R. v. O’Hare Date:, 2017 BCPC 118

Citation: R. v. O’Hare Date: 20170327 2017 BCPC 118 File No: 38118-3-C Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SEAN MICHAEL O'HARE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MACCARTHY Counsel for the Crown: L. Fontaine Counsel for the Defendant: C. M. Hunt Place of Hearing: Duncan , B.C. Date of Hearing: October 21 & November 7, 2016, March 27, 2017 Date of Judgment: March 27, 2017

INTRODUCTION [1] The Court: The Accused, Sean Michael O’Hare, is charged under an Information with an allegation that between the 17th ofJune 2015, and the 8th day of August 2015, inclusive, that he did, without lawful excuse and with intent to harass Jody Smith, did makeor cause to be made repeated communications to her, by means of telecommunication. That is an offence contrary to s. 372(3) of theCriminal Code. [2] The allegations, based on both the evidence before me as well as submissions, arise from what is alleged to have beenFacebook contact with the Complainant, Ms.

Smith, in such a manner that it became an offence contrary to Subsection (3) of s. 372which reads as follows: Everyone commits an offence who, without lawful excuse and with intent to harass a person, repeatedly communicates, or causesrepeated communications to be made, with them by a means of telecommunication. [3] Although the original process indicated that Crown was proceeding by way of indictment, it is now common ground thatCrown is proceeding summarily.

Accordingly, the maximum penalty for this offence is six months incarceration and a fine of $5,000 inaddition to or in lieu of any other sanctions. [4] On October 18th, 2016, Crown brought an application pursuant to s. 486.2(2) of the Criminal Code. That is a provision that iscommonly referred to as providing for "testimonial accommodation" for witnesses. The purpose of that application was to allow theComplainant, Jody Smith (hereinafter referred to as "the Complainant"), the opportunity to testify by means of closed-circuit TV from anadjacent room to the courtroom where the matter was being tried.

By way of reasons rendered on October 18th, 2016, under the neutralcitation, R. v. O’Hare, [2016] B.C.J. No. 2466, 2016 BCPC 362 , I allowed the Crown's application. [5] Accordingly, the testimony in this matter took place over a period of two separate days and then with an adjournment to March27, 2017, to allow for further admission of certain documentary evidence and, of course, submissions. The matter came on for trial onOctober 21st, 2016, and on November 7, 2016. Evidence was presented both by the Complainant as well as Sean Michael O’Hare(hereinafter referred to as the "Accused").

In addition, evidence was presented by Crown with the testimony of a police officer,Constable John Brown, of the North Cowichan/Duncan detachment of the RCMP. [6] The task of this court is to determine whether or not Crown has satisfied the burden of proof beyond a reasonable doubt and hasestablished all elements of the offence. PRESUMPTION OF INNOCENCE AND REASONABLE DOUBT [7] The obligation is upon the Crown to prove all elements of the offence beyond a reasonable doubt. If that occurs, then and onlythen can the court convict the accused person.

Where reasonable doubt exists on any element of the offence charged, the accused mustbe acquitted. The burden of proof rests upon the prosecution throughout the trial and never shifts to the accused person. Reasonabledoubt is not an imaginary or frivolous doubt nor is it based upon sympathy or prejudice. Reasonable doubt is a doubt based on reasonand common sense which must logically be derived from the evidence or absence of evidence. [8] The Crown must prove more than probable guilt. However, reasonable doubt does not involve proof to an absolute certaintysince that would be an impossibly high standard.

The standard of reasonable doubt falls much closer to absolute certainty than to proofon a balance of probabilities (see R. v. Lifchus, (S.C.C.), [1997] 3 S.C.R. 320; and see R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144).

THE W.(D.) FORMULATION [9] I must instruct myself that in the trial of criminal matters, it is not a question of which witness' evidence or version of the eventsI believe, but rather whether on the totality of the evidence, Crown has proven each essential element of each offence beyond areasonable doubt. [10] Where there is evidence of an accused that raises a defence as in the case in this matter, then I must further instruct myself and Imust apply to this evidence the well-known process of analysis set out in R. v. W.(D.), (S.C.C.), 1991 1 S.C.R. 742,found at paragraph 28.

First, if I believe the evidence of the accused, obviously, I must acquit. Second, if I do not believe the testimonyof 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, am I convinced beyond a reasonable doubt by that evidence ofthe guilt of the accused. [11] I am also guided by the following comments of the Prince Edward Island Court of Appeal in R. v. J.M.H., 2012 PECA 6, [2012]P.E.I.J.

No. 10, at paragraphs 30 to 31: [30] Our courts have stated that proof beyond a reasonable doubt is not satisfied by belief of a complainant coupled with disbelief ofan accused. Correct application of the principle in W.(D.) involves going on from step one to step two to analyze and consider whetherthat evidence nevertheless raises a reasonable doubt, and if not, then going on to step three and determining whether the evidence takenas a whole raises a reasonable doubt (R. v. Ellis 2006 PESCAD 25, at 18).

Proper application of the third step involves moving the focusfrom the evidence of the accused to the Crown’s evidence and assessing it in its own right (in relation to all the evidence) on the criteriaof coherency, reliability, credibility. This goes toward the issue of whether the Crown has satisfied the burden of bringing evidence thatcan prove guilt beyond a reasonable doubt (R. v. S.F. 2007 PESCAD 17, at 28-31).

The Supreme Court of Canada recently stated in R. v.J.H.S. 2008 SCC 30, at 8, that a series of decisions has affirmed and reaffirmed that where credibility is a central issue in a jury trial, thejudge must explain the relationship between the assessment of credibility and the Crown’s ultimate burden to prove the guilt of theaccused to the criminal standard.

[31] The third step in W.(D.) stresses that the onus is on the Crown to prove the guilt of the accused beyond a reasonable doubt. It ispossible that the trial judge would disbelieve the accused but still find the Crown had not proved guilt beyond a reasonable doubt. Thekey is whether the correct burden and standard of proof were applied; not what words were used in applying them (R. v. C.L.Y., 2008SCC 2, at 7). [12] The supplemental test enunciated by the British Columbia Court of Appeal in R. v. C.W.H., [1991] B.C.J.

No. 2735, adds afourth step to the W.(D.) analysis, namely, if after consideration of all the evidence, the court is unable to decide whom to believe withrespect to the central issue in a prosecution, then the accused must be acquitted. Josiah Wood J.A. (as he then was) suggests that,logically, this ought to be the second in order in the W.(D.) analysis. [13] It is also important to instruct myself that the W.(D.) model is not intended to be a precise formulation to be used at all times orto achieve a level of sanctity of immutable perfection.

Once again, I must instruct myself on the main point that the burden never shiftsfrom the Crown to prove every element of the offence beyond a reasonable doubt. [14] The lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt (see R. v.S.(J.H.), 2008 SCC 30 , [2008] 2 S.C.R. 152). [15] In this case, I have heard evidence that is conflicting on material matters. Therefore, I must assess the credibility of thewitnesses who provided this conflicting evidence.

In doing so, I must weigh all the evidence. [16] In so weighing the evidence, I may reject or accept some or all of the witness' testimony after having taken into account amultitude of factors which include, but are not limited to appearance or demeanour, ability to perceive, ability to recall, motivation,probability or plausibility, and internal or external consistency.

I must also direct myself that even honest witnesses may make mistakesin their evidence or have errors of recollection or may present upon the stand in a nervous or uncertain manner for reasons unrelated tothe truthfulness of their testimony. [17] It is an error in cases of contradictory evidence to simply weigh the evidence of one witness against the evidence of another (seeR. v. Jackson, 2007 BCSC 636; see also R. v. Mann, 2010 A.J. No. 1094).

ASSESSING CREDIBILITY AND RELIABILITY OF WITNESSES [18] Here, I have heard evidence that is conflicting on material matters regarding the alleged offence and I must assess the credibilityand the reliability of those witnesses who have provided this conflicting evidence. In doing so, the testimony of each of the witnessescan be considered from three perspectives: (

a) their truthfulness, whether they are trying to tell the truth or intentionally lying when testifying; (

b) their objectivity, whether they have been influenced by assumptions or emotions which may affect the accuracy of their perceptions;and (

c) the accuracy of their observations, their abilities to observe, remember, and communicate accurately. [19] In the recent case of R. v. Cuhna, 2015 BCPC 60, at paragraphs 5 and 6, the Honourable Judge Merrick provides a usefulreview of the factors to be considered when assessing the testimony of a witness from these three perspectives. In this case, I haveutilized those perspectives in determining my findings of fact.

THE EVIDENCE The Crown's Case Evidence of Constable Brown [20] RCMP Constable John Brown was called by Crown to testify with respect to reports that he had received from the Complainantregarding unwanted communications from the Accused. The evidence of Constable Brown was that he had received a communicationfrom the Complainant's boyfriend indicating that there was stressful communication and unwanted communication coming from theAccused.

That was characterized by Constable Brown as behaviour that was "inappropriate" and that there was a stress being caused tothe Complainant by that ongoing communication. [21] As a result of receiving that report, Constable Brown took a statement from the Complainant.

That occurred shortly after theinitial reports had been made and as a result of that information being received by Constable Brown, it led him to attempt to makecontact with the Accused by way of telephone. [22] It was the evidence of Constable Brown that the report that he had received was initially taken and the statement received in oraround June 17th, 2015. Thereafter, as previously indicated, Constable Brown attempted to make contact with the Accused by way ofhis cellphone. He phoned multiple times. There was no voicemail available.

However, approximately within a week's time, there waspersonal contact made with the Accused by Constable Brown by way of a telephone communication.

At that time, he made it very clearto the Accused that his behaviour in trying to communicate and communicating with the Complainant was inappropriate. [23] Constable Brown said, as a result of the conversation he had with the Accused, that the Accused indicated to him that heunderstood that he was not to communicate further with the Complainant and that he would stop communicating with her. [24] The next thing occurred was that the Complainant's boyfriend reported in August of 2015 that the Accused’s communicationswere continuing to the Complainant and that this was causing her significant stress.

Constable Brown made a further contact with theComplainant. He described the Complainant as "very distressed" and reluctant to meet with him. Thus, he was only able to obtain a

verbal report of what had occurred. As I understand it, the information that was received was similar in nature to that received when Constable Brown had taken his first statement from the Complainant around June 15th, 2015. [ 25 ] Constable Brown, having received that information, then contacted the Accused and told him that he was going to be charged as a result of the continuing communication following the warning that had been provided to him by Constable Brown.

The Accused apparently declined to provide a statement to the police or to attend at the RCMP detachment in Duncan/North Cowichan to provide any information or to provide a statement. As a result, the RCMP requested a warrant for the arrest of the Accused. Evidence of the Complainant [ 26 ] The second witness called on behalf of the Crown was the Complainant herself, Jody Smith. Ms. Smith is 41 years of age. She is an individual who has some extensive health issues. Those are referred to in my decision of October 18th, 2016. She is an individual who suffers from an anxiety disorder and depression.

She receives medication for that purpose. She also suffers from coronary arterial heart disease and, based on her affidavit material which was before me during the initial application heard on October 18, 2016, that causes her to have heart palpitations in stressful situations.

She has also suffered from bone cancer for the last five years which, as I understand it, is currently in remission and that she has in the past, as I understand it, received chemotherapy. [ 27 ] The findings that were made at the earlier application stage and in the trial evidence were that the Complainant in this case has negatively-impacting health issues, that these have been a continuing problem for her and that these have continued throughout the duration of the experience of having any relationship or communication with the Accused in this matter. [ 28 ] The evidence of the Complainant is that she first met the Accused online through mutual friends who use the social media platform of Facebook.

She said that she had never had personal contact with the Accused. Within about three weeks of the online relationship commencing, the Complainant said that she became concerned and felt that she did not want to continue a relationship with the Accused and, in her words, sought to "shut it down" by blocking the Accused from further communication with her Facebook page. She formed the opinion that, in her words, the Accused was a "weirdo" and she did not wish to pursue any further online communication with him or any form of relationship with him.

She denies that there was any romantic relationship or, for that matter, any personal relationship with the Accused. [ 29 ] She did testify throughout numerous portions of her evidence how she tried to block or delete the Accused from further communication with her and somehow, unbeknownst to her, she says that he got her cellphone number and then started to text messages to her via the cellphone. [ 30 ] She testified that the type of messages that she was receiving were attempts by the Accused to insinuate himself into her life and to form a relationship with her. She stated that she told him “no”.

She kept saying no to him. That, according to her evidence, prompted a series of escalating threats to her. She described these as being "vile" and she indicated that she became concerned about the tone and level of the communications that she was receiving from him.

She did admit that she started to respond in a rather profane way to him telling him that she did not want to have any relationship with him and for him to leave her alone. [ 31 ] However, according to her evidence, matters continued to the point where the Accused started to make online communication or text communication with her two daughters, the eldest at that time being approximately 20 to 21 years old and the youngest being around 17 years of age.

These daughters had no previous communication from the Accused and as I understand the evidence, they found that communication somewhat unsettling. [ 32 ] According to the Complainant, she then contacted the Shawnigan Lake detachment of the RCMP. She could not recall the exact dates, however, I take it to have been during a period approximately in 2014. She indicated to the police that she did not want any further communication from the Accused.

She understood from her discussions with the Shawnigan Lake detachment that they were going to contact the Accused and to make it clear that he was not to have any further communication with her. According to the evidence of the Complainant, that did not occur. [ 33 ] The communications continued to her and that resulted in her taking further steps to attempt to block communications from the Accused.

She said that she contacted her mutual Facebook friends and told them that she was concerned about the communications she was receiving from the Accused and sought to have her friends delete, or I guess the term is "defriend," the Accused so that he would not have further access to her through their Facebook accounts. [ 34 ] Much of the communication and contact, apparently, was through text messaging.

The exact timeframe for that text messaging is somewhat uncertain, but it appears what has brought this matter before the court and what Crown is relying upon are a series of Facebook communications that were sent by the Accused to the Complainant after the warning had been given by Constable Brown to the Accused around June 17th to 20th or within the week after June 17th, 2017. [ 35 ] The Complainant denied that she took any steps to encourage the communication or did anything to solicit anything in the nature of communication or contact with the Accused.

However, in cross-examination, a fair amount of time was spent by defence counsel questioning her on the steps that she had taken in order to block the Accused from communicating with her either on Facebook or other social medial platforms. She indicated that she had never unblocked the Accused from contacting her.

She did admit to having actually gone online to the Facebook page of the Accused, in what she described as a “stalk the stalker” approach, in order to keep herself safe and to find out what the Accused was up to or saying about her. [ 36 ] The most important part of the cross-examination was the time spent questioning the Complainant about gifts of money that were sent by the Accused and received by her. Initially, the evidence of the Complainant was that there were some small amounts of money initially received but which were not solicited by her.

She indicated that she was aware of further amounts being sent to her, through the auspices of Western Union, but several of those amounts remained unclaimed by her. [ 37 ] In concluding her evidence on October 21st, 2016, she denied that she had received up to $10,000 in cash. She indicated that amounts that she received were really unsolicited amounts received at the outset and in the early part of the online relationship with the

Accused and that those receipts had not been a feature of the relationship on an ongoing basis. [ 38 ] When the Complainant resumed her testimony under cross-examination on November the 7th, 2016, evidence was put to her by way of a statement from Western Union addressed to the Accused setting out a series of payments which were, according to this report, sent commencing January 14th, 2014, and continuing through to as late as May 12th, 2015. There were a series of payments ranging in amounts of $250 to $300, some slightly less at a level of $200, some more at a $500 amount.

There were 14 payments in all and the total amount which was shown on this statement amounted to $4,350. [ 39 ] There was certainly reluctance on the part of the Complainant to admit that she had received those amounts of money. She was denying that the monies were actually received by her. However, based on documentary evidence which I understand to be accepted by the Crown, it is clear that the 14 payments which are listed within the Western Union record were actually monies that were received by a person identified as Jody Smith.

I understand that no issue is taken by Crown that she was the actual recipient of those funds. In other words, the characterization of these being unwanted and unsolicited amounts, and amounts that she did not receive, is not supported by the evidence before the court and particularly the record statement from Western Union. The Defence's Case [ 40 ] The Accused testified on his own behalf. He paints a significantly different picture of the relationship between himself and the Complainant. [ 41 ] He indicated in his evidence that he had met the Complainant when they were teenagers.

He said that, although they did not necessarily travel in the same circle, they were known to each other. When asked whether the relationship was a romantic relationship in his evidence in chief, he said that there was "no sex involved." Throughout his evidence, he indicated that there was a close relationship between himself and the Complainant. He said on several occasions that he really cared about her and for her. [ 42 ] He indicated that their relationship was carried on while he was a long-distance truck driver and mostly through texting.

He indicated that their relationship was close enough that her nickname for him was "Rubber Ducky," and his nickname for her was "Candy Cane." He said that there was communication by way of texting that took place for an extended period of time which continued up until the steps taken by the Complainant to raise issues with the RCMP. He indicated that he was unable to produce the multitude of text messages because of the fact that he has lost his cellphone which was utilized for that purpose.

According to his evidence that cellphone had apparently fallen into the ocean on a particular occasion and therefore was at the present time lying at the bottom of the ocean. [ 43 ] In his evidence, he did not take issue with the fact that he had prior communications with Constable Brown and did not take issue with the fact that he had been informed by Constable Brown that he was not to have any further communication with the Complainant and that she was not welcoming of any such communication from him. [ 44 ] However, in his evidence, he suggests that the reason that he communicated with her and continued to communicate with her and, in particular, communicated with during the charge period was that she was communicating with him. [ 45 ] His evidence is that the exhibit materials that are before the court are only, in his explanation, one half of what was taking place during the charge period.

In other words, his evidence is that there were not only communications, as I understand it, by way of Facebook, which are not before the court, and which were initiated by her towards him, but also he indicated that throughout the duration of their relationship, there were times when she would communicate with him by sending him “dot messages” or communications which said, "I hope you are good." He said that he understood that these were communications from her.

He described it in the following fashion: that communication "got my mind twisted" and was an indication that “she did care” for him. [ 46 ] Having been told by Constable Brown that future communication from the Accused to the Complainant was unwelcome, there is clear evidence that a number of Facebook messages were initiated thereafter by the Accused and sent to the Complainant.

In particular, although there are a multitude of them in the various exhibits, the ones that are of relevance really fall within the charge period of June 17th to August the 8th and they can be found in Exhibit 3 at pages 28 to 33, pages 120 to 130, and then some duplication of messages between pages 88 and 94. [ 47 ] I have carefully examined those messages. Without having gone through to specifically count the number of them, there are a very large number of them that were being sent.

When one looks at the timeframe, for example, on June 17th, 2015, which is within the charge period and which, as I understand it, followed the period of time that the Accused had been notified that he was not to be having further communication with the Complainant, during that timeframe the communications were repeated and rapid in nature. For example, on June 17th, 2015, there is a communication by the Accused to the Complainant at 5:28 p.m., then followed by one at 5:40 p.m., another one at 10:07 p.m., then one at 10:13 p.m., then at 10:14 p.m., 10:18 p.m., and 10:20 p.m.

Each of these communications apparently received no response from or any reply from the Complainant. [ 48 ] Then on June 23rd, 2015 another significant series of communications are sent by the Accused to the Complainant starting at 12:51 p.m., followed by another one at 12:55 p.m., 12:59 p.m., and then onto further communications which apparently were sent on the 28th of June, 2015, starting at 4:57 p.m., continuing at 5:16 p.m., 5:47 p.m., 6:03 p.m., 6:06 p.m., 6:23 p.m., 6:34 p.m., 6:47 p.m., 7:01 p.m., and then 7:46 p.m.

They continued further at 7:49 p.m. and 7:57 p.m. [ 49 ] In many respects, these messages have a common theme. That common theme is the Accused seeking to obtain some response from the Complainant, asking her to allow him to be part of her life, indicating that he was prepared to be sending her gifts, wanted her to accept gifts, and then providing indications of feelings of betrayal that she was not responding and that she may have been leading him on by way of the previous communications prior to the charge period. Quite telling is one of the emails sent apparently at 7:01 p.m. on June 28th.

It reads in the following fashion, I quote: You're going to like your gift, Jody, and I'm going to move on and get out of your life. As hard as it is for me to accept, I will leave you alone. Seeing your post brought out strong emotions in me. I'm sorry. I'll shut up now. I care about you so much. It's effecting [sic] my judgments. I'm sorry, Jody, I'm acting like a baby again. You bring out the best in me, but you also bring me to my knees.

[50] It is the evidence of the Accused that, in addition to communications that he was receiving from the Complainant, which are notdisclosed in any of the documentary evidence before the court, what he was attempting to do was to deal with what he felt was unfairtreatment directed towards him and by “online friends”. He testified that he felt that he was being very unfairly portrayed in those online communications amongst that social group.

Further his attempts in communicating with the Complainant were to clarify that he wasnot the individual being portrayed by them in the world of social media. [51] In his evidence, the Accused did testify that he never meant to harm the Complainant. He indicated that what she owed himwas just being honest. He testified that he was of the belief that she had failed to disclose their relationship to her boyfriend.

Thus, herresponse to being found out by her boyfriend that she had another relationship with the Accused, on an ongoing basis, while she wasapparently involved with her present boyfriend precipitated her complaints to the police. [52] He does indicate in his evidence, and as confirmed in the various Facebook messages sent by him, that he was not seeking areturn of the monies that he had paid to her through Western Union. However, there is a clear indication that he felt somewhat aggrievedthat she would not acknowledge the contributions, financial and otherwise, that he had made to her.

Crown's Position [53] In submissions, Crown has indicated that on the basis of all the evidence before me that they have established beyond areasonable doubt that the offending communication contrary to s. 372(3) of the Criminal Code was, in fact, perpetrated by the Accusedtowards the Complainant. Crown's position is that the intention, that is, the mens rea, aspect of the offence found under 372(3) has beenestablished by the evidence before me.

Crown further contends that they can rely upon recklessness on the part of the Accused in orderto demonstrate the necessary intent required by the provisions of s. 372(3) of the Code. [54] Crown says that it is important to look at the whole of the context of the evidence, the numerous messages that predated thecharge period, the texts which were sent by the Accused predating the charge period, and the nature and the contents of those texts whichappear to be at times threatening.

Although they are not the subject matter of the charges, Crown says that they establish a context forthe unwanted communications that were actually sent by the Accused during the charge period, and in part establish and demonstrate,the intention of the Accused to harass the Complainant through the sheer volume of the communications that were sent during thatperiod of time. Case Authorities Relied Upon by Crown [55] Crown has referred the court to some decisions with respect to the notion of what is the required mens rea in offences of thisnature. The cases specifically relied upon by Crown are as follows: 1.

Her Majesty the Queen v. The Corporation of the City of Sault Ste. Marie, cited at [1978] 2 S.C.R., at page 1299; 2. John Henry Sansregret v. The Queen, (SCC), [1985] 1 S.C.R. at 570. Defence’s Position [56] Defence relies on the overall circumstances in this case and says that the Crown has failed to prove that there was any intent toharass the Complainant through the communications that were sent during the charge period.

Reliance is placed upon the evidence ofthe Accused that there was a relationship that had gone on for a period of time, and further that the evidence of the Complainant shouldbe disregarded as unreliable based upon her lack of candour with respect to the amounts of money that were actually paid and received.

Rather than being a small number of payments, in fact, 14 payments were received totalling some $4,350. [57] It is the position of defence that simply proving recklessness is not sufficient for the Crown to make its case and simply provingor demonstrating through the evidence a wilful blindness on the part of the Accused is not sufficient in order to prove the case beyond areasonable doubt. Hence, I am being urged to acquit the Accused on the charges before me. [58] Defence relies upon three cases in order to support their position with respect to the question of either wilful blindness orrecklessness.

Those cases are as follows: 1. R. v. R.A.P., [2011] O.J. No. 204, 2011 ONCJ 14, a decision of the Ontario Court of Justice, being the Ontario equivalent of theProvincial Court of British Columbia; 2. Her Majesty the Queen v. Briscoe, 2008 ABCA 327; 3. R. v. Jorgenson, (SCC), [1995] 4 S.C.R. at 55.

ANALYSIS [59] Notwithstanding the fact that the evidence of the Complainant with respect to the financial payments made to her by theAccused is unreliable, and that I do accept that those payments were made and received as set out in the Western Union statement, I amof the view that the evidence of the Complainant about not wanting to have and not encouraging any communication during the chargeperiod is factually correct. [60] I accept her evidence that she had not in any way during that period of time responded to nor encouraged communication fromthe Accused.

I do accept that there is not another side of the documentation or the communication documentation on Facebook, assuggested by the Accused, which would show her communicating with the Accused. I also accept her evidence that she was notcontinuing to have text communications during this period of time to encourage or invite the Accused to have further contact with her. [61] I found that in providing her evidence, the Complainant was both combative and, at times, rather than answering the questions

posed to her, more inclined to continue to portray the overall impact upon her life that she says that this unwanted communication and harassing communication has produced.

On many occasions the court had to direct her to focus on answering the questions and not to challenge defence counsel with questions and negative comments. [ 62 ] However, on balance, as it relates specifically to the evidence with respect to the number of communications during the charge period, I am content and accept that what she has described as her response of both her “alarm” and her “annoyance” at continuing to receive those messages, after having reported the information or her concerns to the RCMP, did actually occur and that her above noted response was reasonable.

Her response of finding the communications both harassing and also annoying is well made out both in her general evidence as well as specifically as it relates to the types of communications and its contents that she received during the charge period. [ 63 ] The evidence of the Accused demonstrates, in my mind, a lack of considerable insight into both the real nature of the relationship which he had with the Complainant.

That relationship, whatever it was, was not a relationship reciprocated by the Complainant. [ 64 ] The Accused, in his communications, at times was begging for some response back from and by the Complainant. He continued to communicate repetitively when he did not receive what he clearly felt was due him by virtue of the relationship which he perceived that he and the Complainant had established.

In defence counsel's submissions, I think she accurately stated that, really, what the Accused was seeking here was comfort and communication and some form of acknowledgement of the existence of the Accused in the life of the Complainant. [ 65 ] However, notwithstanding the fact that the Accused may not be the most sophisticated individual, it is clear that he would have understood the prior communication from Constable Brown and the police warnings to him that his communications to the Complainant were not welcome.

I am of the view that based on my observations of him as a witness, he should have and would have and could have understood that he was not to have any further communication with her and that that it would not be welcome communication and that further communication would amount to something that would fall within the offence created by s. 372(3) of the Criminal Code . [ 66 ] In many respects, the Accused is a sympathetic individual who demonstrates significant needs.

However, his behaviour and continuing communication in this case crossed the line into criminal behaviour by failing to abide by and accept that the relationship which he had conjured up in his mind was simply not one that was being reciprocated by the Complainant in this case. [ 67 ] In The Queen v. Sault Ste. Marie at page 1325, the Supreme Court of Canada states as follows, and I quote: I conclude, for the reasons which I have sought to express, that there are compelling grounds for the recognition of three categories of offences rather than the traditional two: 1.

Offences in which mens rea , consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence. 2. Offences in which there is no necessity for the prosecution to prove the existence of mens rea ; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances.

The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability. Mr. Justice Estey so referred to them in the Hickey’s case. 3. Offences of absolute liability where it is not open to the Accused to exculpate himself by showing that he was free of fault. Continuing the court says: Offences which are criminal in the true sense fall in the first category.

Public welfare offences would prima facie be in the second category. They are not subject to the presumption of full mens rea . An offence of this type would fall in the first category only if such words as “wilfully,” “with intent,” “knowingly,” or “intentionally” are contained in the statutory provision creating the offence. On the other hand, the principle that punishment should in general not be inflicted on those without fault applies. Offences of absolute liability would be those in respect of which the Legislature had made it clear that guilt would follow proof merely of the proscribed act.

The overall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and the precision of the language used will be primary considerations in determining whether the offence falls into the third category. [ 68 ] I agree with Crown's submission that the offence created by s. 372 (3) is an offence that falls within the first category which requires mens rea .

I further accept, based on the case authorities to which I have referred to above and which I have read and considered that recklessness can also be utilized to establish the mens rea . [ 69 ] In this case, it is clear to me that there was an intention or, at the very least, a recklessness on the part of the Accused, in terms of his communication that crossed the line from that which would have had a lawful excuse and that by which he intended to harass the Complainant by his repeated communications with her, after receiving the police warning.

CONCLUSION [ 70 ] Therefore, on the basis of all of the evidence before me that I accept as factually correct, I find the Accused, Sean Michael O’Hare, guilty of the offence as charged. (REASONS FOR JUDGMENT CONCLUDED)