R. v. Korbut, 2012 ONCJ 522

Citation: R. v. Korbut , 2012 ONCJ 522 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — OLEG KORBUT Before Justice P. HARRIS Trial Judgment Reasons for Judgment released on August 10th, 2012 Ms. Christine McGoey ........................................................................................... ..........Crown Attorney Mr. Vladimir Semyonov ..................................................................................................Defence Counsel HARRIS, P.

J.: BACKGROUND [ 1 ] Oleg Korbut is charged that on or about January 7 th , 2010, he did commit an assault on A.K. contrary to the Criminal Code ; further that on or about January 7 th , 2010, he did steal property to wit: diaries, an address book and a cellphone, the property of A.K., of a value not exceeding five thousand dollars, contrary to the Criminal Code; further that sometime between and including the 16 th day of February, and the 5 th day of March, 2010, knowing that A.K. is harassed did repeatedly communicate directly or indirectly with A.K., thereby causing A.K. reasonably, in all the circumstances, fear for her safety, contrary to the Criminal Code. [ 2 ] A.K. came to Canada in 2007 to join her husband K.K,.

They became acquinted “over the internet” and he travelled to Russia for a visit and they were married in 2005. They lived together in Canada to June 2009 at which time they separated. Ms. K. then moved to M[…] Street in Toronto, a residence she shared with two roomates. Meanwhile in the summer of 2007, Ms K. met Oleg Korbut and they commenced a relationship that involved travel to a number of destinations such as Quebec City and Cuba together as well as meetings at Mr. Korbut’s office on Bloor St. West in Toronto where he worked as an Osteopathic Manual Practitioner and Acupuncture Specialist (see exhibit 21).

Ms. K. gave evidence that she and Mr. Korbut “broke up” in October 2009. During their time together, “nude photos and videos” were taken of Ms. K. by Mr. Korbut. [ 3 ] Ms. K. stated that Mr. Korbut downloaded the “nude photos and videos” onto their respective computers. Ms. K. testified that after they “broke up” she deleted all of the “nude videos and photos” from her computer “completely”. Ms. K. gave evidence that she never shared those images or videos with anybody other than Mr. Korbut. She described her English language fluency in October, 2009 as “bad”. Ms.

K. testified that she regularly communicated with Mr. Korbut in the Russian language, and when they “broke up” she said “he promised me that he would delete them all” [the videos and photos]. She testified that in January 2010, after they separated, he stated that “he had saved them all and if he wanted to, he would show them to everybody”. Ms. K. gave evidence that nobody including her husband, Konstantine K., had access to the graphic images on her computer because “Oleg Korbut installed a program for me which only allowed access to me. It was invisible (sic) for anybody else.” [ 4 ] Ms.

K. testified that she gave access to her Fido account to Mr. Korbut in September, 2009, and he then had access to all her contact information and the telephone numbers she called. She stated that when they separated in October, 2009, Mr. Korbut told her “I want you to be alone for a year or more.” As it turned out, Ms. K. met Kirill Shiff online at the end of November, 2009, and they began a relationship. She gave evidence that Mr. Korbut told her that he met with Mr. Shiff and said to her that Kirill is a good person but “you shouldn’t meet him or you shouldn’t date him.” [ 5 ] Ms. K. stated that Mr.

Korbut came to her residence on January 7 th , 2010. She testified that he kept asking if she had “slept with Kirill”. She said that when she said “yes”, “he became aggressive and he was, ah, saying nasty things.” She testified that “he got

angry and suddenly, kind of jumped on me and grabbed with one of his hands my neck”, causing pain on the throat area. She said he also splashed a jet of water in her eye causing pain. According to Ms. K., when he left, her diaries, her address book and her cellphone were missing and nobody else had visited her at her residence that day. She stated that four days later she found her cellphone in her mailbox and “all our common, like friends in common, ah, were deleted.” She gave evidence that the address book provided access to her email addresses and that Mr.

Korbut also had access to the email addresses on her computer. On January 7 th , she moved from M[…] Street, because, as she said, “I had a feeling Oleg was going to come back….I didn’t want to see him anymore.” [ 6 ] On January 25 th , Mr. Korbut sent Ms. K. an email in which he wrote “I am not to be treated like some cheap piece of crap” and “You set the engine of a powerful machine in motion.

God will not keep you waiting too long” (see Exhibit 10) and “on February 6 th , 2010, he sent her an email that began: “Hello you Shameful and Cowardly Bitch” …“Let it all be returned to you in full measure” and ended with “You still have no inkling of what it means to hurt a Magical Scorpion” (see Exhibit 1).” (He gave evidence that his zodiac sign was “scorpio”). During the period, February 16 th to March 6 th , 2010, Ms. K. became aware that fake emails were being sent to 20 to 30 of her relatives, friends and acquaintances purporting to have been sent by A.G., Ms.

K.’s maiden name, which contained personal and highly inflammatory text and website links to numerous “sexually explicit photos and videos” she had made with Mr. Korbut (see exhibits 2, 3, and 4, 11and 13-16). Exhibit 12 is a posting to a dating website in the name of A.G. which says she would like to meet a man between the ages 21 and 60 and describes how frequently she would like to have sex: “ Several times a day” (see Exhibit 12). Ms.

K. testified that this profile in her name which she had not authored, resulted in men calling late at night and they would “introduce themselves and ask when could we meet?” “And once around 11 p.m., a man came and he knocked on the door.” She said “It was unpleasant and I was scared.”; “I was repulsed and I felt defenceless, unprotected.” Ms K. then reported what had occurred to Police and Mr. Korbet was charged. [ 7 ] Mr. Korbut testified that he graduated from medical school in Ukraine and practiced as an orthopedic doctor in the Ukraine and as an osteopath in Canada. In May 2007, in Canada, he met Ms.

K. on the internet, and the relationship lasted about two years. He gave evidence that they travelled together to a number of destinations, Atlantic City, New York, Quebec, and Cuba, and he paid for the trips. He stated that he was never violent with her nor did he ever threaten her. Mr.

Korbut gave evidence that “at the beginning of our relationship” she insisted that he take naked pictures of her “but then I became apprehensive about it.” He stated he was a married man and was always against it ─ “But she was always insisting, pleading, blackmailing me” by saying “that if I were not to take pictures of her then she would leave me.” He testified that he took “maybe 20, 25” pictures and he never copied the pictures, “A.K. had the copies.” He stated that he did not take a number of the photographs displayed in Exhibit 19 and had never seen them before. Mr.

Korbut said that he felt she had cheated on him and in the beginning of November, 2009, he told her that he was not going to see her any more. [ 8 ] The defendant gave evidence that he met with Ms. K. at her apartment on January 7 th , 2009. He stated that he did not squeeze her neck, throw water in her face or steal her diaries, address book or cellphone: “We had a calm conversation.” He testified that he never had access to any of Ms. K.’s email or telephone contacts and he never created an electronic profile for Ms. K..

Further, he said he never sent internet links containing naked and pornographic pictures and videos to her family, friends and church community and he uses no other email address than D-R-K-O-R-B-U-T-@yahoo.ca . Mr. Korbut testified that he was giving her five hundred dollars a month for rent and he told her in December that he was not going to give her any more money. He said she became upset and told him that “if I were to stop supporting her financially then she would come up with something and it would be very bad for me.” ANALYSIS The following issues have emerged in this case and will be addressed in turn:

(1) Credibility;

(2) The Assault and Theft Charges;

(3) Identification of Person or Persons Distributing Character Damaging Emails;

(4) Determination of whether the Crown has proven beyond a reasonable doubt all the requisite elements of the offence of criminal harassment; [ 9 ] I note that much was made by counsel of motive. I have not included motive in the above list of issues because motive is just part of the evidence and not an essential element of the offence. For that reason, I have not relied on motive to help me decide this case as it often, particularly in the context of a relationship, calls for speculation about imponderables such as an individual’s psychological mindset and the emotional states that trigger certain conduct.

In the absence of expert evidence, pseudo-psychological expressions such as “obsessiveness” and “compulsivity” will be eschewed in favour of more neutral descriptors. [ 10 ] The issue concerning “I.P addresses” should be determined as well. Kirill Shiff arrived at court with a collection of documents that purported to demonstrate that the I.P’ address of the emails under the name UARVICK (the damaging pornographic materials) was the same as Mr. Korbut’s home I.P. address (see Exhibits 1 – 3 on the voir dire). Mr.

Korbut testified that his home I.P. address is entirely different from the I.P. address of the UARVICK material. I have admitted this evidence but concluded that it should be given no weight or consideration. This question could so easily have been settled by: (1) expert evidence as to the identity of the sender; or (2) the obtaining of the municipal address of the sender from the internet service provider. In the absence of some evidence to tip the balance, the evidence on this question is equally balanced and effectively neutralized.

I do not mean to be critical of either counsel in my determination of this issue. I can well imagine that further evidence on the subject would have opened a Pandora’s box of ‘late disclosure’ and

section 11(

b) trial delay concerns.

(1) Credibility [11] I have followed the formula set out in R. v. W. (D). (SCC), [1991] 1 SCR 742 (SCC) in order to avoidthe oft-repeated error of treating trial evidence as a question of which side, Crown or defence, a jurist prefers. The requirement that theCrown must prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law. The acceptedapproach (from the Supreme Court in R. v. W(D), supra) is to consider the evidence in the following order: First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. I do not believe the testimony of the Defendant Oleg Korbut and it does not leave me in a state of reasonable doubt for the followingreasons:

(1) Oleg Korbut is not credible in terms of the evidence he gave about the cellphone that he left for Ms. K. in her mailbox a few days after their meeting on January 7th, 2010. He knew that he sent her an email January 8th, saying that he would “leave the phone in anenvelope in the mailbox tomorrow.” He testified that he did not steal her cellphone. She said it went missing after his visit and nobodyelse had been in her residence. He testified that she wanted a new cellphone and he bought a Sony Ericson 810 that cost $175.00.

He gave evidence that after January 7th, she did not wish to see him anymore, “but because I promised her that I would give her that phoneas a gift, I just put it in her mailbox.” It was absolutely brand new”. Mr. Korbut was asked under cross-examination: “She blackmailedyou, cheated on you and manipulated you into sex and you still gave her presents?” “He stated: It was the same to give it as to throw it away. Everything to do with her stinks like excretions so I had to get rid of it”.

In his email to her of January 8th, he says: “You little fool─ I am gone for only a month and you already have someone to fuck you.” The scorn and contempt imbedded in these communicationsis completely inconsistent with gift-giving, and in my view, this was an elaborate pretext on his part, designed to dodge an obviousinference that he was attempting to control her relationships by searching her cellphone contacts and deleting some of the numbers.

(2) Oleg Korbut is not credible on the issues of (1) whether he inveigled Kirill Shiff into attending a meeting with him by falselyadvising him that he, Oleg Korbut, had a parcel for him from his family in St. Petersberg and (2) whether he brought a fake parcel to themeeting with him. Mr. Korbut said he called Mr. Shiff and “said we needed to talk about A.K..” “I didn’t tell him I had a parcel or bring a parcel.” Mr. Shiff testified that around January 5th or 6th he received a call from Mr.

Korbut who apparently knew he was from St.Petersberg, and said that he wanted to set up a meeting because he had a parcel from home for him. Mr. Shiff recalled that his friend,Igor Tchernikov, had mentioned Mr. Korbut’s name and said he, Mr. Korbut, was looking for A.K.. Mr. Shiff testified that he went tothe meeting and Mr. Korbut brought a fake box with him. He said that Mr. Korbut was angry and emotional and said he was still in arelationship with Alexandra. He told Mr. Shiff to “get away from Alexandra.” In my view, this was a further attempt to control Ms. K.’s personal relationships by confronting Mr.

Shiff in person with a view to warning him about becoming involved with Ms. K.. There is nochance Mr. Krill would have attended a meeting with Mr. Korbut after hearing from Mr. Tchernikov, without a ruse ─ the prospect ofreceiving a parcel from home. Mr. Korbut is not believable on this issue.

(3) Mr. Korbut is also not credible in his evidence that “he was a married man and was always against it” ─ the taking of “nakedpictures” of Ms. K., but “she was always insisting, pleading, blackmailing me” by saying “that if I were not to take pictures of her shewould leave me.” He testified he bought Ms.

K. a new camera in April 2009, which was a date before and after “naked pictures” of herwere taken, a practice he said he “couldn’t stand.” He was asked: “yet you bought her a new camera?” and he replied “That’s all she iscapable of... spreading her thighs.” When his evidence is considered in its totality ─ his payment of her travel costs to many holidaydestinations, his payment of her rent of $500.00 a month to December, 2009, his decision to leave her in early November, 2009, and thelengths he went to identify who she was dating in December 2009 and January, 2010 and interfere with that relationship, and the vituperation he shared with her of January 25th and February 6th, there is no doubt Mr.

Korbut is a controlling individual. That picture isentirely at odds with his evidence that he was being blackmailed to take “naked pictures”. It simply does not add up that he would buyher a new camera to enable that which he “couldn’t stand.” The evidence which I do accept

(1) I have carefully considered the concerns expressed about Ms. K.’s credibility. Clearly, I can choose to accept all, part or none of awitness’ evidence. I have concluded that Ms. K. is credible for the most part. I have one minor misgiving which I will return to. Herevidence was logical, consistent, plausible and balanced; she presented as calm, and remarkably self-controlled and free of animosity considering what occurred. Her response to Mr. Korbut’s email of January 8th calling her a “little fool” and a “worthless creature” isrespectful and conciliatory.

She says: “Kind man, what other relationships in my life have been damaged...? Farewell.” I accept that shewas dishonest at times with her husband Konstantine K., and in particular, did not tell him about the relationship she had begun with Mr.Korbut. That is a type of situational duplicity that is a fact of life in our culture and I doubt that Mr. Korbut was any more candid with hiswife about the relationship. A standard of flawlessness is not a prerequisite to credibility. Ms. K. can even be excused for not recallingthat she sent a few nude or semi-nude photos to her husband before coming to Canada.

The one minor concern is contained in the occurrence report prepared February 19th, 2010 that records that Ms. K. made no complaint about any prior assault: it states “no threats, no assaults.” While this was nearly one and one-half months after the alleged assault on January 7th, 2010, and there could well havebeen distortions caused by language difficulties, still, this report creates some doubt about the assault.

(2) Kirill Shiff and Igor Tchernikov were both fair, balanced, reasonable and credible witnesses and neither were seriously challenged under cross-examination. I recognize that there were conflicts in the evidence between Mr. Korbut and the above witnesses. On the issue of whether Mr. Korbut used a “parcel from home” ruse to set up a meeting with Mr. Krill, I find Mr. Korbut’s evidence lacking in common sense. As to whether Mr. Korbut spoke to Mr. Tchernikov about “A.K.”, I find Mr. Tchernikov’s evidence compelling. I can’t imagine him inventing two telephone calls with Mr.

Korbut in early and mid-January ─ a person he had not seen for years. He said Mr. Korbut told him “he was in love with a girl and it was really driving him crazy.” He referred to “A.K.” and wanted to know where she was and who she was with. Later in January he said Mr. Korbut referred to Mr. Shiff as an “f... Jew” and was hurt and distressed and Mr. Tchernikov was concerned about him doing something that would involve the police. Mr. Korbut gave evidence that he did not “discuss A.K. with Igor.” In my view, Mr. Korbut’s assertion that there was no discussion about A.K. is untrue.

There was no other reason to have called him after such a long time, except as part of Mr. Korbut’s continuing investigation of Ms. K.’s relationships, Mr. Tchernikov emerged as one of her contacts and he called to find out who she was with and later to express his frustration about not being able to end the relationship. I therefore accept the evidence of both Mr Shiff and Mr. Tchernikov as credible.

(2) The Assault and Theft Charges [ 12 ] I have carefully considered the evidence in support of the assault that was alleged to have occurred on January 7 th , 2010. While it is likely that Mr. Korbut was angry and grabbed her neck with one hand causing pain and splashed water in her eyes, and Ms.

K. certainly left that address in haste as if some event had caused fear for her safety, still, having regard to all the circumstances, including her report to police about there being “no assaults”, I find I am left in a state of reasonable doubt about the assault and that charge will be dismissed. [ 13 ] As noted above, I have found that Mr. Korbut took Ms. K.’s cellphone without her consent in order to continue his investigation of her relationships. It would be too great a coincidence that Ms.

K.’s diaries and address book would disappear at the same time as the cellphone, especially when she had no other visitors that day. When one considers that his investigation of her would benefit from an opportunity to search her diaries and address book for information about Ms. K.’s contacts and relationships, there is no question that Mr. Korbut stole those items as well. The charge of theft of the three items has been proven beyond a reasonable doubt and Mr. Korbut will be found guilty of that charge.

(3) Identification of Person or Persons Distributing Character Damaging Electronic Publications [ 14 ] The direct and circumstantial evidence in this case constitutes a pattern of behaviour that leads to the conclusion that Oleg Korbut was the person who electronically published the character damaging remarks, sexually explicit materials and provocative dating profile. The identification evidence is as distinctive and compelling as a fingerprint. I have considered all the evidence and it constitutes overwhelming proof that Mr. Korbut was the perpetrator of this campaign to damage the complainant for the following reasons:

(1) In spite of Mr. Korbut’s assertions to the contrary, I find that he was the only person besides Ms. K., who had access to the sex photos and videos because of the security program he installed of Ms. K.’s computer.

As she said: “It was invisible (sic) for anyone else . ” As noted above, he enabled the images to be recorded by purchasing a camera for her, he was the cameraman and must have assisted on shots that were taken of both of them from a camera in a fixed position, particularly at his office, and his evidence about not saving a copy of the images is just not credible, having participated so extensively in the project. As well, the distribution list for the offensive emails was available to him having stolen her diaries, her address book and her cellphone on January 7 th , 2010. In addition, Mr.

Korbut had access to her email contacts. Ms. K. stated that in the past, Mr. Korbut had asked her to show him her email inbox when he thought she was writing to someone he had not approved. Exhibit 4 is a “G.” email message containing a copy of a favourite poem and other writing that was on her computer and never shared with anyone. This could only have originated from a person such as Mr. Korbut who had access to her computer

(2) Igor Tchernikov’s evidence is almost prescient in foretelling events to come. During the second call in mid-January, he said that Mr. Korbut was really hurt and distressed. He felt that things were escalating and tried to calm him down, telling him he had a lot to lose. Mr. Korbut told him he had nothing to lose. Mr. Tchernikov was too apprehensive to meet with him; he felt there was an obsession about Alexandra and that he (Mr. Korbut) was not stable.

(3) Kirill Shiff testified about a meeting with Mr. Korbut that caused concerns. Mr. Korbut was angry and emotional and told him that they were still in a relationship and that he should leave her alone. Mr. Korbut pressed him to disclose whether they had had sex and when Mr. Krill admitted that they had, Mr. Korbut began to try to poison his mind about Ms. K., saying that she was bad and that he had given her number and email address to some guys.

(4) On January 11 th , Mr. Korbut set the tone for what was to follow. He sent the following in an email: “That makes me lose my mind even more than thinking about you in bed with another man.. You should now keep as quiet as you can. For you to open your mouth in the most insignificant way might result in a catastrophe.” (see Exhibit 10). The emails of January 25 th , and February 6 th , 2010 that Mr. Korbut sent Ms. K. demonstrate an escalating level of threats and warnings. On January 25 th he wrote “I am not to be treated like some cheap piece of crap” and “You set the engine of a powerful machine in motion.

God will not keep you waiting too long”... “I am praying for you, you little bitch.” (see Exhibit 10) and “on February 6 th , 2010, he sent her an email that began: “Hello you Shameful and Cowardly Bitch” …“Let it all be returned to you in full measure”... “You have chosen your torment yourself. Maybe one day you will understand that conniving to settle your life at the expense of others is a sin for which you will pay in full. He ended this tome with an

ominous message: “You still have no inkling of what it means to hurt a Magical Scorpion” (see Exhibit 1). His actions could be seen toescalate even further with the “Valentine’s gift” of a sexually explicit DVD left at their residence containing pornographic images of Ms.K.. This was the most overt act before the online publications began a few days later. The catalogue of events leading up to thepublication of damaging material is a virtual roadmap of the direction in which Mr. Korbut was heading.

(5) The A.G. emails contained a proliferation of vignettes and details from Ms. K.’s life that only Mr. Korbut was aware of such as:where she was born and that she was born “early;” information that she had relationships with Omar and a “Frenchman”, that she hadnever discussed with anyone and which could only have come from her (stolen) diaries; information about her husband’s back problemsthat she discussed with Mr. Korbut because of his training in orthopaedics.

As well, there was information about intensely personalmatters such as the type of birth control she used as well as details of vacations they spent together, information to which only Mr.Korbut had access. [14] On the basis of the foregoing, I have no doubt that Mr. Korbut was the author of the various types of offensivepublications.

(4) Determination of whether the Crown has proven beyond a reasonable doubt all the requisite elements of the offence ofcriminal harassment [15]

Section 264 of the Criminal Code provides: •

(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. •

(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, carrieson business or happens to be; or • (

d) engaging in threatening conduct directed at the other person or any member of their family. [16] To find Mr. Korbut guilty of criminal harassment, the Crown must prove beyond a reasonable doubt all of the elements ofthe offence of criminal harassment. The Ontario Court of Appeal in R. v. Kordrostami (ON CA), [2000] O.J. No. 613described the elements of the offence as follows (at para. 8): 8 As set out in Kosikar, supra, Lamontagne, supra, and Sillip, supra, the elements of the offence are as follows: 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 orwillfully 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 the circumstances, reasonable.

[17] Accordingly, the evidence in this case will be analyzed through the prism of each of the above elements of the offence ofcriminal harassment.

(1) Has the Defendant Engaged in Any S. 264(2)(a-

d) Conduct? [18] There is no question that Mr. Korbut has “engaged in threatening conduct directed at the other person or any member oftheir family.” (264(2)(d). As noted in paragraph 14, above, the events that preceded the publication of the highly damaging emails andsexually explicit photos and videos could be best characterized as a series of escalating threats to Ms. K. culminating in the “Valentine’sgift” ─ all of which was designed to make her withdraw from the relationship with Mr. Shiff. The natural inference from these events isthat when she did not withdraw from the relationship, Mr.

Korbut escalated his intervention in Ms. K.’s life by advancing to the nextlevel with even more threatening conduct which, as will be discussed below, caused fear and harm to her reputation and relationships.

(2) Was the Complainant Harassed? [19] The most authoritative pronouncement on the meaning of the word "harassment" can be found in R. v. Sillipp (1995), (AB KB), 99 C.C.C. (3d) 394 (Alta. Q.B.), at 418-19: As to the meaning to be given various words they are capable of definition by using either case law or an appropriate dictionarydefinition. As an example, it would seem to me that to interpret "harass" as being synonymous with "annoy" or vex" misses the mark.The Oxford Dictionary defines "harass" to mean: "to vex, disquiet, importune, harry, hurrie, turmoil, torment" and "to trouble or vex byrepeated attacks".

The Webster Dictionary contains the following definition: "to worry and impede by repeated attacks . . . to vex, troubleor annoy continually or chronically . . . to plague, bedevil, badger". In my opinion, the most appropriate synonyms are those which implybeing tormented, troubled, worried continually and chronically, being plagued, bedeviled and badgered. One must remember that theacts giving rise to this condition also cause that person to fear for his or her safety. Another concern may be the meaning given to theword "safety".

I am satisfied that this extends beyond physical safety and includes psychological safety. I feel supported in this by thedecision of Cory J. in McCraw as previously discussed. [20] The Ontario Court of Appeal in R. v. Kordrostami (ON CA), [2000] O.J. No. 613 (C.A.) consideredthe question of whether the proof of “harassment’ requires proof of a mental state expressed by these words as a whole, in other words ina cumulative sense.

The Court held, (at para. 11), that they are merely synonyms and any one of the meanings in a particularcircumstance could be a sufficient description of “harassment”: 11 I do not view the list of words used in Lamontagne, supra and Kosikar, supra as cumulative. Nor do they replace the word"harassed" in the Criminal Code. In their origin in R. v. Sillip, supra, at p. 393 they were stated to be individually synonyms for"harassed"; see also R. v. Ryback (1996), (BC CA), 105 C.C.C. (3d) 240 (B.C.C.

A) at p. 248 where this point ismade. Thus, it would be harassment to be "plagued" in one context and "bedeviled" in another. 14 In my view, on these findings, the complainant was harassed within the meaning of s. 264(1).

To the extent the synonyms adoptedfrom Sillip, supra, serve to elucidate the meaning of harassment, I have no difficulty in concluding on the findings of the trial judge thatthe complainant was "tormented", "troubled", "plagued" or "bedeviled" as a result of the appellant's conduct. [21] There can be little question in this case that the complainant was vexed, troubled, tormented and badgered by the actionsof Mr. Korbut. Seeing one’s relationship and reputation destroyed so callously would probably attract stronger sentiments than areavailable in the definition of “harassment.” Psychological trauma comes to mind.

(3) Did the Defendant who Engaged is Such Conduct Know the Complainant was Harrassed (or was Reckless or WilfullyBlind as to Whether the Complainant was Harassed)? [22] Mr. Korbut’s state of mind would, of necessity, depend in large part on his past association with, and conduct towards,the complainant. His knowledge that the complainant was harassed, or his recklessness as to whether she was harassed, could berealistically decided only by looking back to what had occurred before.

For example, if there was a calm and respectful relationshipbetween the two prior to this devastating publication campaign ─ that might tend to show an innocent state of mind on the defendant’spart. One only has to consider the following communication by Mr. Korbut to Ms K. to realize that he planned and anticipated takingaction that would cause torment and knew that would be the result: God will not keep you waiting too long”... “I am praying for you, you little bitch.” (see Exhibit 10) and “on February 6th, 2010, he sent

her an email that began: “Hello you Shameful and Cowardly Bitch” …“Let it all be returned to you in full measure”... “You have chosen your torment yourself. (see Exhibit 1).

(4) Did the Conduct cause the Complainant to Fear for her Safety or the Safety of Anyone Known to Her ? [ 23 ] I accept Ms. K.’s evidence that after January 7 th , 2010, she moved to avoid contact with Mr. Korbut. She said that when a male person came to her home late at night in answer to the dating website profile in her name that contained provocative information, she was scared and felt repulsed and unprotected. Paulina Ventrova saw the emails and was afraid it was escalating.

She said: “I was afraid for her safety and decided that this has to stop so I took her to the police station.” Detective Sam Mele gave evidence that when Ms. K. was at the police station on February 18 th , 2010, he thought “she was very scared”. Ms. Ventrova stated that as a result of what was taking place she was concerned for her own safety and that of her family. As a result of the foregoing I have concluded that the conduct of Mr. Korbut in circulating the damaging publications had caused Ms. K. to fear for her safety.

(5) Was the Complainant’s Fear in all the Circumstances Reasonable? [ 24 ] It seems to me that to argue that a woman who has had her most private and intimate personal images distributed electronically to every friend, relative and church-attending associate has not necessarily suffered a grave and serious fear-inducing harm is to ignore the perspective of women. For Ms.

K., the non-consensual sharing of embarrassing pornographic images with a parent, grandparent, close friends, and members of a church congregation must have constituted a profound interference with her physical integrity and a devastating blow to her reputation and self-esteem. As well, the effect of these actions was to deny Ms. K. the right to exercise freedom of choice as to her privacy and sexual integrity. The publication and wide distribution of these images constituted an action of such catastrophic (a word used by Mr.

Korbut) significance that, in my view, impacted heavily upon the life and health of A.K. and would have had the same effect on any woman who found herself in the same position. The inevitable conclusion in the mind of the recipient of this devastating psychological injury would reasonably be that the perpetrator would be someone capable of great harm and would reasonably be a person to be feared .

CONCLUSION [ 25 ] In conclusion, I find that the prosecution in this case has proven all of the requisite elements of the offences of theft under $5000.00 and criminal harassment beyond a reasonable doubt and the defendant, Oleg Korbut is found guilty of both charges. The assault charge is dismissed. P. HARRIS August 10, 2012.