r v. Bryan Raymond, 2014 QCCQ 1833

R. c. Raymond 2014 QCCQ 1833JT 1383 COURT OF QUEBEC CANADAPROVINCE OF QUEBECDISTRICT OF MONTREALCriminal DivisionNo: 500-01-087144-132 DATE: January 17, 2014______________________________________________________________________ PRESIDING: THE HONOURABLE CHRISTIAN M. TREMBLAY, J.C.Q.______________________________________________________________________ Her Majesty the QueenProsecutorv.

Bryan RaymondAccused ______________________________________________________________________ JUDGMENT______________________________________________________________________ [1] The accused is charged with a single count of criminal harassment between January 1, 2013 and February 1, 2013, contrary toSection 264 of the Criminal Code. [2] The alleged harassment consisted of a series of phone calls and text messages sent to his former girlfriend, C.

E.. [3] Although the accused did not testify, his attorney submitted that the Crown did not prove, beyond a reasonable doubt, that theaccused is the author of text messages (exhibits P-1 and P-2). It is one of the issues in the present case. [4] The elements that must be proven by the Crown to obtain a conviction for criminal harassment are set out in the cases ofRegina v. Sillipp (1998) 1997 ABCA 346 , 120 C.c.C. (3d) 384 (Alta C.A.), Regina v. Lamontagne (1998), (QC CA), 129 C.c.C. (3d) 181 (C.A. Qué) and Côté v. Regina, 2013 QCCQ 1437.

They are as follows: 1) The accused engaged in conduct in Section 264(2)(a), (b), (

c) or (

d) of the Criminal Code. 2) The complainant was harassed. 3) The accused knew that the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassedby the conduct. 4) The accused's conduct caused the complainant to fear for his/her safety or the safety of anyone know to him/her. 5) The complainant's fear was, in all of the circumstances, reasonable. [5] In order to examine whether the elements of the offence are made out, the Court must look beyond the numerous phone callsand texts messages and their content and examine the context in which they were written. [6] The accused and the complainant formed a couple.

The complainant has known the accused since she was 16 years old. Theylived together for a period of about six years. After their separation, the complainant kept the custody of their child, a girl. [7] During cohabitation, the accused was violent. He was uncontrollable. Even after their separation, the accused was violenttowards her. [8] After their separation, the accused called her numerous times every day. They could be at any time of day or night. He sent hernumerous text messages on her cell phone. [9] In January 2013, she couldn't take it anymore.

The complainant told the accused that he could no longer communicate with her.He could communicate with his daughter with a cell phone if she had one. [10] She also invited him to get in touch with his mother or her mother if he wanted to see his daughter. Then he could come and seehis daughter at her boyfriend's residence. She did not want to see him at her residence to avoid direct confrontation with the accused.

[11] In January, she received numerous phone calls and text messages. The calls or the text messages were also sent during the night.She never answered those communications. [12] The complainant is certain the phone calls and the text messages are from the accused. She recognized the phone numberpreviously used by the accused. She also based her affirmation on the content of the text messages. The person referred to her daughter.He called himself « Dad », etc. [13] The complainant testified that she was stressed, she was on edge. She was uncomfortable with the situation.

She never hadpeace of mind. [14] During the cross-examination, the complainant admitted that she asked the accused for a car transportation to the metro aftershe had an argument with her boyfriend. It happened only once before January of 2013. [15] In defence, the accused's girlfriend, Shanna Dellon, testified. [16] Mrs. Dellon confirmed that the complainant's request for a lift. But, according to her, it happened on [...] 2013. She recalled thedated because it was the birthday of the accused's daughter. [17] She used her car.

During the transportation, the accused asked the complainant why she refused that he go to diner with theirdaughter. The complainant was uncomfortable. [18] The credibility of the complainant and Mrs.

Dellon is not an issue here. [19] The Court will review the elements to be proven by the Crown, beyond a reasonable doubt, as described by Appeal Courts inSillipp, Lamontagne and more recently in Côté. [20] Was the complainant harassed by the accused? [21] Firstly, the Court considers the evidence shown, beyond a reasonable doubt, the accused is the author of the numerous phonecalls and text messages sent to the complainant in January of 2013.

The complainant is familiar with the number of the cell phone usedby the accused and the content of the text messages (exhibits P-1) easily persuade the Court that the text messages of January 2013 camefrom the accused. He referred to his daughter, to the complainant's boyfriend, to himself as being the father of the girl, etc. [22] Secondly, harassment may be proven if, as a result of the prohibited acts, the complainant felt tormented, troubled, worriedcontinually or chronically plagued, bedevilled or badgered (see Ryback & Sillipp cases and also Regina v.

Kosikou (1999), (ON CA), 138 C.C.C. (3d) 217. [23] Here the prohibited conduct in issue is the one mentioned at

Section 264 par. 2b) of the Criminal Code. This conduct consistsof repeatedly communicating with, either directly or indirectly, the other person or anyone known to them. [24] The complainant had been subject to the repeated phone calls and text messages of the accused. In these text messages, heinsulted her, her boyfriend, referred to the fact that he bought a cell phone for his daughter then he « didn't have to harass [her] »,referred to sexual practices or sexual partners, etc. [25] The complainant was disturbed by the communications of the accused.

Clearly, the effect of the text messages and phone callson the complainant in the context of the whole of the circumstances was that she was on stress and on edge. She was uncomfortable withthe situation. She did not have peace of mind. [26] Did the accused know, or was he reckless or wilfully blind that the complainant was harassed? [27] The accused was aware the complainant did not want to receive phone calls or text messages from him. She warned him inJanuary 2013.

The warning was clear. [28] The accused did not respect the complainant's request. [29] The Court finds that the accused knew or was wilfully blind to the effect that the prohibited acts would have on thecomplainant. [30] Did the conduct cause the complainant to fear for her safety or the safety of anyone known to her? [31] The Court considers the Crown did not prove, beyond a reasonable doubt, the conduct of the accused caused the complainant tofear for her safety or the safety of anyone known to her. [32] Once in her testimony, the complainant claimed she was thinking about her safety but it was in the context of the procedure sheimposed to the accused to have access to his daughter.

He had to go to the residence of her boyfriend because she wanted to avoid contactand confrontation with him. She testified the accused was violent with her in the past but she did not give any details. [33] The complainant never testified that she felt ill each time she received a new text message, for example. [34] She never testified that she feared for her safety or the safety of their daughter.

She said he loves his daughter even though hedoes not take his responsibilities towards her. [35] It is true, as the Crown attorney affirmed it, it is not necessary for the complainant to pronounce the words safety or fear toprove this essential element of the crime. It is a question of

interpretation of facts and law.

[ 36 ] But here, the evidence only shows the complainant was on stress or on edge. She was uncomfortable. She did not have peace of mind. [ 37 ] The court considers Mrs. Dellon's testimony confirms the complainant state of mind. [ 38 ] The Crown did not establish beyond a reasonable doubt, that the conduct of the accused caused the complainant to fear for her safety or the safety of anyone known to her. FOR THOSE REASONS, THE COURT: ACQUITS the accused. __________________________________ CHRISTIAN M. TREMBLAY, J.C.Q. Me Diane Mulinda Counsel for the Prosecutor Me Valérie Acosta Accused's Attorney Dates of hearing: October 17, 2013 and November 28, 2013