Her Majesty the Queen - v. -, 2017 SKPC 92

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 092 Date: November 14, 2017 Information: 35866941, 991022160 & 991013752 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - L.H. Appearing: Ms. McIntyre and Ms. Kaip For the Crown Mr. Simaluk Court Appointed Counsel for the purpose of Cross-Examining the Complainant L.H. Self Represented The parties are identified by initials in order to protect the identities of their children. JUDGMENT M. HINDS , J I. INTRODUCTION

[ 1 ] The accused, L.H. is charged that between August 1, 2016 and November 1, 2016, at or near Regina, Saskatchewan he did: Knowing that T.H. is harassed or being reckless as to whether T.H. is harassed did without lawful authority repeatedly communicate directly or indirectly with T.H. thereby causing T.H. to reasonably in all the circumstances, fear for her safety, contrary to section 264(1) of the Criminal Code . [ 2 ] The accused is also charged that on or about July 28, 2017, L.H. did: Being at large on his undertaking entered into before a Justice or a Judge and being bound to comply with a condition thereof, to wit, have no contact of any kind in any way, directly or indirectly, with T.H.

However, you may have contact through a lawyer, fail without lawful excuse to comply with that condition, contrary to section 145(3) of the Criminal Code . [ 3 ] The Crown has also brought an application for a peace bond against L.H. It is alleged that between August 1, 2016 and May 30, 2017, at or near Regina, Saskatchewan L.H. did: Harass T.H. and she fears that L.H. will cause personal injury to her, and prays that L.H. may be required to find sufficient sureties to keep the peace and be of good behaviour towards her, pursuant to

section 810 of the Criminal Code . [ 4 ] T.H. was the sole witness for the Crown. L.H. testified in his own defence. L.H.’s friends Shannon Stevenson, Mark Power and Charlotte Sullivan also testified for the defence. [ 5 ] The Crown takes the position that in the event that this Court convicts L.H. of the criminal harassment and/or breach of undertaking charges, the Crown would withdraw the application for the peace bond.

In the event this Court acquits L.H. on the criminal harassment and the breach of undertaking charges, the Crown invites the Court to apply the evidence to the application for peace bond. [ 6 ] For the reasons set out below, I find the accused L.H. not guilty of the charge of criminal harassment and guilty of the charge of breach of undertaking. II. THE COURT ’S APPROACH TO THE EVIDENCE [ 7 ] The Court has focused on the evidence provided by T.H. and L.H. For the most part T.H. and L.H. agreed upon the basic facts pertaining to this case.

Naturally, each of these two witnesses brought their own perspective to the events which are described below. The evidence provided by Shannon Stevenson, Mark Power and Charlotte Sullivan was largely to the effect that L.H. loves his two daughters, is a good father and would like to spend more time with them. The Court accepts this evidence. III. FACTS Background [ 8 ] L.H. and T.H. were married in 2003. Their daughters, A.L.H. and A.S.H. were born in 2005 and 2008, respectively. The couple separated in 2009 and were divorced in 2012. The children have resided with T.H. since the couple separated.

The couple entered into an agreement whereby he was to have generous access to his daughters. L.H. has had access to the children since 2009. However, at times between the years 2010 and 2016, L.H. lived in Ottawa and Calgary and as a result had less access to the children.

He returned to Regina in May of 2016. It is apparent that since August 2016, he has wanted to spend more time with his children. [ 9 ] L.H. had previously entered into two peace bonds with respect to T.H. Each peace bond was for a period of one year and had a condition that L.H. was to have no contact, directly or indirectly with T.H. The first peace bond was entered into on May 9, 2013. The second peace bond was entered into on or about July 30, 2015 and expired on July 31, 2016. L.H. had access to his children during the time the peace bonds were in effect.

L.H. is of the view that T.H. orchestrated some of the events leading to those two peace bonds. He is also of the view that T.H. was interfering with his access to the children. [ 10 ] Prior to the end of July 2016 an arrangement had been reached whereby the two children were to be with L.H. one weekend per month from 5:00 p.m. on Friday until 9:00 a.m. on Sunday, L.H. would also contact his daughter A.L.H. from time to time regarding the child access arrangements for herself and her sister.

The Criminal Harassment Charge [ 11 ] T.H. and L.H. communicated with each other on several occasions between August 1, 2016 and November 1, 2016. The following is a

summary of these communications. [ 12 ] On August 1, 2016, L.H. went to T.H.’s home. L.H. described August 1, 2016 as being his “first day of freedom”. T.H. was not expecting him. He rang the door bell and asked to take his youngest daughter A.S.H., then age 8, for a bike ride. T.H. told A.S.H. she could not go for a bike ride with her father. T.H. told L.H. not to come to her house. L.H. told T.H. there was no reason for him not to come by the house. After a very brief time, he left the house. He stood outside the house in the street for about one minute and then left.

T.H. testified that she was shaken and scared by this encounter. She finds L.H. to be “very scary because he gets angry and has no control over himself”. She further testified that she locked all the doors at her home. [ 13 ] On August 4, 2016, T.H. observed L.H. on the street outside her home hanging around. Their daughter A.L.H. went outside and spoke to her father, who asked her if she wanted to go for a run with him. T.H. did not allow A.L.H. to go for a run with L.H. L.H. left for his run and returned awhile later. L.H. remained on the street outside T.H.’s home and asked A.L.H. for some water.

A.L.H. gave him some water and he left. [ 14 ] Earlier on August 4, 2016, L.H. had posted three comments to a digital blog that T.H. had created some years earlier (Exhibit D-2). L.H. testified that he had stumbled upon her blog. [ 15 ] One

article on the blog appeared to have been posted by T.H. on April 14, 2013. The

article was entitled “That’s Totally Unfair” and addressed the topic of suffering a consequence for something one has not done and described the biblical story of Paul and Silas. On August 4, 2016 at 12:37 a.m. L.H. posted an electronic comment to the blog. The comment read in part as follows: But regarding the post above that. I am absolutely floored. Look at these quotes. Did she get ideas from this? Did she realize that the attitude she found so disturbing is the one she later had?! . . . So she finds the attitude of someone who walks away from God for being falsely put in jail disturbing.

Then she admits she would have felt the same way. Then she actually become the perpetrator of the very same thing Maybe she is the one with mental health issues. but does she get it? Only nine years until her youngest daughter graduates and her ex-husband doesn’t have to deal with her to see them. [ 16 ] Another

article appeared to have been posted by T.H. on December 16, 2012. The

article was entitled “Trusting God Again” and addressed the topic of forgiveness. The blog ended by stating “I can give you some very real examples of this. If you are interested, message me.” On August 4, 2016 at 12:43 a.m. L.H. posted the following electronic response to the blog:

I remember the day you said to me “I forgive you” and how upset you were when I told you that I would rather hear from you that you apologize. I still don’t think you get the ironies. Consider. [ 17 ] L.H. introduced into evidence a third

article which appeared to have been posted by T.H. on November 3, 2013. The

article was entitled “How bad does it have to get?” On August 4, 2016 at 12:59 a.m. L.H. responded as follows: Think About It. So are you suffering for any reason right now because of something you refuse to do? For how many years have your suffered? And how many more until you change? [ 18 ] L.H. testified that by posting his comments to T.H.’s blog postings he was trying to get through to her. He maintained there was nothing threatening in either of his comments.

On the other hand, T.H. testified that L.H.’s comments made her feel anxious and gripped her with fear. [ 19 ] On August 8, 2016, T.H. came home and observed L.H. standing on the street in front of her home with their daughter A.L.H. Later that day T.H. sent an email to L.H. (Exhibit D-1 Tab 16) wherein she stated: I want to establish a

schedule for you to see the girls. As mentioned I do not want you coming by my house ever. This includes standing out by my driveway on the city street. On Monday, August 1 when you came to the door, I told A.S.H. she could not go with you. I also told you I do not want you coming to my house. On Thursday when you asked A.L.H. if she wanted to join you on her run I told A.L.H. to tell you not to come to the house. I heard her tell you this and you still came to the house. Upon completion of the run, you came to my house and asked A.L.H. for water from my house and she gave it to you.

You are not welcome at my house. You are not welcome to my water. I have told the girls they cannot join you for your runs anymore because I do not want you coming to the house or anywhere close to the house, including the street in front of my house and this is something you clearly cannot respect. The peace bond expired. This does not mean I want to see you or talk to you. It only means you don’t get arrested if you talk to me or come by my house. However, right now I am setting a very clear boundary that I would like you to respect. This is do not come to my house or stand on the street in front of my house.

I will get his legally enforced if necessary. I want to set up a

schedule in order to avoid all contact with you. Once school starts it will be every second Friday after school until Sunday morning at 9:30. This will begin September 9. If you would like to see them on a week night, I want at least a day’s advanced notice, not a 1 minute notice because you are running by. As for the rest of the summer, you can let me know what days and times you would like to see the girls and arrangements can be made. As much as possible I want to adhere to the

schedule in order to avoid communication with you as well as to avoid any reason for you just to drop by on the street in front of my place. If you do not like this, then have your lawyer contact mine and we can get a legal visitation

schedule established. [emphasis added] [ 20 ] L.H. replied to T.H. via email on August 8, 2016 as follows: I want to make it clear that I have not set a foot on your property since the Aug 1 visit. I waited on the street at all times. You were not even home when A.L.H. got me water. I was not at your house this time today either. Our kids were out front with their bikes. You have used the law to be a bully and there is no way I should let you be the bully you have been the last 7 years. You don’t own the street. Also a full weekend is a full weekend. After school Friday until 8 pm Sunday.

[ 21 ] Later on the same day L.H. sent the following email to T.H.: P.S. If I feel like running to the end of your street and doing 50 jumping jacks on it every day that is none of your business. Excuse me Supreme Commander. [ 22 ] I find that after receiving the email from T.H., L.H. stopped coming to her home or standing in the street in front of her house as per her request. After August 8, 2016, L.H. and T.H. largely communicated by email. T.H. blocked L.H. from her cell phone. On a few occasions L.H. would leave voice messages on her home phone.

These communications involved child access. [ 23 ] On August 12, 2016, L.H. attempted to provide T.H. an explanation as to why he had difficulty setting up a child access schedule. He sent the following emails to T.H. (Exhibit D-1, Tab 14): I can’t

schedule a month ahead because I have $4000 of unpaid taxes, $7000 left on my line of credit, a September 1 deadline on my capstone project for grad, and renovations required on a rental property. So I work whenever I can. . . . . . . . You must be blocking my texts. Are you? I was in Meota. I will stay in the battlefords tomorrow too to work. You seem to have missed why I told you what I did.

It’s the context for why I haven’t planned and why I have little time or notice if available time: factors beyond my control [ 24 ] On August 12, 2016 T.H. sent the following email to L.H.: Your number is still blocked on my cell. I did receive ur voicemail. I will not be unblocking ur number. U can communicate with me on house phone or email . Once the

schedule is established which I will sent to u once I get the school calender, there will b little need for u to contact me as the days and times will be predetermined. [emphasis added] [ 25 ] The evidence reveals that by mid August 2016, L.H. was getting access to his children on some weekends. For a time T.H. facilitated this access by dropping the children off at L.H.’s residence. Later in the fall of 2016 this arrangement ended and L.H. picked up and dropped off the children from T.H.’s parents’ home. [ 26 ] L.H.’s access to the children did not always go smoothly.

On a few occasions he wanted to change the times he had the children. This did not occur. Also, on one occasion he did not get the children on a weekend he expected to have them. [ 27 ] L.H. expected that he would have his children from Friday, August 26 at 5:00 p.m. until Sunday, August 28, 2016 at 9:30 a.m. He telephoned T.H. on Thursday, August 25, 2016 to confirm that he was getting the girls for the weekend. T.H. told him that the girls were involved in a dance workshop on Saturday and Sunday and that he would get the children on Sunday at 2:00 p.m. and he could keep them until Tuesday morning.

L.H. testified that T.H. told him the children had all day dance events. L.H. initially consented to this change. He thought he might be able to work over the weekend at his job which involved soliciting donations for an organization. By Friday August 26, L.H. found that he could not work over the weekend as the people he would be contacting for donations in the Battleford area were at the lake for the weekend. He returned to Regina on August 26, and communicated with his daughter A.L.H. who advised him she had dance recitals from 10:00 a.m. to 2:00 p.m. on Saturday and Sunday.

L.H. thought T.H. was thwarting his access to his children. He was of the view that he could take the girls to their dance recitals and have them for the weekend. On Friday August 26, 2016, he left a telephone message for T.H. to the effect that he was in Regina and he did not know why he could only have the children on Sunday at 2:00 p.m. He added that he was not going to tolerate her bullying him/yanking him around. T.H. did not respond. He left other messages for T.H. on Saturday, after the dance recital was over, indicating he was ready to take the children.

[ 28 ] T.H. testified that on Saturday, August 27, L.H. left a message on her phone demanding the children. [ 29 ] L.H. testified that he did not hear from T.H. until Sunday, August 28. However, Exhibit D-1, Tab 12 shows that T.H. sent L.H. an email on Saturday, August 27 at 6:45 p.m. indicating that she had heard the voice messages that he had left that day. She went on to state that his messages were out of line and this needed to stop. She also confirmed L.H. was getting the children at 2:00 p.m. Sunday, August 28, 2016.

Several more emails were exchanged between L.H. and T.H. that Saturday evening, and on Sunday. [ 30 ] L.H. was waiting to get the girls on Sunday, August 28, 2016 at 2:00 p.m. On Sunday, August 28, 2016 at 1:51 p.m. T.H. sent him an email advising him that he would not be getting the children at 2:00 p.m. He did not get the children at all that weekend. He was frustrated by this denial of access.

T.H. testified that the girls did not go with their father on Sunday as had been arranged, because the girls did not want to see him, as he was angry. [ 31 ] On or about September 21, 2016, T.H.’s lawyer sent L.H.’s lawyer a proposed visitation schedule. The proposed visitation

schedule was not agreed upon by L.H. L.H. felt the

schedule was being imposed upon him by T.H. and sought to negotiate a visitation

schedule through his lawyer. L.H.’s lawyer replied to T.H.’s lawyer on or about October 13, 2016. No formal visitation

schedule was ever concluded between the lawyers. [ 32 ] L.H. and T.H. exchanged email messages throughout the months of September and October 2016. These messages dealt with issues involving child access. [ 33 ] In October 2016, L.H. expressed his dissatisfaction with T.H. scheduling children’s activities on the weekends he had the children. This is reflected in an email exchange of October 24-25, 2016 [Exhibit D-12] which reads as follows: On Mon, Oct 24, 2016 at 4:42 p.m., L.H. wrote: Landon invited me to the final game at Taylor Field Saturday pm.

Can I drop the girls off at your place at 4 and have them Sunday from 2 till I drop them off Monday at school? On Oct 24, 2016 6:01 p.m., T.H. wrote: As per the schedule, you don’t have them this weekend. You get them the weekend of November 4, A.L.H. has a retreat that weekend. She is to be dropped off at Rosewood at 9:30 on November 5. Oct 25, 2016 at 6:22 p.m. L.H. wrote: From now on you

schedule nothing on the weekends I have them. You never inform me of these things then put me in the spot to have to say no. Because of this I definitely want them this Friday night until Saturday at 4. I sometimes wonder if you are actually trying to taunt me by being so ignorant. Oct 25, 2016 6:37 p.m. T.H. wrote: The

schedule has them with me this weekend. On your weekends you told me that you would take them to whatever events they have going on. My lawyer is responding to yours. If you want them this weekend or have issues with A.L.H. going on a youth retreat you can send a letter to my lawyer. [ 34 ] On Friday, October 28, 2016, L.H. testified he sent the following email [Exhibit D-15] to T.H. at 7:36 p.m.: We still haven’t heard from her [T.H.’s lawyer]. I resent how you invent new ways to keep me from my kids. I told you if you played fair you would bring a lot less trouble on yourself.

Either you learn slow or is it your strategy to provoke me. Well you know how I feel now - - angry and helpless. I just want it to stop T.H. But you can’t budge one inch.

[ 35 ] During the week of October 24, 2016, L.H. communicated to T.H. that he was volunteering at a school dance on October 28, 2016 and he wanted to know if the girls were going to attend. [ 36 ] T.H. went to the school dance on October 28, 2016, with the children and a man who she was dating. T.H. and her date sat at the back during the dance. T.H. testified that during the dance L.H. approached her date and said “I want to meet the guy who spends more time with my girls than I do”. T.H. asked her date not to engage with L.H.

L.H. then walked away and returned a short time later and confronted T.H. telling her she had a laugh like Hillary Clinton. L.H. also said “I am going to sell all my properties and fight for shared custody”. T.H.’s date told L.H. to stop or he would call the police. L.H.’s face was red. He then yelled “Because of something I am going to do?” Fortunately a stranger intervened and the confrontation ended. T.H. and her date left. T.H. testified that she was embarrassed and worried that the confrontation involving L.H. was going to escalate.

Fortunately it did not, as L.H. also left. [ 37 ] L.H. provided a more detailed account of the events of October 28, 2016. L.H. confirmed that he volunteered to work at a Halloween Dance held at the children’s school on Friday, October 28, 2016. He hoped he would see his children at the dance. He testified he had not seen his children for two weeks and would only see his daughter A.L.H. for 14.5 hours the following weekend as she had some planned activities. He further testified that he was frustrated by T.H. setting and adjusting the

schedule of when he could see the children. He added that all of this was going through his mind when he saw T.H. and her boyfriend walk into the dance. He concluded this whole thing was so unfair as “. . . that man gets to see my kids more than I do, just because he is with her, she obstructs me and does whatever she wants”. [ 38 ] L.H. confirmed that he approached T.H. and her boyfriend at the school dance. He testified he said the following words to T.H.’s boyfriend, “You know what.

It’s great to meet you, I get to see the face of the person who sees my daughters more than I do.” He then told T.H. words to the effect “It really solidifies that I am going to go for shared custody of my kids”. L.H. testified that he was yelling because the music was loud and it was entirely possible that his face was red because of the lighting at the dance. The male responded by saying “You better back up or we will call the cops.” L.H. testified that he responded by saying “For what?” and he began to walk away. L.H. then heard T.H. laughing. He did not find any of this funny.

He then went back and said to T.H. “What are you laughing about? You look like Hillary Clinton did when Trump nailed her with the truth”. [ 39 ] L.H. acknowledged that he sent an email (Exhibit D-16) to T.H. on October 30, 2016. The email reads as follows: I apologize to you and Paul for the Friday night encounter. My anger has subsided. Only the sadness, loss, and helplessness remain. You are evil. Stay the fuck away from me. [ 40 ] T.H. did not reply to this email. At the beginning of November she applied for a peace bond respecting L.H.

T.H. has encountered L.H. on two occasions since that time: once briefly while she was attending the Mosaic Festival in the first week of June 2017 and a second time on July 28, 2017 at her parents’ home during a pick up of A.S.H. [ 41 ] T.H. testified that the above noted encounters with L.H. have negatively effected her emotional well being. In particular these encounters have caused her anxiety, hopelessness and fear. She testified that she is scared of L.H. When L.H. first came to her home she had trouble sleeping. She has started counselling and has tried anti-anxiety medication.

The Breach of Undertaking Charge [ 42 ] The criminal harassment charge against L.H. was sworn on or about November 28, 2016. L.H. admitted that he entered into an undertaking in relation to the criminal harassment charge on or about December 22, 2016. One of the conditions of the undertaking was to have no contact of any kind in any way, directly or indirectly with T.H. except through a lawyer. [ 43 ] At the onset of his testimony L.H. testified that T.H.’s parents were “less than thrilled” that T.H. was going to marry him, and they were not supportive of their marriage.

At some point in time in the fall of 2016, an arrangement was made whereby L.H. was to

pick up and drop off the children from T.H.’s parents home. L.H. did not like this arrangement as he felt T.H.’s parents were condescending and dismissive of him. He stated that he attempted to have T.H. agree to a different place for pick up and drop off of the children. T.H. did not agree to his request. [ 44 ] L.H. testified that in July 2017 he was experiencing financial difficulties. He had tax arrears and problems with some property he owned. He could not pay child support or make a $100.00 payment towards a Registered Education Savings Plan (RESP) which had been set up for his daughters.

He called Knowledge First Financial which held the RESP. L.H. testified that he told Knowledge First Financial that he could not make the payment and he did not want arrears accumulating. He asked if he could just opt out of the RESP. He testified he was told that he could not opt out without first getting the signature of T.H. L.H. testified that he was in a bind as he could not afford to pay his lawyer to communicate this information to T.H. He found this situation to be very stressful. [ 45 ] L.H. had the children between July 1 and 16, 2017.

He dropped the children off at T.H.’s parents’ home on July 16, 2017. He was to get the children again on July 28, 2017. He was to pick up the children at 5:00 p.m. from T.H.’s parents’ home. [ 46 ] On July 28, 2017, L.H. went to T.H.’s parents’ home at 4:45 p.m. to pick up his daughter A.S.H. He was 15 minutes early. He understood his other daughter A.L.H. was at camp and that he would pick her up the next day on July 29, 2017. He testified that he was “almost shaking when he got to the door, he didn’t want to be at T.H.’s parent’s house, and he was beyond his breaking point”.

He rang the door bell and knocked on the door and no one answered it. He testified that he then opened the door. He did not step inside. He spoke to T.H.’s father and said “Look I’ve got these RESP arrears, I can’t afford a lawyer to tell her lawyer about these arrears, could you please pass this on to your daughter?” T.H.’s father said “Well I think you should talk to a lawyer about that”. He testified that while he was at the door he probably said something like “I hope T.H. hears this”. [ 47 ] T.H. had been at her parents’ home when L.H. arrived. Her car was parked outside the house.

She went to the basement of the home so as to avoid having contact with L.H. on the main floor. T.H. testified that L.H. was yelling at her parents about something and that he also said “I hope T.H. hears this.” T.H. further testified that she was very panicky, upset and scared by this incident. IV. THE LAW [ 48 ]

Section 264 of the Criminal Code sets out the offence of 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.

(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 on business or happens to be; or (

d) engaging in threatening conduct directed at the other person or any member of their family. [ 49 ] In R v Sillipp , 1997 ABCA 346 , 120 CCC (3d) 384 [ Sillip ]; leave to appeal to SCC refused (1998), 123 CCC (3d) vi, the Alberta Court of Appeal set out the five essential elements of the offence of criminal harassment that the Crown must prove beyond a reasonable doubt (para. 18):

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. [50] In R v Vandoodewaard, [2009] CanLII 66617 (Ont Sup Ct) the Court summarized the law pertaining to criminal harassment. I adopt the following

summary of the law at paragraphs 10 -14: [10] While harassment is not defined in the legislation it has been held that it is not sufficient that the complainant was “vexed,disquieted or annoyed.” In Kosikar, Goudge J.A. concluded the Crown was required to prove that as a consequence of the prohibited actthe complainant was in a state of being harassed or felt harassed in the sense of feeling “tormented, troubled, worried continually orchronically, plagued, bedeviled and badgered” (at para. 25). The list of words are not cumulative, nor do they replace the word“harassed” in the Criminal Code.

It would be harassment to be “plagued” in one context and “bedeviled” in another: R. v. Kordrostami(2000), (ON CA), 143 C.C.C. (3d) 488 (Ont. C.A.) At para. 11. [11] Evidence of conduct between the parties prior to dates in the information is admissible to establish that as a consequence of theconduct covered within the timeframe of the information, the complainant felt harassed. The prior conduct is not an element of theoffence. The complainant’s reaction to the conduct prohibited in s. 164(2) is: Kosikar, para 27.

In order to appreciate the impact of theprohibited conduct and the gravity of the wrong committed, the entire factual context must be considered: Kordrostami, supra at para.12. See also R. v. Krushel, (ON CA), [2000] O.J. No. 302 (C.A.) At para. 26 and R. v. Taylor, [1998] O.J. No. 5917(Gen. Div.). [12] There need not be direct evidence of the accused’s state of mind. Whether the accused had the requisite mens rea is a question offact. The trial judge is entitled to draw inferences from the facts in assessing whether the requisite state of mind has been establishedbeyond a reasonable doubt.

The trial judge is entitled to draw a reasonable inference that an accused was reckless as to whether thecomplainant was harassed: R. v. Holmes, 2008 ONCA 605 , [2008] O.J. No. 3416 (C.A.). [13] There must be evidence the complainant reasonably feared for his or her safety during the timeframe specified in the information: R. v. Revington, [2007] O.J. No. 1036 (C.A.). Findings that the complainant was “scared” and “frightened” and that she thought she wasbeing stalked fully supported a finding of fear for safety.

The reasonableness of the fear must be assessed in light of all thecircumstances: Kordrostami, at para. 16 and 17. [14] The complainant’s fear for his or her safety may include psychological and emotional security. To restrict it narrowly, to the risk ofphysical harm by assaultive behavior, would ignore the very real possibility of destroying a complainant’s psychological and emotionalwell-being by a campaign of deliberate harassment.

If thea accused engages in a course of conduct that causes a person to reasonablyfear for his or her emotional or physical safety when viewed objectively the offence has been established: R. v. Gowling, [1994] O.J. No.2743 (Gen. Div.), affirmed [1998] O.J. No. 90 (C.A.); R. v. Goodwin, [1997] B.C.J. No. 954 (B.C.C.A.). [51] Lastly I am mindful of the words of Mr. Justice Doherty in R v McDougall (1990), (ON CA), 62 CCC (3d) 174 (Ont CA) where he stated “Conduct which is mean, petty, unco-operative, and spiteful is not the stuff of the criminal law.” V.

ANALYSIS Did the accused, L.H. repeatedly communicate directly or indirectly with T.H.? [52] In this case, L.H. clearly repeatedly communicated directly and indirectly with T.H. between August 1 and November 1,2016. He attended to her residence on three occasions in early August 2016 and he posted comments on her blog posting. He also leftvoice messages and sent emails, all of which related to child access. He also engaged T.H. and her friend at the school dance.

[53] Having reviewed the whole of the evidence, I am of the view that L.H. repeatedly communicated with T.H. between August 1and November 1, 2016. Has the Crown proved that T.H. was harassed? [54] I accept T.H.’s assertion that she was shaken and fearful after L.H.’s communication with her at her home on August 1, 2016. I also accept that her fear and anxiety continued on August 4, 2016 when L.H. appeared on the street outside her house and madeconnections on her blog postings.

This fear and anxiety continued on August 8, 2016 when L.H. appeared a second time on the street outside her house. [55] I am of the view that T.H.’s fear and anxiety abated and was galvanized into action later in the day on August 8, 2016, whenshe wrote an email to L.H. indicating he was not to be at her home or on the street in front of her home. [56] On August 8, 2016, T.H. also communicated that she wanted to set up a child access

schedule in order to avoid all contactwith L.H. T.H. recognized that this would involve some ongoing communication with L.H. In her email of August 8, 2016, T.H. stated:“As for the rest of the summer, you can let me know what days and times you would like to see the girls and arrangments can be made.” On August 12, 2016, T.H. also expressly invited L.H. to communicate with her via email and her home phone until a child accessschedule was established. I find that L.H. took her up on her invitation to communicate regarding child access beginning in August2016. I have previously found that a child access

schedule was not established and L.H. and T.H. continued to communicate throughoutthe fall of 2016. While I am confident that L.H.’s communications with T.H. between August 8 and October 28, 2016 caused her to bevexed, disquieted or annoyed, I am not convinced beyond a reasonable doubt that these communications caused her to be harassed in thesense of feeling “tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered”. [57] I must also consider the incident at the school dance on October 28, 2016.

T.H. testified that she was embarrassed andworried that the confrontation involving L.H. was going to escalate. Thankfully it did not. I am of the view that this incident made heranxious and fearful of L.H. as he raised his voice and appeared to be angry. [58] Lastly, I must consider L.H.’s email to T.H. on October 30, 2016. The first part of the email is an apology regarding the“encounter” at the school dance on October 28, 2016. The last sentence of the email, however, states “You are evil. Stay the fuck awayfrom me”.

While this last sentence was mean, petty and spiteful and undermined the apology, I am of the view it is not the stuff of thecriminal law. [59] Having reviewed the evidence as a whole, I have concluded that the Crown has not proved beyond a reasonable doubt thatT.H. was harassed by L.H.’s communications with her between August 1 and November 1, 2016. I am of the view that L.H.’s initialcommunications with T.H. on August 1, 4 and 8, 2016 made T.H. anxious and fearful of L.H. and would have constituted harassment hadthese communications at or near her home or on her blog continued.

Fortunately these communications stopped following her email toL.H. on August 8, 2016. I find that the email and voice mail communications which followed August 8, 2016 did not constituteharassment. T.H. invited L.H. to communicate with her using email and voice mail regarding child access issues. Thereafter, L.H.communicated with T.H. in this manner. While the incident of October 28, 2016 made T.H. anxious and fearful of L.H., I am of theview, however, that this particular incident does not constitute harassment.

Has the Crown proven that the accused L.H. knew that the complainant, T.H. was harassed or was reckless or wilfully blind to asto whether the complainant was harassed? [60] In R v Biden, 2000 SKQB 199 [Biden] the Court approved the British Columbia Court of Appeal’s approach to conduct whichoccurs prior to the date of offence as set out in R v Ryback (1996), (BC CA), 105 CCC (3d) 240 (BCAC).

In Bidenthe Court stated as follows at paras. 5-6: [5] It is important to note that evidence of conduct which occurs prior to the date stated in the charge is relevant to two issues, namely (1) the issue whether the complainant had fear for her safety and whether it was reasonable that the complainant should be fearful inall the circumstances, and

(2) the issue of intent of the accused, i.e. whether he knew or was reckless whether his conduct harassed the complainant. [6] Accordingly, some background information with respect to the knowledge and relationship between the complainant and the accused, Biden, will put the conduct which occurred in the period named in the indictment in perspective. It will be significant with respect to two elements of the offence, namely, the reasonableness of her fear and the intent of the accused. [ 61 ] In the present case the evidence reveals that L.H. entered into two prior peace bonds with respect to T.H.

It is a reasonable inference that T.H. feared L.H. prior to August 1, 2016. Exactly why T.H. feared L.H. is not clear. T.H. testified that when L.H. was angry he had no control and this makes him “scary”. Unfortunately, in this case the Crown did not adduce any evidence with respect to L.H.’s prior conduct giving rise to the peace bonds. Such evidence would have put the conduct of L.H. between August 1 and November 1, 2016 in perspective. [ 62 ] In this case I would have concluded that L.H. knew or was reckless as to whether his communications on August 1, 4 and 8, 2016 harassed T.H. had they continued.

They did not. After receiving T.H.’s very clear email of August 8, 2016, L.H. did not communicate with her at or near her house. Nor did he make any further comments on her blog. Hence, I have a reasonable doubt as to L.H.’s intention during this period of time. [ 63 ] In this case I also have a reasonable doubt whether L.H. knew or was reckless as to whether his email communications and voice mails between August 8 and October 28, 2016 harassed T.H. On August 12, 2016, T.H. clearly indicated to L.H. that he was to communicate with her on child access issues by email or her home phone.

T.H. may have hoped this communication would be short lived. However, it was not. Moreover, she actively participated in these communications. [ 64 ] Lastly, I am of the view that L.H.’s communication with T.H. at the school dance was intentional: however, I am not convinced beyond a reasonable doubt L.H. knew, or was reckless as to whether this communication harassed T.H. [ 65 ] In

summary, I find that the Crown has failed to prove that L.H. knew or was reckless as to whether his communications harassed T.H. Accordingly, I find that the Crown has failed to prove an essential element of the offence of criminal harassment. Has the Crown proven that L.H. ’s communication caused T.H. to fear for her safety? [ 66 ] I am of the view that the Crown has proven that L.H.’s communications with her caused T.H. to fear for her safety. This is best illustrated by T.H.’s actions following the direct communication L.H. had with her on the doorway of her home on August 1, 2016.

T.H. had not been expecting him to come to her home. I accept that she was shaken and scared by this encounter. When L.H. left her home, she locked all the doors at her home. I find she continued to fear for her safety, when L.H. was on the street outside her home on August 4 and 8, 2016. I also find that she feared for her safety after L.H. communicated with her at the school dance on October 28, 2016. While she was undoubtedly embarrassed by this angry encounter with L.H., she was also fearful for herself and her children.

I accept her testimony that she was worried the confrontation would escalate, and concerned about how she would get out of the school. Was T.H. ’s fear reasonable? [ 67 ] I accept that T.H. had a subjective fear of L.H. The question before me is whether that fear was objectively reasonable. [ 68 ] T.H.’s fear and anxiety respecting L.H. appears to be based on her past experiences with L.H. As discussed earlier, the Crown did not adduce evidence of L.H.’s past conduct involving T.H. I accept her testimony that she found L.H. to be very frightening, because when he got angry he had not control of himself.

However, in this case, T.H. did not provide any examples of past situations where L.H. got angry and lost control of himself. I am simply left with the fact that he entered a peace bond respecting her on two prior occasions. [ 69 ] I find that during the communications that L.H. had with T.H. at her home and online in early August, he did not display anger. He wanted to exercise access to his children. When T.H. told him he could not have the children, he left. He did not lose control

of himself. [ 70 ] The incident at the school on October 28, 2016 is somewhat different. It is clear that he was angry about his perceived lack of access to his children, and spoke his mind. He clearly caused a scene; however, I am of the view he did not lose control of himself. He left the school shortly after the incident began. [ 71 ] After considering the whole of the evidence before me, I find that T.H.’s fear of L.H. was not reasonable. As a result I find that the Crown has failed to prove an essential element of the offence of criminal harassment. [ 72 ] In

summary, I find that the Crown has failed to prove three essential elements of the offence of criminal harassment. Accordingly I find the accused L.H. not guilty of this charge. The Breach of Undertaking Charge [ 73 ] On July 28, 2017, L.H. was subject to an undertaking which contained a condition not to have direct or indirect contact with T.H. That day L.H. went to T.H.’s parents’ home and spoke to her father.

L.H. said “Look I’ve got these RESP arrears, I can’t afford a lawyer to tell her lawyer about these arrears, could you please pass this on to your daughter?” Her father replied “Well I think you should talk to a lawyer about that”. [ 74 ] L.H. admitted on cross-examination that he breached the “no contact” clause. He testified that when he went to the parents’ door on July 28, 2017, he thought T.H. was in the living room of the home. T.H. had in fact been in the basement of the home trying to avoid him. L.H. also admitted that he was wrong in attempting to talk to T.H. through her father.

He added that he was not willing to pay $100.00 to his lawyer to communicate the RESP information to T.H.’s lawyer, when he should have been able to simply pass this information on to T.H. [ 75 ] I find the accused guilty of breaching a term of his undertaking. VI. CONCLUSION [ 76 ] I find the accused, L.H. not guilty of the charge of criminal harassment and guilty of the charge of breach of undertaking. _____________________ M. Hinds, J