R. v. Corby Date:, 2012 BCPC 561

Citation: R. v. Corby Date: 20121130 2012 BCPC 0561 File No: 87524-1K Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. WAYNE GEORGE CORBY ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE DE COUTO Counsel for the Crown: W. Wakabayashi Counsel for the Defendant: R. Vachon Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: May 30, 31, June 1, 4, 5, 6, 22, September 28, October 12, 2012

Date of Judgment: November 30, 2012 [ 1 ] THE COURT : I have my decision and I might say what I have are written reasons that I am content to file after I read them into the record for Mr. Corby's sake. [ 2 ] The accused, Wayne Corby, is charged with two counts. On Count 1, he is charged with what is commonly referred to as criminal harassment of Mihaela Michelle Bogdan by engaging in conduct that caused her to reasonably fear for her safety, contrary to s. 264(1) of the Criminal Code of Canada , R.S.C. 1985, c. C-46.

He is further charged in Count 2 with "uttering a threat" to Kim Gillis to cause death or bodily harm to Mihaela Michelle Bogdan, contrary to s. 264.1(1) of the Criminal Code . [ 3 ] The foundation of the criminal harassment charge is unique in that it relies on a number of postings placed on the accused's personal account on the social media site, "Facebook." These included an apology, an expression of his love for the complainant and begging her forgiveness in the "basic information about Wayne"

section on the Info Page.

He also posted a number of pictures on a separate Page entitled "Wall" on which was also a link to the song by The Police "Every Breath you Take," alongside the comment "I miss you, Michelle, very much." Some of the pictures were meaningful to the complainant and combined with the other materials she viewed on his Facebook account, she felt that they were directed at her and meant to tell her that he was close by and watching her. [ 4 ] In determining whether this offence has been established based on the above, it is necessary to consider the background circumstances for the context within which these charges were laid. [ 5 ] The parties met when the complainant worked at a Tim Hortons in Winnipeg and the accused was a customer.

They dated, entered into a relationship, and had two children, a son born in April 1994 and a daughter born in October 1995. By all accounts, the accused was a good father, a hard worker, and a good provider during those early years while the complainant stayed at home to raise the children. The family moved to Ontario in 2002 and eventually settled in the Niagara Peninsula region. The relationship deteriorated. The accused was convicted of offences involving the complainant at different times over the course of the relationship, most recently in 2010.

The complainant left the accused on his release from jail and moved to the Lower Mainland in fear for her safety and that of her children. [ 6 ] Following his release from jail, the accused was subject to two probation orders which, among other conditions, prohibited him from having any contact with the complainant. [ 7 ] Between 2010 and 2011, the accused travelled to the Lower Mainland on three separate occasions. On his first visit, he stayed for a few days with a friend whom he befriended on-line, Kim Gillis, who thought it took place sometime in early August 2010.

The next visit was in or around July 2011 when he arrived with another friend, Debra Hannigan, and stayed for approximately two weeks. The third time was in September or October 2011. [ 8 ] During these visits, the accused went sightseeing to various locations in the Metro Vancouver area with Ms. Gillis and/or Ms. Hannigan. During their travels, he or Ms. Hannigan took pictures, many of which were posted to the accused's Facebook Page.

These were visible to Facebook users at large as his was a public profile although at some point he had blocked the complainant, preventing her from accessing his Facebook Page. [ 9 ] The complainant was unaware that the accused had been in the Lower Mainland until she was alerted to some pictures posted on his Facebook account. She accessed his Facebook Page through her sister, viewed the contents and became alarmed.

She concluded that the accused was in the Lower Mainland and close by, and her fear of him returned. [ 10 ] The police became involved and the accused was subsequently arrested in November 2011 and charged with the offences as noted above. [ 11 ] At issue with respect to Count 1 is whether the actions of the accused in these circumstances constituted criminal harassment. Criminal harassment is defined in s. 264 of the Criminal Code of Canada as follows: 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. [ 12 ] The Crown's position as argued by Ms. Wakabayashi is that the accused's conduct fell within s. 264(2)(

d) in that he had engaged in threatening conduct directed at Ms. Bogdan through his postings, notwithstanding that it was necessary for the complainant to act proactively to view this material. She argued that it was the intent with which the accused posted all of these items collectively that must be considered. She submitted that he deliberately selected those images for their significance to the complainant, and taken together with the other material posted, was meant as a message to the complainant that he knew where she was and that he was not far from her.

[ 13 ] Ms. Wakabayashi also argued that the accused was aware the complainant would be accessing his Facebook Page, based on his knowledge that the complainant had previously accessed it to check up on him. She submitted that this knowledge, together with his intent and his actions in posting the above-noted material considered collectively constituted conduct that fell within s. 264(1) .

In my view, the determination of this issue requires a consideration of the evidence and the applicable principles of law as well as some understanding of how Facebook functions. [ 14 ] Constable Croshaw, an RCMP Officer with the Coquitlam Detachment Domestic Violence Section, was the investigating Officer and the first witness called by the Crown. [ 15 ] She has been with the RCMP for 12 years and has some familiarity with Facebook. She described it as a social networking site that one joins by creating an account with a name.

She explained that once it is set up, the account holder can post biographical or other personal information, post comments, messages, pictures, likes and dislikes and all kinds of other information to share with others who have access to the account. That access is through invitations to be a "friend" or others can invite themselves to be a friend and once accepted, they also enjoy access to the holder's Facebook Page.

The account holder can also determine who can access the account by setting the appropriate level of privacy or security setting ranging from one that is secure to one that is wide open to the public. [ 16 ] With that background, the Crown's case in large part relied on the testimony of the complainant, Ms. Bogdan. She testified she met the accused sometime around November 1989 when she was working at a Tim Hortons in Winnipeg and he was a customer. They dated and entered into a relationship but separated for approximately seven over the summer of 1990.

The separation was as a result of an incident that took place as the parties were going to a family get-together. She was driving and did not park the vehicle where the accused wanted. He became upset and started hitting her. She then decided not to go to the family gathering and the accused's anger increased. When she tried to run away, the accused pursued her, calling her names. [ 17 ] The two of them got back together again and remained together for approximately 20 years.

They had two children, moved to Ontario in 2002, and eventually settled in the Niagara Peninsula region where the complainant remained until she left the accused in 2010. [ 18 ] Ms. Bogdan testified that for the most part the relationship went well. The accused appeared to enjoy being a father, was very caring of the children, and they in turn loved him and being around him. [ 19 ] In the early years, he worked hard as a carpenter, was busy, and was a good provider while she remained at home to raise the children.

However, sometime around 2003 the accused was in a work-related accident and ended up having to take some retraining through the Workers Compensation Board. Ms. Bogdan felt that the accused was a changed person following the accident. He was in pain much of the time and seemed to be very angry all of the time. The relationship soured, he became violent and abusive towards her, and she left him in 2010 because she was afraid for her own safety and that of her children. [ 20 ] Ms. Bogdan detailed some of the specific incidents which formed the basis of a fear of the accused and resulted in her leaving him.

The accused was charged with respect to these incidents and pleaded guilty or was found guilty. Incident No. 1 [ 21 ] The first was sometime near Christmas 2004 shortly after the complainant and the children had put up the Christmas decorations. The accused became upset when he concluded that his aunt would not be visiting them contrary to his hopes, and when the complainant was unable to find a particular pen. He yelled at her and their two children to take the decorations down and when they did not seem to be doing it fast enough, he became angry.

It reached a point where she got scared and ran out of the house with a cell phone in hand. [ 22 ] The accused came out after her holding a piece of wood approximately two feet long which she denied was a snowbrush when asked about it in cross-examination. Ms. Bogdan called 911 and while waiting for the police she and the children got into the family car, locked the doors, and she tried to start the car. The accused apparently had a duplicate car key with a remote access locking mechanism and managed to unlock and open the door.

He started yelling at her saying, "Where do you think you're going?" He reached in to try to remove the key from the ignition and when Ms. Bogdan tried to stop him, he punched her in the eye. [ 23 ] When the police arrived, she did not tell them what had happened as she did not want the situation to escalate. Instead, she told them she wanted to get away from him and subsequently arranged to stay with a friend. [ 24 ] The next day, she took the children to school and returned to her friend's house.

The accused kept calling her at work throughout the day, at one moment being apologetic and in the next screaming, ranting, and threatening her. Ms. Bogdan then received a call from the school advising her that the accused was at the school in a very upset state and wanting to remove his children from the school. [ 25 ] She told the school officials what had happened and they in turn called the police. They asked her to attend at the school and she did. The police officers noted her black eye and subsequently arrested the accused. He was charged with assault and convicted.

Incident No. 2 [ 26 ] The family had a pet ferret that in January 2010 was ill and on medication. Sometime during that month, the complainant was at work and as she expected to be late, called home and asked the accused to give the ferret its medication. [ 27 ] The next morning, the accused got up and went into the kitchen. He started screaming at the children who were getting ready for school, blaming them for not giving the ferret its medication. He was very angry and demanded the children give him their iPod Touch which they had received as a Christmas gift from their mother.

She intervened and said "No" as she lay in her bed. The accused jumped on the bed and started to hit her in the head. He jumped off and ran downstairs when the complainant called 911.

[ 28 ] The police arrived shortly thereafter and arrested the accused. He was charged, convicted, and sentenced. He was placed on probation with conditions that he was not to contact the complainant and to stay away from her residence. Incident No. 3 [ 29 ] Sometime in the next month, February, the complainant woke up one morning to get the children ready for school. She saw a green light flashing from a box at the foot of her bed and some newspaper covering the box. When she lifted the paper, she found a webcam connected to the internet and pointed towards her bed.

She unplugged the webcam and called the police. [ 30 ] The accused was on a probation order at the time with a condition that he was not to have any contact with the complainant or attend at her residence. He was arrested for mischief, pleaded guilty, and was sentenced to time served of 31 days and placed on probation. [ 31 ] He was released on or around March 26th or 27th, 2010. The complainant was advised of it and she and her children quickly packed and left the next day, fearing for their safety. They moved to British Columbia and settled in the Lower Mainland. [ 32 ] Ms.

Bogdan went to the RCMP Detachment in Surrey to let them know she was hiding from the accused and of her fears. Two days later, she met with two RCMP Officers, Constables Croshaw and Stephen (phonetic). She told them of her fear that the accused would be looking for her, provided them with the names of some of her friends with whom she had been in touch, and went over some safety measures with the officers. [ 33 ] Ms. Bogdan also wanted to see if the accused was aware that she had left Ontario and if so to find out how he had reacted to it.

When she attempted to access his Facebook account to check up on him, she was unable to do so as her access had been blocked. Her sister, however, was able to access it and in the

section under the heading, "Wayne's Profile," came across a subsection headed, "Wayne's Notes," which contained a lengthy paragraph entitled "My thoughts on and about a terrible situation that exists in my life," referring to his separation from his wife and children. The complainant took this passage to mean that he would not give up on her and their relationship and would be looking for her.

She was afraid he would cause her harm. [ 34 ] In June of that year, she received a telephone call from Jen Dalton, one of her friends whose name she had provided to the police, informing her that the accused had posted some pictures on his Facebook Page. [ 35 ] Ms. Bogdan managed to access the accused's Facebook Page on that occasion and on viewing the contents, became greatly concerned.

She saw pictures of places she visited or frequented, or nearby locations in the Lower Mainland such as a gym adjacent to a Tim Hortons in Port Moody where she exercised, or a Wave's Coffee Shop in Port Coquitlam which she frequented. She stopped visiting those places. There was also a picture of B.C. Place stadium which is apparently located near her place of employment.

She was alarmed and became scared for her life. [ 36 ] In cross-examination, she agreed that she had not been contacted by the accused directly in any way and that she had accessed his Facebook Page to check up on him. [ 37 ] I noted that throughout her testimony, Ms. Bogdan appeared apprehensive of the accused with her voice quivering at times and at other times breaking down in tears or otherwise visibly shaken notwithstanding that she testified behind a screen pursuant to s. 486.2(2) of the Criminal Code . It was readily apparent that her fear of the accused is very real to her. [ 38 ] Ms.

Pam Seidlitz, a friend whom the complainant visited on her way to the Lower Mainland, testified by video as she resides in Winnipeg. She works as a system analyst with the justice system in Winnipeg and had previously worked as a court clerk. She had known Ms. Bogdan since approximately 1992 when they were college classmates. [ 39 ] She testified that Ms. Bogdan visited her sometime around the end of March 2010 for approximately one to two hours.

A few weeks later, she received an unexpected telephone call from the accused whom she described as being up and down emotionally, from being very upset at times, to being very angry towards the complainant at other times. Ms. Seidlitz said he was upset that Ms. Bogdan had left him, that he blamed himself for having lost his temper at her at times, that he loved her and she was the only person for him, that he would not love anyone else and that he loved children. He also got angry and said that if the complainant had listened to him he would not have needed to be angry with her.

He told her that he knew the complainant had gone to British Columbia and that he would follow her. She then texted the complainant and let her know about the telephone call. [ 40 ] Rhonda Werboski, another friend of Ms. Bogdan who resides in Winnipeg and works for the Canada Revenue Agency as a clerk, also testified by video. She had first met the accused about two years before she met the complainant. She similarly received an unexpected phone call from the accused sometime in the early part of April 2010.

She said the accused told her that he had been in and out of jail, that the last time was for mischief for installing a camera in the complainant's bedroom to keep tabs on her. He said the police found it and that was the reason he had been in jail. He also told her that he had hit Ms. Bogdan about 20 times and that it was like spanking a child. When cross-examined, she insisted that the accused had referred to 20 times, that he used the words "like spanking a child" and described an incident in a car in which he told her that he had "elbowed" the complainant. [ 41 ] He told her he thought Ms.

Bogdan was on her way to British Columbia and asked if she would email Ms. Bogdan and ask where she was and then to let him know. She did not, but she did phone the complainant to let her know that the accused had contacted her. In cross-examination, she denied she had misunderstood what the accused had told her. [ 42 ] Kim Gillis, another witness called by the Crown testified she had met the accused in the spring of 2010. They exchanged phone numbers, texted messages to each other, and eventually phoned each other. He told her he was separated, had been to jail a couple of times because he had hit Ms.

Bogdan, and was under a probation order not to have any contact with her or his children. He told her he did not know where the complainant lived except that she was in British Columbia and had expressed mixed feelings over the situation. At times, he would express sadness, telling her that he missed her and the children and at other times, he would be very angry at Ms. Bogdan, blaming her for taking the children so far away. He told her he lived in Ontario.

[ 43 ] They eventually arranged to meet and got together on two separate occasions. The first occasion was for a few days in the first or second week of August 2010 when he visited her. At the end of it, he invited her to accompany him back to Ontario and spend some time with him, which she did. On her return to Surrey, they continued to communicate with each other on a regular basis. These exchanges later became close, personal, and amorous. [ 44 ] The next time Ms. Gillis saw the accused was around July 2011 when he visited with a friend, Ms. Debra Hannigan, who was introduced to her as Debbie.

They arrived with each other riding a motorcycle and stayed for approximately two weeks. During that time, they travelled to various locations in Vancouver and the surrounding area with Ms. Gillis riding with the accused. They visited such places as White Rock, Coquitlam, Stanley Park and elsewhere around Vancouver as well as Cypress Mountain, Grouse Mountain and did the Grouse Grind. [ 45 ] On one occasion, they went to a motorcycle shop for some work to be done on the accused's motorcycle.

After picking up his motorcycle, the accused wanted to look for a particular apartment building which he told her was where the complainant's friends lived. [ 46 ] They found the apartment and he told Ms. Gillis that he wanted to take a picture of the building with him posing in it and post it on his Facebook Page so that if the complainant viewed it, she would know that he was in the vicinity. Ms. Gillis testified that Debbie took the picture without the accused in it. He also told her he wanted to scare Ms.

Bogdan and wanted to post other pictures of where they had been to let her know that he was in British Columbia. She said this conversation took place in the presence of Ms. Hannigan. With reference to those pictures, she said, "The pictures themselves weren't a threat. They were just acknowledgement that he was there." She further testified that when the accused spoke of the complainant he would be sad one moment and angry in the next. He was angry at her for getting him placed on a court order and made threats directed at Ms. Bogdan. [ 47 ] According to Ms.

Gillis, the accused would say, "If I find her, I'm going to kill her so she'll know what loss is all about," or words to that effect. At other times he told her, "I want her to look behind her back for the rest of her life," or "I want her to know that I'm close," or similar words. She suggested to him that he did not really mean what he said. According to her, the accused would say he meant it at times and at other times would say that he would never go through with it. Ms.

Gillis told the Court that his utterances made her feel nervous. [ 48 ] Her next contact with the accused was in September or October 2011 when she received some mail addressed to the accused with her address on it. She was surprised and not pleased as she had not heard from him, was not aware that he had used her house as a forwarding address, and had not given him permission to do so. She texted him about it.

He replied by stating that he would drop by to pick up the letters, but by then she had sent them back. [ 49 ] She was subsequently contacted by the police and provided them with a statement but did not know why the police had approached her for a statement or what they were investigating. She did not know that it had anything to do with the complainant or the accused's probation orders. [ 50 ] In cross-examination, she said the accused had told her he wanted to move to British Columbia. She disagreed with the suggestion that the accused never said he wanted to scare Ms.

Bogdan. [ 51 ] The accused testified in his own defence and also called Ms. Debra Hannigan. [ 52 ] Mr. Corby commenced his testimony by providing his version of the earlier incidents described by Ms. Bogdan. With respect to the 1998 incident that resulted in their separation for a number of months, he denied it was the reason for their separation. He said Ms. Bogdan was attempting to park and said she did not like backing up. He told her that she had passed her driving test, had a driver's licence, and should be able to park.

They bantered back and forth as to where she should park when, according to him, the complainant said, "Screw this, I'm leaving it here." The accused placed a hand on her shoulder and told her to park it. He denied striking her. According to him, that was the extent of what had happened. It was a non-incident to him. [ 53 ] As for the incident that took place around Christmas 2004, he explained that Ms. Bogdan and the children had gotten into their car and she had started the engine because it was cold outside. He approached the vehicle and knocked on the window which was frozen.

He was holding a snowbrush at the time to clear the window. She opened the door and he asked her where she was going but was unable to hear her response because the engine was running and the engine belt was making a lot of noise. He reached inside the vehicle to turn the ignition off when she reacted and he pulled out his arm. As he did so, he hit her in the eye with his elbow. He described it as an accident but was nevertheless charged with assault, pleaded guilty and received a sentence of imprisonment of 20 days. [ 54 ] In his cross-examination, he denied punching her.

He explained that he was going to go out for a cup of coffee and had intended to scrape the snow off the windshield with a snowbrush. Ms. Bogdan and his children came out and entered the vehicle without saying anything to him. Ms. Bogdan turned on the ignition but had not cleared off the windshield. There was still a lot of ice on the windshield and he knocked on the window. The complainant opened the door and he asked her where she was going. He could not hear her reply as the belt was making a noise and the fan was on at the same time. He reached in to turn the ignition off and at the same time, Ms.

Bogdan tried to grab the key. He pulled his arm out and felt his elbow hit something. He thought it was the door. [ 55 ] With respect to the incident over the pet ferret, he testified that he wanted to take away the iPod because he could not get a straight answer from his children about why the ferret had not received its medication. [ 56 ] The complainant, who was upstairs in her bedroom at the time, told him that he was not going to take the iPods away.

She then mentioned that he had not been home the other night, had returned home at around 6:00 the next morning, and accused him of being out with another woman. The accused said he had kind of lost his cool at that point, went upstairs and jumped on the complainant who was lying in bed. He did not recall punching her but thought she may have gotten hurt when he jumped on her.

He was charged with assault, pleaded guilty, and received an intermittent sentence of 45 days imprisonment and placed on probation with a condition among others not to have any contact with the complainant. [ 57 ] As to the mischief charge relating to the webcam with the flashing light in the complainant's bedroom, the accused said he

pleaded guilty to the charge and received a sentence of time served of 30 days followed by a period of probation. He was released on March 25th or 26th, 2010. [ 58 ] In his cross-examination, he testified that although he had pleaded guilty to the charge, he denied placing the camera in the complainant's bedroom. He explained that there was a computer and modem in the bedroom. A security camera was always hooked up. He was on the computer, there was a power bar he was trying to plug in an E-card scan and when he was hooking it up, he saw several outlets.

He plugged it in and he made reference to something about plugging the wrong cord in. He said he had no idea where the camera was. [ 59 ] In my view, this explanation does not logically explain why he pleaded guilty to a mischief charge as based on his testimony he had not done anything wrong. It is difficult to reconcile his explanation with the sentence he received of 31 days' time served in the circumstances. [ 60 ] After he was released, he became aware that Ms. Bogdan and the children had moved. He told the Court he was devastated.

He thought they might have travelled to British Columbia and phoned Pam Seidlitz in Winnipeg. He said he was lost when he had the conversation with Ms. Seidlitz and that he was beside himself with grief but denied he was angry. [ 61 ] He also contacted Ms. Rhonda Werboski but denied telling her he had hit Ms. Bogdan 20 times, that it was like spanking a child, or that he had asked her to email the complainant to find out where she was. Rather, he said he told her about the two assault charges he had pleaded guilty to and said she was mistaken about the conversation.

According to him, what he had actually told her was that he would not spank a child and hurt a child so he would not hurt her, that he would never harm her, and that when he hit Ms. Bogdan the first time it may have felt like 20 times, or something to that effect. He also disagreed that the phone call to her was to find out where the complainant had gone. [ 62 ] With respect to his Facebook Page, he testified that the comments he wrote about the complainant were only expressions of his thoughts at the time, much like if he were writing a diary. He said it was not intended for the complainant to view and that Ms.

Bogdan was not on his list of friends who would have access to his Page. He also said he had blocked her from access in January 2010. [ 63 ] As for the reference on his Page to the song, "Every Breath you Take" by the The Police, he testified he was not aware that it had been posted and in cross-examination stated that Ms. Hannigan had placed it there on his behalf. He had heard it played in a movie both he and Ms. Hannigan were watching at the time and wondered if he should put it on his Page.

He said it was not meant for the complainant. [ 64 ] With respect to the pictures on his Facebook account, I note that the pictures he had placed on his Wall were a few of many he had in his account. He also changed some of those pictures from time to time. He testified that notwithstanding this was his personal account he was not aware of the some of the pictures that were on his Page. [ 65 ] As for those pictures he was aware of, he explained they were placed there for his own use and were never directed at the complainant as a message of any kind.

He expected that only those he had invited to be his friends would view his pictures and the complainant was not included in that group. As a result, he said he did not expect her to access them. [ 66 ] They were images of places he had visited and were taken because the scene or location caught his or Ms. Hannigan's interest in some way. As an example, he said the picture of the "Laughing Bean Coffee Shop" depicted in one of the Exhibits was taken because he thought the name was funny. [ 67 ] He had a similar explanation for the picture of the apartment complex in Langley were Ms. Bogdan's sister once lived.

He was riding around the Langley area after having his motorcycle tires replaced at a shop in Langley. He was following Ms. Gillis who was driving a van with Ms. Hannigan as a passenger. They were looking around as Ms. Gillis had been made aware that Ms. Hannigan had thought of relocating to the Lower Mainland and had mentioned that rent was cheaper and more affordable in Langley than in other parts of the Lower Mainland. They came to an intersection. The accused recognized the area and honked his horn. He took over the lead and as he drove ahead, recognized the building.

He however testified that he knew nothing about the picture or that it had been posted on his Facebook Page. He said it was Ms. Hannigan who told him she had taken the picture and posted it on his Page. [ 68 ] As noted earlier, Ms. Hannigan also testified. [ 69 ] Her evidence was that she met the accused in February 2010 in a coffee shop and they quickly became friends. They shared many things in common and became roommates in Welland, Ontario in September 2010 and remained so until the accused's arrest in this province in November 2011. [ 70 ] Ms.

Hannigan told the Court that they were very close to each other and that he was like a brother to her. She confirmed that they travelled to various locations throughout the Lower Mainland and surrounding area and took many pictures as she enjoyed taking photographs. Some of them were posted on the accused's Facebook Page but only to show where they had visited and when. These included several with mountains in the backgrounds, others with Tim Hortons restaurants, and several others of local businesses. She testified that some were placed there by the accused while others were posted by herself.

She also said she posted the link to the song, "Every Breath you Take" by The Police. She also produced other pictures that were included in several albums in the accused's Facebook account which I understand to be a series of folders within another category of the Facebook Page called "Photos," with each folder containing any number of images. These pictures depicted locations in other parts of the country including a series of pictures of Tim Hortons restaurants, landscapes with mountains in the background, and of intersections.

They were thus of a kind that were consistent with those found on the accused's Facebook account. [ 71 ] In the context of these circumstances and the explanations provided by the accused and Ms. Hannigan relating to the contents of the accused's Facebook Page, can it be said that his conduct when considered in its totality within the background presented, fell within the conduct specified in s. 264(1) of the Criminal Code as submitted by Ms. Wakabayashi?

[72] Ms. Vachon, on behalf of the accused, argued that the threatening conduct referred to in that subsection must not only be foundto be such when viewed subjectively through the eyes of the complainant, but must also be reasonably found to be objectively threateningon the evidence.

In the case at bar, she submitted that the evidence established that the postings were innocent, non-threatening innature, and was never intended for the complainant as the accused never made any contact with her or attempted to communicate withher and had no way of knowing if she would even view this his Page. [73] Counsel referred to the following cases: R. v. Ryback, (BC CA), [1996] B.C.J. No. 285 (B.C.C.A.); R. v.Kosikar, (ON CA), [1999] O.J. No. 3569 (Ont. C.A.); R. v. Malkoske, [2010] B.C.J. No. 2139 (B.C.S.C.); R. v.Zienkiewicz, [1994] B.C.J. No. 3141 (B.C.P.C.); R. v. P.M.B., [2011] B.C.J.

No. 2499 (B.C.P.C.); and R. v. Scuby, 2004 BCCA 28. [74] In Kosikar, supra, Goudge J.A. followed the Alberta Court of Appeal in R. v. Sillipp (1997), 1997 ABCA 346 , 11C.R. (5th) 71 and listed the five essential elements of the offence of criminal harassment under s. 264 of the Criminal Code. They are: 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. [75] In that case, the accused had sent a letter to the complainant in which he reiterated his love for her, rebuked her lifestyle, andcontained explicit and aggressive sexual references.

It left her very shaken as the accused had persistently sent her letters and gifts andfrequently went to the restaurant where she worked and tried to engage her in conversation. He persisted in paying her unwantedattention. She made it clear that she was not interested and wanted him to leave her alone.

The letters over time began to carry the themethat God had promised her to him, that she had no free will, and that her life had been pre-destined to be with him. [76] The Court of Appeal held that the sending of a single letter in the context of the background circumstances constitutedthreatening conduct under s. 264(1) of the Criminal Code.

Goudege J.A. stated the following in para. 25: [25] Hence, I think this element of the offence requires the Crown to prove that as a consequence of the prohibited act thecomplainant was in a state of being harassed or felt harassed in the sense of feeling "tormented, troubled, worried continually orchronically, plagued, bedeviled and badgered". [77] With respect to the particular facts of that case, he stated in para. 27: [27] … Here, the single incident constituting the threatening conduct is the sending of the letter in January 1998.

The evidence of theprior contact between the appellant and the complainant is used to prove that as a consequence, the complainant felt harassed. That priorcontact is not an element of the offence.

The fact that the complainant felt harassed as a consequence of receiving the letter is. [My emphasis] [78] It would thus seem from the above that the Court concluded that it was the receiving of the letter by the complainant thatconstituted the harassment of the complainant although the sending of the letter constituted the threatening conduct. [79] Our Court of Appeal also considered the constituent elements of the offence under that subsection in Ryback, supra.

That casedealt with a stalker situation involving an accused who displayed persistent and unwanted attention on the complainant frequenting thestore where she worked and loitering outside of it at other times and watching her as she worked and thus differs significantly from thefacts in the case at bar. [80] The decision is nonetheless helpful for the principles the Court applied to the facts. Finch J.A. (as he then was) stated in para.32: [32] In my view, a similar test can be applied to a charge of harassment under s. 264.

The appellant's conduct which is the subject ofthe charge is to be looked at objectively and in the context of all that preceded it. [81] It thus seems to me that the conduct complained of must be looked at objectively to determine if it falls within s. 264(1) whichwas the argument advanced by Ms. Vachon. [82] The other cases referred to apply the above principles to the individual fact patterns existing in each of the cases and are thus oflimited assistance.

In all of the cases, however, the common thread is that the conduct engaged in by the accused was clearly andunequivocally directed specifically to the complainant and meant for the complainant to receive. [83] Does the conduct of the accused in the circumstances existing in this case meet the test as set out in Kosikar, supra, andRyback, supra? [84] I am satisfied from the evidence and it is not in dispute that the accused was not prohibited from travelling to British Columbiaand was accordingly free to visit this province at any time.

He was, however, prohibited from contacting the complainant pursuant totwo probation orders during the relevant timeframe. He did not contact or communicate with the complainant at any time. [85] I am also satisfied that there is nothing in the evidence from which to conclude that the accused knew where the complainantlived or frequented after she relocated to this province – and here I am going to make a correction on my reasons for judgment to be filed

at para. 77. I have referred to where the accused lived and it should read, "where the complainant lived." [86] I am also satisfied that none of the material posted on the accused's Facebook Page can be considered to be threatening inthemselves. The message to the complainant on the Info Page under the heading, "Basic Information About Wayne," was an expressionof his thoughts and available for viewing by anyone who accessed it.

It was one giving an apology, seeking forgiveness and expressinglove. [87] Similarly, the link to the song by The Police "Every Breath you Take" is one to a current popular song often played on the radioand no doubt enjoyed and appreciated by many in our community, adults and teens alike. In that sense it is "just a song," and non-threatening by itself. [88] As for the pictures posted, they are in themselves neutral and non-threatening and merely depict various places or scenery. Asstated by Ms. Gills, "the pictures themselves weren't a threat.

They were just acknowledgement that he was there." [89] It should be noted that she was aware of the situation between the accused and the complainant that he was separated, had beento jail a couple of times because he had hit Ms. Bogdan and was under a probation order not to have any contact with her or his children. According to her, he also told her he wanted to scare Ms. Bogdan and wanted to post other pictures of where they had been to let herknow that he was in British Columbia.

Despite all of this, she considered the pictures not to be a threat. [90] It seems to me that access by another party to the accused's Facebook Page and its contents are outside the control of theaccused. In the complainant's case, there was no definitive way for the accused to ensure that the complainant viewed his page, as it wasa step entirely in the control of the complainant. [91] Applying the principles stated in Kosikar, supra, it would seem that there could not be any harassment until such time as thecomplainant decided to view it.

That step, in my view, introduces an element of uncertainty to the completion of the offence as it isoutside the control of the accused.

Whether or not the complainant was harassed was thus dependent solely on her actions and not theaccused's. [92] In such circumstances, it seems to me that it falls short of establishing one or more of the essential elements that must be presentbefore a conviction can be founded under s. 264(1). [93] In my view, it could also not be established that the accused who engaged in such conduct knew that the complainant in thosecircumstances was harassed or was reckless or wilfully blind as to whether the complainant was harassed by such conduct. [94] As well, the pictures themselves were non-threatening and neutral in nature.

Objectively, they were of a benign character aswere the comments about the complainant and the link to the song by The Police. It may well be that some of the images had a specialmeaning or significance to Ms. Bogdan subjectively viewed whether because they were of businesses or places she visited or attended, orbecause they were of a location near her place of employment. However, none of these either individually or collectively werespecifically directed to the complainant.

Rather, they were placed on the accused's Facebook for any Facebook user to view. [95] The placement of the images on the accused's Facebook Page are also consistent with the explanation provided by him and Ms.Hannigan that they merely depicted places they had been to, particularly in light of the fact that Ms. Hannigan produced numerous otherphotographs of a similar kind from other locations in Canada including a series of photos of Tim Hortons restaurants. [96] It thus seems to me that the pictures are objectively open to other reasonable

interpretations on the evidence. Further, as notedearlier, there was nothing by way of evidence before this Court from which to conclude that the accused knew or was even aware ofwhere the complainant lived, worked, visited or frequented from the time Ms. Bogdan left her home in Ontario and settled in BritishColumbia until the time the accused was arrested on these charges.

It therefore seems to me that any pictures on his Facebook Page thatare of such places or businesses could only be considered to be coincidental and not deliberately or intentionally placed. [97] There was also evidence led with respect to a visit to a pub in Coquitlam during the time the accused and Ms. Hannigan werestaying with Ms. Gillis. The accused had driven Ms. Gillis, Ms. Hannigan and some female friends of theirs to the pub and had then left.

As it turned out, the complainant also happened to be there. [98] Despite a suggestion to the contrary, there is no evidence before this Court that suggested that the accused or Ms.

Hannigan andher group knew in advance that the complainant was going to be at the pub at the same time they were present and I can only concludethat it was coincidental and an accidental happenstance. [99] As a result of a careful consideration of all of the above and applying the principles set out in Kosikar, supra, and Ryback,supra, to my findings above, I have not been persuaded that the Crown has proved the constituent elements of the offence of criminalharassment under s. 264(1) beyond a reasonable doubt, and accordingly find the accused not guilty of that charge. [100] With respect to Count 2, Ms.

Gillis has testified to the threats made while the accused denied making them. Accordingly, thedetermination of whether the Crown has proven this count necessitates an assessment of the evidence and the credibility of thewitnesses. In doing so, I am mindful of the principles set out in R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742. [101] As noted above, Ms. Gillis' evidence was that in reference to the complainant the accused told her at times, "If I find her, I'mgoing to kill her so she'll know what loss is all about," or words to that effect.

At other times he told her, "I want her to look behind herback for the rest of her life," or "I want her to know that I'm close," or similar words. She testified that the accused at times said hemeant it while at other times he said he would never go through with it. Those comments made her feel uneasy. [102] The accused acknowledged that he first met Ms. Gillis on line in June 2010 and stayed with her for a few days when he visitedBritish Columbia in July of that year. He travelled to this province again together with Debbie Hannigan on their motorcycles in June2011 and stayed with Ms.

Gillis from June 13th through the 23rd. According to both he and Ms. Hannigan, their visit was amicable, they

did many things together including sightseeing and parted on good terms when the accused and Ms. Hannigan returned to Ontario. The accused stayed in contact with Ms. Gillis exchanging text messages and phone calls into September of 2011. However, the accused denied telling Ms. Gillis that he would kill the complainant. [ 103 ] In cross-examination, he denied telling her that he thought Ms.

Bogdan lived somewhere in Coquitlam/Port Coquitlam; that she had viewed his Facebook Page; that he was posting some pictures on his page so the complainant would know he was close by; that he wanted her to know he was nearby; or that he wanted Ms. Bogdan to look behind her back for the rest of her life. [ 104 ] There is clearly a conflict in their testimony. Is the accused's denial credible?

Does it have internal and external consistency with other evidence? [ 105 ] In examining his evidence, I note that his description of the incidents which resulted in charges and criminal convictions as described above, differed substantially from that given by the complainant. It seems to me that he invariably diminished or minimized his conduct or explained the way his actions as an accident or a non-incident, such that as I noted earlier, his explanations did not reconcile with the charges he was subsequently convicted of or the sentence that was imposed.

His explanations did not have an air of reality to them. [ 106 ] By way of illustration, the incident around Christmas 2004 in which the accused testified he accidentally hit the complainant in the eye as he withdrew his arm when he reached into the vehicle to turn the ignition off while the complainant was in and did not mean to hit her, is in my opinion inconsistent with his inconsistent with his guilty plea to the charge of assault and the subsequent sentence of imprisonment of 20 days.

Rather, it seems to me that the complainant's version of being punched in the eye is more consistent with such a conviction and sentence. [ 107 ] Similarly, his explanation of the incident in January 2010 in which he jumped on the complainant's bed as she was laying on it and thought she "Must have got hurt from my knee" when he did so suggesting that it was accidental and unintentional is also inconsistent with his subsequent conviction for assault and a 45-day intermittent sentence. [ 108 ] As well, his explanation of the incident involving the webcam to which he pleaded guilty to the charge of mischief and received a sentence of 31 days' time served made no sense at all as I noted earlier.

He did not provide any explanation as to why he was charged, convicted and sentenced, and as a result I did not find it plausible or credible. [ 109 ] In each of these incidents, it seems to me that he attempted to excuse or minimize his conduct while shifting blameworthiness away from himself. [ 110 ] It also seems to me noteworthy that although he attempted to explain away his actions towards the complainant as being accident, Ms. Seidlitz testified that the accused told her that he blamed himself for having lost his temper at the complainant at times. [ 111 ] Ms.

Werboski also testified that the accused called her up unexpectedly and during the course of a lengthy conversation told her he had been in and out of jail, that the last time for mischief for installing a camera in the complainant's bedroom to keep tabs on her. [ 112 ] It seems to me that what he disclosed to Ms. Werboski is inconsistent with what he told the Court. What is also noteworthy about Ms. Werboski's testimony was that the details she related could only have come from the accused. She did not receive that information from Ms.

Bogdan as she contacted the complainant only after she had received the call from the accused. [ 113 ] I was impressed with her demeanour on the stand. She was composed and was not evasive but rather straightforward and careful in her responses. She was an independent third party without any interest in these proceedings and accordingly did not have any motive to testify otherwise than in the manner that she did. In my opinion, there was nothing in her evidence from which to conclude that she had been mistaken and misunderstood what the accused had said in relation to his hitting the complainant 20 times.

I see no reason why her testimony as to what the accused told her about hitting the complainant 20 times would not be accurate when the rest of her testimony and in particular to that relating to the installation of the camera was unchallenged. In the circumstances, I find her to be a credible and reliable witness and accept her testimony on this matter over that of the accused. [ 114 ] In accepting her evidence, I also find that the accused's various explanations of the circumstances that led to the charges and subsequent convictions are not credible. Although he denied he told Ms. Werboski that he had hit Ms.

Bogdan 20 times, he said he told her he hit Ms. Bogdan about two times, referring to the incidents of the two assaults described above. He also told her that he would never harm the complainant. This seems to me to be an internal inconsistency that makes little sense in the circumstances. [ 115 ] With respect to Ms. Gillis' testimony, I note that she had never met with the complainant or had any contact with her. Rather, she was good friends with the accused, and socialized and travelled around Metro Vancouver with him.

By all accounts, it would appear that the two of them got along well with each other and enjoyed each other's company, even as the accused and Ms. Hannigan stayed with her for some two weeks while she worked. They parted on good terms when the accused and Ms. Hannigan returned to Ontario. They continued to communicate regularly with each other into September 2011, exchanging close personal messages. [ 116 ] When it was suggested to her, Ms.

Gillis denied that she held any ill feelings towards the accused although she readily admitted that she was upset when he used her address as a forwarding address for his mail without consulting with her. It was with this background that she provided a statement to the police in which she outlined the utterances made by the accused that are the subject of Count 2. [ 117 ] With respect to the statement Ms. Gillis gave to the police, I am unable to find on the evidence any cause or motive for her to mislead them and make up the threats towards Ms. Bogdan that the accused made.

At the time, she did not know why the police were interested in speaking with her, she did not know why the accused was being investigated or what the investigation was about. Why would she make up what had been told to her by the accused? What did she have to gain by it? Why would she be so mistaken about that particular portion of her testimony and not about so many of the other things said to her by the accused?

[ 118 ] In considering her evidence, I note that she did not display any animosity towards the accused and in my view gave her evidence in a measured and balanced manner. By way of an example, while she was quite aware from what she had been told by the accused as to the breakup of his relationship with Ms.

Bogdan and his statements to her that he wanted to take some pictures and post them on his Facebook account to scare the complainant, she testified that she did not find the pictures to be threatening but merely an acknowledgement that they had been there. [ 119 ] As for the utterances made by the accused, according to Ms. Gillis, as I understood her testimony, they were made on several occasions rather than just once or twice. In some cases she reacted by asking him if he really meant it and his comments made her feel uneasy.

Clearly, his utterances left an impact on her and in those circumstances it seems highly unlikely based on life experiences that she would be mistaken as to what was said. On the other hand, I note that the accused's denial was a blanket statement easily made and with the strongest motive in the world. [ 120 ] In my view, her testimony was also externally consistent with that of the other witnesses in describing the accused's up and down emotional state when he talked about the complainant. Ms. Seidlitz who did not know Ms.

Gillis and had never met her testified that the accused was very upset at times and very angry towards the complainant at other times, telling her that he knew Ms. Bogdan had travelled to British Columbia and that he would follow her. [ 121 ] Ms. Bogdan also described the emotional vacillations of the accused from being apologetic for his conduct to being very angry towards her. Similarly Ms. Gillis, independently of Ms. Seidlitz or Ms. Bogdan, described the accused as at times expressing sadness and upset over Ms. Bogdan leaving him, while at other times said he was very angry towards the complainant.

It seems to me that the accused's display of anger towards Ms. Bogdan at times when talking about her is consistent with his utterances as described by Ms. Gillis. [ 122 ] In light of all of the above, I do not find the accused's denial of what he had told Ms. Gillis to be credible and do not accept it. I do however find Ms. Gillis' testimony on this issue to be plausible and consistent with the other evidence and accept it.

In doing so, I find that the Crown has established that the accused did knowingly utter a threat to Kim Gillis to cause death or bodily harm to Mihaela Michelle Bogdan between the dates specified and find him guilty of that count. (ORAL REASONS FOR JUDGMENT CONCLUDED)