R v Bilodeau, 2023 ABCJ 218

In the Alberta Court of Justice Citation: R v Bilodeau, 2023 ABCJ 218 Date: 20231024 Docket: 221035744P1 Registry: Edmonton Between: His Majesty the King Crown - and - James Joseph Bilodeau Accused Decision of the Honourable Justice O.A. Shoyele Table of Contents Introduction . 2 Findings of Fact 2 Law .. 4 Analysis . 4 Has the culprit engaged in the conduct set out in s 264(2)(

b) of the Criminal Code ? . 4 Was the Complainant harassed by the conduct? . 7 Did the culprit, who engaged in such conduct, know that the Complainant was harassed or was reckless or wilfully blind as to whether the Complainant was harassed? . 9 Did the conduct cause the Complainant to fear for her safety or the safety of anyone known to them? . 11 Was the Complainant’s fear, in all the circumstances, reasonable? . 14 Disposition . 15 Introduction [ 1 ] The Accused is facing a one-count charge as follows: [That] between the 1st day of February, 2020, and the 13th day of October, 2022, both dates inclusive, at or near Edmonton, Alberta, did, without lawful authority, and knowing that, or reckless as to whether, [the Complainant] was harassed, engage in conduct that caused [the Complainant] reasonably to fear for her safety or the safety

of anyone known to the said [Complainant], contrary to s 264(1) of the Criminal Code of Canada .

Findings of Fact [ 2 ] Based on the evidence from both Crown and Defence witnesses, this Court has made the following findings of fact: [ 3 ] The Complainant and the Accused had an employer-employee, or father-daughter (as described by the Accused), or mentor- mentee relationship prior to the termination of the Complainant’s employment with the Accused’s technology company. [ 4 ] Sometime at the beginning of February 2020, both the Complainant and the Accused drove to a location at Cold Lake, Alberta or St Paul, Alberta. The Accused indicated the trip was to St. Paul, Alberta.

While their testimony about the exact destination differed, both the Accused and the Complainant agreed that they took the trip together. There were some uncomfortable moments during the drive when the Accused physically touched the Complainant’s leg or held “pinkies” with her. [ 5 ] Subsequently, sometime between mid-February and March 2020 (Exhibit 2) the two of them had discussions to clarify and set boundaries around physical touching of each other.

That discussion, apparently, created some tension between the Accused and Complainant in the working environment at the Accused’s Tech Company, although the Complainant continued to work at the organization. [ 6 ] Exhibit 2 was admitted having regard to ss 183.1 and 184 of the Criminal Code .

Section 183.1 reads: “Where a private communication is originated by more than one person or is intended by the originator thereof to be received by more than one person, a consent to the interception thereof by any one of those persons is sufficient consent for the purposes of any provision of this Part.” [ 7 ] Significantly, following the road trip to St Paul or Cold Lake and prior to the termination of the Complainant’s employment, the Accused observed that the Complainant was upset and had blocked most (if not virtually all) of his multiple social media accounts, as well as his phone number – see Exhibit 8.

The evidence indicates that it was during the month of May 2020 that the Complainant began the process of blocking the Accused on her social media platforms. [ 8 ] The Complainant was eventually laid off on May 29, 2020 by the Accused, who indicated in his testimony that the termination was due to shortage of work created by the COVID-19 pandemic. [ 9 ] The Complainant testified that she received a set of random text messages from the Accused – between May 29 (when her employment ceased) and August 13, 2020 – which she found frustrating and uncomfortable because she no longer wished contact with the Accused. [ 10 ] Part of Exhibit 2 (the audio recording tape) occurred in May 2020, ostensibly prior to the termination of the Complainant’s employment. [ 11 ] After the May 29, 2020 termination, the Accused texted the Complainant on June 22, 2020, to ask about her birthday – and rhetorically suggested “October 10 1991” (Exhibit 3/3-7). [ 12 ] The evidence shows that on July 30, 2020, a text message was sent by the Accused to the Complainant dealing with the issue of an “owl scarf” and gave the Complainant some options that read as follows: “Hey I ordered [an] owl scarf [from] China about 3-4 months ago.

It just showed up. I was going to do a photo shoot with you and give you the scarf. So, you have three options. 1. Go away, Jim! Take the scarf and jam it! 2. I would be happy to do a shoot with you and the scarf. 3. I don't want to do a shoot, but I'll take the scarf.” The Complainant ignored the message; following which the Accused unilaterally replied that he would “assume” that the Complainant has selected the first option. [ 13 ] The evidence additionally reveals that between August 11 and 15, 2020, there were some emails exchanged between the Accused’s and Complainant. (See Exhibit 8).

During the same period, the Accused simultaneously sent a series of text messages. (See Exhibit 3/7) [ 14 ] On August 15, 2020, the Complainant went to The Orange Hub with her father to collect her personal stuff. The Accused got the Complainant a birthday gift claiming he had forgotten about her birthday. This was the birthday gift that was spurned by the Complainant’s father, while expressly stating that there shouldn’t be any more gift exchanges going forward. Significantly, there is no evidence indicating that the Complainant objected to her father’s reaction to the Accused’s gesture.

Neither did the Accused dispute this piece of evidence. [ 15 ] Following the August 15, 2020 visit, three emails were sent – Exhibit 8 – from the Accused to the Complainant. [ 16 ] Then, in October 2020 – on Exhibit 4/2 – there was a set of WhatsApp/media messages from the Accused to the Complainant. [ 17 ] About a year after the August 2020 encounter with the Complainant’s father, the Accused contacted the Complainant, but she did not respond. [ 18 ] Again, sometime in October 2021, in Exhibit 4, the Accused indicated that he sent an email asking questions about the Complainant’s birthday, notwithstanding the Accused’s evidence that he would have received a calendar notification in relation to same.

All these inquiries assume an excessive and badgering character in the context of a previous rhetorical suggestion that was made earlier on June 22, 2020 by the Accused. [ 19 ] Further, the Accused conceded that he was in contact with the Complainant on June 13, 2022 about a “50 th Anniversary Grant Mac Theatre [B]ook for the Orange [H]ub.” (see Exhibit 4/1). [ 20 ] On or about September 6, 2022, when the Accused was driving home, he recalled sighting the Complainant along

Callingwood Road and “might have waved” to her. Apparently, the Complainant’s reaction, when the Accused slowed down his drivingspeed on that day, was to run away, which suggests that she was fearful for her safety. I find that this was a coincidental meeting betweenthe Accused and the Complainant. It is clear from the evidence, in this regard, that the Accused lives in a residence situated somewherealong Callingwood Road.

There was no intention on the part of the Accused to deliberately seek out the Complainant on that day, orspecifically on that road. [21] A few weeks later, on October 12, 2022, between approximately 4:00 – 5:00 pm, the Accused went to drop a box/package atthe Complainant’s home, without informing the Complainant that he was coming to deliver the package on that day.

The box contained apackage of photos – that were, according to the Accused, the last remnant of work-related activities he had done with the Complainant. [22] Then, much later, sometime around February 17 or 18th of 2023, around 7:00 p.m., the Accused walked into the Complainantand her boyfriend in the building where his Tech company was located. This 2023 meeting between the Complainant, the Accused andthe Complainant’s boyfriend at the Orange Hub – being the Accused’s office location – was not, notably, one initiated by the Accusedperson.

Law [23] The Alberta Court of Appeal recently commented in R v Sidhu, 2021 ABCA 56 at para 25, as follows: This Court set out the essential elements of the offence [of criminal harassment] in R v Sillipp, 1997 ABCA 346, para 18, leave to appealrefused (1998), 228 NR 195 (SCC): 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 orwilfully 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. Analysis Has the culprit engaged in the conduct set out in s 264(2)(

b) of the Criminal Code? [24] This first element is regarded as the actus reus of the offence of criminal harassment. [25]

Section 264 of the Criminal Code that governs criminal harassment provides that: 264

(1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the otherperson is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, tofear for their safety or the safety of anyone known to them. Subsection (2)(

b) confirms that criminal harassment includes “repeatedly communicating with, either directly or indirectly, the otherperson or anyone known to them.” [26] The Ontario Court of Appeal in R v Ohenhen (2005), (ON CA), 200 CCC (3d) 309 at para 32 wrote: While one instance of unwanted conduct can be sufficient to satisfy s. 264(2)(

c) and (d), it will not be sufficient to satisfy s. 264(2)(b).More than one instance of unwanted conduct will be necessary to meet paragraph (b); however, in my view, there is not and should notbe any minimum number of instances of unwanted conduct beyond this to trigger these subsections. Provided the conduct occurs morethan once, in my view, the actus reus can be made out. It will be a question of fact for the trier in each case whether there has beenrepeated conduct. The approach is a contextual one.

The trier will consider the conduct that is the subject of the charge against thebackground of the relationship and/or history between the Complainant and Accused.

It is in this context that a determination will bemade as to whether there has been repeated communication... [emphasis added]. [27] The Defence argued that the Accused’s actions were not threatening because there is no evidence that they were designed tocause fear or intimidate the Complainant. [28] He acknowledged that the Accused corresponded with the Complainant on more than one occasion but submitted that hiscorrespondence were all legitimate because they dealt with work-related matters. [29] Defence counsel contended that other correspondence related to the relationship (or its breakdown) between the Accused andthe Complainant.

According to him, a few of the correspondence were made out of frustration that the Accused regretted and for whichhe eventually apologized. [30] The Crown submitted that the communications for the purpose of s 264(2)(

b) does not need to be threatening. For the purposeof that provision, it is sufficient that the Accused engaged in the “unwanted conduct” — from the perspective of the Complainant — onmore than one occasion: R v Ohenhen at para 32.

[31] In relation to the communication between the Accused and the Complainant while she was still in employment with his TechCompany, and prior to May 29, 2020 – when the Complainant’s employment was terminated – I find that it is unrealistic and impracticalto expect that the Accused would not be communicating repeatedly with the Complainant, while she was employed in his organization.These pre-termination communications, however, remain as relevant circumstances to be considered in ascertaining whether the offenceof criminal harassment has been established in this case: ibid. [32] The evidence – as excerpted above – in the “Findings of Fact”

section above indicates that sometime between June 23/August13, 2020, the Complainant stopped replying actively to the Accused’s text messages. [33] Against the backdrop of the development above, I find that the immediate communications that occurred between theAccused and the Complainant after she was laid off on May 29th, 2021 were legitimate up to the time that the Complainant stoppedreplying actively to the communications from the Accused. Put differently, the Accused had the lawful authority to communicate withthe Complainant in order to ensure that the employment termination process was fully completed.

It was legally obligatory for him to doso, and effectively beneficial to the Complainant from labour and employment law perspective. [34] At some point in time during that period, however, it became obvious that the primary focus of the Accused’s communicationwith the Complainant shifted from the legitimate termination of employment-related issues to generic ones like an owl scarf orderedfrom China, storm-chasing, redundant inquiry about Complainant’s birthday (given the Accused’s testimony that he had earlier enteredthe Complainant’s birthday in his electronic calendar), etc. (see Exhibit 3/3-7). [35] In fact, this Court notes that the communication once assumed a monologue character when the Accused gave theComplainant three options to select from in one of his text messages to her, and the Accused ended up selecting one of the optionshimself – ostensibly on behalf of the Complainant. (see Exhibit 3/5-7) [36] Significantly, the Accused moved from text messaging platform to explore a different medium in order to communicate withthe Complainant by email on August 11, 2020, and specifically noted, “I would just text you these pictures but I think you blocked meon text.” The Complainant then replied, inter alia, “Okay, I’ll come with my dad to pick stuff up.

I think I left some of my oil stuff in theoffice anyways.” (See Exhibit 8/2). [37] Similarly, the Accused on August 15, 2020, also wrote an email indicating: “I see you found my robot account. I see youblocked it.” (See Exhibit 8/1). [38] The inference from the facts that (

a) the Complainant ceased to actively respond to the Accused’s communication at somepoint after her employment was terminated; and (

b) the Complainant was blocking several media accounts that belonged to the Accused,is that she no longer wanted communications from and with the Accused.

In essence, the Accused’s series of communications became“unwanted conduct” from the perspective of the Complainant as well as the contents of existing jurisprudence. [39] I find that, given the termination of the Complainant’s employment, the Accused ought to have known that hiscommunication outside employment termination-related issues – on an ongoing basis – particularly, in the circumstances here where theComplainant stopped responding to his messages, were neither justifiable nor appropriate. [40] Additionally, the event of October 12, 2022, where the Accused went – unannounced and absent the Complainant’s invitationor knowledge that such a course of action was going to be taken by the Accused – to drop a triangular package beside the Complainant’scar in front of her house constituted, in my view, part of an unwanted, repeated communication with the Complainant, as contemplated ins 264(2)(

b) of the Criminal Code. (see Exhibit 5). [41] The fact that the package contained a set of Complainant’s photographs that were taken during a photo shoot that took placesometime in 2017/2018 and to which no one else had access except the Accused, did not diminish the negatively startling psychologicaleffect that the unexpected occurrence – which, by the way, was an indirect form of communication – must have generated in theComplainant. [42] Based on the evidence adduced in this case, I am satisfied that the Accused engaged in unwanted, repeated communicationwith the Complainant both directly and indirectly.

Was the Complainant harassed by the conduct? [43] This is the second element of the offence required to be proved by the Crown. [44] The Ontario Court of Appeal in R v Kosikar, (1999), (ON CA), 138 CCC (3d) 217 at para 25 wrote: … [T]his element of the offence requires the Crown to prove that as a consequence of the prohibited act the complainant was in a state ofbeing harassed or felt harassed in the sense of feeling “tormented, troubled, worried continually or chronically, plagued, bedeviled andbadgered”. ...

In other words, while being in a harassed state involves a sense of being subject to ongoing torment …. [45] Durno J of the Ontario Superior Court of Justice, in R v Petrenko, [2009] OJ No 5094 at para 10 (Ont SCJ), also commentedthat: While harassment is not defined in the legislation it has been held that it is not sufficient that the Complainant was “vexed,disquieted or annoyed.” [46] The Defence counsel contended that although the Complainant may have been annoyed or frustrated at having to keeprepeating herself or didn’t want to respond to communications from the Accused, it is critical that those communications were notdesigned to either intimidate or instill fear in her.

[47] He submitted that it did not appear the Complainant was harassed because she continued to correspond with the Accused – asshown in Exhibit 8 – and continued to attend at her workplace, nonetheless, prior to her termination in May 2020. [48] The Crown argued that the evidence demonstrates that the Complainant made multiple efforts to distance himself from theAccused by having conversations regarding touching, taking steps to block him on social media, and trying to confine their interactionsto the office in a professional manner. [49] She stated that the uncontradicted evidence of the Complainant’s father, regarding the mid-August 2020 incident was, “Nomore contact, no gifts” – going forward – between the Accused and the Complainant.

That evidence, the Crown contended, wasunequivocal. [50] The Crown noted that the Complainant in her evidence testified throughout that she was extremely uncomfortable with thetotality of the communications from the Accused and did not need to say any magic word to convey her feelings.

The Crown contended itis critical that the Complainant consequently changed her habits to avoid the risks that the Accused presented to her: R v Koivumaki,2021 BCCA 468; R v Lamontagne (1998), (QC CA), 129 CCC (3d) 181 (Que CA) at 188. [51] I agree with the Crown that there is no magic word that the Complainant must utter before the court comes to its finding onwhether or not the Complainant was harassed by the Accused’s conduct: R v Sidhu at para 26.

And at this stage, the focus is not on theintention of the Accused, but the effect of the prohibited conduct of unwanted, repeated communication on the Complainant. [52] Further, it is the totality of the circumstances that must be considered in coming to conclusion on this element of the offence.In this regard, the relevant evidence I have considered include the following:

a) When the Complainant was asked about how she felt as a result of the interaction with the Accused, her response includedstatements to the following effects, that: she did not want to see most of the messages sent by the Accused; after seeing those messages,she felt frustrated, because she no longer wished contact with the Accused; and that she felt uncomfortable;

b) The Complainant blocked numerous accounts that either actually or presumably belonged to the Accused on multiple social mediaplatforms because she was extremely uncomfortable with the messages being sent through them by the Accused;

c) The Complainant changed up her names on Facebook and Instagram on a constant basis; she changed her lifestyle pattern byintermittently staying with her Grandma in Gibbons, Alberta; and took different routes to work; and

d) Further, in August 2020, the Complainant’s father accompanied her to remove personal stuff from the Accused’s office and“sternly” as well as “meaningfully” warned the Accused that, going forward, there should be no more birthday gifts from the Accused tothe Complainant. [53] Although the Complainant’s continued attendance at work with the Accused complicated matters, what is relevant for theCourt’s assessment is the totality of the circumstances, which most importantly included the blockage of the Accused’s social mediaaccounts and his text messages by the Complainant.

As indicated earlier, after termination of Complainant’s employment, the repeatedcommunications from the Accused – particularly the correspondence unrelated to employment termination – became unwanted. [54] Even assuming some of the blocked social media accounts did not belong to the Accused, as contended by the Defencecounsel, the Complainant’s broad blocking of accounts associated with the Accused’s name is tellingly indicative, as well asdeterminative, that she did not want further communications with him. [55] The evidence before me luminously demonstrate that the Complainant perceived the conduct of the Accused as unwanted.Her actions showed that the alleged father-daughter or mentor-mentee relationship had become remarkably strained during the periodidentified in the charge.

Those reactions – listed above in paragraph 52 of this Judgment – objectively communicated the Complainant’sdesire and demonstrated her feeling of being harassed by the Accused’s conduct.

It is my belief that the Accused ought to haverecognized the Complainant’s direct and indirect responses (i.e., through her father) as the Complainant’s desire/efforts to cease orrestrict communication with him. [56] I am satisfied that – given the reaction by the Complainant as demonstrated in the evidence before me – the unwanted,repeated communications from the Accused had “tormented, troubled, chronically plagued, bedeviled, or badgered” her. Consequently, Ifind that the Complainant was harassed and felt a sense of being subject to ongoing torment as a result of the unwanted conduct of theAccused.

Did the culprit, who engaged in such conduct, know that the Complainant was harassed or was reckless or wilfully blind as towhether the Complainant was harassed? [57] This third element of the offence to be proved by the Crown constitutes the mens rea of the offence. [58] In R v MH, 2014 ONSC 36 at para 65, the Ontario Superior Court indicated that mens rea or the: … mental element of the offence does not include a requirement that the Accused foresee that his conduct will cause the complainant tobe fearful.

It is sufficient if it is proven beyond a reasonable doubt that the Accused knew that the complainant would be harassed by hisor her conduct or was reckless or wilfully blind in that regard. [emphasis added].

See also, R v Cromwell, 2008 NSCA 60. [59] Further, the Ontario Superior Court also confirmed that: “the Accused’s pre-charge conduct and the history of the relationshipbetween the parties is relevant and admissible for a determination of the Accused’s intent and whether he knew or was wilfully blind orreckless as to whether his conduct harassed the complainant”: ibid, citing R v Davis (1999), (MB KB), 143 Man R

(2d) 105 at para 35 (Man KB), aff’d 2000 MBCA 42 . [ 60 ] The Accused contended that the evidence before the Court, in this case, supports the following, that:

a) the Complainant had previously voluntarily hugged Accused, or offered hugs without invitation;

b) with respect to poking, which the Accused agreed took place, the poking action ceased after the conversation; and

c) with regard to driving down Callingwood Street, the Accused had many legitimate reasons for being in that area, and the fact that they both crossed each other’s paths on the relevant date was nothing more than happenstance or coincidence. [ 61 ] The Accused argued that nothing contained in the written correspondence from the Accused would have caused fear in the Complainant. [ 62 ] The Crown submitted that given the steps taken by the Complainant, including, but not limited to, blocking the Accused on multiple media platforms, the Accused knew that his conduct was harassing the Complainant or at the minimum was reckless as to the risk that the Complainant didn’t want him to contact her while he continued to persist in that contact regardless.

The Crown noted that it was the Accused’s evidence — in the audio recording at Exhibit 2 — that he was bothered by the development wherein the Complainant was no longer talking to him about her personal life. Essentially, Crown argued, the Accused was aware that the Complainant was actively staying away from him. [ 63 ] The Crown pointed out significant contradictions in the Accused’s testimony regarding his disposition to other people touching him as well as his opinion about the Complainant confiding in him.

For instance, the Accused testified that in February 2020, when he went on a work trip with the Complainant, there was no touching of the leg but admitted it was possible that he held “pinkies” with the Complainant. [ 64 ] This Court finds that the Accused’s evidence on these subjects – as specifically referenced by the Crown – were incoherent, although he attempted to pin his evasive responses on unconfirmed medical diagnosis. [ 65 ] Notwithstanding, in order to determine the Accused’s intent, I must consider the history of the relationship between him and the Complainant.

In the present case, the Accused testified to his lengthy relationship with the Complainant.

He indicated, inter alia , that he was actively responsible for ensuring that the Complainant got her driving license while he also acted as her mentor, who has had confidential private conversations with the Complainant. [ 66 ] The evidence of the Complainant substantially aligned with the Accused’s rendition of the nature of the relationship that existed between them prior to the termination of the Complainant’s employment on May 29, 2020. [ 67 ] Reiteratively, I acknowledge here that as an employer, the Accused had the lawful authority to continue communicating with the Complainant while she was fully employed at – and, to a limited extent as a former employee of – the Tech Company owned by the Accused in order to completely and finally resolve all issues related to the termination of her employment.

However, as stated earlier in a different analytical context, that lawful authority ceased upon the termination of the Complainant’s employment on May 29, 2020 – when the accused became a “former employer” – and immediately after to the extent that the communications emanating from the Accused to the Complainant were not employment termination-related. [ 68 ] In cross-examination, the Accused also, and significantly, admitted that the blockages of his multiple social media accounts by the Complainant were indicative that she wanted space, away from him. [ 69 ] In this regard, I find that while the Accused might not have designed his correspondence to instill fear in the Complainant, he knew (or ought to have known) that his communication would harass the Complainant.

This conclusion is supported as a logical inference based on the comment that the Accused made in one of his emails to the Complainant that he observed that she had found his robot account and blocked it: R v MH at para 65. [ 70 ] Further, in one of his communications, the Accused wrote that he “regretted helping the [Complainant].” (See Exhibit 8/1).

That statement subtly hinted at a level of diminished friendship between him and the Complainant and supports the inference that the Accused knew (or ought to have known) that his unwanted, repeated conduct/communication would harass the Complainant, post- termination of her employment. [ 71 ] This Court additionally notes that in Exhibit 4/1, the Accused wrote that he “wanted to apologize for [his] tone in [the] last email sent to [the Complainant].” The inference from this is that – in total milieu of all that were happening during the relevant period – the Accused was (or ought to have been) aware of the substantively declined level of friendly relationship between him and the Complainant as well as the socio-legal implications of such a development.

Put differently, when that otherwise innocuous statement by the Accused is located in the middle of all the social media blockings being done by the Complainant, it becomes clear that the Accused knew (or was reckless) that the Complainant no longer wanted the ongoing and repeated communications from him. And as such, that his unrelenting communication would harass the Complainant. [ 72 ] It is also noteworthy that, in August 2020, the Complainant’s father accompanied her to remove personal stuff from the Accused’s office.

The Accused offered to give birthday gift to the Complainant, but the Complainant’s father “sternly” and “meaningfully” told the Accused that there should be no gifts from the Accused to the Complainant.

This evidence highlights the reduced level of friendship between the Complainant and the Accused, which was sufficient to put the Accused on notice that repeated communication with the Complainant was neither encouraged nor desired and would harass the Complainant. [ 73 ] Accordingly, based on the totality of the foregoing circumstances, I conclude that the Accused knew or was reckless or wilfully blind as to whether the Complainant was harassed by his conduct.

Did the conduct cause the Complainant to fear for her safety or the safety of anyone known to them? [ 74 ] This is the fourth element of the offence of criminal harassment to be proved by the Crown beyond a reasonable doubt: [ 75 ] In R v Sidhu at para 26 , our Court of Appeal indicated that: Whether the conduct of an Accused amounts to criminal harassment is to be viewed objectively, taking into consideration all of the circumstances of the case: [ R v Sillipp , 1997 ABCA 346 at para 26] …; Objective evaluation of all the circumstances does not exclude consideration of the particular vulnerabilities of the complainant : Sillipp , para 27 .

Assessment of the reasonableness of a complainant’s fear takes into account the gender of the victim, the history and circumstances of the relationship, and the state of mind of the victim: ...

Physical injury or threat need not be present in order for the complainant to experience reasonable fear, and such reasonable fear includes mental, emotional or psychological trauma: … The element of subjective fear does not require that victims be terrified or suffer ill health or a major disruption in their life, and it is not necessary that complainants use the term “fear” in their testimony …. [emphasis added]. [ 76 ] Similarly, in the case of R v Szostak , 2012 ONCA 503 at para 31 , the Ontario Court of Appeal confirmed that: “[In] the context of s. 264 , “fear for [one’s] safety” included “a state of anxiety or apprehension concerning the risk of substantial psychological harm or emotional distress, in addition to physical danger or harm”. [ 77 ] As such, a finding that the complainant was “scared” and “frightened” and that she thought she was being stalked fully supported a finding of fear for safety: R v Petrenko at para 13. [emphasis added]. [ 78 ] The focus of the test for this element of the offence of criminal harassment is not whether the Complainant feared the Accused; rather – while there might be either frequent or sporadic overlap – the test remains that which considers whether the Complainant feared for her safety as a result of the unwanted, repeated conduct/communications from the Accused. [ 79 ] The Defence argued that while the Accused managed multiple social media accounts, there was no evidence to suggest that he tried contacting the Complainant from any of them or that they all belonged to the Accused.

Instead, the Accused acknowledged that his communications (as presented in the evidence) were either via text messaging, WhatsApp, or email conversations. This argument strikes me as a distinction without a difference in this information technology era. The critical and material point here is that the Complainant blocked the Accused’s multiple social media accounts that were presumably associated with him. That move indisputably signals her desire to avoid communication with the Accused.

The evidence before the Court, which demonstrates that the Accused continued to look for alternative media of communication in order to repeatedly contact the Complainant, makes this argument by the Defence counsel quite confounding. [ 80 ] He also submitted that the leaving of the box containing Complainant’s belongings near her vehicle in broad daylight and in public was simply a gesture that, objectively, ought not to have caused anybody to be fearful or afraid for their safety.

According to the Defence, the Accused was only there briefly, had no interactions with the Complainant, did not see the Complainant, and neither expressed any threat nor enclosed one in the box. [ 81 ] Further, the Defence suggested, when the Complainant and her boyfriend attended at the Accused’s workplace in February, 2023, there was a reasonable presumption that the Complainant knew or ought to have known that she would see the Accused on that day. [ 82 ] The Crown submitted that in order to demonstrate that the Complainant feared for her safety, it is particularly relevant to note that she changed her behavioural patterns as follows: (

a) she blocked the Accused on multiple platforms; (

b) started to use different names on Instagram; (

c) stayed with family members at different houses, because the Accused knew where she lived; and (

d) took inconsistent routes when driving to different places. [ 83 ] The Crown submitted that the evidence indicates that the Accused ought to have been aware of the risk by at least May 29, 2020 – when the Complainant’s employment was terminated – that communications with her should cease. [ 84 ] She contended that the Defence’s suggestion that the Accused conduct was not the sole cause of the Complainant’s mental health issues – as documented in Exhibit #7 (the Complainant’s journal entries confidentially obtained by the Accused when their relationship was going well) – does not nullify the reality that the Accused’s conduct impacted her negatively and caused her to fear for her safety. [ 85 ] The Complainant testified that she has been attending at the psychologist’s office in order to treat her anxieties.

She testified that her self-esteem has been affected; she once attempted suicide; and has experienced generalized exhaustion, all of which have led her to start seeing a psychologist.

She testified that after three years, she is exhausted with constant emails and text messages from the Accused; and particularly, the package that was left by her car parked in her residence on October 12, 2022. [ 86 ] It is my view that even if the Accused did not intend to instill fear in the Complainant with his multiple correspondence, it is sufficient – according to governing case law – that from both subjective and objective perspectives, the Complainant became fearful for her safety as a result of the repeated communications independent of the Accused’s design or intention: R v Sidhu at para 26 .

This conclusion remains valid even in the face of the Accused’s suggestion that the Complainant’s fear is likely influenced by the extraneous factor of her mental issue: see R v Sillipp at para 27 , which indicates that an “[o]bjective evaluation of all the circumstances does not exclude consideration of the particular vulnerabilities of the complainant.” [ 87 ] It is worthwhile to also mention, at this point, that the Complainant’s vulnerability as someone who confided in the Accused – in a mentor-mentee relationship – is also a relevant circumstance for consideration in this analytical matrix involving an objective evaluation of the Complainant’s fear for her safety. [ 88 ] Regarding the Accused’s return or delivery of a box containing the Complainant’s belongings (including photos and other materials that he thought the Complainant might be interested in having back) by her vehicle on October 12, 2022, I believe that the

circumstances of its delivery are material.

Plainly speaking, the totality of the evidence reveals that, from the Complainant’s perspective, it was an unanticipated delivery of a surprise bag/package, during an unexpected visit, from an uninvited guest, who has a strained relationship with the Complainant. [ 89 ] Effectively, the dropping by the Accused of that unexpected package beside the Complainant’s car, in all of the circumstances of the case before me, was practically likely to and did realistically constitute a source of anxiety to someone in the Complainant’s position: R v Plourde , 2019 ABPC 227 at paras 30-31 . [ 90 ] I find, consequently, that it was not unreasonable for the Complainant to develop a psychological fear that she was probably being monitored, stalked or followed by the unexpected visitor.

Objectively speaking, it was not irrational – in the circumstances here where the Complainant suddenly found an unexpected package beside her car – to fear for her safety and feel stalked. ( R v Petrenko at para 13). [ 91 ] Based on the foregoing analysis, I collaterally conclude that nothing turns on the following:

a) That the Complainant accompanied her boyfriend to the premises of the Accused’s office at Orange Hub on the evening of February 17/18, 2023. This contextual development happened outside the date range contained in the one-count charge in the relevant Information; and

b) The Complainant’s testimony that she feared for her safety when she saw the Accused – in September 2022 – driving around her residence located on Callingwood Road. This Court notes and accepts, in this regard, the evidence of the Accused that he lives around that Road; his doctor’s office was around the same route; and that his child’s school was also on the route. [ 92 ] Nonetheless, all those intermittent, repeated communications between 2020 and 2022 by the Accused with the Complainant – as substantively highlighted in the “Findings of Fact”

section of this Judgment – holistically suggest an ongoing fixation on the Complainant that reasonably tormented and caused her a heightened sense of lack of safety. [ 93 ] Overall, the evidence before me supports the conclusion that the Complainant, in this case, feared for her safety as a result of the Accused’s conduct.

Was the Complainant’s fear, in all the circumstances, reasonable? [ 94 ] This is the fifth element of the offence which the Crown is required to establish. [ 95 ] In R v Sidhu at para 27 , our Court of Appeal said: “In addressing the reasonableness of the Complainant’s fear, a trial judge is to look to the totality of the circumstances, consider the measures taken to discourage the conduct, and the nature and extent of the Accused’s conduct….” [ 96 ] The evidence of the Accused confirms that: (

a) he was the Complainant’s professor when she was studying at NAIT; (

b) the Complainant had confided in the Accused as her mentor in private conversations; (

c) visited him regularly at home and had a relationship with the Accused’s wife, who she had previously met; and (

d) the Accused taught the Complainant how to drive and had actively participated in ensuring that the Complainant obtained her driving licence. [ 97 ] When the above discussed details regarding the nature of relationship between the Complainant and the Accused are placed in the midst of the analysis explored earlier – under the fourth element – of this offence of criminal harassment, I conclude that the Complainant’s fear, in all the circumstances elicited by the present evidence, was reasonable.

Disposition [ 98 ] In the circumstances of this case, including the nature as well as the history of the relationship between the parties in this case, I conclude that the Crown has proved, beyond a reasonable doubt, all of the elements of the offence of criminal harassment, pursuant to

section 264 of the Criminal Code . [ 99 ] Accordingly, I find the Accused guilty as charged. Heard on the 11 th and 12 th day of July, 2023. Dated at the City of Edmonton, Alberta this 24 th day of October, 2023.

O.A. Shoyele A Justice of the Alberta Court of Justice Appearances: B. Arbeau for the Crown J. Hattum for the Accused