose of the camera was to potentially catch the complainant in

an act of infidelity. [ 10 ] With respect to a second charge, the Crown argues that the accused did a number of things that amount to criminal harassment. For example, it has been suggested, that he had followed the complainant. As well, it is also suggested, that he put an ad in a paper about the complainant possibly taking his children out of Canada without his permission. Amongst other things, the Court also heard that the accused threatened to report certain activities of the complainant to different licensing authorities, which might affect her ability for employment. In

summary, the Crown points to a campaign of behaviour and argues that when different acts are considered cumulatively, that they amount to criminal harassment.

CHARGES Information 43600 K-2 Count 1 [ 11 ] S.F., from the 1 st day of July 2020 to the 30 th day of July 2020, inclusive, at or near Courtenay, in the Province of British Columbia, did unlawfully observe or record E.F. where the person observed/recorded was in a place in which they could reasonably have been expected to be nude, to expose their genital organs or breasts, or to be engaged in explicit sexual activity, or where the person observed/recorded was nude or engaged in explicit sexual activity, contrary to Section 162(1) of the Criminal Code .

Count 3 [ 12 ] S.F., from the 1 ST day of July 2020 to the 30 th day of November 2020, inclusive, at or near Courtenay, in the Province of British Columbia, without lawful authority and knowing that another person was harassed or was reckless as to whether the other person was harassed, did engage in conduct that caused that other person, E.F., to reasonably fear for her safety or other safety of anyone known to her, contrary to

Section 264 of the Criminal Code . Legal Questions [ 13 ] What are the elements that need to be proven for s. 162(1) offence (voyeurism)? Can one spouse secretly place a camera in the bedroom where the other spouse sleeps to record images? Has the Crown proven beyond a reasonable doubt each element of the offence? [ 14 ] What are the basic elements of s. 264 (criminal harassment)? Has the Crown proven beyond a reasonable doubt each element of the offence? THE LEGAL BURDEN Burden of Proof and Standard of Proof

[15] The Crown has the primary or ‘legal’ burden of proof throughout the trial and must prove all the elements of the actus reus andmens rea. When the main issue is credibility, I am particularly aware of the dangers of shifting any burden onto an accused.

I instructmyself that at no time does an accused person have to prove or disprove anything. [16] The accused is presumed innocent until the Crown proves guilt to the standard “beyond a reasonable doubt.” This standard ofproof applies to the evidence as a whole, but generally not to individual facts. [17] The test for reasonable doubt, which must be applied in every case, was stated by the Supreme Court of Canada in R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742. I pause here to point out that the accused in this trial did not actually take the witnessstand.

Rather, he did not attend court for the trial continuation dates that were scheduled. However, if he did choose to attend court, andprovide testimony on his own behalf the WD test is the lens that I would consider his evidence, or any other witnesses that he called. First, if [I do] believe the evidence of the accused, obviously [I] must acquit. Second, if [I] do not believe the testimony of the accused but [I am] left in reasonable doubt by it, [I] must acquit.

Third, even if [I am] not left in doubt by the evidence of the accused, [I] must ask myself whether, on the basis of the evidence which [I]do accept, [I am] convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [18] I recognize that I must consider a number of related but separate principles. An accused’s lack of credibility does not prove his orher guilt. I may accept some of an accused’s testimony while disbelieving other parts.

I must consider all of the evidence in decidingwhether there is any reasonable doubt, and any reasonable doubt must be resolved in favour of the accused. [19] It is not a question of who is telling the truth. That is, I mean to say, it is not a credibility contest where I must choose betweentwo versions or different theories of what took place.

Of course, in this case there is limited information as to what the accused’s versionof events actually is except perhaps through suggestions made to the complainant in the cross-examination process. [20] No matter who the witness is, if I believe certain aspects of a person’s testimony, I should ask myself why I believe them onthese points. Equally, if I, for some reason, do not believe them, I should also ask myself why. As well, does the evidence make sense? Even if I believe certain aspects of a person’s testimony, I still must be satisfied that the evidence is cogent and logical. [21] In R. v.

C.W.H., (1992) (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.), the late Mr. Justice Wood said of assessingcredibility: If after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit. [22] There can also be a reasonable doubt based on the absence of evidence or a simple failure of evidence to persuade the judgebeyond a reasonable doubt. [23] With respect to credibility, I accept R. v. Parent, 2000 BCPC 11 as an excellent guiding authority.

In that case, TheHonourable Judge Rounthwaite of the Provincial Court of British Columbia writes at paragraphs 4 and 5 of that decision: [4] In assessing credibility, courts have recognized a number of factors as helpful. [5] These include:

a) the witness' ability to observe the events, record them in memory, recall and describe them accurately;

b) the external consistency of the evidence. Is the testimony consistent with other, independent evidence, which is accepted?

c) its internal consistency. Does the witness' evidence change during direct examination and cross-examination?

d) the existence of prior inconsistent statements or previous occasions on which the witness has been untruthful;

e) the "sense" of the evidence. When weighed with common sense, does it seem impossible or unlikely? Or does it "make sense"?

f) motives to lie or mislead the court: bias, prejudice, or advantage. To consider the obvious possible motive of every accused personto avoid conviction would place an accused at an unfair disadvantage. As a result, I do not consider that possible motive when assessingan accused's testimony;

g) the attitude and demeanour of the witness. Are they evasive or forthcoming, belligerent, co-operative, defensive or neutral? Inassessing demeanour a judge should consider all possible explanations for the witness' attitude, and be sensitive to individual andcultural factors, which may affect demeanour.

Because of the danger of misinterpreting demeanour, I would not rely on this factor alone. [24] I will examine in these reasons, why I have concerns over the complainant’s ability to remember certain facts and describe themaccurately. [25] Internal inconsistencies is a very concerning area for me with respect to the complainant’s evidence. In these reasons, I willconsider significant shifts in the complainant’s evidence. [26] With respect to motives to lie or mislead the Court, in this case, I would think the stakes are high.

Perhaps the parties have civiland family issues to resolve and possibly reputations and careers might be effected by this trial. [27] I did not find E.F. to be an overly ‘forthcoming’ witness. She came across as a witness that really did not want to be here. Ofcourse, this is understandable. Perhaps no one enjoys being in a courtroom, other than perhaps the lawyers and the judge. I imagine herrelationship with the accused has been fraught with traumatic behaviour for quite some time.

[ 28 ] I mention in these reasons concerns I have over the manner, tone, and content of her responses to very simple questions. It was very apparent to me that she simply wanted to provide answers that suited her position, versus perhaps expressing ‘the truth’. I appreciate that all witnesses want to be believable. I find that in this case the complainant desperately wants to be believable.

On this point of being believable, the easiest way to shore up this possibility is to tell the truth, no matter how it sounds, no matter how it looks, and no matter what the consequences are. [ 29 ] Unfortunately, the complainant messaged with her body motions, eye contact, words, tone, and content of what she said that she may not be telling the truth on many points. I appreciate the court is a nervous place, and I must be careful about what inferences I might draw, especially from demeanour.

However, with the greatest respect, the complainant came across as a person who was not able to be truthful, or at least as a person who might not be reliable in their recollection of past events. Of course, as time goes on, memories fade. People forget things and as I often say in trial, “he or she that remembers the most is not the one that wins or loses the trial.” LEGAL ANALYSIS Voyeurism (s. 162(1)) Criminal Code Voyeurism [ 30 ] I suppose there is an argument that part of the reason the accused put the camera in the bedroom was to ‘catch his wife in the act’ of infidelity.

Of course, implicit in this ‘purpose’ would be some concept of sexuality, or people engaged in a sexual activity. To be clear, however, this is not a case where someone has secretly recorded people for some sexual purpose. 162

(1) Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if (

a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity; (

b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or (

c) the observation or recording is done for a sexual purpose. Definition of visual recording

(2) In this section, visual recording includes a photographic, film or video recording made by any means. Exemption (3) Paragraphs (1)(

a) and (

b) do not apply to a peace officer who, under the authority of a warrant issued under

section 487.01, is carrying out any activity referred to in those paragraphs. Printing, publication, etc., of voyeuristic recordings

(4) Every one commits an offence who, knowing that a recording was obtained by the commission of an offence under subsection (1), prints, copies, publishes, distributes, circulates, sells, advertises or makes available the recording, or has the recording in his or her possession for the purpose of printing, copying, publishing, distributing, circulating, selling or advertising it or making it available.

(5) Every one who commits an offence under subsection (1) or (4): (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or (

b) is guilty of an offence punishable on

summary conviction. Defence

(6) No person shall be convicted of an offence under this

section if the acts that are alleged to constitute the offence serve the public good and do not extend beyond what serves the public good. Question of law, motives

(7) For the purposes of subsection (6), (

a) it is a question of law whether

an act serves the public good and whether there is evidence that the act alleged goes beyond what serves the public good, but it is a question of fact whether the act does or does not extend beyond what serves the public good; and (

b) the motives of an accused are irrelevant. Elements of Voyeurism [ 31 ] In order to secure a conviction of an accused under s. 162(1), Crown is required to prove beyond a reasonable doubt the following elements of the offence (see R. v. McKinnon , 2018 ONSC 4781 , 152 W.C.B. (2d) 347, at para 82 and R. v. Bursey , 2017 NLTD(G) 62, 138 W.C.B. (2d) 208, at para 4 ):

1. The identity of the person (i.e., accused) who is alleged to have observed or recorded the complainant; 2. That the person surreptitiously observed or recorded the complainant; 3. That the complainant was in circumstances that give rise to a reasonable expectation of privacy 4. The facts laid out in (a), (b), or (

c) of s. 162(1), namely:

a) The complainant was in a place where “a person” (meaning any person, not the complainant’s subjective point of view, per Downes,infra) could reasonably be expected to be nude, to expose her genital organs, or anal region or breasts, or to be engaged in explicit sexualactivity;

b) The complainant was [in fact] nude, was exposing his or her genital organs or anal region or her breasts, or was engaged in explicitsexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engagedin such an activity; or,

c) The observation or recording was done for a sexual purpose. [32] The Crown may prove that the accused acted “surreptitiously” by proving that they observed or recorded the subject intendingthat the subject be unaware that the accused was doing so (R. v. Trinchi, [2019] O.J. No. 2278, 2019 ONCA 356 (Ont. C.A.)). [33] A “reasonable expectation of privacy” under s. 162(1) may arise in any circumstances in which a person would reasonably expectnot to be the subject of the type of observation or recording that in fact occurred (R. v. Jarvis, 2019 SCC 10 , [2019] S.C.J.

No.10, 375 C.C.C. (3d) 324 (S.C.C.)). [34] Relevant considerations may include: 1. the location the person was in when she was observed or recorded (although the commission of the offence is not limited totraditionally private spaces). 2. the nature of the impugned conduct (whether it consisted of observation or recording). 3. awareness of or consent to potential observation or recording. 4. the manner in which the observation or recording was done. 5. the subject-matter or content of the observation or recording, for example the activity in which a person is engaged when observed orrecorded or the part of a person's body that is the focus of the recording. 6. any rules, regulations or policies that governed the observation or recording in question. 7. the relationship between the person who was observed or recorded and the person who did the observing or recording — forexample, whether the latter was in a position of trust or authority toward the former. 8. the purpose for which the observation or recording was done, and 9. the personal attributes of the person who was observed or recorded. [35] This list of considerations is not exhaustive and not every consideration will be relevant in every case.

Leading Case Law on Voyeurism [36] There are two leading SCC decisions on voyeurism: R. v. Jarvis 2019 SCC 10 , [2019] S.C.J. No. 10 and R. v. Downes,2023 SCC 6, 2023 Carswell BC 584. R. v. Jarvis 2019 SCC 10 , [2019] S.C.J. No. 10, 375 C.C.C. (3d) 324 (S.C.C.)): [37] In Jarvis, Mr. Jarvis was a high school teacher who was charged with voyeurism contrary to s. 162(1)(c) [sexual purpose] of theCriminal Code for using a concealed pen camera to make video recordings of female students at the high school where he was a teacher.

He recorded students while they were engaged in ordinary school activities in common areas of the school, including classrooms andhallways. Most videos focused on the faces and upper bodies of female students, particularly their chests. [38] Mr. Jarvis was acquitted at trial because the trial judge was not satisfied beyond a reasonable doubt that he had made therecordings for a sexual purpose (pursuant to s. 162(1)(c)).

While the Ontario Court of Appeal upheld the acquittal, it found that Mr.Jarvis had made the videos for a sexual purpose; however, it nevertheless held that the students recorded by him were not incircumstances that give rise to a reasonable expectation of privacy. [39] On appeal to the Supreme Court of Canada (SCC), the SCC describes voyeurism under s. 162(1) as an offence which “iscommitted when a person surreptitiously observes or makes a visual recording of another person who is in ‘circumstances that give riseto a reasonable expectation of privacy’, if the observation or recording is done in one of the three situations described in paras (

a) through(

c) of s. 162(1). Section 162(1)(c), in particular, applies when the observation or recording is done for a sexual purpose. [40] The SCC held that “there can be no doubt in the case at bar that the students recorded by Mr. Jarvis were in circumstances inwhich they would reasonably have expected not to be the subject of videos predominantly focused on their bodies, particularly theirbreasts — and a fortiori not to be the subject of such videos recorded for a sexual purpose by a teacher”. At paragraph 6, the court

concluded that “the students recorded by Mr. Jarvis were in circumstances that give rise to a reasonable expectation of privacy for thepurposes of s. 162(1) of the Criminal Code”. What Constitutes a Reasonable Expectation of Privacy? [41] The court explains that, “circumstances that give rise to a reasonable expectation of privacy for the purposes of s. 162(1) arecircumstances in which a person would reasonably expect not to be the subject of the type of observation or recording that in factoccurred.

The inquiry into whether a person who was observed or recorded was in such circumstances should take into account theentire context in which the impugned observation or recording took place”. [42] At paragraph 29, the court lists a number of “non-exhaustive considerations that may assist a court in determining whether aperson who was observed or recorded was in circumstances that give rise to a reasonable expectation of privacy”: 1. The location the person was in when she was observed or recorded.

The fact that the location was one from which the person hadsought to exclude all others, in which she felt confident that she was not being observed, or in which she expected to be observed only bya select group of people may inform whether there was a reasonable expectation of privacy in a particular case. 2. The nature of the impugned conduct, that is, whether it consisted of observation or recording.

Given that recording is moreintrusive on privacy than mere observation, a person's expectation regarding whether she will be observed may reasonably be differentthan her expectation regarding whether she will be recorded in any particular situation. The heightened impact of recording on privacyhas been recognized by this Court in other contexts. 3. Awareness of or consent to potential observation or recording. I will discuss further how awareness of observation or recordingmay inform the reasonable expectation of privacy inquiry. 4. The manner in which the observation or recording was done.

Relevant considerations may include whether the observation orrecording was fleeting or sustained, whether it was aided or enhanced by technology and, if so, what type of technology was used. Thepotential impact of evolving technologies on privacy has been recognized by the courts. 5. The subject matter or content of the observation or recording.

Relevant considerations may include whether the observation orrecording targeted a specific person or persons, what activity the person who was observed or recorded was engaged in at the relevanttime, and whether the focus of the observation or recording was on intimate parts of a person's body. This Court has recognized, in othercontexts, that the nature and quality of the information at issue are relevant to assessing reasonable expectations of privacy in thatinformation. 6. Any rules, regulations or policies that governed the observation or recording in question.

However, formal rules, regulations orpolicies will not necessarily be determinative, and the weight they are to be accorded will vary with the context. 7. The relationship between the person who was observed or recorded and the person who did the observing orrecording. Relevant considerations may include whether the relationship was one of trust or authority and whether the observation orrecording constituted a breach or abuse of the trust or authority that characterized the relationship.

This circumstance is relevant becauseit would be reasonable for a person to expect that another person who is in a position of trust or authority toward her will not abuse thisposition by engaging in unconsented, unauthorized, unwanted or otherwise inappropriate observation or recording. 8. The purpose for which the observation or recording was done. 9. The personal attributes of the person who was observed or recorded.

Considerations such as whether the person was a child or ayoung person may be relevant in some contexts. [43] The court goes on to emphasize, at para 30, that this list of factors are non-exhaustive, nor are any of one or more of themnecessary or sufficient for a finding of a reasonable expectation of privacy per s. 162(1): 30. I emphasize that the list of considerations that can reasonably inform the inquiry into whether a person who was observed orrecorded had a reasonable expectation of privacy is not exhaustive.

Nor will every consideration listed above be relevant in every case.For example, recordings made using a camera hidden inside a washroom will breach reasonable expectations of privacy regardless of thepurpose for which they are made, the age of the person recorded, or the relationship between the person recorded and the person who didthe recording. In another context, however, these latter considerations may play a more significant role.

The inquiry is a contextual one,and the question in each case is whether there was a reasonable expectation of privacy in the totality of the circumstances. “Purpose” of Observation/Recording Can Inform Reasonable Expectation of Privacy Analysis [44] The court says that the purposes of the surreptitious observation or recording may also be relevant to determining whether it wasdone in breach of a reasonable expectation of privacy, at para 31: This Court has recognized, in other contexts, that a person's reasonable expectation of privacy with respect to information about theperson will vary depending on the purpose for which the information is collected: see R. v.

Dyment, (SCC), [1988] 2S.C.R. 417(S.C.C.), at pp. 429-32, per La Forest J.; Dagg v. Canada (Minister of Finance) (SCC), [1997] 2 S.C.R.403(S.C.C.), at para. 75. This conclusion also flows from a common sense understanding of privacy expectations. For example, if apatient disrobes to allow a physician to view her breasts or other sexualized parts of her body for the purpose of receiving a medicaldiagnosis, the patient cannot complain that the physician has breached any reasonably held expectation of privacy by performing thediagnostic procedure.

However, if the diagnostic procedure turns out to be a pretext on which the physician relies in order to view thepatient for a non-medical purpose — whether sexual or otherwise — the patient's privacy will undeniably be violated. [45] The court also explains, at para 32, that an inquiry into the purpose of the observation or recording to determine if it breached an

individual’s reasonable expectation of privacy is neither barred nor made redundant by the fact that a “sexual purpose” is an element of the offence under s. 162(1)(c). The court explains that the former inquiry into the purpose of the observation or recording is a “non- determinative” factor to be taken into account together with other relevant considerations, whereas a “sexual purpose” is an element of the offence under s. 162(1)(

c) and must be established beyond a reasonable doubt.

Therefore, some cases may involve an observation or recording that does not breach reasonable expectation of privacy, despite having a sexual purpose (e.g., perhaps recording an erotic scene for a film for which consent has been established); conversely, in other cases an observation or recording may constitute a clear breach of reasonable expectations of privacy, despite their being no sexual purpose, if either of the other two grounds under s. 162(1) are made out. “Surreptitiousness” Can Also Inform Reasonable Expectation of Privacy Analysis [ 46 ] Despite the fact that “surreptitiousness is an element of the offence that Crown must prove beyond a reasonable doubt, whether the observation or recording was done surreptitiously may also inform the court’s analysis as to whether the complainant had a reasonable expectation of privacy in the circumstances: 33 Similarly, although the surreptitiousness of the observation or recording is an element of the offence in s. 162(1) , this does not mean that it can never be considered in assessing whether the person who was observed or recorded had a reasonable expectation of privacy.

For example, the fact that a person chose to be secretive about recording another person in a particular situation may support the conclusion that the recording was contrary to the norms regarding privacy and visual recording that exist in that context. However, as with the purpose of the observation or recording, surreptitiousness will only ever be one consideration, among many, to be taken into account in assessing reasonable expectations of privacy; it cannot be allowed to overwhelm the reasonable expectation of privacy analysis .

It is possible under s. 162(1) for observation or recording to be done surreptitiously but not in breach of a reasonable expectation of privacy. Conversely, observation or recording that is done openly may breach reasonable expectations of privacy, though because it is not surreptitious, it will not constitute an offence under s. 162(1) .

What Constitutes “Privacy”? [ 47 ] The SCC provides some examples of the paradigmatic places in which a person can expect to have “privacy” including at home alone and in the washroom, at para 37: […] I readily accept that expectations of privacy with respect to observation or recording will generally be at their highest when a person is in a traditionally "private" place from which she has chosen to exclude all others.

For example, a person alone at home, or in a washroom with the door closed, would typically expect near absolute privacy -- and certainly would expect not to be observed or recorded without her knowledge. [ 48 ] However, the court goes on to explain that this does not exclude having a reasonable expectation of privacy even in places where one can expect to be observed, and provides several examples, at paras 38 to 40: 38 In my view, a typical or ordinary understanding of the concept of privacy recognizes that a person may be in circumstances where she can expect to be the subject of certain types of observation or recording but not to be the subject of other types.

An obvious example is that of a person who chooses to disrobe and engage in sexual activity with another person and who necessarily expects to be observed by that other person while she is nude and engaging in that activity. Her privacy would nonetheless be violated if that other person, without her knowledge, video recorded the two of them engaging in the activity.

And a couple who choose to film themselves engaged in sexual activity do not thereby waive their expectation that third parties will not secretly observe or record them engaging in that activity. 39 Similarly, a woman changing in a communal women's change room at a public pool would expect to be observed incidentally in various states of undress by other users of the change room. However, there can be no debate that she would retain some expectation of privacy with respect to observation or recording.

For one thing, she would expect to be observed only by the other women in the change room and not by the general public. She would also expect not to be photographed or video recorded while undressing, either by other change room users or by anyone else.

If it turned out that a mirror in the change room was actually a one-way glass that allowed pool staff to view change room occupants or that someone had concealed a camera in a vent and was video recording persons while they were changing, surely this would be viewed as an invasion of "privacy", on any ordinary understanding of that word. 40 One can think of other examples where a person would continue to expect some degree of privacy, as that concept is ordinarily understood, while knowing that she could be viewed or even recorded by others in a public place.

For example, a person lying on a blanket in a public park would expect to be observed by other users of the park or to be captured incidentally in the background of other park-goers' photographs, but would retain an expectation that no one would use a telephoto lens to take photos up her skirt (a hypothetical scenario discussed in Rudiger , at para. 91).

The use of a cell phone to capture up-skirt images of women on public transit, the use of a drone to take high-resolution photographs of unsuspecting sunbathers at a public swimming pool, and the surreptitious video recording of a woman breastfeeding in a quiet corner of a coffee shop would all raise similar privacy concerns. [ 49 ] The court concludes that whether one has a reasonable expectation of “privacy” in either a private or public space is dependent on the circumstances (which is the language used in the statute) in question, at para 41: 41 These examples illustrate that "privacy," as ordinarily understood, is not an all-or-nothing concept.

Furthermore, being in a public or semi-public space does not automatically negate all expectations of privacy with respect to observation or recording.

Rather, these examples indicate that whether observation or recording would generally be regarded as an invasion of privacy depends on a variety of factors, which may include a person's location; the form of the alleged invasion of privacy, that is, whether it involves observation or recording; the nature of the observation or recording; the activity in which a person is engaged when observed or recorded; and the part of a person's body that is the focus of the recording.

Reasonable Expectation of Privacy Arises from Context, Not Subjective Expectations [ 50 ] Importantly, the court clarifies that its emphasis on the circumstances vis-à-vis reasonable expectations of privacy is intended to make clear that “this element relates to privacy expectations that would reasonably arise from the context in which observation or

recording takes place, not to the subjective, and potentially idiosyncratic, privacy expectations of the particular person who is observedor recorded” (at para 43): […] Indeed, if Parliament's intention in using the phrase "circumstances that give rise to a reasonable expectation of privacy" was to limitthe scope of the conduct prohibited by s. 162(1) to observing or recording a person who does not believe she can be observed, Parliamentcould have made this explicit, for example by prohibiting surreptitious recording or observation of "a person who does not believe he orshe can be observed" where the elements in para. (a), (

b) or (

c) of s. 162(1) are present. But Parliament did not do this; instead, it usedthe word "circumstances", without limitation. Parliaments Purpose in Enacting s. 162(1) [51] The court states that Parliament’s objective in enacting s. 162(1) was to “protect individuals’ privacy and sexual integrity,particularly from new threats posed by the abuse of evolving technologies”. In other words, by my read, voyeurism is an offenceintended to protect against both sexual and privacy-based offences. [52] Given these broader goals of Parliament, along with the aforementioned reasons, the court rejects Mr. Jarvis’ and the ONCA’snarrow

interpretation of “circumstances that give rise to a reasonable expectation or privacy” that would confined such circumstances totraditionally private or quasi-private places in which a person can exclude others (at para 52). The court explains that if these leave a“vanishingly small role” for subsections (

b) and (

c) of the s. 162(1), which are the paragraphs most concerned with sexual integrity (atpara 52).

As the court notes, such a reading would fail to capture a non-consensual recording of a sexual partner engaged in sexualactivity and the subsequent distribution of that recording — which was among the express purposes of Parliament passing Bill C-2, AnAct to Amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, 1st Sess., 38thParl., 2004-2005 (assented to 20 July 2005), namely to protect privacy and sexual integrity of children in the face of evolvingtechnologies: […] Any person who allows her partner to observe her during sexual activity would, on Mr.

Jarvis' proposed

interpretation, no longerhold a reasonable expectation of privacy against her partner's surreptitious recording of the activity -- conduct that not only has anobvious and profound impact on sexual integrity, but that is also the type of conduct that initially spurred the legislative reform leadingto the enactment of s. 162: see Voyeurism as a Criminal Offence: A Consultation Paper, at p. 6.

Furthermore, understanding expectationsof privacy as arising only in places from which one can exclude others would undermine the protection that s. 162(1) affords tovulnerable members of society, including children, who are least likely to have absolute control over their surroundings in this sense butwho are the persons Bill C-2 was principally concerned with protecting [para 52]. Drawing Principles from the s. 8 Charter Jurisprudence [53] The court also notes that further insight into the phrase “reasonable expectation of privacy” can be derived from the s. 8 Charterjurisprudence.

From this “broader legal context” the court draws a number of principles. First, in “determining whether a person canreasonably expect privacy in a particular situation requires a contextual assessment that takes into account the totality of thecircumstances” (at para 60).

Second, “privacy is not an ‘all-or-nothing’ concept,” that is to say, “simply because a person is incircumstances where she does not expect complete privacy does not mean that she waives all reasonable expectations of privacy […]thus the fact that a person knows she will be observed by others, including by strangers, does not in itself mean that she forfeits allreasonable expectations of privacy in relations to observation or visual recording” (at para 61).

Third, “the concept of privacyencompasses a number of related types of privacy interests” including “not only territorial privacy interests – ‘involving varyingexpectations of privacy in the places we occupy’ (R. v. Gomboc, 2010 SCC 55 , 2010 SCJ 55, [2010] 3 S.C.R. 211, at para. 19)– but, significant to the case at bar, personal and informational privacy interests: Dyment, at p. 428, per La Forest J.; Tessling, at paras.20-24 (at para 64). The court stresses the connection between privacy and human dignity, in particular (at para 65). Moreover, while s.162(1)(

a) implicates “territorial privacy” the court says that s. 162(1) as a whole is concerned with protecting personal and informationalprivacy by prohibiting the observation and recording of persons (para 67). [54] The court also stresses that what a person “reasonably expects”, does not amount to a complainants weighing of the possible risksof being recorded in a given situation, at para 68: Whether a person reasonably expects privacy is necessarily a normative question that is to be answered in light of the norms of conductin our society.

And whether a person can reasonably expect not to be the subject of a particular type of observation or recording cannotbe determined simply on the basis of whether there was a risk that the person would be observed or recorded.

The development of newrecording technology, and its increasing availability on the retail market, may mean that individuals come to fear that they are beingrecorded by hidden cameras in situations where such recording was previously impossible; however, it does not follow that individualsthereby waive expectations of privacy in relation to such recording or that retaining such an expectation becomes unreasonable:see Tessling, at para. 42.

Indeed, to accept such an approach would make the "reasonable expectation of privacy" a "meaninglessstandard" and would undermine Parliament's very purpose in enacting s. 162(1): see Wong, at p. 45. [55] Furthermore, the court disagrees with the dissenting ONCA Justice, stating that nor does a determination as to whether a“reasonable expectation of privacy” arises in a particular circumstance amount to an “ad hoc balance of the value of the accused’sinterest in observation or recording against the value of the observed or recorded in being left alone” (at para 68).

Furthermore, as thecourt explains, at para 70: 70 Parliament has already weighed society's interests in allowing individuals to observe and record others and in protectingindividuals from surreptitious observation and recording. In the result, Parliament has enacted s. 162(1), which prohibits surreptitiousobservation and recording that breaches reasonable expectations of privacy in the three situations described in paras. (

a) through (

c) ofthat provision. It is inherent in the public good defence in s. 162(6) that the value of observation or recording to society might, in aparticular case, outweigh the value of individual privacy interests, even where the observation or recording would otherwise ground aconviction under s. 162(1) of the Criminal Code. Thus, the only question to be asked in determining whether a person who is observed orrecorded was in circumstances that give rise to a reasonable expectation of privacy is whether that person was in circumstances in which

she would reasonably have expected not to be the subject of the observation or recording at issue. [56] In application of the above law to the facts of Mr. Jarvis’ case, the SCC found there was “no other finding available on therecord” than to find that the students recorded by Mr. Jarvis were in circumstances that give rise to reasonable expectation of privacy, atpara 72: When the entire context is considered, there can be no doubt that the students' circumstances give rise to a reasonable expectation thatthey would not be recorded in the manner they were.

The considerations that lead to this conclusion include the location where thevideos were recorded; the fact that the impugned conduct consisted of recording rather than mere observation; the manner in which thevideos were recorded, including the fact that the students were not aware they were being recorded; the content of the videos,particularly their focus on intimate parts of the students' bodies; the existence of a school board policy prohibiting such recording; thefact that the videos were recorded in breach of a relationship of trust between Mr. Jarvis and the students; Mr.

Jarvis' purpose in makingthe recordings; and the fact that the persons who were recorded were young persons. R. v. Downes, 2023 SCC 6 , [2023] SCJ 6, 2023 CarswellBC 584: [57] Downes examines a lot of issues not particularly relevant to our case, but it does support Jarvis and clarifies these few usefulpoints. In the trial judge's view, homes, bathrooms, and changing rooms are traditionally private or quasi-private places in which a person canreasonably expect privacy, and in which they can reasonably be expected to be nude or partially nude. The focus in s. 162(1)(

a) on theplace in which an observation or recording is made recognizes that there are private or semi-private spaces in which a person should beprotected from being observed or recorded. [58] Dickson J.A. dissented, concluding that s. 162(1)(

a) contains no implicit temporal component, rather the provision focuses on“place” (e.g., a dressing room). She stated that when a person is in a “manifestly private place such as a bathroom or dressing room theyare generally entitled to expect that they will not be surreptitiously observed or recorded there”. [59] The SCC ultimately agreed with Dickson J.A. and the trial judge, finding that s. 162(1)(

a) has no implicit temporal component,at para 5: […] The text of s. 162(1)(

a) lacks language suggesting that Parliament intended the "place" to be evaluated at the specific time when theobservation or recording was made. Further, as this Court observed in Jarvis, Parliament's purposes in enacting the voyeurism offencewere to protect individuals' privacy and sexual integrity…. In effect, s.162(1)(

a) designates places such as bedrooms, … as "safe places"where people should be free from intrusions onto their privacy and sexual integrity, whether or not a person in the place could reasonablybe expected to be nude or engaged in sexual activity at the specific time the person is surreptitiously observed or recorded. 28. Parliament's object in enacting s. 162(1), Wagner C.J. found in Jarvis, was "to protect individuals' privacy and sexual integrity,particularly from new threats posed by the abuse of evolving technologies".

The new voyeurism offence "was motivated by concernsabout the potential for rapidly evolving technology to be abused for the secret viewing or recording of individuals for sexual purposesand in ways that involve a serious breach of privacy" (para. 49, citing Department of Justice, at p. 1). Voyeurism is thus both a sexual anda privacy-based offence. Section 162(1) is intended to deal with both these related harms: behaviour that violates sexual integrity, andbehaviour that breaches privacy (paras. 51-52).

Rowe J., concurring in the result in Jarvis , agreed with Wagner C.J. that the purposeand object of s. 162(1) is "to protect well-established interests of privacy, autonomy and sexual integrity of all individuals, in light ofthreats posed by new technologies to encroach upon them" (para. 113). [60] The court states that the Parliament’s objectives of protecting both related harms of violations to privacy and sexual integrity areapparent in the wording and structure s. 162(1), at para 30: 30.

Parliament's objective of protecting privacy appears in the opening words of s. 162(1), which state that it is an offence forsomeone to surreptitiously observe or record a person "in circumstances that give rise to a reasonable expectation of privacy" if any ofparas. (a), (b), or (

c) applies. In Jarvis, Wagner C.J. explained that the circumstances that give rise to a reasonable expectation of privacyunder s. 162(1) are "circumstances in which a person would reasonably expect not to be the subject of the type of observation orrecording that in fact occurred" (para. 28).

A court should consider the entire context in which the observation or recording occurred,including the following non-exhaustive factors: (1) the location of the person when they were observed or recorded; (2) the nature of theimpugned conduct (i.e., whether it consisted of observation or recording); (3) the awareness or consent of the person who was observedor recorded; (4) the manner in which the observation or recording was made; (5) the subject matter or content of the observation orrecording; (6) any rules, regulations, or policies that governed the observation or recording; (7) the relationship between the parties; (8)the purpose for which the observation or recording was made; and (9) the personal attributes of the person who was observed orrecorded (paras. 5 and 28-29). [61] The court next considers the text, context and purpose of s. 162(1)(

a) to determine whether Parliament intended that the “place”in which a surreptitious observation or recording occurred implied a specified time. ANALYSIS OF VOYEURISM CHARGE This means that the person being surreptitiously observed or recorded must be in a place in which a person can reasonably be expected tobe nude. Second, s. 162(1)(

a) asks whether a person can "reasonably" be expected to be nude in the place, and not whether the accusedsubjectively expected them to be nude. Professor Elaine Craig explained that “[t]his shift from focusing on sexual propriety to sexual integrity enables greater emphasis onviolations of trust, humiliation, objectification, exploitation, shame, and loss of self-esteem rather than simply, or only, on deprivations ofhonour, chastity, or bodily integrity (as was more the case when the law's concern had a greater focus on sexual propriety)” (p. 68).Under a sexual integrity analysis, the focus is “not simply [on] the sexual motives, arousal, or body parts of the accused, or the

community's standard of sexual propriety, but also [on] the perception, experience, and impact on the complainant ” (p. 75).

In addition, a sexual integrity analysis focuses not just on physical harm to the complainant, but also on emotional and psychological harm, which is often more lasting than physical harm, especially for children ( Friesen , at paras. 56-59). 47 Surreptitious observation or recording of a person where there is a reasonable expectation of privacy, and which occurs in a "safe place" under s. 162(1)(a), violates or poses a risk of violating sexual integrity, even if nudity is not reasonably expected at the specific time of the observation or recording.

An observation or recording in such a quintessentially private and "safe place" violates trust and can result in the person's humiliation, objectification, exploitation, shame, or loss of self-esteem (Craig, at p. 68). It can also cause emotional and psychological harm, even if the person is not observed or recorded when nude.

As the intervener, the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, observes: "Such violations of trust objectify those targeted by reducing them to body parts, creating images that in a digital environment can be easily replicated, cropped and manipulated in ways and for uses that disregard their right to control their own bodies. These violating images hinder subjects from developing their sexuality as they see fit, while also potentially exposing them to the shame and humiliation that often results from instantaneous and widespread dissemination" (I.F., at para. 24).

Evidence in This Case - The Accused’s Voluntary Admissions [ 62 ] On the first day of trial there was a voir dire held with respect to two interactions that the accused had with the investigating officer. The voir dire’s purpose was to determine whether admissions or comments made to the officer were voluntary or not. If they were voluntary, I could consider them as evidence in this trial. Of course, I still need to be mindful of the quality of the comments, the context in which the comments were made and any other evidence given at the trial.

For example, imagine the scenario where an accused says to a police officer, ‘yes, I did it, you got me’. On the face of it, these words might lead a person to believe it was a confession. But then, on the stand, the accused person says, ‘I only said it so you would leave me alone and maybe let me go, in fact, I didn’t do anything.’ It would be open to the court to consider the initial statement, as well as the evidence at trial and determine whether the first statement should be considered a confession of high evidentiary value, or just a comment made to someone for some other reason.

Of course, since the accused did not testify, I am only left to consider the strength of the statement, and surrounding circumstances around which it was made. [ 63 ] In our case, the accused conceded that his statements were voluntary. The officer was not challenged on cross-examination. Further, a review of the officer’s evidence confirmed to me that the statements were voluntary. I ruled that the statements were voluntary, and admissible. Specifically, there were two groupings of statements. The first was when the accused was arrested. This interaction was somewhat brief and informal.

The second was more formal, and was provided to the officer in an interview setting at the police detachment after the accused was given his rights. [ 64 ] Was there a recording made? Yes. There is a digital recording that was shown in Court and filed as an exhibit in these proceedings. In the statements to the police, the accused admitted to making the video recording. He also admitted to sending it to the complainant. [ 65 ] Was it surreptitious? Yes. In his statement to the police, the accused said he had placed a clock radio with a camera in it on the bedside cabinet. He was very cooperative.

He described what it was, why it was put there, that he put it there, and how he programmed it to record motion. He was so cooperative he even offered to get the model number of the item to the police officer if they wanted it. As for whether it was ‘surreptitious’, the accused said he knew the complainant did not know she was being recorded. In fact he said “She didn’t have a clue.” In cross-examination, it was suggested to the complainant that she knew she was being recorded. More specifically, it was suggested to her that on three particular dates she asked the accused about how to use the recording device.

She said, “I may have said the smart alarm clock was there for two years, but I didn’t know it was a camera or motion video.” She was unequivocal, unwavering and clear in her denial that she had any knowledge that it was a recording device. I conclude that she did not know. To put it another way, I believe her on this point. [ 66 ] I note as well, that it was not an item that would immediately strike someone as being a camera. It was an alarm clock, with a hidden camera, and a hidden motion sensor that could record images, without the subject of those images being aware that a recording was taking place.

This element of being ‘hidden’ is also a factor that I take into account when determining the issue of surreptitiousness. [ 67 ] Was it made in a place where one might reasonably be expected to be nude? In considering this question, I am mindful of the above points of law. I may consider where the recording took place, who was being recorded, any possible reasons for the recording to be taken, and any number of other relevant factors. [ 68 ] Perhaps most notably, the recording device was placed in a bedroom. This point in itself, in my view, satisfies the legal criteria of the charge.

In my view, the bedroom is one of the most private places in a family home. As well, it was placed next to the bed, aimed to capture images on the bed. I also note that the bed is the main bed in the marital home. I have no reason to believe that anyone other than the accused and complainant would be in that bed. [ 69 ] Why was the recording device placed there? The accused says it was placed there for a number of reasons. He wanted to catch the complainant “stashing cash”. He also wanted to be protected from any false claims of assaultive behaviour alleged against him.

However, I conclude one of the primary reasons for its placement was, to use the accused’s words to the officer, “to confront her with evidence of her infidelity.” In his mind, she had admitted to having a number of affairs. In his mind, it appears he believed she was having some sort of intimate relationship with someone and thought he could get some video proof. He told the officer “I have to prove I’m not delusional by having evidence of her infidelity.” To do this he secretly placed this device in the bedroom.

I note that it appears that the camera was placed in its position approximately two years before the marital breakdown. It was moveable, but never moved. It was essentially permanently placed, and not a transitory item that was moved regularly. [ 70 ] It was not an accidental viewing or observation but a planned and premeditated creation of a digital recording. The accused knew that he did not have his wife’s consent to make the recording. This particular recording is of a person in her own bed. These two

people were married and there is a trust element that exists. [ 71 ] I should note that also in this trial a video tape captured an interaction where the accused was lying on what appears to be the same bed. The video shows interactions between the accused and the complainant. Not that it matters, but in an effort to be clear, the interactions are not of a sexual nature. The angle of the video leaves me with the impression that there might have been a second camera in the bedroom. It may well be that it is capturing images in a private setting, as is the clock radio camera.

However, the statements of the accused do not refer to this particular camera, and I am not able to conclude with any certainty that it was the accused who placed it there. Although, I would say, it is highly likely that he did. It also seems highly likely that the complainant did not know it existed either. Criminal Harassment – Generally [ 72 ] A more formal definition of criminal harassment will be discussed in a moment. In its simplest form, criminal harassment can exist when a person engages in threatening behaviour and one feels fear as a result of that behaviour.

Examples of threatening behaviour might include: repeatedly following a person, repeatedly communicating with a person, or waiting for them at places they might happen to be. Criminal Code Criminal harassment 264

(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. Prohibited conduct

(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 communicating 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. Punishment

(3) Every person who contravenes this

section is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or (

b) an offence punishable on

summary conviction.

(4) Where a person is convicted of an offence under this section, the court imposing the sentence on the person shall consider as an aggravating factor that, at the time the offence was committed, the person contravened (

a) the terms or conditions of an order made pursuant to

section 161 or a recognizance entered into pursuant to

section 810, 810.1 or 810.2; or (

b) the terms or conditions of any other order or recognizance, or of an undertaking, made or entered into under the common law, this Act or any other Act of Parliament or of a provincial legislature that is similar in effect to an order or recognizance referred to in paragraph (a). Reasons

(5) Where the court is satisfied of the existence of an aggravating factor referred to in subsection (4), but decides not to give effect to it for sentencing purposes, the court shall give reasons for its decision. Elements of the Offence 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. R. v. Sillipp, [1997] A.J. No. 1089, 1997 ABCA 346 (at para 18 ).

Harassment [73] In R. v. Sillipp (1997), 1997 ABCA 346 , 11 C.R. (5th) 71 (Alta. C.A.); leave to appeal refused (1998), 123 C.C.C. (3d)(S.C.C.) the accused (the complaint’s ex-husband) appealed a conviction of criminal harassment, arguing the judge inter alia erred in itsinstruction to the jury regarding the definition of criminal harassment.

The ONCA upheld the conviction, finding that the trial judge hadproperly instructed the jury as the meaning of “harass”, at para 16: 16 […] the term "harass" embraced something more than a complainant being "vexed, disquieted or annoyed". [The trial judge] spokeof appropriate synonyms and mentioned some being "tormented, troubled, worried, plagued, bedeviled and badgered".

The charge,taken as a whole, emphasizes to the jury that proof beyond a reasonable doubt that a complainant has been troubled, worried or badgered,will not suffice; proof beyond a reasonable doubt that a complainant has been vexed, disquieted or annoyed will not suffice. The trialjudge told the jury that "something substantially more than that" was required. 17 In fact, s. 264 articulates the additional requirement. It is that, in all of the circumstances, the conduct of the accused caused thecomplainant reasonably to fear for her safety or the safety of anyone known to her. [74] By contrast, in R. v.

Monahan (2010), 2010 CarswellSask 258 (Sask. Prov. Ct.) the complainant's actions in driving by accused'shouse once or twice per week and taunting or goading accused did not establish beyond reasonable doubt that she was harassed byaccused's conduct or that such conduct caused her to fear for her safety; the conduct of the accused and alleged victim described as “catand mouse game”.

Knowledge, Recklessness or Wilful Blindness (Mens Rea) [75] The court in Sillipp also held that knowledge, recklessness or wilful blindness that the complainant is harassed is the appropriateframing of the criminal intent element. [76] The only specified mental elements apply to all of the alternatives (ss. 264(2)(a)-(d)) uniformly. In all cases, the accused musteither know that the other person is harassed or be reckless as to whether the other person is harassed. [77] In R. v.

Ryback (1996), (BC CA), 47 C.R. (4th) 108 (B.C.C.A.) the accused was convicted of criminalharassment for stalking a cashier by attending the store, sending her presents, talking to her family, and going to her home, all withouther consent or encouragement. The conduct stopped when the appellant was charged. The court held that the accused’s pre-chargeconduct was relevant to intent. The police had warned the accused on previous occasions and the complainant consistently ignored orrebuffed the accused’s overtures.

The court held that any reasonable person would have understood that the approaches wereunwelcome and a nuisance. It upheld the trial judge’s finding that the accused had knowingly or recklessly harassed complainant (Seealso, infra, R. v. Riossi (1997), (ON SC), 6 C.R. (5th) 123 (Ont. Gen. Div.)). [78] In R. v. Holmes (2008), 2008 ONCA 604 , 2008 CarswellOnt 5131 (Ont. C.A.) the accused appealed a conviction forcriminal harassment on grounds that trial judge erred in finding he had the requisite mens rea. In that case, the accused attempting todisguise himself, hiding his presence from complainant.

The appellant argues that since he attempted to disguise himself and hide hispresence from the complainant, he did not know that the complainant was harassed and he was not reckless or wilfully blind as towhether the complainant was harassed. He points out that the complainant did not know the appellant had been watching her until toldby the police later that day. The court held that whether the appellant had the requisite mens rea is a question of fact. The trial judgerejected the submission that the use of a hat and sunglasses was a disguise.

Moreover, the appellant drove past the complainant’s gymtwice in his “distinctive car” and then ran onto the street as the complainant’s vehicle was leaving. The court thus held that it was opento the trial judge to find, as he did, that the appellant was reckless as to whether the complainant was harassed. [79] The nature of the relationship between the parties may be relevant for showing whether the complainant's fear was reasonableand whether the accused knew that or was reckless as to whether the complainant was harassed. In R. v. Gilmar [2010], 2010CarswellAlta 2432 (Alta. Prov.

Ct.) the accused and the complainant briefly dated but split up after the accused became suspicious of thecomplainant and began following her, parking outside her place of work, and showing up at her rendezvous with friends. The accusedwas acquitted of criminal harassment in this case because the conduct complained of did not produce in the complainant a state of beingharassed, nor did it cause her to fear for her safety.

None of the alleged incidents of harassment, when considered in the context of theparties’ background and relationship, satisfied beyond a reasonable doubt all the necessary elements of harassment.

The HonourableJudge LeGrandeur made the point that the “general conduct in and of itself … are not acts of harassment … they may be relevant interms of providing background for other more specific complaints.” In Gilmar, the Judge found that coming home and continuing toreside with the accused after he showed up to the complainant’s workplace raised a reasonable doubt with him with respect to whetherthe complainant had any concern for her own safety. [80] There are similarities in the case before me. I have considered the possibility that ‘appearances might come across as if she doesnot fear for her safety’.

For example, one might ask, if she was so fearful, why did she keep coming back to the house, at first to sleep,then during the day to continue with familial duties such as caring for the children or doing household chores? [81] I am mindful that with victims in the context of a domestic relationship, we must not presume that all victims act logically. Thequestion of ‘why does she keep going back to him’ is one which is outdated, improper and insensitive to the realities of victimology.

Inother words, there are systemic, economic, marital, parental and emotional pressures that sometimes guide the decision of parties whenmarital breakup is on the horizon. Whether the complainant felt fear for her own safety is an issue to be considered within the largercontext and history of the relationship between the accused and the complainant. Objectively Reasonable [82] In R. v. MacLean [2008], 2008 CarswellOnt 576 (Ont.

C.J.) a husband's repeated phone calls undoubtedly caused wifeunwarranted distress but, viewed objectively and in context of their marital history, it was not clear she reasonably feared for her safety. With respect to reconciliation, the courts often run into factual scenarios similar that that in R. v. Iannantuono [2010], 2010 CarswellOnt

7939 (Ont. C.J.) where evidence established that the victim was rightly perplexed and bothered by accused constantly confronting herwith his wish to reconcile; the victim's fears of being harmed were objectively reasonable. Of course, that scenario is quite different thanour case. All that said, whether reconciliation on any particular day was a thought that either party had, it should not distract me fromthe assessment whether all the elements of the criminal harassment offence have been proven beyond a reasonable doubt. Without Lawful Authority [83] In R. v. Carey (ON SC), [1998], 17 C.R. (5th) 123 (Ont. Gen.

Div.) the court held that court ordersprohibiting contact demonstrated an absence of lawful authority for accused's actions. In our case, there was a time where it appears thatthe accused hired a private investigator to follow the complainant. I think there is a strong argument that this course of action, in and ofitself, may not be evidence of criminal harassment as there may have been a lawful reason to hire someone. Equally, it is open for me toconsider the hiring of the investigator in the overall context of all the behaviours of the parties.

Sections 264(a)-(d) [84] The actus reus for the offence is that the accused engaged in one of the four forms of prohibited conduct in ss. 264(2)(a)-(d). Ineach case, the prohibited conduct of the accused must cause the other person to fear for his or her safety or the safety of anyone knownto that person (see: R. v. Kosikar, below). Furthermore, this fear must be reasonable in all the circumstances. In all cases, the accusedmust act without lawful authority. 1. Section 264(2)(a): Repeated Following [85] In our case, there are a couple of points to be considered under this heading.

First, it might be the case that the accused andcomplainant were in the same vicinity at the same time. It seems to be contended by the complainant that she felt she was beingfollowed. On this point, there has been a suggestion that the accused vehicle may have been in a place, at a time, that has nothing to dowith the complainant. Second, as mentioned, it appears a private investigator may have followed the complainant. [86] Section 264(2)(

a) refers to conduct in which the accused follows the complainant or anyone known to them from place to place. Furthermore, this following must be done “repeatedly.” [87] In R. v. Labrentz [2010], 2010 CarswellAlta 936 (Alta. Prov. Ct.) the court found that repeated drive-bys and visits by accused tocomplainant's apartment, along with emails and letters sent by accused to complainant constituted criminal harassment. [88] The term “repeatedly” refers to conduct which is persistent and overly frequent (R. v. Labrentz [2010], 2010 CarswellAlta 936(Alta. Prov.

Ct.)). [89] I do not find that there was any particular acts of following that rise to meet the threshold of a criminal intent. I will discuss thisfurther in these reasons. 2. Section 264(2)(b): Repeated Communications [90] I have heard evidence of lots of text messages between the accused and complainant. [91] Section 246(2)(

b) refers to conduct in which the accused must repeatedly communicate with the other person or anyone known tothat person. [92] An essential ingredient for a conviction on a charge of criminal harassment under s. 264(2)(

b) is a finding that the accusedengaged in conduct that, in all the circumstances, caused the victim reasonably to fear for his or her safety, or the safety of anotherperson known to them (R. v. Revington, [2007] O.J. No. 1036). The Ontario Court of appeal examined the lower court decision inRevington, and confirmed the principle that “an essential ingredient for a conviction on a charge of criminal harassment under s.264(2)(

b) of the Criminal Code is a finding that the accused engaged in conduct that, in all the circumstances, caused the victimreasonably to fear for his or her safety.” In that case, there was “unfortunate and troublesome behaviour” but “no evidence of any fearfor her safety.” [93] The impugned communication may be accomplished directly or indirectly. In R. v. Ryback (BC CA), [1996],47 C.R. (4th) 108 (B.C.C.A.), the accused repeatedly attended at complainant's workplace before police warned him. The accused laterdelivered presents, notes and a dinner invitation and personally appeared at complainant's house.

The court found that three specificinstances of communication viewed in the context of accused's pre-charge conduct constituted “repeated communication.” They werealso unwanted communication. [94] “Repeatedly” generally means more than once (except for in case of threatening conduct per s. 264(2)(d)). There is no minimumrequirement of three instances of communication (R. v. Ohenhen (2005), (ON CA), 33 C.R. (6th) 391 (Ont. C.A.); R.v. Karimi [2010], 2010 CarswellOnt 7266 (Ont. S.C.J.); R. v. Saloio (2010), 2010 CarswellOnt 2731 (Ont. C.J.)). [95] In R. v. Iannantuono, 2010 CarswellOnt 7939 (Ont.

C.J.) while the accused did not make direct threat to victim or children,repetitive entreaties and phone calls made on daily basis would have resulted in fear that accused was unbalanced and unpredictable. The court found that the victim's fears that she and her children might be harmed objectively reasonable. [96] I do not find that there were repeated communications and will discuss this further in these reasons. 3. Section 264(2)(c): Besetting or Watching a Dwelling-House [97] There is some indication that while the complainant was in a hotel, the accused may have showed up to her room.

The evidenceis fleeting and I am not in a position to conclude with any degree of certainty, even on a balance of probabilities, that the accused was

knocking on the hotel door. I will discuss this further in these reasons. [98] Section 264(2)(

c) states that the accused must either beset or watch a place. That place must be the dwelling-house or otherplace where the person or anyone known to that person resides, works, carries on business or happens to be (see: R. v. Labrentz [2010],2010 CarswellAlta 936 (Alta. Prov. Ct.) above, and R. v. Saloio (2010), 2010 CarswellOnt 2731 (Ont. C.J.) below). 4. Section 264(2)(d): Threatening Conduct [99] In this case, this is really the main consideration. Was there threatening conduct that has been proven beyond a reasonable doubtto be criminal harassment?

There have been words exchanged and an instance where a door was broken. It may be the case that at somepoint in time the accused threatened to report some information to the complainants’ friends or other individuals or agencies. [100] Section 264(2)(

d) requires that the accused engage in threatening conduct. The conduct must be a tool of intimidation designedto instil a sense of fear in the recipient and be directed at the other person or any member of that person's family (R. v. Burns (2007),2007 CarswellOnt 8534 (Ont. C.A.)). R. v. George, 2002 YKCA 2 is a decision that helps me in my consideration of whether there was“threatening conduct” in this case. At paragraph 38 and 39, the Yukon Court of Appeal writes this: [38] The Quebec Court of Appeal had occasion to consider the current s. 264 in the case of R. v.

Lamontagne (1998), (QC CA), 129 C.C.C. (3d) 181 (Que. C.A.). The judgment of the Court was delivered by the Honourable Mr. Justice Proulx. Atp. 187 he wrote as follows: The first element to be proven concerns the conduct prohibited by s. 264(2) of the Criminal Code: did the appellant engage inthreatening conduct when he said the words in question? In interpreting the word “threatening”, I consider, like the British ColumbiaCourt of Appeal in R. v.

Ryback, supra, that it would be appropriate to apply the test proposed by the Supreme Court of Canada in R. v.McCraw, (SCC), [1991] 3 S.C.R. 72, 66 C.C.C. (3d) 517, in respect of the offence of “uttering threats” in s. 264.1 ofthe Criminal Code, that is that the nature of the threat must be viewed objectively, in the context of all the words spoken and havingregard to the person to whom the words were addressed. . . . A threat remains a “tool of intimidation which is designed to instill a sense of fear in the recipient” (R. v. McCraw, supra, pp. 81-82). . . . . . .

If the first element raised the issue of the very existence of so-called “threatening” conduct from a purely objective perspective, thesecond element indicates what the effect of this conduct must be, that is, “causes the complainant reasonably, in all the circumstances, tofear for her safety”. Here again, it is an objective test because of the use of the word “reasonably”.

That means that even if a complainant stated that shesubjectively feared for her safety, that would not be sufficient because the trier of fact must be satisfied that “reasonably”, therefore froman objective point of view (of a reasonable person), this “threatening” conduct, “in all the circumstances”, caused the complainant to fearfor her safety . . . [39] Based upon the authorities set out above, I am of the opinion that in order to achieve the objectives of s. 264, the threat describedin s. 264(1)(ii)(d), must amount to “a tool of intimidation which is designed to instill a sense of fear in the recipient.” Whether or not thisis the case is an objective question.

Here, the question is as follows: did Mr. George commit an action which could be characterized as atool of intimidation and by which he meant to instill fear in the complainant? [101] Depending on the context, threatening gestures may constitute “threatening conduct” (see R. v. Lukaniuk (2009), 2009CarswellOnt 581 (Ont. C.J.), supra, and R. v. Kohl, [2009] O.J. No. 372, infra). [102] A single incident of threatening conduct is criminal harassment if the victim is harassed by it and becomes fearful as a result ofthe threatening conduct. In R. v. Kosikar [1999], 1999 CarswellOnt 2955 (Ont.

C.A.) a single threatening letter was sufficient for theoffence – repeated conduct was not required; evidence of prior contact was used to show the complainant felt harassed. The complainantwas a waitress and the accused came into her restaurant and engaged in small talk. She made it clear that she was uninterested and askedhim to leave her alone. He persisted, including sending her letters and gifts to her home. The complainant changed jobs but that did nothelp; she moved to a different community, but he located her. She obtained a peace bond, but he continued to send her letters.

In 1994he was convicted and sentenced to 3 years’ probation. In 1998 he sent letter in which reiterated his love for her and offered to save herfor God; the letter contained explicit and aggressive sexual references, which left her very shaken. The Ontario Review Board held thathe remain in detention; he appealed and the appeal judge found that s. 264(2)(

d) did not require a course of conduct to found aconviction, a single act sufficed if the consequence was that the complainant was being harassed. The accused appealed to the ONCA,who dismissed the appeal, concurring with the lower court that s. 264(2)(

d) was not limited to repeated threatening conduct to theexclusion of a single threatening act. It only requires that the threatening conduct cause the complainant to be harassed. The sending ofthe letter was threatening conduct and caused the complainant to feel harassed. Moreover, the evidence of prior contact between theaccused was used to prove that the complainant felt harassed. [103] Moreover, in R. v. Kohl, [2009] O.J. No. 372 the accused, a complete stranger to the complainant, jumped out from behind somebushes and confronted her while she was jogging.

He blocked her way in a threatening and frightening manner, without either touchingher or speaking to her. He then chased her down the street as she attempted to escape from him. The accused had a significant criminalrecord, including convictions for robbery, assault, and sexual assault. At issue on appeal was whether a single incident of this natureconstituted harassment under s. 264(2)(

d) of the Criminal Code, and whether a sentence of three years in the penitentiary was fit. TheOntario Court of Appeal dismissed the accused’s appeal from the conviction. It found the accused's conduct alone, without a spokenword, was more than sufficient to establish threatening conduct within the meaning of s. 264(2)(

d) of the Code. It was clear from theevidence of the complainant that she feared for her safety. Her response of turning and running in search of a safe haven supported her

testimony. Even though the accused's conduct occurred over a relatively short period of time and there was no prior contact, it was highly threatening and persistent, during this brief encounter, the complainant reasonably feared for her safety and was clearly in a state of being harassed. [ 104 ] It appears that the law is clear that a single act or incident such as a phone call can establish an offence. Another example of that is the R v. Woodman, 2022 ABPC 80 (Alta. Prov. Ct.) a telephone call was inconsistent with all past interactions between parties and was followed by no further contact. [ 105 ] While each case is different and should be assessed according to its own merits a

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