R. v. J.M.D., 2018 BCPC 211

Citation: R. v. J.M.D. 2018 BCPC 211 Date: 20180820 File No: 51561-K-3 Registry: Vernon IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J.M.D. ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. McKIMM Counsel for the Crown: M. Cissell Appearing on his own behalf J.M.D. Place of Hearing: Vernon , B.C. Dates of Hearing: June 7, 8 and 26, 2018 Date of Judgment: August 20, 2018

Summary [ 1 ] Mr. J.M.D. is charged with harassing the complainant by repeatedly text messaging her and in a second count with engaging in

conduct that reasonably caused the complainant to fear for her safety. For the reasons that follow I find Mr. J.M.D. guilty on both counts. Facts [ 2 ] Mr. J.M.D. is a single father of two teenage children. The complainant is a highly accomplished nurse who works in a palliative care facility and teaches nursing on a part time basis. Her employer is the [omitted for publication] where she has worked for most of her professional life. She has recently acquired her masters in nursing while working full time. In 2016 she tried on-line dating for the first time and through that process, met Mr.

J.M.D. in the summer of 2016. They began by on-line messaging and ultimately agreed to meet early in the summer of 2016. [ 3 ] Late in July of 2016 Mr. J.M.D. lost his furnished residence in Kelowna and moved in with the complainant. The complainant allowed this to happen, even though it was very early in their relationship, because she felt sorry for his children who would be out on the street if she did not step in. She had anticipated the arrangement would be for a matter of days because Mr. J.M.D. purported to have a household worth of furniture arriving which was on back order.

The furniture never materialized. [ 4 ] A few days turned into a week, a week into a few weeks then a month, then a few months and ultimately, they became common law partners. In September of that year the children were enrolled in school and the couple continued to reside together. In November of 2016 the complainant attended at the dentist for some routine oral surgery, when she did so she became aware that she was pregnant with Mr. J.M.D.’s child. This was an unintended pregnancy. [ 5 ] After the discovery of the pregnancy the complainant noted that Mr. J.M.D.’s attitude changed dramatically.

He became jealous, suspicious and possessive. His behaviour towards the complainant continued to deteriorate even as the complainant’s well- being began to deteriorate with symptoms consistent with her ongoing pregnancy such as cramping and nausea in the evenings. The complainant testified that Mr. J.M.D.’s anger and emotional volatility continued to escalate to the point where she became afraid of him. [ 6 ] From time to time she would retreat to her room to escape the stress and anxiety of the fighting and at those times Mr. J.M.D. would continue the aggression by texting repeatedly.

And then the texts would begin and he would text and text and text, and I would text and say, ‘look we are not talking about this right now, we’re going to take a break’. And then the texts would continue and I would say, please, I’m nauseous, I need to sleep. Trans June 7 th P. 11 ll. 40-45 [ 7 ] In the complainant’s perception the texts became increasingly threatening.

Some of those examples of threatening texts included: • If we move out, watch what happens next • If you end things there will be serious consequences • Do you know what you are doing? • You have no clue what is coming next [ 8 ] Mr J.M.D. also made verbal threats that he intended to destroy her reputation in town and, perhaps most frighteningly to a woman in the complainant’s uniquely vulnerable position, he threatened that he was going to gain one hundred percent custody of their baby by making it appear that she was an unfit mother. (Trans.

June 7 th P. 13 ll. 38-42). [ 9 ] On February 6, 2017 she was left with no alternative but to report the behaviour to the police. The police attended to the complainant’s home and instructed the accused to leave the home and to have no contact with the complainant, either directly or through any electronic means. At that time, a date was set for February 8, 2017 for Mr. J.M.D. to pick-up his belongings.

The complainant was instructed to pack the accused’s belongings and place them in the garage for him to pick-up. [ 10 ] In spite of the clear instruction not to contact the complainant, the accused texted or e-mailed the complainant ten or more times over the course of the next few days. The e-mail messages threatened legal action which was a reference back to previous threats that the accused would take custody of the baby after the birth as he intended to prove her an unfit mother.

In another e-mail message he chided the complainant telling her that the school authorities considered her treatment of his children to be abuse. This statement is completely fabricated as on inquiries being made with the school authorities it is apparent that Mr. J.M.D. had not even spoken to the school authorities about the break up. As expected, however, it did cause the complainant anxiety. [ 11 ] Mr. J.M.D. did not show up as arranged on February 8 th to collect his belongings, this, in spite of a very pregnant complainant and her brother making significant efforts to have them ready for him.

A second date for pick-up was set for which he did not show up again. Thereafter, Mr. J.M.D. unilaterally decreed that he was sending a truck to fetch his belongings on February 23, 2017, a date that the complainant was not in a position to allow access to the property as she was home alone. [ 12 ] Following one of the failed pick-up attempts the accused insisted that she bring his property to his hotel. In particular, he insisted that she bring his son’s ski equipment to the hotel that very night or else his son would miss his school ski trip.

He wrote: I do, however, need you to deliver the kids’ clothes tonight as denying them their winter clothes tonight is another cruel act towards the children. When he did not receive response he wrote further:

Hurting A. by not responding to when I could get his ski stuff is completely cruel to do to a 12 year old that you claim to love so much. He is now missing his ski trip all the while you make ski plans yourself. [13] Concerned that the difficulties between the accused and the complainant would cause his son to suffer, the complainant calledthe school to check on the date of the ski trip and determined that in fact it was much later in March.

The point of the text messagedemanding the ski equipment is an example of the accused using the text messages, complete with their dishonest statements, to causethe complainant as much distress as possible to bend her to his will.

The accused was aware that the complainant had grown veryattached to his children and used that affection to increase the level of anxiety caused by and through his communications. [14] On February 14, 2017 the accused made a false complaint to the complainant’s employer that the complainant was both stealingnarcotics from her place of employment and that she was suffering from a serious and debilitating addiction to narcotics. The report wasmade by the accused to the complainant’s employer under a false name. The report was full of rich detail and very pointed in its falseaccusations.

He accused the complainant of stealing opioids from the drug room and from deceased patients of the [employer]. [15] The complainant testified that she did not have any addiction issues and had never stolen drugs from her employer. She agreedthat she had tried THC medication to relieve migraines, but found them unsatisfactory. She also agreed that from time to time she mightend up with empty or almost empty vials of opioids in her pocket at the end of a shift and in those cases she would put the remnants inher bedside table.

She testified that immediately upon receiving word of this complaint she attended at her physician for a drug screen. A letter from her physician was filed indicating that her urine test showed no evidence of any drug use.

While there may be some delaybetween the day she heard of the false allegations and the day she was able to get the drug test, I am satisfied that she moved with allhaste to acquire the screen in order to acquire the results establishing the falsity of these allegations. [16] Supporting her position as well was the evidence that in response to this allegation the [employer] conducted a complete druginventory as well as a complete chart review of the complainant’s patients.

The results of that inventory and chart review showed that nodrugs were unaccounted for and that indeed the complainant, as a testament to her excellent work, generally used fewer drugs on herpatients than her colleagues. This, because she was able to bring her patients relief through her care and empathy. [17] I accept the evidence of the complainant that she did not and does not have a drug problem and that she has never taken drugsfrom the [employer].

I also find that the accused was well aware of that fact and made these false reports maliciously and without anyfoundation in an attempt to cause her significant difficulties at work. Indeed the only realistic inference to be drawn is that he hoped thatshe would lose her employment and therefore either pay a serious consequence for ending their relationship or perhaps that findingherself out of employment, she would return to their previous relationship.

There is absolutely no evidence to support the accused’ssubmission that this report may have been made to ensure that the complainant received help for the addiction she suffered from. [18] The accused must have been aware that the complainant did not suffer from addictions and had not stolen from her employer. That being the case the theory that the report to the employer may have been made to ensure she received the help she needed has nofoundation at all and I reject it completely. [19] The accused elected not to testify. He did call his sixteen year old daughter to testify.

She testified that she was aware that thecomplainant was addicted to drugs as a result of her being constantly sick and in bed. She testified that a cabinet in the bathroomcontained many vials of a liquid that she said had the word “Dila.. something” said in an effort to convince the Court that she saw vialsof the narcotic Dilaudid. She described the vials as about the size of a plastic drinking glass, though she could not remember the colourof the contents. She described countless exposed needles in the bathroom drawer. [20] I reject entirely the evidence of the accused’s daughter. It is entirely fabricated.

Vials of Dilaudid are approximately the size ofthe top of a little finger in that they only contain one millilitre of liquid. The domestic drugs that were in the house were all kept in thecomplainant’s bedside table and not in the bathroom. Since the accused and the complainant shared a bathroom together while theycohabited it is plain that the accused was well aware when he led this evidence that it was false, yet he put his daughter at risk ofprosecution for perjury in order to lead it. Issues 1.

Has the Crown proven beyond a reasonable doubt that the text messages sent by the accused to the complainant following theirseparation such as to cause the complainant to be harassed and were they sent with an intention by the accused to cause her to be soharassed? 2. Has the Crown proven beyond a reasonable doubt that the false report to the complainant’s employer was made by the accusedwith an intention to harass the complainant and did it thereby cause her to reasonably fear for her safety?

Discussion Count One [21] Section 372(3) of the Criminal Code provides that: 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. [22] The Crown must prove three essential elements to this offence beyond a reasonable doubt. Those are that the accused maderepeated telecommunications to the victim, that there was no lawful excuse for those telecommunications and finally that the communications were made with an intent to harass the victim. R. vs.

Sabine (1990) (NB KB), 57 C.C.C. 3rd 209

(N.B.Q.B.). A victim is harassed if they are caused disquiet or discomfort. Justice Finch in R. vs. Ryback (BC CA),1996 B.C.J. No. 285 (B.C.C.A.) cites with approval the language of Mr. Justice Murray in R. vs. Sillip (1995) (AB KB), 99 C.C.C. 3rd 394 (Alta. Q.B.) at 418 to 419 when he writes: In my opinion the most appropriate synonyms are those which imply being tormented, troubled, worried continually and chronically,being plagued bedeviled and badgered. [23] In my view, whether the text messages in question met this threshold is a qualitative as well as a quantitative analysis.

The textmessages must be read in the context of the earlier relationship which was laced with threats of legal reprisals, attacks and threateneddestruction of the complainant’s reputation and the ultimate threat that he would take custody of the couples baby to the exclusion of hismother by proving her to be an unfit mother. [24] They must further be assessed in light of the false allegations that the failure to comply with his demands would cause greatharm to the accused’s children.

I accept the evidence of the complainant that she had a deep affection for the accused’s children andserious concern for their well-being. I am satisfied that the accused was well aware that accusations that failure to comply with theaccused’s demands cause significant emotional injury and upset to the children would cause enormous distress to the complainant. [25] Repeated text messages must also be considered in light of the clear and unequivocal evidence that the accused had beenadvised that the complainant did not wish to have any contact or communication of any kind with him.

To that end she elicited theassistance of the police to convey that message to the accused. While I accept that there is no force of law in the direction by a policeofficer to an accused person to not contact their partner, it does establish that the accused was well aware that any communication wasunwelcome.

With that as context, even 20 or 30 communications to the complainant in this case is sufficient to establish that thosecommunications were made in a deliberate attempt to torment, trouble, worry continually and plague, bedevil and badger thecomplainant. [26] Considering the circumstances as articulated above around which those text messages were sent, I am satisfied they provebeyond a reasonable doubt that the accused intended that the complainant be harassed by those text messages.

Count Two [27] In Count Two, the accused is charged that between February 6 and March 11 2017, he engaged in conduct knowing that, orbeing reckless as to whether, the conduct harassed the complainant and in doing so reasonably caused the complainant to fear for hersafety.

The Crown in her presentation of the case alleged that the conduct of the accused in falsely reporting to the complainant’semployer that the complainant was stealing from her employer and suffered from a drug addiction, harassed the complainant andreasonably caused her to fear for her safety. [28] Harassment is defined in the Criminal Code as follows: 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. [29] The behaviour that is specifically captured by that

section is defined as:

(2) The 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. [30] The Crown in this Count must prove beyond a reasonable doubt: [18] In the result, a proper charge to a jury in a criminal harassment case must include reference to the following ingredients of thecrime, all of 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 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. R. vs. Sillipp (1997) 1997 ABCA 346 , 120 C.C.C. (3rd) 384 (Alta. C.A.) leave to appeal dismissed 123 C.C.C. (3rd) 188(S.C.C.)

[31] This formulation of the elements of the offence was adopted by our Court of Appeal in R. vs. Scuby [2004] B.C.C.A. 28. 1. Did the accused engage in the conduct alleged? [32] There is no question that the accused engaged in the conduct alleged. As I indicated above, I find as a fact that the accused wasaware that the complainant did not have a drug addiction and he was aware that she did not deliberately steal narcotics from heremployer, but made a false report to her employer as well as to her employer’s “whistle blower” office. 2.

Was the Complainant harassed? [33] In her evidence it is clear that the complainant was indeed harassed by this behaviour. She was required to answer the false andmalicious charges, to obtain a drug screen and to anguish while she awaited the results of her chart review and drug audit. I am satisfiedbeyond a reasonable doubt that the false complaint, “tormented, troubled, worried continually or chronically, plagued, bedeviled or badgered” her. R. vs. Lamontagne (1998) (QC CA), 129 C.C.C.(3rd) 181 (Que.C.A.) adopted in R. vs. Scuby 2004BCCA 28 , [2004] BCJ 82 (B.C.C.A.). 3.

Did the Accused know or was reckless as to whether the complainant was harassed? [34] Similarly, I am satisfied on the evidence that the accused either knew or was reckless as to whether the complainant was indeedharassed. Given that the accused was aware that the complaint was false and that he had issued numerous threatening textcommunications earlier suggesting that he intended to ruin the complainant’s reputation, the only inference I can draw from the evidenceis that the accused knew when he was making this false report that it would have serious and long lasting emotional consequences to thecomplainant. 4.

Did the conduct cause the Complainant to fear for her safety? [35] There is no doubt that the conduct caused the complainant to fear for her safety. In this case the safety is not her physicalsafety, though there is certainly abundant evidence that she did have fears for her physical safety from time to time, safety in this caserefers rather to her psychological safety. Fear under this

section is not limited only to physical safety, but rather equally applies topsychological safety. So too must the false complaint be seen in light of all of the other behaviours towards the complainant thatpreceded the false complaint to her employer, in this context the behaviour clearly made her fearful. This concept is perhaps bestcaptured in her evidence in cross examination where she answers this question: Q. Was there any actual -- were there words that threatened violence? A.

What does one mean when they say, “There will be consequences”? “If only you knew what was going to happen.” “You don’thave a clue what’s going to happen.” What does that suggest? To me that suggests that he is willing, at whatever cost, to get what hewants, and he has already shown that he -- he kept saying that he does not co-parent. What does that mean? What is he willing to do? Ididn’t know. I was afraid. [36] In the course of their relationship the domestic violence had manifest itself in regular bursts of rage by the accused directedtowards the complainant.

At one point the raging behaviour became so frightening to the complainant that she was forced to barricadeherself in their bedroom for fear of violence. The behaviour in question must be viewed in contest of the previous abusive behaviour bythe accused towards the complainant, both during the period of co-habitation and after the final eviction. Our Court of Appeal puts itthis way: The appellant’s conduct which is the subject of the charge is to be looked at objectively and in the context of all that proceeded it. R. vs.Ryback (BC CA), [1996] B.C.J. No. 285 (B.C.C.A.) Emphasis Added. 5.

Was the Complainant’s fear, in all the circumstances reasonable? [37] Of course this element must also be viewed contextually. At the end of a brief, but tumultuous relationship, laced with rage andanger the accused’s actions generated fear. Fear of a disruption of her psychological sense of security. The false complaint threatenedthe livelihood of a professional woman pregnant with her first child.

Even without the earlier references to threatening her reputation ortaking her child it is difficult to imagine that anyone, let alone the complainant’s, fear of losing their profession and livelihood would notbe reasonable. [38] On this element as well I am satisfied beyond a reasonable doubt. I find the accused guilty on count two. BY THE COURT _____________________________ The Honourable Judge M. McKimm