2020 QCCA 1170, 2020 QCCA 1170

Manrique c. R. 2020 QCCA 1170 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006911-182 (500-36-008727-177) DATE: 17 SEPTEMBER 2020 CORAM: THE HONOURABLE MARK SCHRAGER, J.A. PATRICK HEALY, J.A. LUCIE FOURNIER, J.A. SEUL ECHE MANRIQUE APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT [ 1 ] The appellant appeals against a judgment rendered of 26 October 2018 by the Honourable Mario Longpré of the Superior Court, District of Montreal, [1] that dismissed his appeal against a finding of guilt on a charge of harassing communications rendered on 19 September 2017 by the Honourable Manon Bourbonnais of the Municipal Court. [2] [ 2 ] For the reasons of Healy J.A., with which Schrager and Fournier JJ.A. concur, THE COURT : [ 3 ] DISMISSES the appeal. MARK SCHRAGER, J.A. PATRICK HEALY, J.A. LUCIE FOURNIER, J.A.

Mtre Léo Fugazza For appellant Mtre Renée Rioux Mtre Gloria Sanchez Meza MUNICIPAL COURT OF MONTRÉAL For respondent Date of hearing: 12 March 2020

REASONS OF HEALY, J.A. [ 4 ] This appeal requires consideration of the word “harass” in section 372(3) of the Criminal Code , [3] which provides:

(3) Commet une infraction quiconque, sans excuse légitime et avec l’intention de harceler quelqu’un, communique avec lui de façon répétée ou fait en sorte que des communications répétées lui soient faites, par un moyen de télécommunication.

(3) Everyone commits an offence who, without lawful excuse and with intent to harass a person, repeatedly communicates, or causes repeated communications to be made, with them by a means of telecommunication. [ 5 ] The appellant submits that the Court should apply to the

interpretation of this word in section 372(3) the same

interpretation that courts have applied to that word in

section 264: Harcèlement criminel 264

(1) Il est interdit, sauf autorisation légitime, d’agir à l’égard d’une personne sachant qu’elle se sent harcelée ou sans se soucier de ce qu’elle se sente harcelée si l’acte en question a pour effet de lui faire raisonnablement craindre — compte tenu du contexte — pour sa sécurité ou celle d’une de ses connaissances. Criminal harassment 264

(1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them. [ 6 ] The appellant submits specifically that this court should reject the

interpretation in section 372(3) in Sabine [4] and other cases in favour of the

interpretation of

section 264 in Lamontagne [5] and other cases. Context [ 7 ] The appellant made a large number of communications [6] to the complainant in a short period of time. [7] These facts are admitted.

Following these communications, the appellant was charged with one count of criminal harassment (section 264) and one count of making harassing communications ( section 372(3) ). [ 8 ] In the Municipal Court of Montreal Judge Bourbonnais acquitted the appellant of criminal harassment but found him guilty of making harassing communications. [8] The judge identified the elements of criminal harassment and then quotes from the opinion of Proulx J.A. in Lamontagne : Il ne suffit pas que la plaignante soit « vexed, disquieted or annoyed », encore faut-il démontrer que la conduite prohibée ait « tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered », soulignent ces arrêts. [9] [ 9 ] The judge acquitted the appellant on the ground that the messages he sent were annoying but did not cause the complainant to fear for her safety. [ 10 ] The judge then considered the charge of making harassing communications.

She characterised his communications to the complainant as persistent complaints, pressure and appeals. She noted that the Dictionnaire Larousse defines “harceler” as “soumettre quelqu’un à des demandes, des critiques, des réclamations continuelles et de continuelles pressions ou sollicitations”. She quoted from Sabine : “the word ‘harass’ in subs. (3) is synonymous with ‘annoy’.” [10] She then characterised the communications made by the appellant: Le mot “annoy” se traduit par ennuyer, agacer, importuner, déranger.

Il est clair que, vu les évènements du 12 janvier, soit la veille et l’avant-veille, les différents messages transmis à la plaignante ne pouvaient faire autrement que de l’importuner, de l’ennuyer, de la déranger et le défendeur ne pouvait l’ignorer. Il devait en être conscient. [ 11 ] The judge then concluded that the communications made by the appellant were made with the intention to harass the complainant and found him guilty of the offence charged under section 372(3). [ 12 ] On appeal to the Superior Court the appellant advanced four grounds of appeal. All were rejected and the appeal was dismissed.

The third ground was that the word “harass” should be interpreted in the same manner in section 372(3) as it is in

section 264 and thus that the meaning ascribed to it in Lamontagne should prevail over the meaning ascribed to it in Sabine . [ 13 ] The

summary-conviction appeal court rejected without discussion the appellant’s argument that the same word should bear the same meaning when it appears in various provisions of one statute. The judge noted that Sabine has been consistently followed in the courts in Quebec, [11] including in the appellate decision of the Superior Court in Aubin , and concluded that there is no apparent reason to depart from this jurisprudence. [12] He dismissed the appeal. [ 14 ] Leave to appeal further to this court was granted [13] on the question whether the word “harass” should be interpreted with the

same meaning in section 372(3) as in

section 264 and thus that Lamontagne should prevail over the meaning ascribed to it in Sabine . The judge who granted leave noted that this is a serious question of general interest that has not been raised before an appellate court in Canada. Discussion [ 15 ] As a matter of legal

interpretation, the meaning of harassment and cognate words and concepts cannot be found in a dictionary or in a thesaurus. Aids of this kind might provide some assistance but they cannot usefully determine the meaning that should be ascribed in the

interpretation of a statutory provision. As Stevenson J. said in Sabine , “[t]here are as many meanings ascribed to the word ‘harass’ as there are dictionaries.” [14] For the purposes of legal

interpretation, and notably in the construction of a penal provision, harassment and its cognates can only be given meaning in relation to all of the elements of the offence under consideration and its purpose. [15] [ 16 ] The offence now found in section 372(3) was enacted in 1969 in these terms: ( 3) Every one who, without lawful excuse and with intent to harass any person, makes or causes to be made repeated telephone calls to such person is guilty of an offence punishable on

summary conviction.

(3) Est coupable d’une infraction punissable sur déclaration de culpabilité par procédure

sommaire quiconque, sans excuse légitime et avec l’intention de harasser quelqu’un, lui fait ou fait en sorte qu’il lui soit fait des appels téléphoniques répétés . [16] [ 17 ] This offence is included in

Part IX of the Criminal Code among offences against property. It was amended in 2014 and the

section in its entirety, which provides for three distinct offences, now reads as follows: Faux renseignements 372

(1) Commet une infraction quiconque, avec l’intention de nuire à quelqu’un ou de l’alarmer, transmet ou fait en sorte que soient transmis par lettre ou tout moyen de télécommunication des renseignements qu’il sait être faux. False information 372

(1) Everyone commits an offence who, with intent to injure or alarm a person, conveys information that they know is false, or causes such information to be conveyed by letter or any means of telecommunication. Communications indécentes

(2) Commet une infraction quiconque, avec l’intention d’alarmer ou d’ennuyer quelqu’un, lui fait ou fait à toute autre personne une communication indécente par un moyen de télécommunication. Indecent communications

(2) Everyone commits an offence who, with intent to alarm or annoy a person, makes an indecent communication to that person or to any other person by a means of telecommunication. Communications harcelantes

(3) Commet une infraction quiconque, sans excuse légitime et avec l’intention de harceler quelqu’un, communique avec lui de façon répétée ou fait en sorte que des communications répétées lui soient faites, par un moyen de télécommunication. Harassing communications

(3) Everyone commits an offence who, without lawful excuse and with intent to harass a person, repeatedly communicates, or causes repeated communications to be made, with them by a means of telecommunication. Peine

(4) Quiconque commet une infraction prévue au présent

article est coupable : Punishment

(4) Everyone who commits an offence under this

section is

a) soit d’un acte criminel passible d’un emprisonnement maximal de deux ans; (

a) guilty of an indictable offence and liable to imprisonment for a term of not more than two years; or

b) soit d’une infraction punissable sur déclaration de culpabilité par procédure

sommaire. (

b) guilty of an offence punishable on

summary conviction. [17] [ 18 ] The various offences in

section 372 are all concerned with types of communication. Section 372(3) was originally enacted as a

summary-conviction offence but since 2015 has been a hybrid offence. [ 19 ] Harassment and its cognate words appear in scores of enactments by Parliament and the provincial and territorial legislatures. The concept is invoked in many statutory contexts, including human rights, banking, labour, corrections, protection of privacy, consumer protection, and others. Some statutes include a definition, or at least a partial definition of harassment, applicable in the specific legislative context. Others do not.

It is clear that the use of harassment and cognate words in legislation also arise in matters of the common law in Quebec. [18] As a result, it is also clear that these words and concepts do not bear one consistent and coherent meaning but many meanings that vary with the context in which they are relevant. In this sense harassment and its cognates are undeniably open-

textured. [20] This observation defeats the plausibility of an argument that an open-textured word or concept could bear a uniform meaning inany interpretative context, statutory or otherwise, in which it arises. It also weakens from the outset an argument that in a statutorycontext, even within a single enactment, a word or concept can and must bear only a single core meaning. Moreover, an argument to thiseffect is foreclosed by the

Interpretation Act,[19] which provides in

section 12: Tout texte est censé apporter une solution dedroit et s’interprète de la manière la pluséquitable et la plus large qui soit compatible avecla réalisation de son objet. Every enactment is deemed remedial, and shallbe given such fair, large and liberal constructionand

interpretation as best ensures the attainmentof its objects. [21] The prevailing approach to

interpretation of the type presented in this case lies between two unacceptable extremes. One is thata word or concept must bear a single and unvarying meaning in every instance where it is found. The other is that a word or concept canread in isolation and be given the meaning that is strictly appropriate to the provision under consideration. Both are unacceptable becausethe first forecloses the subtlety required to adapt to variable contexts and because the second is antithetical to consistency and coherencein the

interpretation of a recurring word or concept. [22] A recurring expression gives rise among principles of statutory

interpretation to a presumption of consistent meaning; but thispresumption is not irrefrangible. The guiding principle is that each provision must be interpreted so as to achieve the legislature’s intent: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.[20] [23] It is also for this reason that the presumption of consistent meaning may be rebutted, as the Supreme Court observed inSchwartz v. Canada: 61 It is a well-established principle of

interpretation that words used by Parliament are deemed to have the same meaning throughoutthe same statute; see, for recent applications of the principle by this Court, R. v. Zeolkowski, (SCC), [1989] 1 S.C.R.1378, and Thomson v. Canada (Deputy Minister of Agriculture), (SCC), [1992] 1 S.C.R. 385. This, as all principles ofinterpretation, is not a rule, but a presumption that must give way when circumstances demonstrate that such was not the intentionpursued by Parliament.[21] [24] The Supreme Court has also described the presumption of consistent meaning as relatively weak: This rule of

interpretation is only tantamount to a presumption, and furthermore, a presumption which is not of much weight. For thesame word may be used in different senses in the same statute: Whitley v. Stumbles and even in the same

section Doe v. Angell.[22] [25] The relative weakness of the presumption of consistent meaning is also recognised in doctrinal writings, as in this passage: Cette présomption est faible d’abord parce qu’elle présuppose un niveau de qualité dans la rédaction qui, de toute évidence, n’est pastoujours atteint. La rédaction bilingue permet d’ailleurs de se rendre facilement compte du fait que le principe n’est pas toujours respecté.Ensuite, la présomption semble faire abstraction de la polysémie des termes et expressions employés par le législateur.

Enfin, lesentiment que le texte examiné a été rédigé avec plus ou moins de soin contribuera donc à donner plus ou moins d’autorité au principe.Autre élément qui pourrait jouer : la plus ou moins grande proximité, dans le texte, entre les deux expressions qu’on présume avoir lemême sens.[23] [26] As these reasons have demonstrated, the present case is clearly one in which the presumption of consistent meaning cannotprevail because the history, context and purpose of sections 372(3) and 264 reveal various distinctions that compel differentinterpretations. [27] In the Criminal Code harassment appears not only in sections 264 and 372(3) but in

section 445.1, which concerns cruelty toanimals. The Code provides no definition of harassment in any of these sections and yet it is plainly a concept of great normative forcethat requires the attribution of meaning by those who are obliged to interpret it in its specific context. [28] The terms of

section 445.1 illustrate why a reference to harassment cannot compel or sustain a single meaning when it is usedby Parliament. This

section creates a hybrid offence, punishable by imprisonment for a maximum of five years on indictment or by amaximum fine of ten thousand dollars or eighteen months of imprisonment on

summary conviction. The French text of subsection (1)provides in part: 445.1

(1) Commet une infraction quiconque, selon le cas : […]

b) de quelque façon fait la promotion des activités ci-après, les encourage, les organise, y prête son concours, y prend part ou reçoit del’argent relativement à celles-ci : (

i) le combat ou le harcèlement d’animaux ou d’oiseaux […]

[ 29 ] In the English text the analogous word to harcèlement is found in this phrase: 445.1

(1) Every one commits an offence who […] (

b) in any manner encourages, aids, promotes, arranges, assists at, receives money for or takes

part in (

i) the fighting or baiting of animals or birds […] [ 30 ] The discrepancy between the two phrases is apparent. The words harcèlement and baiting are not synonymous, which means that one or the other is inappropriate. A more exact word in French that can be assimilated to baiting is appâter , which means to lure or bait. The word baiting cannot be made synonymous with harassment without attributing to it an expansive meaning that is not immediately recognisable. [24] Apart from the discrepancy between the French and English versions, it is untenable to claim that there is a common meaning between

section 445.1 and either of sections 372(3) or 264. [ 31 ] The specific question in this appeal is whether there is a common meaning between the two sections with respect to the element of mens rea . The argument that there is or should be a common meaning cannot be sustained simply because the word “harass” is found in both. Attention must also be given to the points of difference between the two. [ 32 ] As a preliminary point, Parliament cannot be presumed to have repeated itself in whole or in part when it enacted section 372(3) in 1969 and

section 264 in 1993. It is now perhaps anachronistic to note that in 1969 the primary aim of the enactment was to sanction the abuse of telephones as a means of harassing others and that the deterrence of harassment was a corollary of that prohibition. Today it would be more appropriate to affirm that a purposive

interpretation of section 372(3) is that Parliament seeks to deter harassment by any means of telecommunication. This shift is an important advance in the evolution of protection from harassment but it is not sufficient by itself to compel the conclusion that the

interpretation of “harass” in sections 372(3) and 264 has merged with respect to the element of mens rea . [ 33 ] The enactment of

section 264 in 1993 marked a definitive shift toward enhanced protection of persons from harassing conduct, which explains its placement among offences against the person in

Part VII of the Criminal Code . [25] This shift is apparent in a comparison between the sentencing options for the two offences. The offence of harassing communications in section 372(3) was originally punishable on

summary conviction but was amended to create a hybrid offence that may be prosecuted on indictment with a maximum term of two years and allows a firearms order in the discretion of the sentencing judge but is not a primary or secondary designated offence for purposes of DNA testing. [26] Criminal harassment was enacted as a hybrid offence with a maximum of five years on indictment, which was later amended to provide for a maximum of ten years. [27] The Code was amended to remove a conditional sentence as an option for this offence and it compels the imposition of a firearms order. [28] It is also a secondary designated offence for purposes of DNA testing, as are the offences of uttering threats [29] and intimidation. [30] In short, a comparison of the sentencing options for the two offences plainly discloses that Parliament perceived between them a distinction in the degree of objective gravity. [31] [ 34 ] A similar distinction is evident in the elements of the actus reus of the two offences.

Section 372(3) creates an offence of transmitting a harassing communication by means of a telecommunication.

Section 264 is not restricted to telecommunications but the harassment must be predicated on one of the four forms of conduct enumerated in subsection (2). One of those forms of conduct overlaps with the offence in section 372(3) by specifying repeated communication, [32] whether by telecommunication or other means, but the common element in all of the forms of harassing conduct in

section 264 is a degree of close proximity. [ 35 ] The differences between the two offences are also seen in another aspect of the actus reus in each. The offence in section 372(3) requires proof of the transmission of a harassing communication by means of a telecommunication. It does not require that the communication was received by another person. In Sabine [33] the accused made repeated telephone calls but disconnected each call as soon as the line was opened at the other end. It follows that section 372(3) also does not require proof of causing fear or any other effect in another person, as do the offences of uttering threats and intimidation. [ 36 ]

Section 264 requires proof of transmission, receipt of the transmission and the causal inducement in the recipient of fear for his or her safety or that of anyone known to him or her. [34] The requirements for proof of receipt and the inducement of fear clearly denote a higher degree of objective gravity in an offence that is colloquially identified as stalking.

The offence of harassing communications by telecommunications does not include these elements and could seemingly be charged even in the absence of a known recipient, receipt of the transmission or the effect of a transmission. [ 37 ] The element of mens rea in section 372(3) is the intent to transmit a harassing communication. It cannot be assimilated to the elements of mens rea that will suffice under

section 264 without importing and adding into it a requirement of knowledge or recklessness of the effect that will be caused by the harassing conduct. Such an

interpretation would change the substance of the actus reus and the mens rea of the offence and it would indirectly modify the objective gravity of the two offences so as to amend in effect section 372(3) in a manner contrary to Parliament’s intent. [ 38 ] The trial judge acquitted the appellant of criminal harassment but found him guilty of making harassing communications. She did so in conformity with the elements of sections 264 and 372(3) and with the jurisprudence concerning the element of mens rea in each of them. The

summary-conviction appeal judge dismissed the appeal from her decision for the same reasons. Neither committed an error

of any kind. [ 39 ] It is open for Parliament to amend the elements of section 372(3) . If it chooses it can amend the element of mens rea of the

section to conform with the

interpretation of

section 264 in Lamontagne and thereby reject the

interpretation established in Sabine . That legislative function is not the function of this court. CONCLUSION [ 40 ] I propose to dismiss the appeal. PATRICK HEALY, J.A.