Her Majesty the Queen v. Michael Anthony Beals DECISION BEFORE THE HONOURABLE JUDGE CASTOR H. WILLIAMS Decision: March 16, 2012 Trial: November 30, December 9, 2011; January 27, February 24, 2012 Charge: 264(3) Criminal Code Counsel: Richard Miller, for the crown Michael Anthony Beals, self-represented Introduction [ 1 ] The police have charged the accused, Michael Anthony Beals, with the criminal harassment of Howard Burchell contrary to Section 264(3) of the Criminal Cod, 2012 NSPC 24

IN THE PROVINCIAL COURT OF NOVA SCOTIA R. v. Beals, 2012 NSPC 24 Date: March 16, 2012 Docket: 2364949 Registry: Halifax Between: Her Majesty the Queen v. Michael Anthony Beals DECISION BEFORE THE HONOURABLE JUDGE CASTOR H. WILLIAMS Decision: March 16, 2012 Trial: November 30, December 9, 2011; January 27, February 24, 2012 Charge: 264(3) Criminal Code Counsel: Richard Miller, for the crown Michael Anthony Beals, self-represented Introduction [ 1 ] The police have charged the accused, Michael Anthony Beals, with the criminal harassment of Howard Burchell contrary to Section 264(3) of the Criminal Code .

Here, it is alleged that he engaged in threatening conduct directed at Mr. Burchell that caused Mr. Burchell, in all the circumstances, reasonably to fear for his safety. Mr. Beals has denied the allegation. [ 2 ] This case is therefore a determination of whether the Crown can establish, beyond a reasonable doubt, that Mr. Beals’ conduct, as alleged, was prohibited under s, 264 and that Mr. Burchell, as a result, was harassed. Additionally, it is whether the Crown can establish, beyond a reasonable doubt, that Mr. Beals knew that his alleged conduct harassed Mr.

Burchell, or was reckless or willfully blind in that respect. Also, it is whether, the Crown can establish beyond a reasonable doubt that Mr. Beals’ alleged conduct, in the set of circumstances, caused Mr. Burchell to reasonably fear for his safety. Overview [ 3 ] Howard Burchell and Michael Beals were once co-workers at a local building maintenance company. They had a good working relationship which ended when the accused was “let go” from his employment. Although Mr. Beals knew Mr. Burchell’s home address, he neither visited nor did they have any social contacts outside the work environment.

In time, however, their continuing personal association deteriorated to the point of uncompromising mistrust and verbal accusations by Mr. Beals that Mr. Burchell was not

only distrustful but that he also was complicit in the loss of his employment. [4] In any event, between the 19th day of April 2011and the 10th day of September 2011, Mr. Burchell received numerous hang-uptelephone calls at his residence. Even so, these calls were never traced to determine their origins or otherwise. Similarly, during thesame time period, someone would ring his doorbell on many occasions. However, when he investigated, no one would be present at hisdoor. [5] Ultimately, Mr. Burchell neither knew who rang his doorbell nor who made the hang-up calls. He, nonetheless, suspected thatMr.

Beals was associated with all these occurrences. His suspicions were reinforced when, on the last occurrence that his doorbell rang,he saw Mr. Beals seated in a parked vehicle in the apartment’s parking lot. Apparently, Mr. Beals did not see him and they did not speakto each other. All the same, no one saw Mr. Beals ringing the doorbell, or even in the building. Furthermore, Mr. Burchell did not knowthe reasons, if any, for Mr. Beals’ presence. [6] On another and later occurrence when Mr.

Burchell was at a local work site with his other colleagues and in a public place, Mr.Beals approached the group and took, without their permission and for no apparent reasons, their picture with a camera. As well, hestepped up to Mr. Burchell and from about one to two feet from his face stated aggressively: “You want a piece of me? Bring it on. Bringit on. Hit me. Hit me.” When Mr. Burchell failed to conform, Mr. Beals commented further: “It’s not over yet. You will get yours.” After being told that the police had been called, Mr. Beals left the area. [7] On this occasion, Mr.

Burchell not only tried unsuccessfully to reason with him but he also felt nervous and threatened as he nowwas aware that Mr. Beals disliked him. Basically, Mr. Burchell stated that he was nervous and afraid because Mr. Beals blamed him forhis loss of employment, photographed him at his work site for no apparent and logical reasons, and, he felt that Mr. Beals’ conduct, in allthe circumstances, was not only odd but was also volatile.

Relevant Legislation 264. 264(1) Criminal harassment No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person isharassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear fortheir safety or the safety of anyone known to them. 264(2) Prohibited conductThe 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 onbusiness or happens to be; or (

d) engaging in threatening conduct directed at the other person or any member of their family. Findings of Facts and Analysis [8] I do not doubt and find, on the uncontested evidence of Mr. Burchell which, in its essential, was supported by Ms. Gail Buckley,that Mr. Beals uttered the words: “Do you want a piece of me?” “Bring it on. Bring it on. Hit me. Hit me.” “It is not over yet. You willget yours.” The accused, in argument, submitted that the words were ambiguous and too vague to constitute a threat.

Nevertheless, thequestion is: can these words be characterized as tools of intimidation by which the accused wanted to instil a sense of fear in Mr.Burchell? [9] Approving the words of Braidwood J.A., in R .v. George (2002), 2002 YKCA 2 , 162 C.C.C. (3d) 337 (Y.T.C.A.), atpara.41: I do not see any difference, in substance, between defining a threat as a restraint on a person's freedom of action and an indication ofsomething undesirable to come, or defining it as a tool of intimidation, designed to instill a sense of fear. Instilling a sense of somethingundesirable to come is indeed engaging in

an act designed to instill a sense of fear. Intimidation may occur as a result of restraining aperson's ability to act. [10] Thus, on the same considerations, I find that his unauthorized and unsolicited photographing of the group, the tone of his voiceand mannerisms, as described and accepted, objectively and contextually, given the distrust expressed by him concerning Mr. Burchell,

as found, in my opinion, amounted to

an act of intimidation. I find that the words were intended to instill a sense of fear in Mr. Burchell.See also: R. v. Lamontagne (1998), (QC CA), 129 C.C.C. (3d) 181 (Que. C.A.). [11] As a result, I conclude and find that from a purely objective perspective he did engage in “threatening conduct directed at” Mr. Burchell. See for example: R. v. Deneault (2002), 2002 BCCA 178 , 3 C.R. (6th) 116, 164 C.C.C. (3d) 151 (B.C.C.A.).

Furthermore, this type of conduct is prohibited under s.264 (2) (d) [12] To engage s.264 (2) (d), however, it is not necessary for the threatening conduct to be repetitive as intimated by the accused. Asingle incident would suffice provided that it causes the victim to be harassed. See, for example: R. v. Hyra (2007), 2007 MBCA 69, 221 C.C.C. (3d) 494 (Man. C.A.). Here, Mr. Burchell testified and I accept and find that, as a result of this confrontation,coupled with his suspicions Mr. Beals had phoned him and rang his doorbell, that he felt afraid and had the feeling that he was thesubject to ongoing torment.

With those set of personal

interpretations and impressions, whether or not they be actual, I do not doubt that,subjectively, Mr. Burchell may have felt afraid. [13] Nevertheless, the real issue is, from the point of view of a reasonable person, in all the circumstances, was Mr. Burchell’s fearfor his safety reasonable? Put another way, odd as was the conduct of the accused, as found, did it in the circumstances, reasonably andfrom an objective point of view, caused Mr. Burchell to fear for his safety? [14] The Crown points to the several hang-up phone calls and the many times the doorbell rang and Mr.

Beals’ presence on the oneoccasion in the parking lot as circumstantial evidence of him being the perpetrator of these occurrences. When this is combined with theincident at the work site there can be no doubt that Mr. Beal did harass Mr. Burchell within the meaning of s.264(2). [15] On the evidence before me, I find that there was no direct evidence presented to link Mr. Beals with these several events reliedupon by the Crown. The evidence is unclear on the basis for Mr. Burchell’s suspicions to ground Mr. Beals as the perpetrator of hismany annoyances.

No telephone records were presented to support any nexus between the accused and those calls. Likewise, there wasno evidence to indicate the time it took Mr. Burchell to answer his door bell and when he saw Mr. Beals and approached the vehicle inthe parking lot. Neither is there evidence of the distance of Mr. Beals’ vehicle from the location of the doorbell. Additionally, no oneeither saw Mr. Beals in the building or saw him ringing the doorbell. The evidence was that Mr. Beals was seated in his vehiclesomewhere in the parking lot and that he did not see the approaching Mr. Burchell.

Thus, in my opinion, in the absence of proven facts,it is difficult to draw a reasonable or rational inference, on the suggestion, that upon seeing Mr. Burchell approaching him Mr. Bealssped away demonstrating, beyond a reasonable doubt, a consciousness of guilt. [16] Further, in my opinion, this action alone cannot be considered as post offence conduct that could constitute circumstantialevidence of guilt as was held in R. v. White, 2011 SCC 13 , [2011] S.C.J. No.13. Therefore, I conclude and find that Mr. Bealsleaving the parking lot was not a flight.

Furthermore, I find that his conduct, as found, was not consistent with guilt and inconsistentwith any rational conclusion other than guilt. See: R. v. Yebes, [1987] 2.S.C.R.168. As a result, contextually, I conclude and find thatthere is no evidence of any prior discernible conduct. [17] As an aside, in all the circumstances, I find that Mr. Beals, as a self-represented accused, appeared locked in his own partisanunderstanding of the framework of the relationship and the exchanges between him and Mr. Burchell and between him and the legalsystem and was unable to see the possibility of another.

Conversely, however, he has submitted that he understands the court processand procedures and was competent and capable of presenting his own case. On my observations and assessment of his presentations, Iso find. [18] In his defence, Mr. Beals submitted that it was unreasonable, in all the circumstances of the encounter, that his conduct waseither threatening or caused Mr. Burchell to reasonably fear for his safety. As I understand him in his submission on the issues thatwould make his conduct less likely to be threatening, he reasoned that his encounter with Mr.

Burchell occurred in a public place whereothers were present. Furthermore, he did not conceal his identity and there was no history of previous violence or negative relationshipbetween him and Mr. Burchell. Also, there was some intimation that he was warning Mr. Burchell about hidden cameras at the worksite. [19] Additionally, it was a brief encounter that he characterized as an argument or disagreement which was not persistent, repetitiousor continuous. In any event, he walked away when advised that the police had been summoned and, in fact, was followed around by Mr.Burchell and Ms. Buckley.

Therefore, according to him, Mr. Burchell’s behaviour of having the presence of mind to call the police andto follow him around, accompanied by Ms. Buckley, ought not to be considered as the conduct of a person who could be said, in thecircumstances, to be reasonably afraid of his safety.

[20] In the final analysis and in my opinion, the critical issue here is whether the Crown has proven beyond a reasonable doubt allthe essential elements of criminal harassment under s. 264 of the Code. These elements were summarized in R. v. Sillipp (1997), 1997ABCA 346 , 120 C.C.C. (3d) 384 (Alta. C.A.); leave to appeal to the S.C.C refused, [1998] S.C.C.A. No.3 (QL) (at para. 18): In the result, a proper charge to a jury in a criminal harassment case must include reference to the following ingredients of the crime, allof which must be proved beyond a reasonable doubt: • 1) It must be established that the accused has engaged in the conduct set out in s. 264(2) (a), (b), (c), or (

d) of the Criminal Code. • 2) It must be established that the complainant was harassed. • 3) It must be established that the accused who engaged in such conduct knew that the complainant was harassed or was recklessor 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. [21] Based on the above noted authorities, on the totality of the evidence and on my observations of the witnesses as they testifiedand my assessment of their testimonies and on the above analysis, I conclude and find as follows: 1) The Crown, in my opinion, has established beyond a reasonable doubt that Mr.

Beals did engage in conduct set out in s.264 (2) (

d) ofthe Criminal Code. I do not doubt that he engaged in threatening conduct directed at Mr. Burchell. The words “Do you want a piece ofme?” “Bring it on. Bring it on. Hit me. Hit me.” “It is not over yet. You will get yours.” I found that his tone of voice and mannerisms,when considered with his unauthorized taking of the photographs, objectively and contextually, amounted to

an act of intimidation. I alsofound that the words were intended to instill a sense of fear in Mr. Burchell 2) The Crown, in my opinion, has not established beyond a reasonable doubt that Mr. Burchell was harassed. Although one incidentwould suffice to constitute harassment, contextually there was no evidence to support objectively that Mr. Burchell was the subject toongoing torment.

He had unsubstantiated suspicions about who made the hang-up phone calls and rang his doorbell but these, in the end,remained suspicions with no viable nexus or proof, beyond a reasonable doubt, associating the accused to these occurrences. Furthermore, I found that the occurrence at the work site was neither continuous nor repetitive. 3) The Crown, in my opinion, has not established beyond a reasonable doubt that Mr. Beals knew that Mr. Burchell was harassed orwas reckless or wilfully blind as to whether Mr. Burchell was harassed. Here, there was no evidence of prior negative relationshipsbetween the parties.

There was no evidence of prior violence or threats of violence or any disregard of any prior warnings and that theaccused manifested unwillingness or an inability to exercise restraint or self-control and that he was unpredictable or volatile. In theabsence of these factors, in my opinion, it cannot be said without reasonable doubt, that Mr. Beals knew that Mr. Burchell was harassedor that he was reckless or was wilfully blind as to whether Mr. Burchell was harassed. 4) The Crown, in my opinion, has established beyond a reasonable doubt that the accused conduct caused Mr. Burchell to fear for hissafety. Mr.

Beals’ conduct was characterized as odd and Mr. Burchell stated that he was afraid as he did not know what Mr. Beals woulddo. However, the accused conduct when examined in the context in which it occurred, although there was no prior proven conduct, butgiven Mr. Burchell’s perceptions concerning Mr. Beals, his then demeanour and ominous words, in my opinion, subjectively would besufficient to cause the fear experienced by Mr. Burchell 5) The Crown, in my opinion, has not established beyond a reasonable doubt that Mr. Burchell’s fear was, in all the circumstances,reasonable. Mr. Burchell was not alone.

He was with several co-workers in a public place. Furthermore, he tried to reason with theaccused to determine the basis of his hostility towards him. Additionally, when examined in its entire context, there was neitherevidence of physical contact between them nor, although not required, evidence of prior impugned conduct manifested by the accusedthat would cause a reasonable person to readily accept that Mr. Burchell’s fear was based upon a continuing sense of being tormented orbadgered rather than just being “vexed, disquieted or annoyed.” Here, when reasoning failed to conciliate the accused, Mr.

Burchell, infrustration, informed him that he would call the police. Whereupon, Mr. Beals left the area and was then followed around by both Mr.Burchell and Ms. Buckley ostensibly to see where he was going in order for them to inform the police. Based upon these factors whencombined with the total evidence, I found that, subjectively, Mr. Burchell may have feared for his safety, in the sense that he feltannoyed and disquieted. However, I am not satisfied beyond a reasonable doubt, from the objective point of view of a reasonable person,that Mr.

Beals’ threatening conduct, as found, in all the circumstances, caused Mr. Burchell, within the scope of s.264 of the Code, tofear for his safety, in the sense that he felt, “tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered.”See: R. v. Kosikar, (ON CA), [1999] O.J. No.3569, 138 C.C.C. (3d) 217 (Ont. C.A.). Conclusion [22] Thus, as a result and on the evidence before me and on the above analysis, I find the accused, Michael Anthony Beals, not guiltyas charged on the Information tried before me.